Be proactive to avoid carers strife: lawyer

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Be proactive to avoid carers strife: lawyer

The main debate arising under the new Carers' Responsibilities Act in NSW was likely to centre around the question of unjustifiable hardship, with employers having to make out a ‘compelling case’ as to why they could not accommodate employees, a lawyer told a Sydney conference this week.

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The main debate arising under the new Carers' Responsibilities Act in NSW was likely to centre around the question of unjustifiable hardship, with employers having to make out a ‘compelling case’ as to why they could not accommodate employees, a lawyer told a Sydney conference this week.

Therese MacDermott, from Cutler Hughes & Harris, was speaking at a briefing co-hosted with ACIRRT, and said the new legislation was contentious, because it imposed an obligation to reasonably accommodate employees unless unjustifiable hardship would arise.

‘The real debate is about what is reasonable, and that very much depends on the circumstances of a case,’ she said, adding that ‘the courts haven’t necessarily helped with this’.

Employers should also be aware of the other big issue – the inherent requirements of the job. She advised careful attention be paid to ensure the inherent requirements were not indirectly discriminatory.

For example, a requirement that a job could only be done on a full-time basis would impact more on women, who had primary responsibility for raising children and were thus not as available for full-time work. Here, she referred employers to the relevant case law: 

  • Bogle v Metropolitan Health Service Board (HR Link 24a/2000);

The Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 came into effect on March 1 (see 75/2000), and means employers (apart from in the home, or in businesses with fewer than five employees) would not be able to discriminate at the point of hiring, throughout the job or at termination, because of a worker’s responsibilities to care for or support family members.

Fairly wide scope is given to the definition of family members – including siblings, immediate family of self and spouse and ex-spouse, and same-sex partners (see 36/2001 and 3). ‘In a way, it’s probably better to look at who isn’t covered,’ MacDermott said – aunts, uncles, nieces, nephews and friends.

MacDermott applauded the fact that the new Act would move the work-life balance beyond having to use sex discrimination as an excuse – this meant that all workers would now be able to take responsibility, and the test was easier to prove.

She also warned that employers should beware of impinging upon any other grounds prohibited under the A-DA – for example, they should be culturally sensitive so as not to discriminate on the basis of race.

Another interesting issue MacDermott raised was the reaction of other employees who did not have carers’ responsibilities, and who may feel concerned about extra care being paid to other workers when their lives were just as important. She stressed that everyone had caring responsibilities at different stages in their lives – for children, or aging parents, for example – but said employers should follow best practice on work and life flexibility for all employees anyway.

MacDermott said by following a practical checklist employers could ensure they helped workers meet carers’ responsibilities:

  • Have appropriate EEO policies in place to cover the new ground, including a discussion of the extent of the obligation to make reasonable accommodations;
  • Train staff on the provisions;
  • Consider the inherent requirements of the relevant work undertaken in the business before problems arise, and what accommodations the business could make without harming the business;
  • Consider whether changes could be made to start or finish times, roster arrangements or break times;
  • Consider whether the business could accommodate part-time instead of full-time work, or job-share arrangements;
  • Consider whether the business could allow an employee to work their hours over fewer days;
  • An employer should try to be flexible with the amount of unpaid or paid leave an employee can take and when they can take it;
  • An employer should try to give adequate notice about occasional changes to regular hours, days, or location of work – so that employees have time to make alternative care arrangements;
  • An employer should consider whether to allow employees to work from home some or all of the time and what additional equipment may be required to facilitate this. It is important to keep in mind when implementing a home work policy that:
  1. Different issues arise for a short-term as opposed to long-term arrangement;
  2. Working from home is not a long-term substitute for private child care arrangements;
  3. The policy should address OHS issues;
  4. Clear performance standards and mechanisms for measuring performance should be set out.
  • An employer should not reject applications for flexible working arrangements out of hand. Each application should be assessed objectively and comprehensively in relation to the particular needs of the specific area in which the employee works;
  • An employer should make a realistic assessment of the cost of any flexible work arrangement and document the costings. This will enable an employer to substantiate a claim of unjustifiable hardship, if necessary.


 
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