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Family Responsibilities in the Workplace Policy

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Section 1 - Purpose and Context

(1) This policy outlines Western Sydney University's (the University) commitment to improving gender equality outcomes in the workplace by providing staff with family responsibilities in an environment free from discrimination in accordance with state and federal legislation.

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

(3) This policy works in conjunction with existing policies and practices that support employees to apply for flexible work arrangements, including those set out on the University's Flexible Working Arrangements webpage.

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Section 2 - Definitions

(4) For the purpose of this policy:

Act means the Fair Work Act 2009 (Cth).
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 the definition "immediate family member".
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.
Inherent requirements of a job are determined by the circumstances of each job and include the ability to perform the tasks or functions which are a required function of the job, productivity and quality requirements, the ability to work effectively in a team and the ability to work safely. These are often referenced in the selection criteria or position description for a job.
Less favourable treatment includes behaviour that constitutes unlawful harassment where a person is made to feel intimidated, insulted or humiliated because of their family/carer's responsibilities.
Unlawful discrimination occurs when a person, or a group of people, is/are treated less favourably than another person or group because of their family/carer's responsibilities.

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Section 3 - Policy Statement

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

(6) At the University, 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 should enable all employees, including employees who have family/carer's responsibilities, to request access to conditions of employment which allow a balance between work and family/carer's responsibilities.

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

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

(9) The University will provide targeted staff development training on flexible working arrangements as relates to this policy, available to managers/supervisors and all academic and administrative staff. The University will undertake strategies to raise awareness of flexible work options available for all staff with family/carer responsibilities.

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

Unlawful Discrimination

(11) Under the Commonwealth Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth), Equal Opportunity for Women in the Workplace Act 1999 (Cth); and the New South Wales Anti-Discrimination Act 1977 (NSW), it is unlawful to:

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
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.

(12) Taking into account a person's training, qualifications, experience, performance and all other relevant factors, it is not unlawful discrimination by the University against an employee with family/carer's responsibilities, if the person:

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

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

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

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

(15) A defence of unjustifiable hardship would be difficult in most cases to succeed at an organisation as large as the University. The measurement of this test will go to the whole organisation, including the work unit in question.

Flexible Working Arrangements at the University

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

(17) 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.

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

(19) 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.

(20) The types of flexible working arrangements available for employees with family/carers' responsibilities can include but are not limited to:

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

Requests for Flexible Working Arrangements under the Fair Work Act 2009

(21) In addition to the measures outlined above, the Fair Work Act 2009 (Cth) (the Act) allows for employees in the following circumstances to request flexible work arrangements.

(22) A request under the Act may be made by an employee if the employee:

is the parent, or has the responsibility for the care, of a child of school age or under;
is a carer (within the meaning of the Carer Recognition Act (2010) (NSW)
has a disability;
is 55 years or older;
is a victim of domestic violence;
is caring for or supporting a member of their family or household because the other person is themselves a victim of domestic violence.

(23) Examples of changes in working arrangements include:

Changes in hours of work (e.g. reduction in hours worked, changes to start/finish times, flexible use of leave);
Changes in patterns of work (e.g. job sharing arrangements, working hours over few calendar days);
Changes in location of work (e.g. working from home or another location).

(24) Employees are entitled to make the request under the Act when they have completed at least 12 months of continuous service at the University immediately before making the request.

(25) Casual employees are entitled to make a request under the Act if:

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

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

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Section 4 - Procedures

Part A - Requesting Flexible Working Arrangements

(27) 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:

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

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

(29) The employee and the manager/supervisor must meet in person to discuss the request within 14 calendar days of a written submission being made. Direct and personal communication is required. The aim of this meeting is to:

reach an agreement where possible that balances both work needs and the employee's family/carer's responsibilities.
clarify the flexible working arrangements required by the employee and for the manager/supervisor to raise any concerns they may have with the request.
address any reasonable concerns from the manager/supervisor about the proposed flexible working arrangement, and consider and discuss alternative arrangements.

(30) If the manager/supervisor is uncertain about the request or is considering not approving the request they must consult with Equity and Diversity Unit (EDU) or the Office of Human Resources (HR). EDU or HR must provide a response within 14 calendar days of the request.

(31) Within 21 calendar days of meeting with their manager/supervisor an employee must be provided with a written response to their request, stating whether their request has been granted or refused, and providing reasons for this 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 Act 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 B - 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 the appropriate 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 Discrimination, Harassment, Vilification and Victimisation Policy can be referred to in dealing with the issue.

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

(39) If there is a dispute under a University Staff Agreement in relation to a request for flexible working arrangements, the Dispute Settlement provisions in the Agreements are to be used to resolve 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 as outlined in this policy, an employee can either follow the Dispute Settlement provision in the University Staff Agreements or make a complaint to either the Fair Work Ombudsman or Fair Work Australia.

Part C - Responsibilities of the Executive and Senior Managers

(42) Executives and Senior Managers:

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

Part D - Responsibilities of Managers and Supervisors

(43) Managers and Supervisors:

must inform employees about this policy. Talent and Leadership Development will provide staff training on flexible work arrangements as relates to this policy for all managers/supervisors.
should determine with the employee the need for a documented agreement as to the flexible working arrangements that apply to the employee. 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.
may request advice and assistance from the Equity and Diversity Unit.
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.
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 E - Responsibilities of Employees with Family/Carer's Responsibilities

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

may inform their supervisor of their responsibilities as a carer;
may make a written request for flexible work practices;
must 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;
may request a third party to assist in the discussions of special arrangements with their supervisor;
should seek independent advice in relation to their superannuation where they change their hours of work.

Part F - Responsibility of the Equity and Diversity Unit

(45) The Equity and Diversity Unit 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.

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Section 5 - Guidelines

Relevant Laws/Guidelines

(46) Federal Laws/Guidelines:

(47) State Laws/Guidelines: