Queensland Parliamentary Library

Protecting Workers with Family Responsibilities under Queensland’s Discrimination Law Amendment Act 2002

The new provisions in the Discrimination Law Amendment Act 2002 protect persons with family responsibilities from discrimination. The law encompasses a broad range of persons for whom the care or support may be given. It is not restricted to merely care for a child but also includes members of the immediate family. Thus, if a person needs to take time off work to care for an elderly parent, they cannot be subjected to discrimination and this may mean that the employer should attempt to make arrangements that accommodate the needs of the employee.

This Brief will consider how the new protection for those persons with family responsibilities will apply in the broad range of areas covered by the legislation, with a particular focus on the workplace. Comparisons with other jurisdictions will be made.

Nicolee Dixon Research Brief No 2003/05

Queensland Parliamentary Library Research Publications and Resources Section Ms Karen Sampford, Director (07) 3406 7116 Mr Wayne Jarred, Senior Parliamentary Research Officer (07) 3406 7422 Ms Nicolee Dixon, (Acting) Research Publications Officer (07) 3406 7409

© Queensland Parliamentary Library, 2003

ISSN 1443-7902 ISBN 0 7345 2852 3 FEBRUARY 2003

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Queensland Parliamentary Library.

Inquiries should be addressed to: Director, Research Publications & Resources Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Ms Karen Sampford. (Tel: 07 3406 7116) Email: [email protected]

Information about Research Publications can be found on the Internet at: http://www.parliament.qld.gov.au/Parlib/Publications/publications.htm

CONTENTS

1 BACKGROUND...... 1

1.1 TRENDS AND ISSUES RELATING TO FAMILY RESPONSIBILITIES ...... 2

1.1.1 Care of Dependant Children ...... 4

1.1.2 Care of Disabled and Elderly Persons ...... 4

2 LEGAL DEVELOPMENTS ...... 5

2.1 ILO CONVENTION NO 156 – WORKERS WITH FAMILY RESPONSIBILITIES .....6

2.2 NATIONAL IMPETUS FOR PROTECTION OF FAMILY RESPONSIBILITIES ...... 6

3 QUEENSLAND – BALANCING WORK AND FAMILY...... 8

3.1 PREGNANCY AND PARENTAL STATUS...... 8

3.2 INDUSTRIAL RELATIONS ACT 1999 (QLD)...... 9

3.3 NEW FAMILY RESPONSIBILITIES PROVISIONS - DISCRIMINATION LAW AMENDMENT ACT 2002 (QLD) ...... 10

3.4 DISCRIMINATION IN THE WORK AREA ...... 13

3.4.1 Some Case Studies...... 14

3.4.2 Family Friendly Workplaces...... 18

3.5 DISCRIMINATION IN OTHER AREAS ...... 22

3.5.1 Education ...... 22

3.5.2 Goods and Services...... 22

3.5.3 Superannuation and Insurance...... 23

3.5.4 Other Areas...... 23

3.6 DISCRIMINATION LEGISLATION IN OTHER JURISDICTIONS ...... 24

3.6.1 New South Wales...... 24

3.6.2 Victoria ...... 25

3.6.3 Australian Capital Territory...... 25

3.6.4 Western ...... 26

3.6.5 Tasmania...... 26

3.6.6 ...... 27

3.6.7 ...... 27

APPENDIX A – MINISTERIAL MEDIA STATEMENT...... 29

RECENT QPL LIBRARY RESEARCH PUBLICATIONS 2003 ...... 31

Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 1

1 BACKGROUND

An Australian family with a male breadwinner is less common than a few decades ago. A two-parent working family is more the norm, represented by 56.7% of Australian households and 56.4% of Queensland households in 2001. Working sole-parent families represent 46.4% of Australian households and 47.7% of Queensland households.1 This trend has been accompanied by a tendency for more men to assume larger roles in caring for children. It is still a fact, though, that women (who now represent over 72% of the workforce) assume the greatest responsibility for care of children and elderly relatives. It appears that where both parents work full-time, the mother spends about twice as much time (almost 4 hours) as the father (about 2 hours) on child care activities.2

The consequences for women in the workplace have been loss of training and promotion opportunities because of their actual or perceived family responsibilities. Indeed, the inherent or essential requirements of many jobs such as shift work, inflexible hours, or long hours may make it difficult for many male and female employees to adequately meet both their work and family demands. Many feel constantly rushed. A number of part-time employees, particularly women, feel unable to meet the standards of the ‘ideal worker’ (ie one who does not have family responsibilities to distract them from total job commitment), and believe that they are not being taken seriously in the workplace. Some such employees attempt an unsatisfactory compromise by fulfilling all of the employment demands, including making themselves available for work meetings outside working hours.3

Federal Sex Discrimination Commissioner, Ms Pru Goward, has commented that there is a lingering perception that part-time work cannot be challenging and that part-time employees are not sufficiently committed.4 She argues that family responsibility issues are the greatest barrier to pay inequity between men and women. Ms Goward is an advocate for change in the workplace to create an

1 Australia Bureau of Statistics (ABS), Australian Social Trends 2002 – Companion Data, Table 1: Family, Cat No 4102.0. From a survey of 7,393 households with children under 15.

2 Australia Bureau of Statistics, Australian Social Trends 1999, Family Functioning: Looking after the children. The statistics are based on a 1997 survey from a household questionnaire.

3 B Gaze, ‘Working Part Time: Reflections on ‘Practicing’ the Work – Family Juggling Act’, QUT Law Journal, 1(2), 2001, pp 199-212, p 200.

4 Pru Goward, ‘Work and family: The challenge for modern Australia’, 38th Annual Tracy Maund Address to the Royal Melbourne Women’s Hospital on 27 August 2002.

Page 2 Queensland Parliamentary Library environment that welcomes women, including those with family responsibilities, so they do not suffer so much economic cost for having Australia’s children.

Men with carer responsibilities also face difficulties in the workplace with a TMP Worldwide survey finding that around 27% of the 6,000 Australian male workers surveyed believed their employers actively discouraged fathers from taking time off to care for children, particularly in the legal area and the construction industry. However, 80.5% of female workers surveyed believed that men were not discriminated against in wanting to fulfil their family responsibilities. A TMP spokesperson commented that many employees, particularly women, may not be aware of working fathers’ problems or they believe that it is the mother’s role to be the primary care giver. Employers may also have a similar view that the father is the breadwinner and are not as prepared to be flexible with arrangements such as later starts and early finishes to collect children.5

It must, however, be remembered that it is not just child care issues that concern today’s employees. The need to care for disabled, sick or elderly family members is an issue confronting many people, particularly with Australia’s aging population. There is a trend towards integrating the elderly and disabled into the community with the community caring for them, and it is mainly women who undertake the caring role. Around 75% of Queensland’s primary care givers are female.6 Community support facilities are often in high demand and of limited availability, particularly in rural areas. With women filling the breach, issues are raised about their ability to participate in other areas of society, particularly the workplace, and to achieve financial security.

1.1 TRENDS AND ISSUES RELATING TO FAMILY RESPONSIBILITIES

The following information is taken from a Paper for the Queensland Department of Industrial Relation’s (DIR’s) Work and Family Unit ‘Workers with Family Responsibilities: Demographic Issues and Profile’ and sources referred to therein.7

While there has been a long-term decrease in the fertility rate (ie number of children per woman), the population is aging. This means that there will, in the not

5 Karen Ingram, ‘No kidding, working dads whinge and get scant sympathy from mothers’, Morning Herald Online, 15 January 2002.

6 Australian Bureau of Statistics, Disability, Aging and Carers: Summary Tables – Queensland, 1998, Cat No 4430.3, 1999.

7 Queensland, ‘Workers with Family Responsibilities: Demographic Issues and Profile’, Paper for the Queensland Department of Industrial Relations Work and Family Unit, RT Kinnard & Assoc Pty Ltd, June 2002, At http://www.ir.qld.gov.au/work&family/demographics.pdf Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 3 too distant future, be a smaller workforce and more people to support, leading to declining economic growth and standards of living.

It is predicted that the Queensland population will grow from 3.64m in 2001 to 6.58m by 2051, (more than double the percentage growth projected for Australia) and 23.1% of Queenslanders will be 65 years and over.8 There will be an increase in the dependency ratio (ie the number of children and number of persons aged 65 or more per 100 persons of working age) to 63.7 by 2051, but it should be below the national average of 67.9.9 The Queensland workforce is projected to grow by only 580,000 (1.36% compound growth) in the next 20 years (working on an assumption of no change in age-specific 2001 participation rates) and may subsequently slow down further.10 While the dependency ratio is kept in check by declining numbers of dependant children, there will be an aged dependency ratio of 37.8.11

Thus, there will be many more Queensland workers providing care for aged family members over the next 50 years. This trend will be accompanied by an increasing work participation rate by women with only a small increase in male workers.12 However, there is a smaller rate of participation by women with family responsibilities than by men and those women are more likely to work part-time or as casual employees.13

In 2001, around 42% of all Queensland employees had family responsibilities in terms of a child (29%), an elderly person or a person with a disability including a short or long illness (13%).14

8 ‘Workers with Family Responsibilities: Demographic Issues and Profile’ p 4, citing Queensland Department of Local Government and Planning, Population Trends and Prospects for Queensland, 2001 Edition.

9 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, pp 5-6, citing Queensland DLGP, Population Trends and Prospects for Queensland, 2001 Edition.

10 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, p 9 citing Australian Bureau of Statistics, Labour Force Survey, Queensland, Cat No 6203.3.

11 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, p 7.

12 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, pp 14-15.

13 Queensland Ministerial Taskforce on Work and Family, ‘Review of Work and Family in Queensland’, Issues Paper, August 2002, p 39.

14 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, pp 26-28.

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1.1.1 Care of Dependant Children

Of Queensland employees who are married with children under 15, around 73% work full-time but 94% of those are men. 61% of married mothers are in part-time work. In the case of 90% of mothers working full or part time, the father is also working. 10% of all employees are sole parents, with the majority of these being women.15

There seems to be a pattern of rising labour force participation by women after a child turns 5 years of age with 47%-58% of those with children under 5 not working compared with only 30% with children over 5.16

Given that many working parents rely on formal child care, state and federal governments have a number of strategies and policies in place to cater for that need. The ’s response includes the Childcare and Family Support Hub Strategy to provide a single contact point for child and family services (including child care facilities, health services) within particular communities.

1.1.2 Care of Disabled and Elderly Persons

Care for the disabled and elderly, unlike child care, seems to be more evenly divided between men and women workers. 52% of all employed persons who are also carers are female and 48% are male. An aging population will mean that many more workers in the future will also have carer or family responsibilities, with nearly 6% of Queensland employees having responsibility for elderly persons in 2051.17

While informal carers can find their roles rewarding, many feel socially isolated and lacking in educational and career opportunities. Carers tend to suffer strains on their health and emotional well-being, particularly if they receive little support from family or formal services. Those who work suffer the pressure of juggling their carer and employee roles.

The Queensland Government is recognising the issues that informal carers face, particularly those who also undertake employment. It has made a commitment to recognise their needs and their role in service delivery. Important issues relate to need for formal recognition, access to information, support services and

15 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, pp 29-30.

16 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, pp 31-33.

17 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, p 35. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 5 employment opportunities, and the ability to share experiences. Disability Services Queensland (DSQ) has been chosen as the lead Department to work with other agencies in this endeavour.18 DSQ is currently undertaking a Legislative Reform Project, including a review of the Disability Services Act 1992. It is also developing a carer policy to allow appropriate Government responses to needs. A discussion of a number of support programs for disabled persons and their carers (which include respite services, Family Support Program) is outlined in a background paper, Disability Care Initiatives. There is also, among other measures, a jointly funded state and federal Home and Community Care Program to assist with matters such as nursing, meals, health and other support.

Legislation to support carers, including anti-discrimination laws, goes some way to acknowledge the valuable role that informal carers play in looking after Australia’s elderly and disabled persons, in the absence of which there would be a greater financial burden on the nation’s social security and welfare systems. It has been suggested that the family informal carers have essentially privatised the carer function because of the affection or love for the person cared for, and contribute around $16b to the economy in unpaid labour and savings on formal care.19

Other financial support given to carers of children, the disabled and elderly include a means tested Family Tax Benefit; a Parenting Payment for low income families; means tested Child Care Benefit to assist with formal child care costs; a baby bonus; and a means tested Carer Payment to care full-time for a person over 16 with a disability, severe illness or frail aged.

2 LEGAL DEVELOPMENTS

The difficulties and discrimination that persons face in many areas of life because of their child care and other family responsibilities has begun to be recognised by governments. However, it is probably in the workplace and in work-related areas that the problems are highlighted.

18 At Disability Online - http://www.disability.qld.gov.au/reform/carer_recognition.cfm

19 Hon Dr A Chesterfield-Evans MLC, Anti-Discrimination Amendment (Carers’ Responsibilities) Bill 2000 (NSW), NSW Legislative Council, Hansard, 23 May 2000. At http://www.parliament.nsw.gov.au

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2.1 ILO CONVENTION NO 156 – WORKERS WITH FAMILY RESPONSIBILITIES

In the workplace context, Australia ratified the International Labour Organisation Convention No 156 – Workers with Family Responsibilities in March 1990 and it commenced in 1991. It applies to male and female workers with responsibilities to their ‘dependant children’ or ‘to other members of their immediate family who clearly need their care and support’ where such responsibilities restrict the workers’ possibilities of preparing for, entering, participating in, or advancing in economic activity.

Article 3 provides that signatories should make it an aim of national policy to enable workers with family responsibilities to engage in employment without being discriminated against and, as far as possible, without conflict between their work and family responsibilities. Article 8 stipulates that family responsibilities shall not, as such, constitute a valid reason for termination of employment.

Article 5 provides that nations shall take all measures compatible with national conditions to accommodate the needs of such workers in community planning (eg child care facilities).

2.2 NATIONAL IMPETUS FOR PROTECTION OF FAMILY RESPONSIBILITIES

The 1992 ‘Half Way to Equal’, Report of the House of Representatives Committee of Inquiry into Equal Opportunity and Equal Status for Women in Australia recommended changes to the Commonwealth Sex Discrimination Act 1984 to ensure that family, parental and carer responsibilities were prohibited grounds of discrimination. The recommended amendments took effect in January 1993, providing that employees cannot be dismissed on the ground of family responsibilities (s 14(3A)). Note that the law applies just to the area of employment and to dismissal only and it does not apply to State Government employees. There are no specific exceptions which employers can rely upon but the Human Rights and Equal Opportunity Commission (HREOC) can grant exemptions in certain circumstances.

The Sex Discrimination (Pregnancy and Work) Bill 2002 aims to prevent pregnancy or potential pregnancy discrimination during the recruitment process and to ensure that breastfeeding was included under the Act. The Bill was introduced into the House of Representatives in September 2001 before it lapsed when Parliament was prorogued prior to the November 2001 election. The Bill was reintroduced on 14 February 2002 but is yet to be passed in either House. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 7

The HREOC 2001-2002 Annual Report reveals that discrimination on the basis of family responsibilities or parental status made up 2% of the 399 complaints received during 2001-2002 financial year under the Sex Discrimination Act and those men complaining about such discrimination were more likely to be sole parents. Complaints of alleged pregnancy discrimination made up 16% of complaints in 2000-2001 but rose to 30% of complaints in 2001-2002, possibly due to greater public awareness.

The Workplace Relations Act 1996 (Cth) also prohibits dismissal on the same grounds (s 170CK(2)(f)) unless the reason for terminating employment is based on the inherent requirements of the particular position concerned. Section 170CK(2)(f) has been described by the Federal Court as intended to prevent the termination of an employee's employment if the employee is able to perform the work he or she was engaged to do though his or her performance is constrained (other than in a fundamental way) by family responsibilities. The constraint may, for example, be limits on the hours per day the employee can work either in the short or longer term, or may arise when the employee has to be absent from work because of the illness of a dependant child. Plainly the legislative inhibition on termination for this reason is subject to the inherent requirements of the position.20

Western Australia was the first state to address discrimination on the basis of family responsibilities in work, work-related, and educational areas. Most jurisdictions have followed suit to varying degrees but, to date, not all make family or carer responsibilities a ground of unlawful discrimination. Until the recent 2002 amendments, the Queensland ADA made only ‘parental status’ a prohibited ground of discrimination (s 7(1)). There have been few discrimination cases to test the strength of the different provisions, with most being tribunal decisions of limited legal status. The decision of the Victorian Civil and Administrative Tribunal in Schou v Sate of Victoria, Melbourne (Department of Parliamentary Debates) in 2002 (discussed below) does, however, provide guidance on what constitutes a reasonable practice in relation to an employee with family responsibilities.

In making it unlawful to discriminate on the grounds of parental or carer responsibilities, some jurisdictions have gone as far as including a broad range of persons for whom care is provided, not just family members. For example, under the Australian Capital Territory Discrimination Act 1991 and Victorian Equal Opportunity Act 1995, provided the care is on-going (ie other than merely casual or occasional), it covers care for a person who is wholly or substantially dependent on a person for ongoing care and attention. It could, for example, apply to the ongoing care for an elderly neighbour or a friend with a long illness.

20 Laz v Downer Group Ltd [2000] FCA 1390 (11 October 2000).

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In September 2002, the announced legislative changes to allow same-sex couples, not necessarily in a sexual relationship, similar entitlements to married or de-facto heterosexual partners in areas such as property, superannuation and employment. In terms of carer responsibilities, it would enable a man looking after a non-related elderly woman, to seek carer’s leave. The South Australian Government has also announced similar reforms.

3 QUEENSLAND – BALANCING WORK AND FAMILY

Putting Families First is the Queensland Labor Government strategy to address issues confronting Queensland families. A Ministerial Taskforce on Work and Family was established in 2001. The Taskforce intends, where necessary, to review legislation that affects work and family responsibilities, including the Industrial Relations Act 1999 (IR Act) and the Anti-Discrimination Act 1991 to identify barriers to progressing work and family issues. In August 2002, the Review of Work and Family in Queensland Issues Paper was released to provide background information on the work and family relationship and to find solutions to achieve a better integration of work and family for all.21 Public submissions will be considered in preparing a Report to the Minister for Industrial Relations.

3.1 PREGNANCY AND PARENTAL STATUS

Under the Anti-Discrimination Act 1991 (ADA), it has always been unlawful to discriminate on the grounds of pregnancy and parental status (s 7(1)(d),(e)). Thus, in the employment context, it may be unlawful for an employer to request job applicants to provide details in an application form about marital status and number and ages of children as it could potentially be information upon which unlawful discrimination could be based. Pregnancy or parental status may not be reasonable grounds for dismissal or failure to confirm an appointment nor for non- appointment. The foregoing grounds apply in a range of areas, not just employment, and include accommodation, education, goods and services, insurance, superannuation, disposition of property, and administration of State programs or laws.

During the 2001-2002 financial year, the Queensland Anti-Discrimination Commission (QADC) accepted 658 complaints under the ADA. 41 complaints concerned discrimination on the basis of pregnancy (6.23%), and 26 (3.8%) related to parental status. All pregnancy related discrimination complaints arose in the workplace context and discrimination on the grounds of parental status occurred

21 At http://www.ir.qld.gov.au/work&family/issuespaper.pdf Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 9 mainly in the work area also (20), followed by the areas of accommodation (4) and goods and services (2).22

Under the Discrimination Law Amendment Act 2002 (the 2002 Amending Act), the ADA has been extended to cover ‘family responsibilities’, bringing discrimination legislation into line with the Queensland Industrial Relations Act 1999 (IR Act).

3.2 INDUSTRIAL RELATIONS ACT 1999 (QLD)

One of the objects of the IR Act is to prevent and eliminate discrimination in employment. A ground of discrimination is discrimination on the basis of family responsibilities. As well as provisions entitling employees to up to 12 months unpaid maternity leave, parental leave, and adoption leave, the IR Act also gives an employee who is entitled to sick leave the right to take up to 5 days’ sick leave on full pay as carers’ leave to support members of the employee’s ‘immediate family’ (similarly broadly defined as ‘immediate family’ is in the 2002 Amending Act) or household who is ill.

All Australian jurisdictions have similar parental leave provisions but not all extend to former spouses or same-sex spouses. Eligibility of casual workers varies with NSW and Queensland having the most generous legislative entitlements for those workers. As yet there is no legislation in Australia that provides a right to paid maternity leave nor to part-time work. Apart from Queensland, only NSW and WA has proposals to provide a legislative right to carers’ leave but most jurisdictions, in practice, have such entitlements in place.

From 6 April 2003, British fathers will have the right to 2 weeks paid paternity leave within 8 weeks of the birth of the child. Paid maternity leave (£100 pw or 90% of weekly earnings) will be extended to 26 weeks and unpaid maternity leave also extended to 26 weeks. There will also be a legal duty for employers to consider requests for flexible arrangements from employees who are parents of children under 6 or a child under 18 with a disability.23 Some European countries, particularly France and Norway, have even more generous parental leave provisions.

In Queensland, awards that incorporate some or all of the Family Leave Award – State, give employees benefits, in addition to the above legislative entitlements, such as (all needing the employer’s consent) unpaid carers’ leave; up to 5 days’ annual leave for caring purposes; time off in lieu of payment for overtime for

22 Queensland Anti-Discrimination Commission, 2001-2002 Annual Report, p 13.

23 United Kingdom, Equal Opportunities Commission, ‘Dads do a third of child care but don’t get flexibility at work’, News Release, 13 January 2003.

Page 10 Queensland Parliamentary Library caring purposes; time off for such purposes to be made up later. Some awards allow Indigenous workers to take cultural or ceremonial leave of certain types.24

The IR Act also protects employees from dismissal on grounds relating to work and family (ie taking parental leave; pregnancy, birth or adoption by employee or employee’s spouse; discrimination under the ADA grounds; family responsibilities).

3.3 NEW FAMILY RESPONSIBILITIES PROVISIONS - DISCRIMINATION LAW AMENDMENT ACT 2002 (QLD)

The new provisions in the 2002 Amending Act protect persons with family responsibilities from discrimination. The laws set out a broad range of persons for whom the care or support may be given. It is not restricted to merely care for a child but also includes members of the immediate family. Thus, if a person needs to take time off work to care for an elderly parent, they cannot be subjected to discrimination and this may mean that the employer should attempt to make arrangements that accommodate the needs of the employee.

The 2002 Amending Act (s 12) inserts a new definition ‘family responsibilities’ into the ADA which states – ‘family responsibilities’, of a person, means the person’s responsibilities to care for or support – (a) a dependant child of the person; or (b) any other member of the person’s immediate family who is in need of care or support.

A new s 4C provides that the following persons (it appears that the list is exhaustive) are members of a person’s ‘immediate family’- (a) the person’s spouse; (b) a child of the person or the person’s spouse, including an ex-nuptial child, stepchild, adopted child, or past or present foster child of the person or the person’s spouse; (c) a parent, grandparent, grandchild or sibling of the person or the person’s spouse.

A ‘spouse’ of a person includes – (a) a former spouse; and (b) a de facto partner.

24 ‘Review of Work and Family in Queensland’, Issues Paper, August 2002, p 21 Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 11

A new s 4B provides the meaning for ‘de facto partner’ which is the basis for other significant reforms made by the Amending Act. It states – ‘(1) In this Act, a reference to a “de facto partner” is a reference to either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family. ‘(2) In deciding whether 2 persons are living together as a couple on a genuine domestic basis, any of their circumstances may be taken into account, including, for example, any of the following circumstances— (a) the nature and extent of their common residence; (b) the length of their relationship; (c) whether or not a sexual relationship exists or existed; (d) the degree of financial dependence or interdependence, and any arrangement for financial support; (e) their ownership, use and acquisition of property; (f) the degree of mutual commitment to a shared life, including the care and support of each other; (g) the care and support of children; (h) the performance of household tasks; (i) the reputation and public aspects of their relationship. … …. ‘(5) For subsection (1) – (a) the gender of the persons is not relevant....

Section 7 of the ADA sets out a number of attributes on the basis of which discrimination is prohibited. While ‘parental status’ has long been an attribute, s 14 of the Amending Act now ensures that discrimination on the grounds of ‘family responsibilities’ is now prohibited.

To discriminate on the basis of an attribute (eg family responsibilities) includes direct and indirect discrimination on the basis of a characteristic that a person with any of the attributes generally has, or is often imputed to a person with any of the attributes; or an attribute a person is presumed to have or had.

Part 4 of the ADA sets out the areas of activity in which discrimination is prohibited and the exemptions that apply in relation to each of those areas. The relevant areas include work and work-related areas; education; goods and services; superannuation; insurance; disposition of land; accommodation; club membership and affairs; administration of state laws or programs etc. It would appear that family responsibilities issues would more commonly arise in the work and work- related areas.

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General Exemptions set out in Part 5 apply to all areas. Those include doing an act to benefit, for example, a person with family responsibilities for whose benefit the legislation was intended (eg restriction of crisis accommodation for women and dependant children who have been subject to domestic violence). Other acts that do not constitute unlawful discrimination include promotion of equal opportunity for people with family responsibilities through certain measures (eg provision of a training incentive program for workers with children). Note that actions done to protect health and safety of workers are not unlawful nor are acts done in compliance with legislation. So if it would be impossible to make a home office comply with workplace health and safety legislation, it would not be unlawful to refuse an employee’s request to work at home even though they have family responsibilities.

Direct discrimination on the basis of an attribute (eg family responsibilities) occurs if a person treats the person with family responsibilities less favourably than another person without those family responsibilities in circumstances that are the same or not materially different. The motive for discriminating is irrelevant (s 10 ADA).

Indirect discrimination occurs if a person imposes a term (such as a condition, requirements or practice) –

• with which a person with an attribute (eg family responsibilities) does not or is not able to comply; and

• with which a higher proportion of people without family responsibilities comply or are able to comply; and

• the term is not reasonable.

In deciding if a term is ‘reasonable’ or not, it is necessary to look at all of the relevant circumstances such as the consequences of the failure to comply with the term; the cost of an alternative term; and the financial circumstances of the person imposing it (s 11 ADA). It appears that tribunals take a broader view of ‘reasonableness’ by looking at the inconvenience to both parties.25 The cases are difficult to reconcile.26

Note that unlike some jurisdictions (eg NSW), the family responsibilities and parental status attributes apply to all areas covered by the Queensland ADA.

25 Waters v Public Transport Corp (1991) 173 CLR 349.

26 ‘Civil and Political Rights – Discrimination’, Ch 80, Halsbury’s Laws of Australia, CD Rom. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 13

3.4 DISCRIMINATION IN THE WORK AREA

Selection for employment should always be on the basis of merit and all workers are entitled to be treated fairly in terms of work conditions, entitlements, training, promotions and access to work-related opportunities and benefits. The fact that a person has, or has had, or it is presumed the person has, family responsibilities should not be relevant to any such decisions.

In addition, the employer cannot discriminate to disadvantage an employee in relation to superannuation, for example, by any variation of the terms of the work that relate to superannuation or limiting the employee’s access to it. This also applies to insurance.

It would appear more likely that an employee with family responsibilities would more likely face indirect, rather than direct, discrimination – that is a condition or requirement of the job that the employee cannot comply with and with which a higher proportion of people without family responsibilities comply or are able to comply, and that condition or requirement is not reasonable. For example, all employees are required to attend a meeting for an hour after normal finishing time and a particular employee cannot do that because they have to collect a child from child care before it closes. The requirement may not be reasonable in all of the circumstances because it may have been possible to have scheduled the meeting earlier in the day.

A workplace policy of promotion on the basis of length of service is one that discriminates against employees who have breaks in continuity of employment because of child rearing responsibilities and favours those who do not have such absences. It might well be unreasonable to have such a policy as work performance and competence would be more acceptable tests of capacity for promotion.

Of course, some requirements of a job are essential and do not readily accommodate employees with family responsibilities. Under Part 4 of the ADA, it is not unlawful for an employer to impose genuine occupational requirements for a position. For example, a person who needs to work from home most days to care for a sick wife may not be able to argue discrimination on the basis of family responsibilities if they are employed as a security guard. Presence at the workplace would be considered an essential or inherent requirement. If, however, the request was for 2 months’ leave to provide the care, the employer should attempt to determine if any reasonable alternative arrangements could be made to meet the request.

It has been observed that the question about whether a requirement is inherent to a position must be answered not merely by reference to the employment contract (a stipulation about which is not necessarily conclusive of the matter) but also by reference to the function which the employee performs as part of the employer’s

Page 14 Queensland Parliamentary Library undertaking and by reference to the organisation of the work.27 The requirement may, but not always, constitute the characteristic tasks or skill required for the work in that position. One could ask whether or not the position would be essentially the same if that requirement were dispensed with.28

To illustrate - a man’s elderly mother has undergoes surgery and he wishes to take 4 weeks’ unpaid leave to care for her at home after the operation. The employer argues that there is no other employee who can fill in while the man is absent and refuses to grant the leave. This would amount to discrimination on the basis of family responsibilities if the refusal is unreasonable. In determining whether or not it is unreasonable, it is necessary to consider all the circumstances such as the cost of allowing the unpaid leave and finding a temporary replacement for the man. In other words, employers should attempt to do what is reasonable to accommodate employees with family responsibilities but will not be compelled to meet unrealistic or unreasonable requirements.29

Apart from the genuine occupational requirement exemption, the employer can rely upon others applying to work and work-related areas contained in Part 4 of the ADA. Those most relevant in the family responsibilities context are that it is not unlawful for a person to discriminate in relation to offering work or dismissing a worker if the work is to perform domestic services in the person’s home or to care for the person’s children in that home.

3.4.1 Some Case Studies

The following cases are a selection of recent Australian court and tribunal decisions regarding allegations of workplace discrimination based on parental or family responsibility.

Laz v Downer Group Ltd30

Ms Laz was a personal assistant to the managing director of a company. The employer required employees to work overtime at short notice but the employment

27 By Brennan CJ in the High Court decision of Qantas Airways Ltd v Christie (1998) 152 ALR 365, 366.

28 Qantas Airways Ltd v Christie (1998) 152 ALR 365, 374, 375 per Gaudron J.

29 The examples provided are adapted from those given by the NSW Anti-Discrimination Board website at the page on carers’ responsibilities. At http://www.lawlink.nsw.gov.au/adb.nsf/pages/carers

30 [2000] FCA 1390 (11 October 2000). Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 15 contract indicated that the need would be minimised. This requirement was one with which Ms Laz, and others with child care responsibilities, had difficulty complying. Ms Laz had no problems working overtime with some advance notice because she could organise for her husband or someone else to care for their young child. Otherwise, she could not work late on the two nights her husband gave lectures. When Ms Laz was on leave, she found out that a replacement for her was being recruited. The employer told her that he had been unhappy with her performance, as he had discussed with her previously. Ms Laz’s employment was terminated after many discussions with her employer about overtime and other issues. Ms Laz brought an unfair dismissal action under the Commonwealth Workplace Relations Act.

The Federal Court held that a significant reason for the termination of the employment was for a ‘proscribed reason’ - ie because Ms Laz demanded to be able to leave work at the usual time on nights her husband could not care for the child, unless given prior notice. The need for Ms Laz to be available beyond 5.30pm without prior notice was not an inherent requirement of her position as a personal assistant. There was no evidence of any work needing to be done after hours, or that any failure to do so had substantial consequences for the employer. The employer was ordered to reinstate Ms Laz.

Bogle v Metropolitan Health Service Board

A case before the Western Australian Equal Opportunity Tribunal concerned a registered dental nurse who went on adoption leave and, upon her return to work, wanted to return to the supervisory position she had held for 12 years but on a part- time basis. Mrs Bogle had also suggested a job-share arrangement option. The employer said that Mrs Bogle could only take back her old position on a full-time basis or accept a lower part-time position. Upon her eventual return to full-time work in the former position, Mrs Bogle had difficulty balancing her commitments.

Mrs Bogle lodged a complaint under the family responsibilities ground of the WA Equal Opportunity Act 1984. The Tribunal found that she had been discriminated against on the basis of her family responsibilities by the requirement that she work full-time which was not reasonable in the circumstances. Upon investigation, it was found that the to the employee’s offer to job-share was based, not on impracticability on an objective analysis, but on an entrenched historical belief that it would not work. The Tribunal ordered that Mrs Bogle be reinstated in her former Charge Nurse position on a trial or permanent job-share basis.31

31 Bogle v Metropolitan Health Service Board (2000) Equal Opportunity Tribunal (WA) 93-069.

Page 16 Queensland Parliamentary Library

Schou v State of Victoria Melbourne (Department of Parliamentary Debates)

The Victorian Civil and Administrative Tribunal’s (VCAT) decision in Schou v State of Victoria Melbourne (Department of Parliamentary Debates)32 in May 2002 has been referred to as a ‘landmark ruling compelling employers to be more responsive to the needs of workers with obligations to care for sick children or parents’.33 Ms Schou was a Hansard subeditor and had been with the Victorian Parliament for 18 years. During sitting weeks reporters had to attend Parliament an average of four days per week (not generally Fridays) and some of those days were very long. During non-sitting weeks, the hours were more flexible, apart from meetings, and usually occupied three days. In October 1994, about one year after taking maternity leave, Ms Schou found that her youngest child’s recurrent health problems now made it difficult to balance her long hours of work with caring for three young children. She told her supervisor and requested that consideration be given to her working part-time or working from home some days via a modem, fax and phone. Although the proposal was considered, Ms Schou agreed to continue with the present arrangements for the time being.

By February 1996 the health of Ms Schou’s youngest child worsened and she asked to work part-time until his health improved. Various options for doing this were negotiated with no real progress but, in August, it was proposed that Ms Schou work at home via a modem on Thursdays and Fridays of sitting weeks. Costings were prepared and IT experts were consulted. While IT supported the proposal, despite not being able to attend to it quickly, there was some resistance from other departmental heads who were concerned about ‘setting a precedent’ in their own departments. The matter then seemed to have been ‘shelved’. In November, Ms Schou resigned as she believed that the modem option would not eventuate and she could no longer continue full-time.

At first instance, VCAT held that the employer had indirectly discriminated against Ms Schou on the basis of her parental and carer status under the Equal Opportunity Act (which has ‘indirect discrimination’ provisions virtually identical to those in the Queensland ADA). The requirement that subeditors attend work full-time onsite on sitting days was the ‘imposition of a condition’. Because of her carer responsibilities, Ms Schou could not comply with that condition; and a higher proportion of employees who were not carers could comply with it. The matter turned on whether or not that condition was reasonable in all of the circumstances. At first instance, VCAT found it was not reasonable but the Department appealed.

32 Schou v State of Victoria Melbourne (Department of Parliament Debates) [2002] VCAT, Vice President Judge Duggan, 375, 24 May 2002.

33 Denise Ryan, ‘Working to the rules of the family’, Age, 15 June 2002. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 17

On appeal to the Supreme Court, it was held that VCAT had not properly considered the ‘reasonableness’ point and the case was referred back to VCAT.

Thus, the issue before Judge Duggan, Vice President of VCAT, was whether the need for subeditors to attend Parliament House full-time during sessions was reasonable and was appropriate to ensure that the employees provided the service for which Hansard was established. The factors regarding ‘reasonableness’ in the Act are the same as in the Queensland ADA. Judge Duggan said that while refusal to vary a work contract to allow an employee to work from home would not amount to a ‘requirement’ or a ‘condition’, it might amount to a ‘practice’, contrary to the Act if the ‘practice’, (not allowing workers to work from home) was unreasonable. In determining this issue, it was necessary to consider the reasonableness of the attendance requirement in light of any degree of inconvenience of a suggested alternative to working onsite, as well as other relevant factors including the employment contract that referred to flexible and progressive work arrangements.34

The Department, in support of the reasonableness of its attendance requirement, argued that there was a need for frequent communication among Hansard staff and there were also issues of confidentiality of material the staff handled. A number of other matters, including possible equipment failure, access to resources, and communication with Members were also raised. Ms Schou argued that she could have properly performed her work from home on the two days agreed to via a modem and that the supervisors had originally supported her proposal. Further, it was for a limited time only with a view to return to full-time work within 18 months. Her colleagues were supportive of Ms Schou and willing to accept a mild increase in workload to assist her.

VCAT found that the various arguments raised by the Department for not allowing Ms Schou to work from home were mildly inconvenient difficulties and were not sufficient to overcome the unreasonableness of the strict attendance requirement. The consequences of failing to comply with the requirement were insufficiently detrimental to the Department undertaking its functions. More flexible options were feasible and not a significant cost burden. On the other hand, there were serious consequences for Ms Schou of a refusal to vary the attendance requirements as she was forced to choose between continuing her full-time position and her duties as a carer with the end result that she had to resign.35 Ms Schou received over $160,000 in compensation.

34 Schou v State of Victoria Melbourne (Department of Parliament Debates), paras 49, 76.

35 Schou v State of Victoria Melbourne (Department of Parliament Debates), para 94.

Page 18 Queensland Parliamentary Library

Ms Schou’s solicitor commented that the finding does not mean that workers have the right to work from home but it does mean that employers cannot automatically dismiss a request for greater flexibility in working arrangements. There are, of course, many arrangements apart from working from home that may suit the relevant employment situation. It has been reported that a colleague of Ms Schou resigned for similar reasons in that she found that her work conditions changed significantly upon her return from maternity leave and there was no longer a ‘time- in-lieu’ arrangement to compensate for the long hours during sitting weeks. The colleague requested a salary cut if she could work as needed, given that often she came in (as was required under the new changes) during non-sitting days when there was often no work to do. However, the employers would not negotiate.36

There are, however, many issues confronting managers who allow their employees to work from home. Apart from workplace health and safety matters, the employer must ensure that they have the appropriate level of workers’ compensation and public liability insurance. There are also issues of Internet security where workers may need to access workplace servers from their home computer. Many employers are also concerned about productivity when employees are in the home environment. As noted earlier, an employer can rely upon the general exemptions in Part 5 of the ADA. For example, working from home raises issues of compliance with workplace health and safety legislation. It may be that it will be virtually impossible to make an employee’s home comply with relevant standards.

However, allowing employees to work from home has become more common over recent years. In an Australian Bureau of Statistics (ABS) study, it was found that, in 2000 around 1m Australian workers mainly or only worked at home, or had an arrangement to do so with their employer. Of these, 49% were women. Interestingly, only 4% of home workers indicated that family or child care considerations were the main reasons for working at home. However, women working from home were more likely to have children under 15 (42%) than women working elsewhere (30% of all female workers). The differential was not as great for men with 35% of male home workers having children under 15 compared with 32% of all male workers.37

3.4.2 Family Friendly Workplaces

Apart from a growth in working from home, there has been a strong growth in the availability of part-time work and in casual employment, particularly in

36 Denise Ryan, ‘Working to the rules of the family’.

37 ABS, Australian Social Trends 2002, Work: Working from Home, 2002. At http://www.abs.gov.au/ausstats/[email protected]/0/81F583639480D4D0CA256BCD00827304?Open Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 19

Queensland which has the highest national rate of casuals (30% of the State’s workforce). The flexibility of such work accommodates family responsibilities. On the other hand, Australians in full-time work tend to work more hours on average than a few decades ago, with many employees working more than 45 hour weeks.

With many Queensland employees having some type of carer responsibilities, it is necessary to find ways to enable those workers to balance their work and family commitments. All levels of government and many employers are beginning to promote the benefits of having workplaces that enable employees to find such a balance, acknowledging that work and family cannot be seen in isolation.

Currently, the main approach to addressing problems for workers with family responsibilities is through provision of legislative entitlements to carers’ and parental leave and laws providing protection against unfair dismissal; awards and enterprise agreements giving extra entitlements; informal workplace family friendly measures; and government award incentives.

The Queensland Department of Industrial Relations Work and Family Unit has set out a range of options that include part-time arrangements; job-sharing, telecommuting/work from home on some days or a set timeframe; staggered start and finish times; condensing normal hours into fewer days (eg doing all the week’s hours over 4 days); flexitime or make-up time; or enabling employees to accrue hours to enable them to take an extra week or so of annual leave which is advantageous during school vacations. It also suggests a range of leave types such as parental leave, carers’ leave, and purchased leave arrangements.38 Even simple measures can contribute to workers better managing their responsibilities. Employers could, for instance, schedule meetings, training and social events at lunch time, rather than after work.39

In 1999, it was found that 53% of Australian families with children under 12 years and with at least one parent working, used one or more of the foregoing arrangements to help them care for children.40 It is mainly employed mothers that do so (68%) compared to fathers (27%), reflecting the fact that there are more men than women who have stay-at-home partners. The most popular arrangement for working mothers in 1999 appears to be flexible hours (37%), followed by permanent part-time work (34%) and working at home (15%). Fathers appear to

38 At http://www.ir.qld.gov.au/work&family/index.htm.

39 Queensland Government, Office of Women’s Policy, ‘Best of Both Worlds’. At http://www.qldwoman.qld.gov.au

40 ABS Child Care Survey, Australia, 1999, Cat No. 4402.0.

Page 20 Queensland Parliamentary Library favour flexible hours (18%), followed by working at home (7%) and shiftwork (5%).41

It has been estimated, based on an ABS Survey in New South Wales, that around 2.5% of Queensland private and public sector workers with family responsibilities who do not have any of those work arrangements wanted to use more of them, particularly flexitime, paid leave and working from home.42

It appears that 25% of federal enterprise agreements and 10% of Queensland enterprise agreements have family friendly measures. In the Queensland context, most agreements involve family or carer leave entitlements taken as sick leave or other paid leave entitlements, but few provide for paid maternity leave. Part-time work is commonly provided for (34.4% of agreements) with job-sharing being rare (only 3.5% of agreements) as is working from home (0.9%). Many agreements have flexible hours of work provisions (66%) but not many are specific to family needs. No agreements provide for onsite child care facilities or subsidised child care costs or elder care referral services.43

The abovementioned Queensland Ministerial Taskforce Issues Paper notes that gender neutral and female dominated agreements were more likely to contain a family friendly provision, indicting that male-dominated workplaces are not investing industrial bargaining power into family friendly measures. This, the Taskforce argues, tends to reinforce the traditional gendered split in employment.44

Ms Pru Goward, Federal Sex Discrimination Commissioner, suggests that many female employees negotiating more flexibility in work arrangements feel that they have to forfeit a larger salary whereas men (even fathers) do not take such factors into account. Women also have to take large amounts of unpaid leave to care for children. Ms Goward commented that it is not surprising that women make up 73% of part-time workers and 60% of casuals. Promotion is often not available to women nor short-term senior positions in interstate offices because they need to get home to their children.45

41 ABS Child Care Survey, Australia, 1999, Cat No. 4402.0.

42 ‘Workers with Family Responsibilities: Demographic Issues and Profile’, p 37.

43 Ministerial Taskforce on Work and Family, ‘Review of Work and Family in Queensland’, Issues Paper, pp 33-34.

44 ‘Review of Work and Family in Queensland’, Issues Paper, p34.

45 Pru Goward, ‘Work and family: The challenge for modern Australia’, 38th Annual Tracy Maund Address to the Royal Melbourne Women’s Hospital on 27 August 2002. For an edited extract of the address, see Pru Goward, ‘Women and the workplace: battle still to be won’, The Age Online, 28 August 2002. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 21

The benefits of family friendly policies accrue to both employees and employers. For employees, those include reduced stress in attempting to manage several commitments; greater productivity; better morale and loyalty to the firm; and a greater sense of control. For businesses, the advantages include a decline in staff turnover and absenteeism; greater staff retention rates; increases in productivity and outcomes due to better staff morale and job satisfaction; and greater flexibility in constructing wage and leave scales. For example, a leading Sydney law firm estimates that it would cost it at least $80,000 to replace a second year solicitor who did not return from parental leave but would cost only $15,000 to pay 12 weeks maternity leave and provide reduced work outputs to the worker on immediate return to work. Mobil Oil has found that the benefits of family friendly arrangements (such as working from home, flexible hours, special leave, job- sharing, self rostering) have resulted in a 99.8% reliability of the plant.46

Other possibilities for family friendly workplaces include providing resources, access and/or referrals about child care or elder care; well-being programs for staff; mentoring programs; employee support groups and networks; on-site carers’ rooms for bringing children to work in emergencies; child care facilities or subsidising spaces at local centres; and financial assistance.47 Managers could also ensure that workers with family responsibilities are encouraged and assisted to access promotion, training and development opportunities.

In late 2002, employees of the Commonwealth Department of Education, Science and Training struck an agreement with management which has been called a ‘blueprint’ for the family friendly workplace of the future. It allows employees unlimited personal leave for family commitments (eg an ill child or cultural festival); 3 months’ annual leave; the right to take the normal 12 weeks paid maternity leave at half pay over 24 weeks; one week’s paid paternity leave; child care subsidies of up to $100 per week for working over school holidays; a 12% pay rise over 3 years; the ability to work from home; rebates on gym membership; and more flexible working hours. The trade-off is that staff will work an extra 9 minutes each day and incur some salary sacrifice to have the extra 2 months’ annual leave. The Department regards the measures as a means of attracting and retaining good quality employees.48 Employer organisations are understood to be wary, fearing that many businesses cannot afford to follow suit. Later in 2003, the

46 ‘Review of Work and Family in Queensland’, Issues Paper, p 32 cites examples taken from S Biggs & K Fallon Horgan, Time On, Time Out! Flexible Work Solutions to Keep Your Life in Balance, Allen & Unwin, St Leonards, NSW, 1999.

47 Queensland Government, Office of Women’s Policy, ‘Best of Both Worlds’.

48 Simon Kearney, ‘Landmark work deal for public servants’, Sunday Mail, 12 January 2003, p 17.

Page 22 Queensland Parliamentary Library

Australian Industrial Relations Commission will hear the ACTU test case on parental leave and flexible work policies.49

3.5 DISCRIMINATION IN OTHER AREAS

Direct and indirect discrimination on the basis of family responsibilities is also prohibited in other areas under the ADA.

3.5.1 Education

An educational authority must not use family responsibilities to discriminate in dealing with a prospective student’s admission application; or in the arrangements made for a student; or the criteria used in deciding who should be offered admission as a student; or in the terms on which a person is admitted as a student.

In addition, there must be no discrimination against a student because of their family responsibilities by varying their enrolment; denying or limiting access to any benefit supplied by the authority; or by excluding them; or by treating a student unfavourably in any way in connection with the student’s training or instruction.

For example, an applicant for an engineering course has a wife with cancer. During the applicant interviewing process, the man is asked if he would be able to handle the course along with his family responsibilities. While he indicates that he has a good family support network, he later finds that he has not been accepted into the course because of his family responsibilities. This may amount to discrimination on the basis of presumed family responsibilities.

3.5.2 Goods and Services

A person who supplies goods or services (whether or not for reward or profit) must not discriminate against another person on the basis of family responsibilities by not supplying the goods or services; or in the terms on or way in which they are supplied; or by treating the other person unfavourably in any way in connection with the supply of goods and services.

The requirements do not apply to a number of community, social, literary, cultural, political, sporting, athletic, recreational, and similar not-for-profit bodies. The exemptions that apply in this area do not appear directly relevant in the family responsibilities context.

49 Sherrill Nixon, ‘ACTU welcomes leave deal’, Age Online, 13 January 2003. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 23

In a 1990 decision, it was held not reasonable to require a fitness centre to provide a child with care while her mother attended an aerobics class.50

3.5.3 Superannuation and Insurance

A person must not discriminate in relation to the supply of superannuation or insurance, for example, by failing to supply it to a person with family responsibilities or on terms less favourable than for other persons. The exemptions do not appear directly relevant in this context.

3.5.4 Other Areas

It is also unlawful to discriminate on the basis of family responsibilities in relation to the disposition of land to that person and in relation to accommodation. Discrimination in relation to club membership is prohibited and discrimination in relation to the administration of state laws and programs is also unlawful.

In relation to accommodation, certain exemptions may be relevant in this context. For example a person is allowed to be able to decide who shares accommodation in their own home.

A recent case resolved by the Queensland Anti-Discrimination Commission concerned a woman who complained that her rental application was refused because she had a young child (parental status). She had a good financial history and references. She was informed that the owner did not wish to rent the property to her because of the child as the property backed onto a canal which was unfenced, posing a danger to the child. The management agreement between the owner and the estate agent contained a clause stating that the property was not suitable for children because of the canal. The matter was resolved by the owner and agent compensating the woman and the agent agreeing to attend training in discrimination issues.51

50 Mosk v Re-Creation Health Sport and Fitness Club (1990) EOC 92-317.

51 Anti-Discrimination Commission Queensland, 1999-2000 Annual Report.

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3.6 DISCRIMINATION LEGISLATION IN OTHER JURISDICTIONS

3.6.1 New South Wales

The New South Wales Anti-Discrimination Act 1977 was amended by the Anti- Discrimination (Carers’ Responsibilities) Act 2000 to prohibit discrimination in the workplace on the basis of a person’s responsibilities as a carer, implementing a key recommendation of the NSW Law Reform Commission’s Review of the Anti- Discrimination Act 1977.52 While the persons for whom responsibilities as carer exist are broadly defined, similar to the new Queensland provisions, the ground applies only in the employment context or related areas (eg industrial organisations, employment agencies) except employment for the purposes of a private household or in a business with fewer than 5 employees.

The employer can, however, rely on some exceptions in certain circumstances. It is not unlawful discrimination to refuse to hire or to dismiss an employee if, taking into account the employee’s past training, qualifications and experience and the employee’s performance, and all other reasonably relevant factors, the employee’s responsibilities as a carer would prevent the employee from carrying out the inherent requirements of the job; or, to allow the employee to carry out those inherent requirements, would impose an ‘unjustifiable hardship’ on the employer.

In determining whether there is an ‘unjustifiable hardship’, all relevant circumstances must be considered including the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned (the employee, the workplace, customers etc); and the effect of the responsibilities as a carer of a person concerned; and the financial circumstances of and the estimated amount of expenditure required of the employer. Essentially, the argument would be that it is difficult to do what the employee requires without it imposing exorbitant costs upon the business.

The NSW Anti-Discrimination Board (the NSW Board) has a website devoted to informing employers and employees about their responsibilities and rights under the carers’ responsibilities provisions of the legislation.53 It points out that employers should accommodate the employee’s needs to enable them to carry out the essential functions of their job unless they would suffer unjustifiable hardship in doing so. It has also set out some guidelines to assist employers when devising workplace practices, policies and rules. If they disadvantage employees with carer responsibilities, the practice etc should be reconsidered to see if an alteration would

52 Report No 92.

53 At http://www.lawlink.nsw.gov.au/adb.nsf/pages/carers Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 25 still enable the work to be properly done but not so as to have a discriminatory effect. Awareness and education of managers and employers is also emphasised.

Complaints of discrimination on the ground of carers’ responsibilities made up 4% or 67 of all complaints (1,625) received during the 2001-2002 financial year. Most of the complaints (78.8%) came from women. Since this ground commenced as a ground of discrimination (March 2001), 87 complaints have been made.54 The NSW Board’s 2001-2002 Annual Report notes that the significant majority of complaints under this ground concern child care responsibilities, generally in the context of female employees not being allowed to take up part-time work when returning from maternity leave. Some men and women have also complained about being refused flexible work arrangements or shift changes to accommodate child care needs or to take leave to care for a disabled child. Fewer complaints concerned workers needing leave to care for a disabled spouse, parent or grandparent. The Board anticipates the number of complaints under this ground to increase significantly over the next 1-2 years as public awareness increases.

3.6.2 Victoria

The Victorian Equal Opportunity Act 1995 makes it unlawful to discriminate on the grounds of parental or carer status. The term ‘carer’ is defined as a person on whom another person is wholly or substantially dependent for ongoing care and attention. It does not include commercial carers. Note that the broad definition is not confined to family members and could include neighbours or friends. The areas in which it is unlawful to directly or indirectly discriminate on those grounds are the same as in the Queensland ADA and also include sport. Similar area specific and general exceptions apply.

The Victorian Equal Opportunity Commission’s 2000-2001 Annual Report reveals that 45 of the 3,433 complaints it received during that period related to carer status. 38 of those occurred in the area of employment, with 2 arising in the education area, and 5 in the context of goods and services.

3.6.3 Australian Capital Territory

The ACT’s Discrimination Act 1991 is similar to Victoria in its broad coverage of what constitutes a person’s ‘family responsibilities’. It is unlawful to discriminate on the grounds of status as a parent or carer or based on an association with a parent or carer. The areas of application are broad - access to premises; access or

54 New South Wales Anti-Discrimination Board, 2001-2001 Annual Report. At http://www.lawlink.nsw.gov.au/adb.nsf

Page 26 Queensland Parliamentary Library membership to a professional or trade organisation; accommodation; education; employment and employment related areas; clubs; goods, services or facilities; partnerships; qualifying bodies; request for information; unlawful advertising. Area specific and general exceptions apply in certain circumstances.

During the 2001-2002 financial year, the Discrimination Commissioner received a total of 239 complaints, 10 of which concerned discrimination on the basis of status as a parent or carer. The incidents were fairly evenly spread across the areas of employment, education; access to premises; goods, services and facilities and accommodation.55

3.6.4

As noted earlier, Western Australia was the first state to introduce family responsibilities as a ground of discrimination. In 1992 amendments were made to the Equal Opportunity Act 1984 to give effect to recommendations of the Equal Opportunity for People with Family Responsibilities Discussion Paper by the Commissioner for Equal Opportunity (WA). The definition of ‘family responsibility’ or ‘family status’ appears even more extensive than the ACT and Victorian equivalents. Apart from relatives or members of a household, it includes ‘having responsibility for the care of another person, whether or not a dependant, other than in the course of paid employment’. The WA Supreme Court had held that the provisions are not restricted to care of relatives.56 However, the protection applies only in the areas of employment and education.

Some exceptions apply (eg measures to cater for special needs of people with family responsibilities; provision of employee accommodation).

The Equal Opportunity Commission’s 2001-2002 Annual Report shows that 3.2% of all discrimination complaints were based on family responsibilities grounds, making up 20 of the 634 complaints received.

3.6.5 Tasmania

The Anti-Discrimination Act 1998 (Tas) prohibits discrimination on the grounds of family responsibilities and parental status in similar areas of life to those covered by the Queensland laws. It also forbids discrimination on these grounds in the context of awards, enterprise and industrial agreements. The definition of ‘family

55 Australian Capital Territory Human Rights Office, 2001-2002 Annual Report, statistical table.

56 Hautlieu Pty Ltd t/a Russel Pathology v McIntosh (2000) EOC (WA) 93-096. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 27 responsibilities’ is similar to that in the new Queensland Amending Act but does not apply to same-sex spouses. The usual exceptions apply and discrimination is not unlawful if the person requires a special service or facility that would impose an unjustifiable hardship on the other person to supply.

The Tasmanian Government has announced reforms to provide entitlements to a wide range of persons in a ‘carer’ role, including same-sex couples living in a non- sexual relationship. The reform proposals were given impetus from a 2001 Joint Standing Committee on Community Development’s Report on the Legal Recognition of Significant Personal Relationships.

During the 2000-2001 financial year, the Anti-Discrimination Commission of Tasmania received 287 claims. 11 (3.8%) concerned discrimination on the basis of family responsibilities.

3.6.6 South Australia

The South Australian Equal Opportunity Act 1984 does not include parental status or family responsibilities as grounds for unlawful discrimination. Only discrimination on the ground of pregnancy is unlawful. The SA Equal Opportunity Commissioner has highlighted the shortcomings of the Act, including failure to make carers’ responsibilities a ground of prohibited discrimination.57

As noted earlier, in November 2002, the SA Government announced that the legislation was to be reviewed to identify possible reforms, such as protection for same-sex couples. It would also consider expanding the grounds of discrimination to include family or carers’ responsibilities. A draft Framework Paper should be available for public comment by the middle of 2003.58

3.6.7 Northern Territory

While the Northern Territory’s Anti-Discrimination Act 1991 makes discrimination on the basis of parenthood unlawful in a wide range of areas, it does not make family or carer responsibilities a specific ground. A number of exceptions apply (eg genuine occupational requirement that a person be a parent). During 2001- 2002, the NT Anti-Discrimination Commission received 9 complaints based on parenthood status out of 187 complaints across all grounds. Interestingly, most (6)

57 South Australian Equal Opportunity Commission, 2001-2002 Annual Report, p 1.

58 Hon Michael Atkinson MP, SA Attorney-General, ‘Review to modernise discrimination laws’, News Release, 11 November 2002. Downloaded from http://www.ministers.sa.gov.au

Page 28 Queensland Parliamentary Library occurred in the goods and services area rather than that of employment (3).59 The Act is currently undergoing review.

59 Northern Territory Anti-Discrimination Commission, 2001-2002 Annual Report, p 31. Protecting Workers With Family Responsibilities – Discrimination Law Amendment Act 2002 p 29

APPENDIX A – MINISTERIAL MEDIA STATEMENT

Hon Rod Welford MP, Attorney-General and Minister for Justice 6 November 2002 Government Updates Discrimination Laws

Breastfeeding mums and people who take time off work to care for sick children or elderly parents will be protected against discrimination under new laws introduced by the Beattie Government into State Parliament today.

Attorney General and Minister for Justice, Rod Welford, said the Discrimination Law Amendment Bill 2002 would also extend vilification laws.

"Respecting our neighbours and tolerating people's differences contributes to a better quality of life for all of us," Mr Welford said.

"The Anti Discrimination Act was ground-breaking legislation when it was introduced in 1991 and it is now time to modernise those laws.

"These amendments ensure a person who has to take time off work to care for an elderly parent or a sick child cannot be penalised by their employer on that basis.

"Most public servants already have these rights - we're ensuring private sector employers follow the same rules.

"We are also protecting breastfeeding mothers against discrimination in public places such as shopping centres or in the workplace.

"The racial and religious vilification laws we introduced last year are being extended to include sexuality.

"No one should have to tolerate abuse of any form because of who they are - the sexuality of a person is simply not a reason for them to be harassed or assaulted."

Mr Welford said the new laws would also give Queenslanders living in de facto relationships the same legal rights as married couples.

"The new laws will remove discrimination and give de facto partners rights and obligations consistent with those of married spouses," he said.

"The definition of 'spouse' is being changed to include all de facto couples regardless of their sexual orientation. Over 50 pieces of legislation will be amended to bring the definition up to date."

Contact: Greg Milne on 32393478 or 0417 791336

Page 30 Queensland Parliamentary Library

RECENT PARLIAMENTARY LIBRARY RESEARCH PUBLICATIONS 2003 RESEARCH BRIEFS RBR2003/01 Reform of Negligence Law – The Queensland Response: The draft Civil Liability Bill 2002 Feb 2003 RBR2003/02 Protecting Transgender Rights under Queensland’s Discrimination Law Amendment Act 2002 Feb 2003 RBR2003/03 Legal Profession Reform in Queensland: Multi-Disciplinary Practices (MDPs) Feb 2003 RBR2003/04 The Coroners Bill 2002 (Qld): Highlighting the important role of coroners in accident Feb 2003 prevention RBR2003/05 Protecting Workers With Family Responsibilities under Queensland’s Discrimination Law Feb 2003 Amendment Act 2002

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