19 June 2007
Key Points:
The report promotes a "shared work-valued care" approach to balancing paid work and care in Australia.
The challenge of balancing work commitments and family responsibilities has long been a major issue for modern Australian society. This challenge continues to be an area of focus for the Human Rights and Equal Opportunity Commission ("HREOC") with the release of its final report in a series dealing with the work life balance debate.
Interestingly, the report entitled "It’s About Time: women, men, work and family" promotes a "shared work-valued care" approach to balancing paid work and care in Australia.
HREOC say that caring responsibilities are an inevitable and integral part of working life, not a choice, and thus the "myth of the ideal worker" must be replaced with a more realistic "shared work-valued care" approach that is based on a universal caregiver ideal that encourages both men and women to share care and paid work. The report argues that this could be attained by developing a national working hours framework that promotes flexibility and limits long and unpredictable working hours. It is argued that the gender disparity in family life could also be alleviated by providing inclusive mechanisms to support men's role in family life. Finally, the report observes that current legislative provisions in relation to work and family could be modified and enhanced to better reflect the necessities of Australian families.
A new legal framework
Overall, a total of 45 recommendations on social, fiscal and workplace policy were made in the report.
Notably, the report's recommendations include the proposal of new legislation referred to as the Family Responsibilities and Carer's Rights Act, which would provide protection from discrimination for employees with family and carer responsibilities and a right to request flexible work arrangements and align Australian legislation with a similar approach taken by the United Kingdom. The report also includes a recommendation that the proposed act include a right for workers with family and carer responsibilities to request flexible work arrangements with a corresponding duty on employers to reasonably consider these requests. HREOC also recommends a complaint mechanism to allow complaints to be made by employees whom have been unreasonably refused a request for flexible arrangements.
HREOC submits that the framework would not impose an obligation on an employer who is unable to meet a flexible working request due to genuine operational considerations, beyond the duty to give reasonable consideration to the request. Rather, it would protect employees from discrimination on the basis of family/carer responsibilities and represent a legitimate balance between business and familial considerations.
In recommending the proposed act HREOC observes there are certain limitations in respect of current federal anti-discrimination legislation.
The report states:
"Family responsibilities discrimination is distinct from sex discrimination and warrants its own legislative framework and policy support. Further, to include expanded family responsibilities protection in the Sex Discrimination Act may serve to entrench the idea that caring is women's work".
In this respect, the report observes that the Sex Discrimination Act 1984 ("SDA") provides disparate remedies between the genders when it comes to protections against discrimination on account of family responsibilities. HREOC notes the SDA extends to making discrimination on the ground of family responsibilities unlawful only in circumstances where there is dismissal and the particular discrimination is direct (not indirect) and that protections for male carers are effectively confined to this part of the SDA. By contrast, female carers have much broader protections under the SDA.
The report itself notes that there have been a number of cases where women seeking access to part-time work or other flexible work arrangements upon a return to work following a period of maternity leave have argued successfully that a requirement to work full-time is a condition, requirement or practice which has the effect of disadvantaging women,
The report further states:
"Despite the fact that the Sex Discrimination Act applies to both men and women, there is, as one submission pointed out, an "impression that it is primarily an Act about affirmative action for women and that family responsibilities are a "women's issue" "
...
A separate Family Responsibilities and Carers' Rights Act would expressly encompass both men and women with family and carer responsibilities. Such a specialised Act would assist in overcoming the stereotypes mentioned above, and be more accessible to men. These objectives would not be achieved if the family responsibilities provisions were extended within the Sex Discrimination Act".
Other HREOC recommendations
Additional recommendations include the implementation of a national working hours framework to promote flexibility and encourage limits on long work hours; the immediate introduction of Government funded maternity leave of 14 weeks, a scheme of two weeks paid paternity leave and a further 38 weeks paid parental leave; an increase in the personal/carer's leave standard from 10 to 20 days per annum (with 10 days to be non-accumulative); and the introduction of 12 months unpaid carer's leave to enable care for a seriously or terminally ill dependent.
Conclusion
Eager to provide a practical response to worklife balance debate, the report appeals to the Government to recognise that workplaces do not exist in a vacuum, unconnected from the social context in which individuals make their decisions and meet their responsibilities, and that workplace should be regarded as a central agent in the construction of family choices.
Thanks to Millen Lo and Louisa Macphillamy for their help with this article.
For further information, please contact Joe Catanzariti.
