Employers 'must be proactive' to ensure success of Carers' Act

Analysis

Employers 'must be proactive' to ensure success of Carers' Act

NSW could be headed for discrimination penalties along the lines of a recent Victorian case which paid more than $160,000, with the introduction of the new Carers' Responsibilities Act, a Sydney conference has heard.

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NSW could be headed for discrimination penalties along the lines of a recent Victorian case which paid more than $160,000, with the introduction of the new Carers' Responsibilities Act, a Sydney conference has heard.

But, delegates were told, if such penalties came to pass, the Act would have failed.

The conference, organised by consultancy Work+Life Strategies, was held to discuss the ‘stick’ rather than ‘carrot’ implications of the Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000.

Work+Life’s co-director, Juliet Bourke, who previously worked at the Attorney-General’s Department on the drafting of the Act, said a main impetus for the legislation was the fact that encouragement hadn’t worked in getting employers to catch up with workers’ demands.

She said this was not only detrimental to workers, but employers also lost out in corporate knowledge and the associated costs. A 12-month British study had shown 50% of requests from people asking for changed work conditions were not actioned, and that this was conscious rejection. Some 20% subsequently resigned, and 34% of those brought a complaint against their employer.

Early mistakes

Bourke said although the new legislation had been a long time coming, NSW would benefit by learning from the mistakes made by other Australian jurisdictions. The three main cases she cited were:

  • Hickie v Hunt & Hunt, a case of indirect discrimination where a partner in a law firm returning from maternity leave was awarded $95,000 when her work allowed her to go part-time, but had no policy in place to support this decision, and structured the terms of her agreement so it fell apart within a year.
  • Bogle v Metropolitan Health Service Board (see previous story), where a dental technician with 20 years service with a company received $12,604 after her company failed to implement a part-time policy that was in the award. The company was also ordered to trial the policy.
  • Schou v State of Victoria, a case with a record $161,307 payout where the tribunal ordered that the Victorian Parliament had to act to allow working from home, not just talk about it. Bourke said while NSW had not seen such payouts yet (they are currently capped at $40,000) such big cases were ‘certainly on the cards’ in the future.

Potential failure

Joe Catanzariti, a partner at Clayton Utz lawyers, told delegates that if, as Bourke had said, big penalty cases were on their way in NSW, ‘then we’ve failed’ in implementing the Act successfully. He said while there was no doubt some employers would prefer to cop a penalty than change their way of working, that creative solutions were needed.

The tribunals were under resourced, and as such cases took a long time to solve. Repairing the damage after the event was not as effective as working with employees on policies before a crisis arose, he said.

Catanzariti said it was vital that workplaces ask employees what their needs were, and that if the HR department was doing the work in this area, it must inform itself, employers and employees. ‘Some sophisticated HR departments know nothing about carers’ leave. Men will need it just as much as women,’ Catanzariti said.

The future

Catanzariti warned of a possible tension between unfair dismissal legislation and the carers’ responsibilities legislation, as currently existed between sexual discrimination legislation and unfair dismissal laws (see previous story).

He predicted the major areas of contention in the new Act would centre around work hours and shift work, the amount of unpaid leave employees would be entitled to, and clashes with industrial agreements as employees working from home at odd hours automatically qualified for overtime penalties because of the hours they chose to work.

Bourke told the conference the next big cases would centre around cultures of long work hours, shift work, and linking progress to the ability to accommodate regular early or late meetings, or to travel.

Diversity consultant Anne Mainsbridge predicted the requirement for the complainant to prove against the ‘reasonableness’ of the employer’s actions in cases of indirect discrimination would be a big issue.

She also predicted that the Act would eventually be extended to cover more than just the area of work. She agreed with Bourke that NSW had learned from mistakes from other jurisdictions – the federal Sex Discrimination Act 1984 and Workplace Relations Act 1996 only covered discrimination as it applied to dismissal, whereas the NSW Act covered everything from point of hiring to dismissal, also dealing with access to promotion and the like.

Checklist

Graeme Russell, a co-director of Work+Life Strategies, told the delegates there were 10 critical steps that employers should start working on before the legislation came in towards the end of the year.

  • Agree on expected outcomes;
  • Change the demographic profile of leadership teams;
  • Ensure the CEO and senior management were personally committed and demonstrated leadership on the change;
  • Resource local teams;
  • Conduct a flexibility audit;
  • Identify barriers to change;
  • Develop flexibility strategies within the organisation’s business plan;
  • Implement change within self-directed workgroups;
  • Comprehensive and ongoing communication;
  • Monitor progress and evaluate outcomes.

‘Even if you’re on the right track, you’ll get run over if you just sit there,’ Russell told the delegates, saying the only constant was that they had to continue to change.

 
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