Key Point
- Parents and carers now have the right to ask their employers, principals or firm to accommodate their responsibilities.
Amendments to the Equal Opportunity Act 1995 (Vic) (EO Act), contained in the Equal Opportunity Amendment (Family Responsibilities) Act 2008 ( Vic) ( EO Amendment will provide parents and carers with broader anti-discrimination rights. As a consequence, the amendments (due to commence on 1 September 2008, unless proclaimed earlier) have the potential to impact upon all employers, principals and firms in Victoria.
Outline of the amendments
Upon commencement of the Amendment Act, the Act will require persons who engage workers (employers, principals and firms of more than five partners) to accommodate the family and carer responsibilities of their employees, contract workers or partners of firms (as the case may be). These obligations will also apply in relation to prospective employees and partners (though not prospective contract workers). The amendments are, therefore, intended to apply broadly to persons in employment and employment related areas.
Once the amendments are operative, they will require persons who engage workers to, in relation to the "work arrangements" of a person, not "unreasonably refuse to accommodate" the responsibilities that a person has as parent or carer.
"Work arrangements" is a deliberately broad term. The definition under the EO Amendment Act refers to arrangements that apply to the person or the workplace.
Examples of possible "work arrangements" given in the text of the amendments include allowing a person to:
- work from home;
- work additional hours per day so that the person has a shorter working week; and
- have flexible start, finish and break times.
Failing to make such allowances however will not amount to discrimination where it is not unreasonable for an employer, principal or firm to refuse them. Whether a refusal is unreasonable or not is determined by all the surrounding circumstances. For guidance, a non-exhaustive list of factors is provided in the legislation, which includes:
- the person's position, circumstances and the effect on a person in refusing to accommodate their responsibilities; and
- the size and nature of an employer's business and the various effects of accommodating an employee's request.
The consequence of unreasonably refusing to accommodate the family and carer responsibilities of persons is that an employer, principal or firm will have unlawfully discriminated against a person. As the new obligations constitute a distinct form of discrimination, an applicant is not required to prove direct or indirect discrimination in order to succeed in his or her claim.
Effect of the amendments
On one view the amendments do not constitute any great advancement in the position of persons with family and carer responsibilities, as similar results for employees, contract workers and partners may have been possible through arguments of indirect discrimination on the basis of family or carer responsibilities. This would involve arguing that a condition has been imposed (eg. attending an early morning staff meeting), which can be met by a greater proportion of persons without an attribute (ie. family or carer responsibilities) than with the attribute.
The novelty of the EO Act amendments however lies principally in the fact that it will provide persons with family and carer responsibilities with a sword and not merely a shield in seeking to balance their work and personal lives. In other words, parents and carers will no longer merely have the option of making an indirect discrimination complaint in the Victorian Equal Opportunity and Human Rights Commission so as to seek accommodation of their responsibilities.
Parents and carers now have the right to ask their employers, principals or firm to accommodate their responsibilities, who will need to be satisfied that it is not unreasonable for them to refuse such a request. In addition, employers, principals and firms will not have the benefit of complex arguments concerning indirect discrimination, which at present provide difficult hurdles for workers.
Implications beyond Victoria
Naturally the Amendment Act will not have direct effect outside Victoria. It is worth noting, however, that the passing of the is in accordance with a general shift in opinion as to the nature of antidiscrimination laws. Commentators and, increasingly, policy-makers in Australia and elsewhere have expressed concern at the slow rate of progress in eliminating discrimination.
There is an emerging consensus that the objective of anti-discrimination laws (which have existed in much the same form for about 30 years) should be the attainment of equality and not simply the removal of certain forms of discrimination through complaints made by individuals at anti-discrimination tribunals. It has been recognised that in order to achieve this goal of equality, certain positive obligations, such as those provided for in the EO Amendment Act, may be required by key stakeholders including employers. It has been argued that such reforms are necessary in achieving substantive equality and combating systemic discrimination.
At the present time, there are indications that some Australian jurisdictions are considering reforms or may consider reforming their anti-discrimination laws. For instance, Victoria and Western Australia are currently reviewing their anti-discrimination laws. At the Commonwealth level (as discussed by Joe Catanzariti in our June 2007 edition), the and Equal Opportunity Commission recommended Commonwealth legislation be enacted that closely reflects the amendments instituted by the EO Amendment Act.
In addition, the Commonwealth Government has proposed that one of the ten National Employment Standards (NES) be an entitlement for employees (not contract workers and partners) to request flexible working arrangements from their employer. According to the proposal, an employer would be required to respond within 21 days of a written request being made. The request could only be refused on "reasonable business grounds".
The proposed NES would apply to parents of under schoolage children and those responsible for the care of such children. The proposed NES is therefore narrower than the Victorian amendments in not applying to parental responsibilities of parents over schoolage and not applying to carer responsibilities. Of course, it remains to be seen whether these policy discussions are translated into legislative amendments. EO Amendment Act does however show that Victoria is taking some steps in conforming to changing views concerning the object of anti- discrimination laws.
Conclusion
Upon commencement, the provisions of the Amendment Act will provide parents and carers with greater rights in seeking to have their responsibilities accommodated by their employer, principal or firm (as the case may be). Victorian employers need to be aware that their employees have the right to request that their responsibilities be accommodated by them. When considering whether or not to refuse such requests, Victorian employers need to be mindful that their employees have the benefit of a separate form of discrimination, which is subject to less exacting standards than the current tests of discrimination. In making such decisions, employers will need to consider whether it is not unreasonable for them to refuse requests from employees that their parent and carer responsibilities be accommodated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.