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Family Responsibilities in the Workplace Policy

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Section 1 - Purpose and Context

(1) This policy outlines the University of Western Sydney's commitment to the prevention and elimination of unlawful discrimination on the grounds of family/carer's responsibilities as required under the Commonwealth Sex Discrimination Act 1984 and the New South Wales Anti-Discrimination Act 1977.

(2) The policy also outlines the Fair Work Act 2009 provisions that allow eligible employees to request flexible working arrangements and incorporates the flexible working arrangements outlined in the UWS Staff Agreements.

(3) This policy works in conjunction with existing policies and practices that support employees to apply for flexible work arrangements.

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Section 2 - Definitions

(4) For the purpose of this policy:

  1. Carer refers to any person who has the responsibility for the care of their child, whether pre-school age, school age or adult or cares or supports other family members as listed below under "immediate family member".
  2. 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.
  3. Employees who are carers of children or family members with a disability are entitled to make requests for flexible working arrangements under the university's Disability policy.
  4. Unlawful discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their family/carer's responsibilities.
  5. Inherent requirements of a job are determined in the circumstance of each job and include the ability to perform the tasks or functions which are a necessary part of the job, productivity and quality requirements, the ability to work effectively in the team and the ability to work safely.
  6. Less favourable treatment includes behaviour that constitutes unlawful harassment in that it is not wanted and a person is made to feel intimidated, insulted or humiliated because of their family/carer's responsibilities.
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Section 3 - Policy Statement

(5) The University of Western Sydney (UWS) recognises the need for employees to balance work and family/carer's responsibilities and the need to prevent and address unlawful discrimination against employees with these responsibilities.

(6) Unlawful discrimination, including harassment, on the basis of family/carer's responsibilities is unacceptable at UWS and any such behaviour by a member of the University community will not be tolerated and will be dealt with according to this policy.

(7) At UWS, work arrangements should be inherently flexible to avoid direct and indirect unlawful discrimination on the basis of family/carer's responsibilities. That is, the application of flexibility and reasonableness when considering working arrangements enables all employees, including employees who have family/carer's responsibilities, to request access to conditions of employment which allow a balance work and family/carer's responsibilities.

(8) The University will undertake all reasonable efforts to accommodate the needs of employees with family/carer's responsibilities and support them to fulfil the inherent requirements of their position.

(9) Where the University is unable to accommodate the needs of the employee with family/carer's responsibilities, this will only be based upon the relevant test of unjustifiable hardship or reasonable business grounds.

Part A - Unlawful Discrimination

(10) Under both the Commonwealth Sex Discrimination Act 1984 and the New South Wales Anti-Discrimination Act 1977 it is unlawful to:

  1. treat an employee with family/carer's responsibilities less favourably than employees, in the same or similar circumstances who do not have those responsibilities, or
  2. require an employee who has family/carer's responsibilities to comply with a requirement/condition even if a person who does not have such responsibilities is able to comply with that requirement/condition when the requirement/condition is unreasonable in the circumstances of the employee with family/carer's responsibilities.

(11) It is not unlawful discrimination by UWS against an employee with family/carer's responsibilities, if taking into account the person's training, qualifications experience performance, and all other relevant and reasonable factors, the person because of their family/carer's responsibilities:

  1. would be unable to carry out the inherent requirements of the particular job or
  2. would, in order to carry out those requirements, require arrangements which would impose an unjustifiable hardship on UWS.

(12) In determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account, including:

  1. the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned, and
  2. the effect of the employee's family/carer's responsibilities, and
  3. the financial circumstances of and the estimated amount of expenditure required to be made by UWS when claiming unjustifiable hardship.

(13) A decision of unjustifiable hardship must be based on the facts of the situation, and not assumptions, and there must be consideration of alternative arrangements which would assist the employee with family/carer's responsibilities to perform the inherent requirements of their position.

(14) A defence of unjustifiable hardship would be difficult in most cases to succeed at an organisation as large as UWS. The measurement of this test will go to the whole organisation not to the work unit in question.

Part B - Flexible Working Arrangements at UWS

(15) The University considers arrangements for employees with family/carer's responsibilities under the applicable UWS Staff Agreement provisions and other employment policies and practices which enable flexible working arrangements.

(16) The University's Staff Agreements contain a number of flexibility measures including flexible hours and personal leave that employees can access to fulfil their family/carers responsibilities.

(17) An employee, who has family/carers' responsibilities and is unable to access flexible working arrangements under a UWS Staff Agreement or other UWS employment related policies and practices, may request flexible working arrangements from their manager/supervisor under this policy.

(18) The types of flexible working arrangements available for employees with family/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 calendar 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.

Part C - Requests for Flexible Working Arrangements under the Fair Work Act 2009

(19) In addition to the measures outlined above, the Fair Work Act 2009 allows for an employee who is a parent, or who has responsibility for the care of a child, to request from their manager/supervisor a flexible working arrangement.

(20) A request under the Fair Work Act 2009 may be made by an employee to assist them to care for their child if the child is:

  1. Under school age (i.e. the age at which the child is required by NSW law to start attending school) or
  2. Under 18 and has a disability.

(21) Examples of changes in working arrangements include:

  1. Changes in hours of work (e.g. reduction in hours worked, changes to start/finish times);
  2. Changes in patterns of work (e.g. job sharing arrangements);
  3. Changes in location of work (e.g. working from home or another location).

(22) Employees are not entitled to make the request under the Fair Work Act 2009 unless they have completed at least 12 months of continuous service at UWS immediately before making the request.

(23) Casual employees are entitled to make a request under the Fair Work Act 2009 if:

  1. They have been employed by UWS on a regular basis for a sequence of periods of employment of at least 12 months immediately before making the request;
  2. There is a reasonable expectation of continuing employment by UWS on a regular and systematic basis.

(24) Employees with school age children are entitled to make request regarding their family responsibilities under a UWS Staff Agreement or other UWS employment related policies including this one.

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Section 4 - Procedures

Part D - Procedures for Requesting Flexible Working Arrangements

(25) It is the responsibility of an employee with family/carer's responsibilities seeking flexible working arrangements to make a request according to the following procedures:

  1. Submit request in writing to manager/supervisor;
  2. Outline the reasons for the request;
  3. Outline the nature of the arrangements required; and
  4. Outline the period of time proposed to utilise the arrangements.

(26) The manager/supervisor will give genuine consideration to the request for flexible working arrangements and the proposals put forward by the employee.

(27) The employee and the manager/supervisor must meet in person to discuss the request within 14 calendar days of a written submission being made and where possible reach an agreement that balances both work needs and the employee's family/carer's responsibilities. Direct and personal communication is required.

(28) The aim of this meeting is to clarify the flexible working arrangements required by the employee and for the manager/supervisor to raise any concerns they may have with the request.

(29) If there are reasonable concerns from the manager/supervisor about the proposed flexible working arrangement, alternative arrangements must be considered and discussed at this meeting.

(30) If the manager/supervisor is uncertain about the request or is considering not approving the request they must consult with UWS Equity and Diversity Unit or the Office of People and Culture.

(31) Within 21 calendar days of this meeting, the manager/supervisor must provide the employee a written response to the request, stating whether they grant or refuse the request, and providing reasons for their decision.

(32) A refusal of a request for flexible working arrangements must only be made in terms of either unjustifiable hardship or reasonable business grounds, the latter applicable only if the request falls under the Fair Work Act 2009 provisions.

(33) A refusal of a request for flexible working arrangements should where possible also include consideration of alternative arrangements to that requested by the employee.

(34) Employees have a responsibility to immediately inform their manager/supervisor when they cease their role as a carer or if there are changes in their carers' role.

(35) Where approved, there should be at least an annual review of the agreement to ensure that the employees' family/carers' responsibilities and the University's needs are being met.

Part E - Procedures for Dealing with Breaches of this Policy

(36) Where practicable a dispute as to the application of this policy should be resolved informally through discussion with their supervisor.

(37) If an employee makes a reasonable request for flexible working arrangements under this policy and unlawful discrimination can be alleged, the procedures in the UWS Discrimination, Harassment, Vilification and Victimisation Prevention Policy can be used to deal with the issue.

(38) In the case of alleged unlawful discrimination, an employee may also make a complaint to the following external organisations:

  1. Australian Human Rights Commission;
  2. NSW Anti-Discrimination Board;
  3. Fair Work Australia.

(39) If there is dispute under a UWS Staff Agreement in relation to a request for flexible working arrangements, the Dispute Settlement provisions in the Agreements can be used to deal with the issue.

(40) If a manager/supervisor refuses a request for flexible working arrangements and does not follow the procedures outlined in this policy, the employee can make a formal complaint under the process outlined in the Complaint Handling and Resolution Policy.

(41) If a manager/supervisor does not follow the procedures outlined in Section 3 Part B of this policy, an employee can either follow the Dispute Settlement provision in the UWS Employment Agreements or make a complaint to either the Fair Work Ombudsman or Fair Work Australia.

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Section 5 - Guidelines

Part F - Your responsibility as Executive or Senior Manager

(42) Executives and Senior Managers:

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

Part G - Your responsibility as Manager and Supervisor

(43) Managers and Supervisors:

  1. must inform employees of this. Requests may be made to UWS Equity and Diversity Unit for staff training on this policy.
  2. should determine with the employee the need for a documented agreement. Most arrangements to support employees with family/carer's responsibilities may be made through flexible work practices provisions, some of which require documentation, as per the applicable employment agreements.
  3. may request advice and assistance from the Equity and Diversity Unit.
  4. must document a decision not to approve a request for flexible working arrangements from an employee. The documentation of the decision including reasons must be made available to the employee for review.
  5. must review at regular intervals, at least annually, the arrangements made with employee with family/carer's responsibilities to ensure that the individual and organisational needs continue to be met.

Part H - Your responsibility as an Employee with Family/Carer's Responsibilities

(44) Employees with Family/Carer's Responsibilities:

  1. inform their supervisor of their responsibilities as a carer;
  2. make a written request for flexible work practices;
  3. provide documentation when requested of their responsibilities, such as a doctor's certificate or social work report. Statutory declarations of their carers' responsibilities are not required from an employee;
  4. an employee may request a third party to assist in the discussions of special arrangements with their supervisor.
  5. employees who change their hours of work should understand the impact this may have on their superannuation, and should seek independent advice.

Part I - Responsibility of the Equity and Diversity Unit

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

  1. Will provide assistance to an employee, including supervisors/managers, seeking information and advice in relation to providing special arrangements for employees with carer's responsibilities.
  2. Will provide staff development training on family/carer's responsibilities to academic and administrative units when requested.

Part J - Relevant Laws/Guidelines

(46) Federal Laws/Guidelines:

  1. Fair Work Act 2009, Chapter 2: Part 2-2; Division 4; Section 65
  2. Work and Family Best Practice Guide (Fair Work Ombudsman) Sex Discrimination Act 1984

(47) State Laws/Guidelines:

  1. Anti-Discrimination Act (NSW) 1977, Part 4B
  2. Carer's Responsibilities Discrimination: Guidelines for Employers (Anti-Discrimination Board)
  3. Flexible Working Arrangements Toolkit and Case Studies (University of Ballarat).