DISCRIMINATION BASED ON CARERS' RESPONSIBILITIES—A NEW GROUND IN NSW

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DISCRIMINATION BASED ON CARERS' RESPONSIBILITIES—A NEW GROUND IN NSW

The Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000(NSW) ('the Act') was passed through parliament on 31 May 2000.

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Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000

Introduction

The Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000(NSW) ('the Act') was passed through parliament on 31 May 2000. The Actamends the Anti-Discrimination Act 1977(NSW) ('the ADA') to include carers' responsibilities as a ground of discrimination in NSW. This amendment makes it unlawful for an employer to discriminate, either directly or indirectly, against an employee or job applicant on the grounds of that person's responsibilities as a carer. The Actwas proclaimed on 6 December 2000 and becomes effective on 1 March 2001.

With the exception of South Australia, New South Wales is the last State to address this area of discrimination. Whilst a long time coming, the New South Wales amendments go further than those in other jurisdictions both with respect to the carers' relationships covered, and the requirement on employers to make arrangements to assist employees with carers' responsibilities to perform their job.

Who has 'responsibilities as a carer'?

The amendment provides a broad definition of a person's 'responsibilities as a carer'. The definition canvasses three groups:

  1. People responsible for caring for or supporting a dependant child, wherein the Actrequires that the child be wholly or substantially dependent on the person or in need of care and support.
  2. People responsible for caring for or supporting a child or adult of whom the person is a guardian or has parental responsibility under Commonwealth or State law.
  3. People responsible for caring for or supporting any immediate family member in need of care or support. The definition of 'immediate family members' covers a broad range of relationships. They include:
    • a spouse or former spouse of the person. Note that in the Act'spouse' has the same meaning as in the Property (Relationships) Act 1984and includes de-facto opposite sex partners and de-facto same sex partners;
    • grandchildren, step-grandchildren, parents, step-parents, grandparents and step-grandparents of the person or of their spouse or of their former spouse;
    • brothers, sisters (including half brothers and sisters), step-brothers and step-sisters of the person or of their spouse or of their former spouse;
Areas of employment covered

It is unlawful for an employer to discriminate against an employee or a job applicant on the grounds of their responsibilities as a carer. This includes assumptions or known facts that the employer has about a person's current responsibilities as a carer, or their past or future responsibilities as a carer. If the person's status as a carer is only one of a number of reasons for a decision, it can still constitute discrimination on the ground of carers' responsibilities. The discriminatory reason need not be the sole or even the substantive reason for the decision in order for it to be unlawful. 

The Act covers discrimination in all three stages of the employment relationship:

  • Job applicants—It is unlawful for an employer to discriminate against a job applicant on the basis of their carers' responsibilities in the process or reasons for determining who should get employment.
  • Existing employees—It is unlawful for an employer to discriminate against an employee on the basis of the employee's responsibility as a carer during the course of employment. This includes the terms and conditions of employment (shift times, length of shift, requirements to work full time, start and finish times etc) and denying access or limiting access to opportunities, transfer or training, or to any other benefits associated with employment.
  • Dismissal of an employee—It is unlawful for an employer to terminate an employee on the basis of the employee's responsibilities as a carer.
Defences under the Act

There are some defences that are available under the Act:

  1. The Actdoes not apply to employment in a private household or where the employer has five or less employees. This defence does not apply to employers of five or less employees, who are a related body corporate within the meaning of the Corporations Law, to a larger corporation.
  2. Where an employee alleges indirect discrimination, the employer may succeed in defending the claim if they can successfully counter the complainant's allegations that the relevant requirement or condition is unreasonable in the circumstances.
  3. With respect to the areas of recruitment and termination, an employer may raise a defence if an employee is unable to carry out the inherent requirements of the particular employment because of their responsibilities as a carer, or where, in order to carry out the inherent requirements, the employee would require arrangements that would cause unjustifiable hardship to the employer.

The exceptions relating to inherent requirement and unjustifiable hardship are similar to the exceptions currently in operation with respect to disability discrimination under the ADAand the Disability Discrimination Act 1992(Cth). On the face of the legislation, it appears that the employer need only establish either failure to carry out the 'inherent requirements' or that accommodation would cause 'unjustifiable hardship' in order to establish the defence. However, recent case law has determined that in relation to the similar provision under disability discrimination, the employer must establish BOTH failure to carry out the 'inherent requirements' AND that accommodation would cause 'unjustifiable hardship'. Likewise, when it comes to carer's responsibility discrimination, the defence requires that employers establish BOTH the employee's failure to carry out the inherent requirements AND that accommodating the employee's responsibilities would cause unjustifiable hardship.

What this means in practice is that, before an employer can conclude that the employee cannot perform the inherent requirements of the particular employment, the employer must have considered what arrangements could be provided to the employee to assist them carry out those requirements, and whether or not those arrangements would impose unjustifiable hardship on the employer.

Practical implications for employers

The following checklist provides some guidelines for employers in complying with the NSW amendment.

In attempting to comply with the new legislation employers should:

  1. Ensure that managers and supervisors understand the legislation and the employer's responsibilities under this legislation. This may require some training for managers and supervisors in this area of the law.
  2. Amend workplace policies on EEO and discrimination to include the new ground of responsibilities as a carer.
  3. Develop a policy on 'Work and Family' or 'Family Friendly Provisions'. This should be done after consultation with employees to find out if they are having difficulties balancing work with their responsibilities as carers, and what initiatives may assist them. These types of initiatives show employees that the company is willing to negotiate to accommodate their needs as carers. Flexibility can also be afforded to employees who do not have carer's responsibilities to enable them pursue activities outside of work, such as further study.
  4. Review existing policies and workplace practices to ensure that these conditions of employment do not breach the legislation, particularly those that could give rise to indirect discrimination.
  5. Check your industrial awards and agreements. Any part of any NSW industrial agreement (award or enterprise agreement) that discriminates—either directly or indirectly—against people with carer's responsibilities should be changed so that it does not breach anti-discrimination or industrial relations law. This can be done through a formal variation to the award or agreement. It is important to remember that compliance with an award or an agreement is not a defence under the Act.
 
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