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Smith, Belinda; Dilsy, Joellen --- "Family-friendly Work Practices and The Law" [2004] SydLawRw 17; (2004) 26(3) Sydney Law Review 395

* Lecturer, Law Faculty, University of Sydney.

† Senior Lecturer, Law Faculty, University of Sydney. The authors wish to thank the organisers of and participants in the Annual Labour Law Conference ‘“Work and Family” Policies and Practices: The Legal Dimensions’ held in Sydney on 1 April 2004, which first stimulated this collaborative work, and also two anonymous referees for their extensive, insightful comments. Any errors or omissions are our own.

[1] Hugh Collins, Employment Law (2003) at 77.

[2] Id at 78.

[3] For a discussion of the range and development of family-friendly arrangements (including a typology) in Australian workplaces, see Glenda Strachan & John Burgess, ‘The “Family Friendly” Workplace: Origins, Meaning and Application at Australian Workplaces’ (1998) 19(4) Int’l J of Manpower 250. Strachan and Burgess rightly point out that a broad categorisation of family-friendly arrangements would also include ‘income security’ and ‘employment security’ as employment that provides insufficient income to support a family will ‘put pressure on family living standards and family structures’ and ‘insecure employment reduces the opportunity for planning and financial commitment, and may be often associated with benefit exclusion’. Id at 251. For a government summary of family-friendly provisions in Australian workplaces see Australian Government Department of Family and Community Services, OECD Review of Family Friendly Policies: The Reconciliation of Work and Family Life: Australia’s Background Report (2002) at 46–50.

[4] The notion of an ‘ideal’ worker being unencumbered or independent of non-work demands is raised in much of the feminist literature on work and gender. See, for example, Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It (2000) at 2.

[5] For a more detailed analysis of the way in which time norms structure the ‘ideal’ worker, see Belinda Smith, ‘Time Norms in the Workplace: Their Exclusionary Effect and Potential for Change’ (2002) 11 Columbia J of Gender & Law 271, Part II.

[6] Michelle Travis argues that without significant external control, technological innovation can be simply adapted to and governed by the existing employment structures and gender roles rather than challenge or transform existing gender norms in the workplace or the home. Michelle A Travis, ‘Equality in the Virtual Workplace’ (2003) 24 Berkeley J Emp & Lab L at 283.

[7] See Lotte Bailyn, Breaking the Mold: Women, Men, and Time in the New Corporate World (1993) at xii for an argument that the introduction of family-friendly benefits is not enough to achieve real change and instead ‘companies must include – explicitly, imaginatively, and effectively – the private needs of employees when reengineering their work’.

[8] Smith, above n5.

[9] For a comprehensive analysis of the limited use Australian men make of family-friendly work provisions see Michael Bittman, Sonia Hoffmann & Denise Thompson, Australian Government Department of Family and Community Services, Men’s Uptake of Family-Friendly Employment Provisions, Policy Research Paper Number 22 (Canberra: AGPS, 2004).

[10] Such concerns were expressed in the recent debate over paid maternity leave, where many advocates of paid leave argued that it should be ‘parental leave’ not merely maternity leave so as not to reinforce the traditionally gendered role of women caring for newborns. Belinda Smith, ‘A Time to Value: Proposal for a National Paid Maternity Leave Scheme’ (2003) 16(2) AJLL 226 at 228–229; Sex Discrimination Unit of the Human Rights and Equal Opportunity Commission, A Time to Value: Proposal for a National Paid Maternity Leave Scheme, s14.2 (A Time to Value) (2002).

[11] Linda Dickens, ‘Beyond the Business Case: A Three-Pronged Approach to Equality Action’ (1999) 9(1) Human Resource Management Journal 9.

[12] Marian Baird, Deborah Brennan & Leanne Cutcher, ‘A Pregnant Pause: Paid Maternity Leave in Australia’ (2002) 13(1) Labour and Industry 1 at 3.

[13] See Workplace Relations Act 1996 (Cth) s170KA and Industrial Relations Act 1996 (NSW) Ch2, Pt4.

[14] This prompted the recent national inquiry by the Sex Discrimination Unit of the Human Rights and Equal Opportunity Commission, Valuing Parenthood: Options for Paid Maternity Leave: Interim Paper 2002 (2002), culminating in a proposal for a national scheme of 14 weeks leave. A Time to Value, above n10. As Baird, Brennan & Cutcher sum up in relation to this particular benefit, paid maternity leave, ‘The missing element in Australia is a national legislative foundation, and it is long overdue.’ Baird et al, above n12 at 17.

[15] See, for example, Maternity Leave (Commonwealth Employees) Act 1973 (Cth). 16 Maternity Leave Case (1979) 218 CAR 120.

[17] Parental Leave Case (1990) 36 IR 1.

[18] Family Leave Test Case (1994) 57 IR 121. Strachan and Burgess assert that this decision and the 1996 Living Wage Case were, at the time of their writing in 1998, probably the most important recent family-friendly working developments in Australia. Strachan & Burgess, above n3 at 261.

[19] See the Australian Industrial Relations Commission website for the case: <http://www.e – airc.gov.au/familyprovisions/> (last updated 14 July 2004), or the ACTU campaign site at: <http://www.actu.asn.au/public/campaigns/workandfamily/work_family_evidence.html> (21 July 2004). In this application the unions are seeking extended unpaid parental leave, secure part-time work and emergency family leave.

[20] See Strachan & Burgess, above n3 at 256–257 for pronouncements of both governments on how enterprise bargaining would encourage and enable (although not guarantee) working arrangements that were more family-friendly.

[21] Baird, Brennan & Cutcher, above n12 at 10.

[22] Id at 259; Bittman et al, above n9 at 17–29. Further, Burgess and Strachan warn that many provisions that are supposedly family-friendly, such as flexible hours, are not necessarily so when the worker has little control. They assert that ‘Flexible working arrangements often mean working over a longer time span of what constitutes the “standard” day and the “standard” week while at the same time being denied access to penalty rates for working unsociable hours’. Id at 258 (citing Belinda Probert, Department of Education, Employment and Training, Part-time Work and Managerial Strategy: Flexibility in the New Industrial Relation Framework (Canberra: AGPS, (1995)).

[23] Linda Dickens, ‘The Business Case for Women’s Equality: Is the Carrot Better than the Stick?’ (1994) 16(8) Employee Relations 5.

[24] As was the case in Thomson v Orica Australia Pty Ltd [2002] FCA 939 (Thomson).

[25] Thomson, above n24.

[26] We acknowledge that the broader ‘work-life balance’ debate encompasses a range of demands for recognition of human choice in how we nurture not only our loved ones but also ourselves. Many of the same arguments could be made for people with responsibilities for the care of elderly relatives or very ill life partners.

[27] For a comprehensive discussion of the limits on anti-discrimination legislation to achieve change and, in particular, the importance of the understanding of tribunal members and judges who hear matters that go to hearing, see Beth Gaze, ‘Context and Interpretation in Anti-Discrimination Law’ [2002] MelbULawRw 18; (2002) 26(2) MULR 325.

[28] In addition to their dispute resolution roles, the administrative agencies responsible for implementing anti-discrimination legislation are generally also charged with addressing discrimination by other regulatory means, such as education and training. See, for example, s11(1)(h) Human Rights and Equal Opportunity Commission [HREOC] Act 1986 (Cth) empowers the HREOC to undertake research and educational programs to promote human rights.

[29] See, for example, Anti-Discrimination Act 1977) (ADA), s92 Resolution of complaint by conciliation and s94 Reference of complaints to the Tribunal. Note that it is not compulsory to hold a conciliation conference; it is compulsory to attend if one is held. The agency has discretion to decide not to conciliate on the basis that the matter is unlikely to be resolved by conciliation.

[30] For one critique of this see Margaret Thornton, ‘Equivocations of Conciliation: the Resolution of Discrimination Complaints in Australia’ (1989) 52(6) Mod LR 733. See also Hilary Astor & Christine Chinkin, Dispute Resolution in Australia (2nd ed, 2002) at 362.

[31] $40 000 in New South Wales. See s113(4) ADA.

[32] This can be contrasted with potentially huge damages pay-outs under discrimination suits in the United States where, under federal legislation, liability and damages awards for discrimination are not capped and are usually decided by juries. As Susan Sturm explores, the potential liability for very large damages payments has fostered the development of insurance policies against liability. Interestingly, this in turn has prompted the insurers to promote or even require as a policy condition the auditing and improvement of management practices to minimise the incident of discrimination and hence the risk of liability. Insurers have thus become significant actors in initiating measures to avoid discrimination in the workplace. Susan Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101(3) Colum LR 458.

[33] Dickens, above n11 at 13. Each of these roles warrants a further exploration but must be left for another paper.

[34] A Time to Value, above n10 at 28–36. HREOC reports that ‘The most recent data on paid leave arrangements found that 38 per cent of female employees reported that they were entitled to some form of paid maternity leave’ and concludes ‘Existing paid maternity leave arrangements are limited, haphazard and fall significantly below what could be considered a national system’. Id at 29 and 25, respectively.

[35] Id at 35.

[36] Id at 30 reporting that ‘for the two-year period from 1 January 2000 to 31 December 2001 seven per cent of federal certified agreements made in that period contained paid maternity provisions, a decrease of three per cent from the 1998–1999 period.’

[37] HREOC reports that a 2000 ‘review of 100 federal awards with the highest coverage of workers… found that only six federal awards included provision for paid parental leave.’ Ibid.

[38] Ibid. See Smith, above n10 for an outline and summary of the report.

[39] Maternity Leave (Commonwealth Employees) Act 1973 (Cth).

[40] Maternity Leave Case (1979) 218 CAR 120.

[41] Section 170KA.

[42] See, for example, Industrial Relations Act 1996 (NSW) Ch2, Pt4.

[43] For example, the Industrial Relations Act 1996 (NSW) extends eligibility to ‘regular casual employees’ as defined in s53(2).

[44] Thomson, above n24 at para 51 (emphasis in the original).

[45] Industrial Relations Act 1996 (NSW) s66.

[46] Thomson, above n24 at para 149.

[18] .

[48] Thomson, above n24 at para 53.

[49] Id at para 110.

[50] For example, ADA (NSW) s24(1A) (sex discrimination).

[51] See, for example, SDA s7(1)(b) and (c), respectively.

[52] Thomson, above n24 at paras 165–166. In accepting this Allsop J at para 166 applied the decision of the Human Rights and Equal Opportunity Commission in Gibbs v Australian Wool Corporation (1990) EOC 92–327.

[47] Id at paras 133–134 citing Illawarra County Council v Federated Municipal & Shire Employees’ Union of Australia (1985) 11 IR

53 See, for example, SDA s5(1), ADA s24(1)(a).

[54] Thomson, above n24 at para 121.

[55] This was a direct disability discrimination claim under the Disability Discrimination Act 1992 (Cth). In brief, the case concerned a challenge to a school decision to remove the applicant, a disabled boy, from a mainstream school because of his violent behaviour toward staff and other students. The key questions were whether his behaviour was the reason for the decision, whether his treatment should be compared with someone who exhibited the same behaviour but who was not disabled and whether the behaviour could be considered so inseparable from the disability that a decision based on the behaviour was a decision based on the disability.

[56] McHugh & Kirby JJ dissented. Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 at paras 16–176.

[57] Id at para 119.

[58] Ibid.

[59] The Disability Discrimination Act (1992) (Cth) provides that in deciding whether to accept into a school, but not in deciding whether to expel a student, educators are permitted a defence to discrimination of ‘unjustifiable hardship’.

[60] Thomson, above n24 at paras 163–164.

[61] Rispoli v Merck Sharpe & Dohme & Ors [2003] FMCA 160 at para 78.

[62] Rispoli, above n61 at para 82. See below, Implication in Fact, below n99 onwards, for a discussion of how the policy in this case was found to be contractually binding.

[63] Ibid.

[64] Rosemary Hunter, Indirect Discrimination in the Workplace (1992) at 156–158. See also Rosemary Hunter ‘Part-time Work and Indirect Discrimination’ (1996) 21 Alt L J 220 (exploring Australian cases to see how career advancement depends on working full-time hours).

[65] Beth Gaze provides a useful analysis of these cases and relevant legal literature on part-time work in ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001) 1(2) QUTLJJ 199.

[66] See Joanne Conaghan, ‘The Family-Friendly Workplace in Labour Law Discourse: Some Reflections on London Underground Ltd v Edwards’ in Hugh Collins, Paul Davies & Roger Rideout (eds), Legal Regulation of the Employment Relations (2000).

[67] Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122 at [37].

[68] Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209 at para 71; Kelly v TPG Internet Pty Ltd [2003] FMCA 584 at para 58.

[69] SDA s14(2)(a)–(d).

[70] Mayer, above n68 at para 67–77.

[71] Id at para 74.

[72] Id at para 71.

[73] Id at para 70.

[74] See SDA s7B and 7C.

[75] Mayer, above n68 at para 75.

[76] Id at para 77.

[77] Kelly, above n68 at para 79.

[78] Raphael FM cited Harper J’s judgment in State of Victoria v Schou [2001] VSC 321; (2001) 3 VR 655 at para 658: The section does not turn the denial by an employer of a favour to the employee into discrimination, although if the favour is generally available to other employees, its denial to one could conceivably, in the particular circumstances, amount to an offence against the Act.

[79] Id at para 80.

[80] See SDA ss7A and 14(3A), respectively.

[81] See, for example, Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002); Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122 (5 July 2002); Evans v National Crime Authority [2003] FMCA 375 (5 September 2003) (affirmed in Commonwealth of Australia v Evans [2004] FCA 654 (25 May 2004)).

[82] Above n67.

[83] Part 4B.

[84] ADA s49T defines discrimination on the ground of a person’s responsibilities as a carer.

[85] ADA s49V.

[86] ADA s49T(1)(b). Note the applicant bears this onus in respect of indirect discrimination claims under any grounds in the ADA. See, for example, s24(1)(b) (sex).

[87] Gardiner v Work Cover NSW [2003] NSWADT 184.

[88] State of Victoria v Schou [2004] VSCA 71.

[89] ADA 49V(4).

[90] Although, if the cases are typical, they would not have been preceded by a high level of analysis about the most effective strategy. It is probably more typical that the applicant has, prior to legal advice, turned to whichever agency she has heard of, to complain of mistreatment, and it is only later that the claim becomes formalised into a legal action.

[91] See SDA ss7B & 7C.

[92] Although it appears from interlocutory decisions in Thomson that the contract claim was not even raised until very late in those proceedings, and thus was not a factor in choosing jurisdiction.

[93] Conversely, it might be more feasible to engage legal representation and hence pursue a claim in a costs jurisdiction.

[94] Conaghan, above n66.

[95] See Joanne Conaghan, ‘Women, Work, and Family: A British Revolution’ in Joanne Conaghan, Richard Michael Fischl & Karl Klare, Labour Law in an Era of Globalization: Transformative Practices and Possibilities (2002) at 53 for a discussion and critique of the ‘family-friendly workplace as progressive labour law strategy’ and New Labour’s family-friendly working policies.

[96] Conaghan, above n66 at 178–179.

[97] [2000] FCA 889; (2000) 177 ALR 193.

[98] [2004] VSC 33 (18 February 2004).

[99] Terms are implied in fact on the principles set out in Codelfa Constructions Pty Ltd v State Rail

Authority of New South Wales (1982) 149 CLR 337 at 345–6. 100 Id at para 30. 101 Id at para 81.

[102] (1977) 180 CLR 266 at 282–3. 103 (1995) 131 ALR 422.

[104] Malik and Mahmud v Bank of Credit and Commerce International SA (in liq) [1997] UKHL 23; [1997] 3 WLR 95 (Malik).

[105] [1997] UKHL 23; [1997] 3 WLR 95.

[106] See, for example, Courtaulds Northern Textiles v Andrew [1979] IRLR 84; Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693; Bliss v South East Thames Regional Health Authority [1985] IRLR 308.

[107] See Douglas Brodie in ‘A Fair Deal at Work’ (1999) 19 Oxford J of Legal Studies 83; ‘Beyond Exchange: the New Contract of Employment’ (1998) 27 Indust’l LJ 79 and ‘Recent Cases, Commentary, The Heart of the Matter: Mutual Trust and Confidence’ (1996) 25 Indust’l LJ 121, cited with approval in Malik at 109 (Steyn LJ).

[108] See Johnson v Unisys Ltd [2001] UKHL 13; [2001] IRLR 279 at 285 (Steyn LJ). Recent cases developing this jurisprudence include Clark v Nomura International plc [2000] IRLR 766; BG plc v O’Brien [2001] IRLR 496, upheld by the Court of Appeal in Transco plc (formerly BG plc) v O’Brien [2002] EWCA Civ 379; [2002] IRLR 444.

[109] [2003] UKEAT 0097_02_2005; [2004] IRLR 42 (Visa).

[110] See, for example, Sea Acres Rainforest Centre Pty Ltd v State of New South Wales [2001] NSWIRComm 207; (2001) 109 IR 56 at 66 (Haylen J). See also, Linkstaff International Pty Ltd v Roberts (1996) 67 IR 381; Jager v Australian National Hotels Ltd [1998] TASSC 54; (1998) 7 Tas R 437; Hollingsworth v Commissioner of Police (1999) 88 IR 282 at 318 (Wright & Hungerford JJ); Gambotto v John Fairfax Publications Pty Ltd [2001] NSWIRComm 87; (2001) 104 IR 303 at 309-311 (Peterson J); Aldersea & Ors v Public Transport Corporation [2001] VSC 169; (2001) 3 VR 499 at para 67; Thomson v Broadley & Ors (Qld Supreme Court, Jones J, 20 June 2002).

[111] See Adrian Brooks, ‘The Good and Considerate Employer: Developments in the Implied Duty of Mutual Trust and Confidence’ [2001] UTasLawRw 2; (2001) 20 U Tas LR 29; Joellen Riley ‘Mutual Trust and Good Faith: Can Private Contract Law Guarantee Fair Dealing in the Workplace?’ (2003) 16 AJLL 28; Kelly Godfrey, ‘Contracts of Employment: Renaissance of the Implied Term of Trust and Confidence’ (2003) 77 ALJ 764.

[112] See s106 of the Industrial Relations Act 1996 (NSW). The jurisprudence about this provision has been documented in Jeffrey Phillips & Michael Tooma, The Law of Unfair Contracts in NSW: An Examination of Section 106 of the Industrial Relations Act 1996 (NSW) (2004).

[113] See, for example, Clark v Nomura International plc [2000] IRLR 766.

[114] Clark v BET plc [1997] IRLR 348.

[115] BG plc v O’Brien [2001] IRLR 496, confirmed in Transco plc v O’Brien [2002] EWCA Civ 379; [2002] IRLR 444.

All employees granted entitled [sic] family leave have the right to return to their previous position, or if this no longer exists, to a comparable position if available.[116]

[116] Thomson, above n24 at paras 78 and 124.

[117] Id at para 125.

[118] Id at para 144.

[119] Id at para 141. See also Easling v Mahoney Insurance Brokers Pty Ltd [2001] SASC 22; (2001) 78 SASR 489 at 99.

[120] This conclusion was confirmed in Morrow v Safeway Stores plc [2001] UKEAT 0275_00_2109; [2002] IRLR 9, where it was held that a breach of mutual trust and confidence necessarily goes to the heart of the contract, and will always give rise to a repudiation.

[121] Schou (2004), above n88.

[122] And its predecessor, the Equal Opportunity Act 1984 (Vic).

[123] State of Victoria v Schou [2001] VSC 321; (2001) 3 VR 655.

[124] Schou v State of Victoria Melbourne (Department of Parliamentary Debates) (VCAT, Duggon

VP, 24 May 2002) (Schou (2002)).

[125] Schou (2004), above n121.

[126] Schou (2002), above n124 at para 71.