In this post we provide an overview of the following two types of obligations that an employer has under Australian law when it comes to employees with child care responsibilities:
- considering and responding to flexible working arrangement requests; and
- preventing discrimination on the grounds of family or child care responsibilities.
We also provide some practical steps that employers can take to ensure that they meet their obligations.
Flexible working arrangements to care for children
Where an employee, who is a parent of a child of school age or younger (or has responsibility for their care, including in a guardianship or fostering arrangement), wishes to change their working arrangements on account of their role as a parent or carer, they may request a change in their working arrangements under the Fair Work Act 2009 (Cth.) (Fair Work Act).
In addition, parents of a person who has a disability, medical condition or mental illness (or employees who provide personal care, support and assistance to such a person and fall within the definition of carer under the Carer Recognition Act 2010 (Cth.)) may request a change in their working arrangements.
The working arrangements that an employee may seek to change include their hours of work, their pattern of work or even the location of their work or their duties.
By way of response and providing certain requirements under the Fair Work Act are met (including that the employee has completed at least 12 months of continuous service before making the request , ), the employer is obliged to consider the request for flexible work arrangements and provide a written response to the employee (including reasons for any refusal) within 21 days of receiving the request. An employer is only permitted to refuse the request on reasonable business grounds.
“Reasonable business grounds” include:
- that the requested working arrangements are too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the requested working arrangements;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the requested working arrangements;
- that the requested working arrangements would be likely to result in a significant loss in efficiency or productivity; and
- that the requested working arrangements would be likely to have a significant negative impact on customer service (section 65 of the Fair Work Act).
To assist with compliance in this regard, employers should develop a template “Flexible Working Arrangement Request” form. This will ensure that the requesting employee provides all relevant information (including reasons for their request and the specifics of the requested changes, including suggestions of how to manage the change or any obstacles to the change).
In addition, employers should develop internal policies (which could be for HR and managers only) which contain decision tools (i.e. lists of information to be gathered for review and relevant considerations in analysing requests), checklists for managing requests on a timely basis and examples of responses to various scenarios. This will ensure compliance with the Fair Work Act obligations and fair and consistent treatment of all employees. It will also create a paper trail to demonstrate that employers have taken into account all relevant considerations and provide evidence of the impracticability of certain arrangements and the need for their refusal on the basis of genuine business needs.
Prohibition of discrimination on the basis of carer’s responsibilities
Across Australia, various statutes prohibit discrimination in the workplace on account of a person’s carer’s responsibilities. This means that employers cannot treat employees less favourably on the basis of reasons related to their need to care for their child (e.g. by failing to promote them or pay them a bonus because they work part-time or fail to stay back or work weekends).
For example, the Sex Discrimination Act 1984 (Cth.) (SD Act) specifically makes it unlawful for an employer to discriminate against a person or employee on the grounds of the person’s family responsibilities:
- in determining who should be offered employment;
- in the terms or conditions on which employment is offered or continued;
- by 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;
- by dismissing the employee; or
- by subjecting the employee to any other detriment (section 14 of the SD Act).
For the purposes of the SD Act, a person’s family responsibilities are their responsibilities to care for or support:
- their dependent children; or
- any other immediate family member who is in need of care and support (section 4A of the SD Act).
Employers should consider developing and publishing in the workplace, anti-discrimination policies with a view to demonstrating a commitment to equal opportunities and to send a clear message to all employees and managers about expected standards of behaviour. Such policies (if applied carefully and consistently) can help to prevent and defend discrimination claims on the basis that employers have taken all reasonable steps to avoid discrimination.
