Bytheway, Zana; Archer, Shannon-Kate --- "Employment: women, family and work" [2003] AltLawJl 9; (2003) 28(1) Alternative Law Journal 39

EMPLOYMENT: Women, family and work

• Bogle v Metropolitan Health Service Board
  • The complaint
  • The findings
• Schou v State of Victoria (Department Of Parliamentary Debates)
  • The complaint
  • The findings
  • Appeal to Supreme Court
• Conclusion

EMPLOYMENT
Women, family and work

ZANA BYTHEWAY and SHANNON-KATE ARCHER^[*] examine the use of the family responsibilities provisions of state and territory legislation to access flexible working arrangements.

The 1990s in Australia marked the recognition of family responsibilities in a worker’s life. In March 1990, Australia ratified Convention No 156: Workers with Family Responsibilities 1981. Article 8 of the convention provides:

Parties should make it an aim of national policy to enable workers with family responsibilities to engage in employment without being subject to discrimination and, as far as possible, without conflict between their employment and family responsibilities.

In 1992, the Sex Discrimination Act 1984 (Cth) was amended in line with the Convention to include family responsibilities as a protected attribute under the Act. However, the scope of the Act is limited as it only prohibits discrimination on the basis of family responsibilities in employment when the discrimination results in the termination of employment. Accordingly, a complaint of indirect discrimination on the basis of family responsibilities in employment cannot be made.

By 2001 all the states and territories, with the notable exception of South Australia (which has yet to introduce such a provision), had added family responsibilities in various forms to the list of attributes protected from discrimination.^[1] Unlike the federal legislation, state and territory legislation allows for complaints of indirect discrimination on the basis of family responsibilities.

In the absence of legislative provisions specifically allowing parents to access flexible working arrangements to meet their carer responsibilities, women have turned to the indirect discrimination provisions of state and federal legislation to create a right to work part time, job-share and work from home.

Two cases which have explored indirect discrimination on the basis of family responsibilities are Bogle v Metropolitan Health Service Board Equal Opportunity Tribunal WA, 7 January (2000) EOC 93-069 and Schou v State of Victoria (Department of Parliamentary Debates) [2002] VCAT 375 (24 May 2002.)

In these cases the complainants sought to rely on the attribute of family responsibilities and the indirect discrimination provisions of respective state anti- discrimination legislation to achieve the right to a flexible working arrangement.

Bogle v Metropolitan Health Service Board

The complaint

Ms Bogle lodged a complaint of indirect discrimination with the Western Australian Equal Opportunity Commission when, after a period of adoption leave, her request to change her full-time position as a Charge Nurse to a part-time position on a job share basis was refused.

Section 35A(2) of the Equal Opportunity Act 1984 (WA) defines indirect discrimination on the basis of family responsibility as an act which:

… discriminates against another person (in this subsection referred to as the ‘aggrieved person’) on the ground of family responsibility or family status if the discriminator requires the aggrieved person to comply with a requirement or condition

(a) with which a substantially higher proportion of persons not of the same family responsibility or family status as the aggrieved person comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the aggrieved person does not or is not able to comply.

The findings

The Tribunal found that a higher proportion of the base employees (men and unmarried women) could comply with the requirement to work full time.

The fact that the complainant’s attempts to work full time and fulfill her duties as a carer had been stressful forcing her to revert to part-time work at a lower status proved that Ms Bogle was unable to comply with the requirement to work as a full-time charge nurse.

The Tribunal found that management had failed to conduct any proper analysis of her job-share proposal. The Tribunal described the Board’s refusal of Ms Bogle’s proposal as a decision based on nothing more than the historical fact that supervisory positions had never been worked part time or job-shared (at 132).

In considering the reasonableness of the proposal the Tribunal did not consider whether the requirement to attend work full time was in itself reasonable before considering the reasonableness of the alternative.

Bogle is a Tribunal decision, and as such, its precedent value is limited. In Schou, however, the issue of how the ‘reasonableness’ of a requirement or practice is to be considered was determined by the Victorian Supreme Court which provided a different approach to the operation of indirect discrimination provisions.

Schou v State of Victoria (Department Of Parliamentary Debates)

The complaint

Ms Schou, a Parliamentary Sub-Editor lodged a complaint of indirect discrimination with the Equal Opportunity Commission of Victoria, when the state failed to implement her proposal to provide her with a modem and a fax machine which would allow her to work from home for two of her full-time days. Ms Schou had a young child who required her care and she could not continue to fulfil the attendance requirement of each day of her full-time employment. The basis of Ms Schou’s claim was that the failure to implement her proposal amounted to indirect discrimination on the basis of parental and carer status.

Indirect discrimination under the Equal Opportunity Act 1995 (Vic) is defined by s.9 of the Act:

9(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice:

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(c) that is not reasonable.

9(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

The findings

In the first instance at VCAT the Tribunal found that Ms Schou was a carer and a parent and because of this attribute she could not comply with the Department’s requirement that she attend work on the days that Parliament was sitting (the ‘attendance’ requirement). Others who did not have this attribute could comply with this requirement. These people constituted a higher proportion of the Department’s employees.

VCAT held that the requirement to attend work when Parliament was sitting was not reasonable because Ms Schou could perform her duties from home on Thursday and Friday when Parliament was sitting once the Department did what was reasonably open to it to do, and supply her with a modem and a fax machine. Failure to comply with this request placed Ms Schou at the risk of losing her job.

Appeal to Supreme Court

On appeal to the Supreme Court, the decision was set aside. The central issue raised by the appeal was the reasonableness of the ‘attendance’ requirement.

According to Harper J, it was wrong of the Tribunal to consider any alternative proposal to the ‘attendance’ requirement before determining the reasonableness of the requirement itself. On this interpretation, the first test should be, ‘Is the requirement to be in physical attendance at work reasonable?’ If the answer is, ‘No, the attendance requirement is not reasonable’, only then can you consider other options, in this case, the modem proposal.

In his interpretation Harper J creates an artificial division between s.9(1)(c) and s.9(2). If such a division is created, then under what circumstances will an attendance requirement be unreasonable? Considered in isolation, it is always reasonable for an employer to require the attendance of its employees. It can only become unreasonable by consideration of the circumstances of the case and the weighing up of factors, including those provided in s.9(2).

Section 9(2) in the assessment of reasonableness does not allow for concentration on any one factor, be it the modem proposal or the rights and interests of employers as expressed in the contract of employment.

The Schou case was remitted to the VCAT and once again there was a finding in favour of Ms Schou.^[2] The State of Victoria has sought leave to appeal on the basis that the VCAT failed again to answer the question of whether the attendance requirement was reasonable.

The final decision in this case is unknown. Whatever the outcome it is vital to the promotion of flexible working arrangements that the potential of indirect discrimination provisions for the purposes of family responsibilities is not diminished.

Conclusion

Until a determination by a court is made, the right remains for parents to request flexible work arrangements. It is vital that a request for the adjustment of working conditions to allow work from home is not viewed as a ‘favour’ an employer is entitled to simply disregard and that due consideration is given to such a request having regard to all the circumstances of the case.

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^[*] Zana Bytheway is the Executive Director/Principal Solicitor of JobWatch.

Shannon-Kate Archer is a solicitor with JobWatch in Melbourne.

©2003 Zana Bytheway & Shannon-Kate Archer

^[1] Discrimination Act 1991 (ACT), s.7(1)(e) status as a parent or carer; Anti Discrimination Act 1977 (NSW) s.49(s) responsibilities as a carer; Anti Discrimination Act 1992 (NT) s.19(1)(g) parenthood; Anti-Discrimination Act 1991(Qld) s.7(1)(d) parental status; Anti Discrimination Act 1998 (Tas) s.16(i) parental status, s.16(j) family responsibilities; Equal Opportunity Act 1995 (Vic), s.6(l) status as a carer or parent; Equal Opportunity Act 1984 (WA) s.35A.

^[2] Schou v State of Victoria, Department of Parliamentary Debates [2002] VCAT 375.