This Circular outlines the responsibilities of employers following the passing of the Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 (NSW) effective 1 March 2001. This Act amends the Anti-Discrimination Act (NSW) 1977 by introducing a new ground of unlawful discrimination - discrimination on the ground of carers' responsibilities.

The amendment defines 'responsibilities as a carer' as a person's responsibility to care for or support a child or another immediate family member in need of care and support. The definition of 'child' and 'immediate family member' is provided in the attachment to this circular. The attachment also provides further guidance on the impact of this legislation.

The NSW Government seeks to promote the widest possible use of flexible work practices to promote optimal agency performance and enable employees to balance work and personal responsibilities. The legislative amendment gives further weight to this policy.

Chief Executives should ensure that managers and supervisors are aware of the Government's policy to promote flexible work practices and of the benefits to organisational performance of these and other measures to support balance between work and personal life. They should also be made aware of their new legal obligations. Wherever possible, consistent with organisational requirements, an employee with carer's responsibilities who requests to work under a flexible work arrangement should be given assistance in this regard.

The NSW Anti-Discrimination Board has recently published Guidelines for Employers: Carers' Responsibilities Discrimination and Carers' Responsibilities Discrimination: Your Rights Factsheet. These may be obtained by phoning (02) 9268 5555 or 1800 670 812. The Premier's Department publications, Flexible Work Practices: Policy and Guidelines and Strategies for Flexible Workplace Arrangements are available at www.dpc.nsw.gov.au.

The Office of the Director of Equal Employment Opportunity in Public Employment has resources on implementing flexible work practices. These are available at http://www.eeo.nsw.gov.au/. Vivienne Porzsolt can be contacted on (02) 9248 3515 for advice and assistance.

C. Gellatly
Director-General

ATTACHMENT - DEFINITIONS AND ADDITIONAL INFORMATION

Definitions
For the purpose of the Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 (NSW):

• Unlawful discrimination includes responsibilities as a carer that:
  • a person has or is thought to have
  • has had in the past or is thought to have had in the past
  • will have in the future or is thought to have in the future
• 'child' includes the person's child, stepchild, adopted child, foster child and any child for whom they have a legal responsibility; and
• 'immediate family member' includes a person's responsibilities to care for or support:
  • a spouse or former spouse of the employee
  • grandchildren or step-grandchildren of the employee
  • parents and step-parents of the employee
  • grandparents or step-grandparents of the employee
  • brothers or sisters or step brothers or sisters of the employee
  • any of the above relatives of the person's spouse or former spouse.
• 'spouse' includes the person's partner in a de facto relationship. 'De facto relationship' has the same meaning as in the Property Relationships Act 1984 (NSW) and includes same-sex partners.

Discrimination
Direct discrimination on the ground of a person's responsibilities as a carer may occur when a person is treated less favourably in relation to their carers' responsibilities, in the same or not materially different circumstances, than those without such responsibilities. Refusal to employ someone because they have school-age children would be an example of direct discrimination on the grounds of their responsibilities as a carer.

Some working arrangements, such as requiring a person to work full time, imposing certain start and finish times or requirements to work back late without notice, can indirectly discriminate against those with responsibilities as a carer. Indirect discrimination on this new ground would occur when a requirement or condition of employment which is not reasonable, considering all the circumstances, is imposed or required which is harder for a person with responsibilities as a carer to comply with than a person without such responsibilities. A complainant would have to show that a substantially higher proportion of people who do not have carers' responsibilities could comply with the requirement or condition and that the requirement or condition is not reasonable.

It must be emphasised that discrimination in employment is only unlawful when it is not directly related to the inherent requirements of the job and when it would involve unjustifiable hardship for the employer to comply. Thus in the example above, if an employer could show that full-time work is essential to the effective performance of the job, it would not be unlawful to deny part-time employment.

Inherent requirements of the job and unjustifiable hardship
Recent case law from other jurisdictions where this ground has been in operation indicates that, for example, failure to provide part-time work or facilities for working from home, without substantial justification, can be costly to employers in terms of penalties ordered by courts.

To defend a complaint of discrimination on the ground of carers' responsibilities in relation to recruitment or termination of employment, an employer would need to show, for example, that working arrangements which exclude those with carers' responsibilities are part of the inherent requirements of the job, and that the provision of working arrangements to accommodate someone with those responsibilities would impose unjustifiable hardship on the employer. This parallels the provisions in the Anti-Discrimination Act on disability discrimination.

Existing employees with carers' responsibilities generally have the right to opportunities for promotion, transfer, training and all other work benefits in the same way as other employees who do not have carers' responsibilities. In addition, employment conditions must not be unreasonable.

Employers should consider:

• the inherent requirements of the job;
• whether the person with carers' responsibilities can carry out the inherent requirements of the job;
• if they cannot, what accommodation may be necessary to enable them to carry out the inherent requirements of the job, eg job sharing, altering shift arrangements etc;
• whether it would it be unjustifiably harsh to expect the employer to provide such accommodation.

What amounts to unjustifiable hardship will depend upon all the circumstances of the case including:

• the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned, such as the employer or employee;
• the effect of the carers' responsibilities of an employee concerned;
• the financial circumstances of and the expenditure required to be made by the employer claiming unjustifiable hardship.