Legislation and policy
Discrimination and Family Responsibilities
The issue of discrimination and family responsibilities is covered by a number of different pieces of federal legislation - the most prominent of these being the Sex Discrimination Act 1984. The Workplace Relations Act 1996 (WR Act) also contains sections relating to discrimination and employment.
Sex Discrimination Act 1984
The federal Sex Discrimination Act 1984 (the SD Act) makes it unlawful to discriminate against an employee because of their sex or marital status. These grounds may apply to either men or women, depending on the circumstances.
One of the SD Act's major objectives, consistent with Australia's obligations under the International Labour Organisation (ILO) Convention for the Elimination of All Forms of Discrimination Against Women, is to promote equality between men and women. Accordingly, the SD Act prohibits discrimination against an employee because an employer thinks the employee is pregnant, may become pregnant in the future, or is breastfeeding, grounds which apply exclusively to women. It is also unlawful:
- to dismiss an employee on the basis of their family responsibilities;
- for employers or potential employers to question employees about current or future pregnancies; and
- to use medical information collected from pregnant women inappropriately - it can only be used for appropriate processes and purposes, such as OH&S reasons.
Direct discrimination occurs when a person is treated less fairly than another person because of their sex or marital status or because they are pregnant.
Indirect discrimination can also occur when a requirement that is the same for everyone has an unfair effect on some people because of their sex, marital status, pregnancy or potential pregnancy.
The SD Act also outlaws discrimination involving dismissal of employees on the ground of "family responsibilities". Family responsibilities are only covered with regard to dismissal - it is not a general ground of sex discrimination. However, employees who suffer discrimination on the ground of family responsibilities which does not amount to dismissal may be able to lodge a complaint of indirect sex discrimination. This is because courts have found that because women still undertake the majority of caring duties, being discriminated against because of family responsibilities is a characteristic that relates mostly to women and so can constitute sex discrimination.
For more information on sex discrimination, please visit the Human Rights and Equal Opportunity Commission (HREOC) website. For information on pregnancy in the workplace, please see the pregnancy at work fact sheet.
Workplace Relations Act 1996
The Workplace Relations Act 1996 (WR Act) assists and encourages employees to balance their work and family responsibilities in numerous ways.
The principal object of the WR Act is to provide a framework for cooperative workplace relations to promote economic prosperity and welfare. This encompasses the following specific provisions:
- assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers;
- preventing and eliminating discrimination on a range of grounds, including family responsibilities.
The Work Choices Act (which amends the Workplace Relations Act 1996) fundamentally changes Australia’s workplace relations system.
For information on parental leave, carer’s leave, part-time work or negotiating a family friendly agreement, please refer to the Workplace Authority website.
Unlawful Termination
It is unlawful under the WR Act for an employer to terminate an employee’s employment on grounds including sex, marital status, family responsibilities or pregnancy, or because of absence from work during maternity or other parental leave. Dismissal of an employee for filing a complaint, or involvement in proceedings against an employer involving a breach of the law, will also remain illegal.
The Unlawful Termination Assistance Scheme (UTAS) has been established to provide financial assistance to people who believe they may have been unlawfully terminated from their employment. Eligible applicants may receive up to $4,000 (including GST) worth of independent legal advice on the merits of their claim.
To be eligible for assistance under the Scheme potential applicants must:
- have been terminated from their employment on or after 27 March 2006;
- have been issued with a certificate from the Australian Industrial Relations Commission stating that conciliation in the matter of the termination was unsuccessful and that either the claim has merit or the merits of the claim could not be determined; and
- have earnings in the month immediately prior to termination at or below the income threshold of the Scheme (currently $47,745 per year or $915.70 per week). Earnings must include tax and superannuation components.
Further information can be found by contacting the Workplace Relations InfoLine on 1300 363 264.
Equal remuneration and discrimination
The Australian Fair Pay Commission is required, in exercising its wage setting powers, to:
- apply the principle that men and women should receive equal remuneration for work of equal value;
- take account of the principles embodied in the Sex Discrimination Act 1984;
- take account of the principles embodied in the ILO’s Workers with Family Responsibilities Convention 156, in particular those relating to preventing discrimination against workers who have family responsibilities or helping workers to reconcile their employment and family responsibilities; and
- ensure that its decisions do not contain provisions that discriminate on the grounds of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
The Australian Industrial Relations Commission (AIRC) is bound to apply the ‘equal remuneration for work of equal value’ principle and is also able to make orders that equal remuneration for work of equal value be provided in some circumstances. An employer cannot dismiss or otherwise cause detriment to any of his or her employees as a result of an equal remuneration proceeding.
The Human Rights and Equal Opportunity Commission (HREOC) has responsibility for discrimination matters, including referral of awards or workplace agreements to the AIRC if they contain provisions that discriminate on the basis of sex. If such an award or workplace agreement is referred to the AIRC by HREOC, the AIRC may vary the award or workplace agreement to remove the sex discrimination.
ILO Convention 156 Workers with Family Responsibilities Convention 1981
In March 1990, Australia ratified the International Labour Organisation (ILO) Convention 156, Workers with Family Responsibilities. A total of 36 countries have so far ratified this Convention.
The major focus of ILO Convention 156 is to enable persons with family responsibilities the right to engage in employment without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities. This objective is reflected in the principal object of the WR Act, which aims to help prevent and eliminate discrimination on a range of bases including family responsibilities. The WR Act also aims to assist employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers.
The WR Act gives effect to Australia’s obligations under ILO Convention 156 by:
- including consideration of family responsibilities in the principal object of the Act;
- preventing unlawful termination on grounds including family responsibilities;
- preventing discrimination on grounds including family responsibilities;
- ensuring that the Australian Fair Pay Commission, the Australian Industrial Relations Commission and the Employment Advocate have regard to assisting workers to balance work and family responsibilities and the need to prevent and eliminate discrimination on grounds including family responsibilities in performing their functions;
- ensuring that all awards contain provisions for regular part-time work;
- providing unpaid parental leave (including maternity, paternity and adoption leave) to employees (including employees in non-constitutional corporations) and extending coverage of parental leave to eligible casual employees; and
- providing a minimum entitlement to carer’s leave as part of the Australian Fair Pay and Conditions Standard.
The associated ILO Recommendation 165, Workers with Family Responsibilities is not binding on Australia, but is intended to operate as a set of guidelines to explain and expand upon ILO Convention 156. Recommendation 165 provides that a worker with family responsibilities should be able to obtain leave of absence in the case of illness of a worker's dependent child or another member of the worker's immediate family who needs that worker's care or support.