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Equality fight heads home

FAMILY responsibilities are shaping up as the next discrimination front line, substantially widening the pool of employees likely to take such cases, just as business was coming to grips with this highly emotive issue.

More than a year after a key Equal Opportunities Commission case on the issue was won by a Fremantle nurse, legal professionals in tune with industrial relations law believe the issue of making time for family is going to become more pressing.

Immediate past Federal Sex Discrimination Commissioner Susan Halliday is one at the coalface of this sector who believes the shift in the structure of work is likely to have an effect on human resources management.

“There is a very clear need to think carefully if you are planning to say no to a request for part-time work,” Ms Halliday said.

She said employers used to be able to dictate when roles were full-time and when roles were part-time.

“A decade ago it might have been acceptable, but not any more.”

“Employees are giving up security and being promised flexibility, but only when it suits the employer.”

Legal professionals agree Fremantle nurse Beverley Bogle’s successful bid to return to work on a part-time basis after adopting a child has highlighted the need for employers to consider the impact of family demands on their employees.

Equal Opportunity Commissioner June Williams said the issue of family responsibilities as raised in Mrs Bogle’s case have the potential to impact on a huge number of people in the workforce.

Family responsibilities relate not only to parents who have special requirements to look after children, but it’s also relevant to individuals caring for old aged relations or siblings.

“Most of the cases are in relation to children. We’ve got cases where people are required to do rotational shift work, and that doesn’t fit in well with child care,” Ms Williams said.

“I think there are some exceptional circumstances but most employers with a bit of good will can accommodate for family responsibilities.

“Employers are not being asked to give these people time off for free and it’s the law.”

She said the introduction and subsequent publicity surrounding the Human Rights and Equal Opportunity Act seems effectively to have reduced the incidence of blatant acts of discrimination in the workplace.

While most businesses seem to have reasonable understanding of their obligations in terms of an internal policy and staff education, the more subtle forms of discrimination, including indirect discrimination, are still a major concern.

“A lot of organisations are training their staff. Companies and government departments are now beating down my door wanting to train their staff,” Ms Williams said.

“If you’d told me this was going to happen 10 years ago I just wouldn’t have believed you.”

Despite these encouraging improvements, the Equal Opportunity Tribunal received more than 540 inquires last year alone pertaining to racial discrimination. In the Reasons for Decision published following Mrs Bogle’s matter, the dental clinic’s inability to accommodate the request for a part time/ job share position was deemed to be based on ‘entrenched historical belief systems’.

In general terms, family responsibilities are defined as having responsibility for the care of another person as a dependent other than in the course of paid employment.

Freehills senior associate Marie-Claire Foley said the equal opportunity tribunal finding in favour of Mrs Bogle would accelerate the changing structure of the workplace.

“I think this will have a significant impact on the structure of work,” she said.

“There is no simple way to deal with the emotional issues of discrimination in the workplace and cases that deal with family responsibilities are no different.”

For many employees the process to deal with discrimination in the workplace is so stressful they choose to leave. With increased publicity and education about discrimination, employees are more comfortable voicing their concerns, but this has not silenced victims’ fear of retribution.

“It can be very tough on a business too,” Ms Foley said.

Although the Act is structured to ensure employers don’t suffer undue hardship to accommodate employees’ specific needs, there is significant concern within the business community that these laws can be impractical.

Chamber of Commerce and Industry manager legal services Geoff Bull said some of the anti-discrimination laws are very hard on a business.

The law has been structured such that employers are responsible for the behaviour of their employees.

This obviously encourages employers to educate staff about appropriate behaviour in the workplace including e-mail, screen savers and other graphic material that could be deemed offensive.

“In terms of sexual harassment, employers can’t keep an eye on everything all the time,” Mr Bull said. “And it’s very difficult for employers to show they’ve taken reasonable steps to stop this (discriminatory behaviour) happening.

“The biggest problem we have here is WA is the Equal Opportunity Commission provides assistance to the employee. There’s no incentive for employees to employ a mediator.”

The Chamber of Commerce and Industry has asked the Equal Opportunity Commission to address the issue that, even if the employee loses the case, they don’t have to pay any costs.

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