Bereavement leave - exemptions under anti-discrimination act

Cases

Bereavement leave - exemptions under anti-discrimination act

The State Attorney General has granted an exemption under the Anti-Discrimination Act 1977 (NSW) which will ensure that the implementation of certain aspects of the recent Personal/Carer's Leave Test Case, which set a minimum standard for bereavement leave, will not result in unlawful discrimination under the Act.

WantToReadMore

Get unlimited access to all of our content.

The State Attorney General has granted an exemption under the Anti-Discrimination Act 1977(NSW) which will ensure that the implementation of certain aspects of the recent Personal/Carer's Leave Test Case, which set a minimum standard for bereavement leave, will not result in unlawful discrimination under the Act.

On 10 December 1998, a Full Bench of the Industrial Relations Commission of New South Wales ordered a minimum standard for award and non-award employees for bereavement leave of two days leave in the event of the death of a family/household member (see HR Link, Issue 149/98, 15 December 1998).

Family members covered by the bereavement leave entitlement are those specified in the Family Leave clause ordered by the Commission in August 1996. They are:

  • a spouse of the employee 
  • a de facto spouse 
  • a child or an adult child (including an adopted child, a step child, a foster child or an ex-nuptial child) 
  • a parent (including a foster parent and legal guardian), grandparent, grandchild or sibling of the employees or spouse or de facto spouse of the employee 
  • a same sex de facto partner, or 
  • a relative of the employee who is a member of the same household (family group living in the same domestic dwelling).
The exemption

The exemption from the provisions of the Anti-Discrimination Act 1977is granted to all employers, employees, registered employer organisations and unions, in relation to the introduction, implementation and application of provisions in the industrial instruments which reflect the decision setting the bereavement leave minimum standard referred to above.

The exemption applies to provisions in the Actrelating to race discrimination, discrimination against divorced persons, and discriminatory provisions in notices, signs and circulars.

 

Race discrimination

The exemption is from those provisions in the Anti-Discrimination Actwhich prohibit indirect race discrimination against applicants and employees. This exemption will prevent discrimination claims by persons of certain races who have a very wide notion of 'family' and who may believe that the definition of family members for whom bereavement leave is available on their death is discriminatory because it does not include such extended family members.

 

Discrimination against divorced persons

The exemption is also from those provisions in the Actwhich prohibit direct marital status discrimination against applicants and employees to the extent that the applicant or employee is 'divorced'. Divorced persons are not included within the definition of family members in respect of whose death bereavement leave may be taken. The exemption will prevent divorced persons from bringing discrimination claims on the basis that they are excluded from the bereavement leave entitlement.

 

Notices, signs and circulars

The exemption also applies in respect of any notice, sign, or circular which may convey information to employees about bereavement leave entitlements.

 

Post details