• Section 1 - Purpose and Context
• Section 2 - Definitions
• Section 3 - Policy Statement
• Part A - Types of Special Arrangements for Employees with Carers' Responsibilities
• Part B - Inherent Requirements and Unjustifiable Hardship Exception
• Part C - Procedures for Assessing Special Arrangements for Employees with Carers' Responsibilities
• Part D - Responsibilities
• Executive and Senior Managers
• Managers and Supervisors
• Equity and Diversity Unit
• Employee with Carers'/Family Responsibilities
• Section 4 - Procedures
• Section 5 - Guidelines

Section 1 - Purpose and Context

(1) From 1 March 2001, the ground of carers' responsibilities has been added to the grounds of unlawful discrimination under the New South Wales Anti-Discrimination Act 1977. The legislation requires employers to demonstrate 'reasonableness' in their decision-making when considering requests for staff with carers' responsibilities with the employer having a defence of demonstrated unjustifiable hardship, if not approving reasonable requests from employees.

(2) The University currently considers employees with responsibilities as a carer through the applicable employment agreement and other employment policies and practices which enable family-friendly practices, through flexible work practices. This policy works in conjunction with existing practices for employees to apply for flexible work practices. The general rule is that work arrangements, where possible, need flexibility to avoid direct and indirect carers' discrimination. That is, flexibility in the workplace, enables all employees including employees who have responsibilities as a carer, to request access to the existing conditions of employment in the first instance. Flexibility in work practices and reasonableness in considering requests reduces the requirements for 'special treatment' for one specific group.

(3) Other related legislation is the Sex Discrimination Act (C/wealth) 1984 on 'Family responsibilities' (Section 7A), and the Workplace Relations Act 1996.

Section 2 - Definitions

(4) The following definitions apply for the purpose of this policy:

1. Carer: any person who has the sole or substantial responsibility for the care of a dependent child, or cares or supports other family members as listed in "immediate family member" [see clause (6)].
2. Discrimination: occurs where an employer discriminates against another person on the grounds of the employees responsibilities as a carer where the employer:
   1. treats the employee less favourably than in the same circumstances, or similar circumstances, than the employer treats employees without carers' responsibilities.
   2. requires an employee who is a carer to comply with a requirement or condition which is more likely to be able to be met by a person without carers' responsibilities in situations where a substantially higher proportion of employees without carers' responsibilities are able to comply with a requirement (as against people with carers responsibilities), (refer Section 49T Anti-discrimination Act 1977).
3. Immediate family member - includes the following biological, adoptive, foster and step relationships - a married, de facto opposite sex or same sex partner, an ex-partner, a parent or partner's or ex-partner's parent, a brother or partner's or ex-partner's brother, a sister or partner's or ex-partner's sister, a grandchild or partner's or ex-partner's grandchild and a grandparent or partner's or ex-partner's grandparent.
4. Less favourable treatment: includes behaviour which is 'harassment' in any form of behaviour that:
   1. is not wanted and
   2. is likely to cause a hostile or uncomfortable workplace by:
      1. humiliating someone, or
      2. seriously embarrassing them, or
      3. offending them, or
      4. intimidating them ,and
   3. that happens because of a person's carers' responsibilities.
5. Responsibility as a carer: is a reference to the employee's responsibilities to care for or support others in their role of an immediate family member.
6. Unjustifiable hardship:is determined if the employer has considered all relevant circumstances of the employee's situation including:
   1. The nature of the benefit or detriment likely to accrue to or be suffered by the employee concerned;
   2. The effect of the relevant responsibilities as a carer of an employee; and
   3. The financial circumstances of the estimated amount of expenditure required to be made by the employer claiming unjustifiable hardship.

Section 3 - Policy Statement

(5) The University of Western Sydney Equal Opportunity Policy states the commitment to the examination of its policies and practices to eliminate discrimination on the grounds of carers' responsibilities. The University recognises the interdependency of work and family obligations and the need to prevent unlawful discrimination against employees with responsibilities as a carer.

(6) The University will undertake all reasonable efforts to accommodate the needs of employees with responsibilities as a carer, to enable the employee to fulfil the inherent requirements of their position. Where the University is unable to accommodate the needs of the employee with responsibilities as a carer this will be based upon the unjustifiable hardship exception. The University does not tolerate less favourable treatment, which includes harassment, of staff with responsibilities as a carer.

(7) The University requires all supervisors and managers to consider reasonably the requests from employees with carers' responsibilities for special arrangements to enable employees to satisfy the inherent requirements of their position while fulfilling their carers' responsibilities. The University also requires that in the decision-making process, the written records will demonstrate that all reasonable efforts have been made to accommodate employees who have carers' responsibilities, and that these records are available to the employees with carers' responsibilities.

Part A - Types of Special Arrangements for Employees with Carers' Responsibilities

(8) These special arrangements include many of the flexible work practices listed in the applicable employment agreements and/or in other University's policies, to which all staff have access. Employees with responsibilities as a carer can access these flexible work practices in the same way as all employees currently access these flexible work practices. Note that there are other special arrangements which are currently not included in the Enterprise Agreements or in other University's policies which may be considered.

(9) The types of special arrangements for staff with carers' responsibilities can include but are not limited to:

1. Options for part-time work;
2. Job sharing;
3. Variations in start and finishing times, roster arrangements or break times;
4. Working hours over fewer days;
5. Flexibility in when paid and unpaid leave can be taken;
6. Working from home, for part of the time, including paying for and providing the employee with the equipment and facilities to do this;
7. Adequate notice provided to an employee if there is a request to vary their usual hours or location of work;
8. Workplace child care arrangements as part of an employee's salary package; and
9. Breastfeeding and breast milk extraction at work.

(10) Employees with responsibilities as a carer will inform the supervisor/manager of their responsibilities when asking for special arrangements, when:

1. the special arrangements are not part of the applicable employment agreements or University's policies, or
2. the supervisor does not approve the special arrangements which are part of the applicable employment agreements or University's policies.

Part B - Inherent Requirements and Unjustifiable Hardship Exception

(11) When an employer considers the particular request from the employee with carers' responsibilities, it is reasonable to take into account whether the employee because of his or her carers' responsibilities:

1. would be unable to carry out the inherent requirements of the particular employment, or
2. would in order to carry out those requirements require arrangements that are not required by persons without the carers' responsibilities and the making of these would impose an unjustifiable hardship on the employer.

(12) It is not unlawful if, in considering the employee's request and all the relevant factors of the employee and the employer, they determine not to approve the request for special arrangements.

(13) The decision of 'unjustifiable hardship' is determined if the employer has considered all relevant circumstances of the employees situation including:

1. The nature of the benefit or detriment likely to accrue to or be suffered by the employee concerned;
2. The effect of the relevant responsibilities as a carer of an employee; and
3. The financial circumstances of the estimated amount of expenditure required to be made by the employer claiming unjustifiable hardship.

(14) The decision must be based on the facts of the situation, and not assumptions, and there must be consideration of other special arrangements which would assist the employee who is a carer to do the job.

(15) The decision-maker must record the decision in terms of 'unjustifiable hardship'. Alternative special arrangements to that requested by the employee must also be recorded.

Part C - Procedures for Assessing Special Arrangements for Employees with Carers' Responsibilities

(16) An employee who has carers' responsibilities and is unable to access the flexible work practices or other related policies, or the request to access the flexible work practices is denied, must request special arrangements to the manager/supervisor. The onus is on the employee to provide information on their carers' responsibilities and their need for special arrangements to enable the manager/supervisor to reasonably consider the request. It is preferable if the employee puts their request in writing, and where appropriate limited form of proof, such as a letter from a doctor or social worker.

(17) The employee and the manager/supervisor meet in person and discuss the request and other possible options to enable the employee to meet their carers' responsibilities balanced with the University needs. If the manager/supervisor is uncertain about the request or is not going to consider/approve the request, it is strongly recommended that the manager/supervisor consults with the Equity and Diversity Unit (EDU) on the legislative requirements.

(18) If the manager/supervisor does not approve the request, the manager/supervisor must provide reasons for not approving the request, based on their reasonable consideration of the request, and the unjustifiable hardship to the organization if the request was granted.

(19) The manager/supervisor should respond in writing to the request, following the meeting with the carer. Where approved there should be at least an annual review of the agreement to ensure that the employees carers' responsibilities and the University's needs are met.

(20) Employees have a responsibility to inform their manager/supervisor when they cease in the role of carer, or there are changes in their carers' role.

(21) Employees with carers' responsibilities where their manager/supervisor does not approve the request have the right to bring forward a complaint to the EDU, and have the complaint reviewed with regards to the legislation. Employees also maintain the right to seek advice from the Anti-Discrimination Board of NSW.

Part D - Responsibilities

Executive and Senior Managers

(22) Executives and Senior Managers:

1. will ensure that all policies and procedures do not discriminate on the grounds of an employee's responsibilities as a carer.
2. must inform their senior employees of this policy and the University's commitment to equal opportunity for employees with carers' responsibilities.

Managers and Supervisors

(23) Managers and Supervisors:

1. inform employees of this policy including actively informing employees of the prevention of discrimination in the workplace based on an employee's responsibilities as a carer. Requests may be made to the Equity and Diversity Unit (EDU) for staff training on the implementation of this policy.
2. discuss the employee's carers' responsibilities and possible special arrangements in person with the employee with carers' responsibilities. That is, direct and personal communication is required.
3. determine with the employee the need for a documented agreement. Most arrangements to support staff with carers' responsibilities may be made through flexible work practices provisions, some of which require documentation, as per the applicable employment agreements.
4. may request advice and assistance from the EDU.
5. where a decision not to approve the request from the employee on the basis of unjustifiable hardship, or inability of the employee to meet the inherent requirements of the position, the documentation of the request and the decision must be available for review.
6. review at regular intervals, at least annually, the arrangements made with staff with carers' responsibilities to ensure that the individual and organizational needs continue to be met.

Equity and Diversity Unit

(24) The Equity and Diversity Unit (EDU):

1. will provide assistance to any employee, including supervisors/managers seeking information and advice in relation to providing special arrangements for employees with carers' responsibilities.
2. will provide staff development training on carers' responsibilities to academic and administrative units when requested.
3. will review decisions made on the grounds of carers' responsibilities as specified in the legislation.

Employee with Carers'/Family Responsibilities

(25) An employee with carers' responsibilities can make application for flexible work practices, the same as all staff.

(26) If flexible work practices are denied, or special arrangements are required, an employee must inform their supervisor of their responsibilities as a carer.

(27) An employee may be requested to put in writing their responsibilities as a carer, and to provide documentation where appropriate of their responsibilities, such as a doctor's certificate or social work report. Statutory declarations are not required from an employee of their carers' responsibilities.

(28) An employee may request a third party to assist in the discussions of special arrangements with their supervisor.

(29) An employee has the right to forward a complaint on the grounds of alleged discrimination because of their carers' responsibilities to the Equity and Diversity Unit, and have the complaint reviewed with regards to the legislation. Employees also maintain the right to seek information from the Anti-discrimination Board.

(30) Employees who change their hours of work will inform themselves of the impact on their superannuation.

Section 4 - Procedures

(31) Nil.

Section 5 - Guidelines

(32) Refer to:

1. Anti-Discrimination Act (NSW) 1977 Part 4B
2. Carers' Responsibilities Discrimination: Guidelines for Employers (Anti-Discrimination Board of NSW)