Carer's responsibilities discrimination to be unlawful

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Carer's responsibilities discrimination to be unlawful

It will be unlawful for an employer to discriminate against applicants and employees on the ground of the person's responsibilities as a carer under new legislation introduced into State Parliament.

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It will be unlawful for an employer to discriminate against applicants and employees on the ground of the person's responsibilities as a carer under new legislation introduced into State Parliament.

The Anti-Discrimination (Carer Responsibilities) Bill 2000, introduced on 3 May 2000, follows through on the State Government's election promise to prohibit discrimination on the basis of family responsibilities. It also implements a key recommendation of the New South Wales Law Reform Commissions' (LRC) review of the Anti-Discrimination Act 1977(NSW) which was to make discrimination based on carer's responsibilities unlawful.

The current amendments will pre-empt the complete overhaul of the Anti-Discrimination Act 1977which was recommended by the LRC and which is expected to take place by 1 July 2001. This means that employers may be required to adjust to two lots of legislative changes, particularly if the 1 July 2001 amendments include changes to the definitions of direct and indirect discrimination as recommended by the LRC.

The current law

Currently in New South Wales, direct discrimination on the basis of "family responsibilities" is unlawful in the area of termination of employment only under the terms of the Federal Sex Discrimination Act 1984. The Bill will extend coverage to the wider concept of "carer responsibilities" (defined below), will prohibit indirect discrimination as well as direct discrimination, and will apply to all aspects of the employment relationship, not just termination.

Coverage of Bill

Job applicants, employees, commission agents, contracts workers, partners (in firms of 6 or more partners), members and prospective members of industrial organisations, and persons seeking recognition of professional, occupational or trade qualifications will be protected by the new laws.

"Responsibilities as a carer"

"Responsibilities as a carer" is a very widely defined expression and means a person's responsibilities to care for or support:

  • any child or step-child of the person who is wholly or substantially dependent on the person or in need of care or support (child includes adopted child or foster child)

  • any child or adult who is in need or care and support and of whom the person is legal guardian, has parental responsibility under a Commonwealth or State law, or is an authorised carer under the Children and Young Persons (Care and Protection) Act 1998

  • an immediate family member of the person who is in need of care or support, including:

  1. a spouse or former spouse of the person, or an immediate family member of theirs

  2. a grandchild or step-grandchild of the person, or of a spouse or former spouse of the person

  3. a parent or step-parent of the person or of a spouse or former spouse of the person

  4. a grandparent or step-grandparent of the person or of a spouse or former spouse of the person

  5. a brother or sister, or step-brother or sister, of the person or of a spouse or former spouse of the person.

The Bill proposes to cover a person's current, presumed, past, presumed past, future, or presumed future, carer responsibilities.

Direct and indirect discrimination based on carer's responsibilities

The Bill uses the definitions of direct and indirect discrimination contained in the current Act.

Direct discrimination will take place where the aggrieved person, because of their carer responsibilities, is treated less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have those responsibilities.

Indirect discrimination will take place where a person requires the aggrieved person to comply with a requirement of condition with which a substantially higher proportion of persons who do not have such carer responsibilities comply or are able to comply. In order for indirect discrimination to take place, the aggrieved person must not be able to comply with the requirement and the requirement must be unreasonable in the circumstances.

Note that the LRC recommendations proposed that the requirement for a comparator to be made in order to prove direct discrimination be removed. A new test for indirect discrimination was also recommended.

Discrimination in employment

The Bill states that it is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer in the following aspects of the employment relationship:

  • arrangements made by the employer for the purpose or who should be offered employment

  • determining who should be offered employment

  • the terms on which employment is offered

  • the terms and conditions of employment afforded to an employee

  • denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment

  • dismissing the employee or subjecting the employee to any other benefit.

Exceptions

Employment in a private household is excepted, as are small businesses where the number of persons employed does not exceed five.

Discrimination will also be excepted where, taking into account the person's past training, qualifications and experience relevant to the particular employment, and the person's performance as an employee, as well as all other factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer:

  • would be unable to carry out the inherent requirements of the particular employment, or

  • would, in order to carry out those requirements, require arrangements that are not required by persons without those responsibilities as a carer, and which would impose unjustifiable hardship on the employer.

Comment

The proposed changes to the Act, particularly the prohibition on indirect discrimination, will require employers to attempt as far as possible to ensure that employment policies and practices do not have an adverse impact on employees with carer responsibilities. It will also mean that where an employee asks for flexibility in their employment arrangements (for example, permanent part-time work), to assist them balance work with their carer responsibilities, the employer will need to ensure that the request is considered carefully, and that any refusal is based on sound grounds that are reasonable in all the circumstances.

Some industries are by their nature "family unfriendly", for example, industries where workers are required to work rotating shifts, night shift, or on weekends. In these circumstances the employer may well be able to argue that such requirements are reasonable in all the circumstances, given the nature of the industry, or they may be able to rely on the "inherent requirements of the particular employment" exception.

 
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