08 June 2004
Employers, carers and family responsibilities - the state of play
After a few years of operation of the carers provisions of the NSW Anti Discrimination Act, it is time to assess what we have learnt and to identify problem areas. Recent cases provide employers with practical examples of how to meet their obligations. It is a two-way street; balancing the needs of the employee with the requirements of the position and the business.
Employers are required to make accommodation for employees who have family or carer's responsibilities, but not if doing so would impose an "unjustifiable hardship" on the business.
Employer obligations are contained in the NSW Anti Discrimination Act, and the Federal Sex Discrimination Act and the Workplace Relations Act. The Anti Discrimination Act contains specific provisions prohibiting less favourable treatment because of a person's responsibilities as a carer. It is also wrong to introduce work requirements which are more onerous for carers. But employment can be refused to a carer whose responsibilities mean they are unable to perform the inherent requirements of the position.
The Federal Sex Discrimination Act contains a general prohibition on discrimination on the grounds of "family responsibilities" and the Workplace Relations Act prohibits corporations from dismissing employees because of "family responsibilities".
How do these provisions operate in practice - 5 interesting cases
In Laz v Downer Group Ltd  FCA 1390 a personal assistant could not work late on two evenings because of child-care responsibilities. The employer dismissed her, but when challenged could not establish that the requirement to work late was an inherent requirement of the position. The position had not been advertised on that basis and the employer seemed more concerned about the potentiality of the problem rather than any specific difficulty that had arisen. The employee received compensation.
In Song v Ainsworth Game Technology Pty Ltd  FMCA 31 the employer unilaterally changed the employee's status from full time to part time after the employee asked for time off to collect her child from a nearby school at 3.00pm and deliver him to an after school care centre. All she needed was a half hour break and was prepared to take a shorter lunch in order to make up the time. The employer could not substantiate any sensible reason for the reduced hours. The Federal Magistrate decided that a reduction in hours was not a reasonable way to deal with this workplace issue which could have been resolved by providing the requested flexibility. Once again, the employee received financial compensation.
A case which achieved front page publicity involved an employee challenging the requirement that she work from Gosford after her employer, the NSW WorkCover Authority, had relocated to Gosford from Sydney (Gardiner v New South Wales WorkCover Authority  NSWADT 184). The claim was of indirect discrimination because relocating to Gosford was said to be more difficult for an employee with responsibilities as a carer. Importantly the Administrative Decisions Tribunal approved a broad definition of what constituted "responsibilities as a carer" and did not limit the term to those occasions where a dependent of the employee needed specific assistance, for example to care for a sick child. But the Tribunal held that the requirement to relocate was reasonable and there were sound organisational reasons for this particular employee work with other senior managers at Gosford. There had been a lengthy process of consultation and at the time of accepting employment the employee was aware of the possible move to Gosford.
Sometimes arguments about carer's responsibilities can lead to industrial action. In one case a union raised an industrial dispute about an employer's requirement that staff work until 4.00pm and could not leave at 3.00pm to collect children from school (CPSU V CSL Limited ). The Australian Industrial Relations Commission concluded that there was no particular need for the employee to work until 4.00pm. Interestingly, the Commission recommended that the employer undertake a three month trial of the arrangements in order to assess any problems that might arise. For example, casting a burden on other employees who might have to cover for the employees might well be a relevant factor in deciding whether the arrangement could be made permanent.
Some years ago a transcript officer employed in the Victorian Parliament obtained a significant amount of compensation when her employer did not allow her to work at home whilst looking after a child with a long terminal illness. At first instance the Tribunal said that it was reasonable for the Parliament to pay for the costs of setting the employee up by providing a modem, computer and other equipment. After a number of court battles, the Victorian Court of Appeal (State of Victoria v Schou  VSCA 71) decided that there was no discrimination and the Tribunal had applied the wrong test; it is not a matter of whether it is reasonable to allow the employee to work at home, but rather, whether it is reasonable to require the work to be done at the workplace. This significant decision places the focus of the inquiry on how accommodating those with responsibilities as carers affects the workplace.
Industrial awards often place limits on flexibility. For example; commencing a shift early to allow a convenient finishing time may mean payment at a higher rate; and minimum shift hours may mean a financial burden in replacing a worker for short periods. Some of these problems may be dealt with through the use of an Australian Workplace Agreement or perhaps an application to the Industrial Relations Commission for a review of the award to make sure it does not unintentionally impose requirements which fall unfairly on those with responsibilities as carers.
Some employers produce policies that give certainty about what types of flexibility employees can expect. Those policies can turn into binding contractual terms or entitlements. Additionally, if carers can be provided with flexibility, then employers may find that co-workers ask for similar flexibility even though they do not have the same responsibilities.
One approach to the problem is to make it clear that any claim for flexibility is to be dealt with on an as needs basis. The employer may say that the arrangement is temporary, and perhaps inconvenient, and will be reviewed from time to time.
At the moment there is no definition of the limit of what is a "carer's responsibility" or what "family responsibilities" mean in practice. We can all understand the needs of a parent with pre-schoolers but is a request from a parent to leave early to be at home when the seventeen year old returns from a part time job to be treated on the same basis?
Where to now?
Despite these problems a review of the cases demonstrates that employees are prepared to pursue claims of work flexibility in order to allow them to meet their responsibilities as carers. But the demand for flexibility is not an absolute right and has to be balanced against the needs of the organisation in the way business operates. Nevertheless employers are challenged to be flexible in their thinking about workplace arrangements and be prepared to test any proposal to see whether it is workable.