Smith, Belinda --- "It's About Time - For a New Regulatory Approach to Equality" [2008] FedLawRw 5; (2008) 36(2) Federal Law Review 117
[*] University of Sydney. The author would like to thank Alexandra Wasiel for her excellent research assistance and the anonymous referees for their helpful comments and suggestions.
[1] John von Doussa (President, Acting Sex Discrimination Commissioner and Commissioner Responsible for Age Discrimination for the Human Rights and Equal Opportunity Commission), 'It's About Time: Women, Men, Work and Family' (Speech delivered at the It's About Time: Women, Men, Work and Family Final Paper Launch, Sydney, 7 March 2007).
[1] Human Rights and Equal Opportunity Commission, It's About Time: Women, Men, Work and Family — Final Paper (2007).
[2] Ibid xvii.
[3] Paul Chaney and Teresa Rees, 'The Northern Ireland Section 75 Equality Duty: An International Perspective' in Eithne McLaughlin and Neil Faris (eds), The Section 75 Equality Duty — An Operational Review (2004) vol 2 Annex A.
[4] Such as the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic), discussed below in Part III.
[5] See State of Victoria, Department of Justice, Equal Opportunity Review Final Report: An Equality Act for a Fairer Victoria (2008).
[6] Chaney and Rees, above n 4.
[7] For a general summary and review of the final paper, see K Lee Adams and Chris Geller, 'Work and Family: Seeking Solutions' (2007) 20 Australian Journal of Labour Law 312.
[8] Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11, 13.
[9] Human Rights and Equal Opportunity Commission, Pregnant and Productive: It's a Right Not a Privilege to Work While Pregnant (1999).
[10] Human Rights and Equal Opportunity Commission, A Bad Business: Review of Sexual Harassment in Employment Complaints (2002).
[11] Human Rights and Equal Opportunity Commission, A Time to Value: Proposal for a National Paid Maternity Leave Scheme (2002).
[12] Human Rights and Equal Opportunity Commission, Valuing Parenthood: Options for Paid Maternity Leave — Interim Paper (2002) [4.1].
[13] For a summary and analysis of the recommendation, see Belinda Smith, 'A Time to Value: Proposal for a National Paid Maternity Leave Scheme' (2003) 16 Australian Journal of Labour Law 226.
[14] Sara Charlesworth, Contributions and Limitations of the Sex Discrimination Act at the Workplace Level, National Equal Opportunities Network <http://www.neon.org.nz/crownentitiesadvice/resourcelist/women/charlesworth/> (undated) at 16 June 2008; Equal Opportunity for Women in the Workplace Agency, Equal Opportunity for Women in the Workplace Survey 2005 — Paid Parental Leave (2006).
[15] Luke Raffin, 'Baby Steps in the Right Direction: Does the New Maternity Payment Realise the Aims of Paid Maternity Leave?' (2005) 18 Australian Journal of Labour Law 270.
[16] Paid maternity leave is now on the horizon with the Productivity Commission currently inquiring into the options for its introduction: Productivity Commission, Inquiry into Paid Maternity, Paternity and Parental Leave — Issues Paper (2008).
[17] Human Rights and Equal Opportunity Commission, Striking the Balance: Women, Men, Work and Family — Discussion Paper (2005).
[18] HREOC, It's About Time, above n 2, xi.
[19] For a general overview of the facts informing the inquiry, see Human Rights and Equal Opportunity Commission, It's About Time: A Snapshot of Some of the Facts Informing this Project (2007) <http://www.hreoc.gov.au/sex_discrimination/its_about_time/media/ work_family_snapshot.html> at 16 June 2008.
[20] HREOC, It's About Time, above n 2, 36.
[21] Ibid.
[22] Ibid.
[23] Ibid 39.
[24] Ibid 40.
[25] Ibid.
[26] Ibid 71.
[27] Ibid 71 fn 188 (citations omitted).
[28] Ibid 37.
[29] Ibid 70.
[30] Ibid 76.
[31] Ibid.
[32] Ibid 76–7.
[33] Ibid 40.
[34] Ibid.
[35] Ibid 38.
[36] Ibid.
[37] Ibid 41.
[38] Ibid 72.
[39] Rosemary Owens, 'Decent Work for the Contingent Workforce in the New Economy' (2002) 15 Australian Journal of Labour Law 209.
[40] Sara Charlesworth, 'Managing Work and Family in the "Shadow" of Anti-Discrimination Law' in Jill Murray (ed), Work, Family and the Law (2005) 88, 116, quoting Kerry Rittich, 'Feminization and Contingency: Regulating the Stakes of Work for Women' in Joanne Conaghan, Richard M Fischl and Karl Klare (eds), Labour Law in an Era of Globalisation — Transformative Practices and Possibilities (2002) 117, 132.
[41] HREOC, It's About Time, above n 2, x.
[42] Ibid 42.
[43] Examples of the extensive scholarship on the notion of an unencumbered, ideal worker include Rhona Rapoport et al, Beyond Work-Family Balance — Advancing Gender Equity and Workplace Performance (2001); Joan Williams, Unbending Gender — Why Family and Work Conflict and What to Do About It (2001).
[44] This term is taken from K Lee Adams, 'Indirect Discrimination and the Worker-Carer: It's Just Not Working' in Jill Murray (ed), Work, Family and the Law (2005) 18, 23.
[45] HREOC, It's About Time, above n 2, xvii.
[46] Belinda Smith, 'Not the Baby and the Bathwater — Regulatory Reform for Equality Laws to Address Work-Family Conflict' [2006] SydLawRw 30; (2006) 28 Sydney Law Review 689.
[47] Belinda Smith, 'A Regulatory Analysis of the Sex Discrimination Act 1984 (Cth) — Can It Effect Equality or Only Redress Harm?' in Christopher Arup et al (eds), Labour Law and Labour Market Regulation — Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (2006) 105.
[48] Sex Discrimination Act 1984 (Cth) ss 7A, 14(3A).
[49] States and territories already prohibit family responsibilities discrimination, but the nature and coverage of protection varies across the country. For a summary, see the appendices in Chris Ronalds, Discrimination Law and Practice (3rd ed, 2008).
[50] [2003] HCA 62; (2003) 217 CLR 92; Belinda Smith, 'From Wardley to Purvis — How Far has Australian Anti-Discrimination Law Come in 30 Years?' (2008) 21 Australian Journal of Labour Law 3.
[51] See, eg, Joan C Williams and Nancy Segal, 'Beyond the Maternal Wall: Relief for Family Caregivers Who Are Discriminated against on the Job' (2003) 26 Harvard Women's Law Journal 77.
[52] Smith, 'From Wardley to Purvis', above n 51.
[53] HREOC, It's About Time, above n 2, 58.
[54] Ibid 77 (citations omitted).
[55] Ibid 55–6.
[56] Belinda Smith and Joellen Riley, 'Family-Friendly Work Practices and the Law' [2004] SydLawRw 17; (2004) 26 Sydney Law Review 395; Adams, 'Indirect Discrimination', above n 45.
[57] Smith and Riley, above n 57.
[58] Sex Discrimination Act 1984 (Cth) s 5(1).
[59] For example, the report found that cultural barriers often prevent men from 'seeking accommodation of their family/carer responsibilities despite their desire [and need] to care for their families': HREOC, It's About Time, above n 2, 90. Men asking for flexible work arrangements in order to undertake more caring work are not only challenging expectations that they take on a full-time workload but also challenging the norm of masculinity. The materialisation of such stereotypes was evidenced in one submission to the inquiry, detailing the experience of a father who, following a request to take a year off work to stay home and care for his child, was subject to strong criticism and ridicule from colleagues who did not view this as 'the thing for a man to do': HREOC, It's About Time, above n 2, 91. Employers treating male employees' requests differently to those of female employees' in such circumstances may be accused of using gender in responding to requests and would be directly discriminating.
[60] Sex Discrimination Act 1984 (Cth) s 5(2).
[61] See, eg, Mayer v ANSTO [2003] FMCA 209, [70]:
I need no evidence to establish that women per se are disadvantaged by a requirement that they work full-time. … [W]omen are more likely than men to require at least some periods of part-time work during their careers, and in particular a period of part-time work after maternity leave, in order to meet family responsibilities.
[63] Section 80F of the Employment Rights Act 1996 (UK) c 18 provides 'qualifying' employees with a statutory right to request flexible work arrangements for the purpose of accommodating carers' responsibilities. Furthermore, s 80G(1)(b) specifies the grounds upon which an employer may refuse such a request.
[64] Jill Murray, 'Work and Care: New Legal Mechanisms for Adaptation' (2005) 15 Labour and Industry 67.
[65] Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic).
[66] Sue Williamson and Marian Baird, 'Family Provisions and Work Choices: Testing Times' (2007) 20 Australian Journal of Labour Law 53.
[67] The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended the Workplace Relations Act 1996 (Cth) ('WRA') and came into effect in March 2006.
[68] Sex Discrimination Act 1984 (Cth) s 7C.
[71] Smith and Riley, above n 57.
[72] Ibid.
[73] Ibid.
[74] Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) s 7.
[75] In respect of current employees for example, see Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) s 8.
[76] HREOC, It's About Time, above n 2, 64 fn 181.
[77] Australian Labor Party, Forward with Fairness — Labor's Plan for Fairer and More Productive Australian Workplaces (2007) 8 <http://www.alp.org.au/download/now/forwardwith fairness.pdf> at 16 June 2008.
[78] Australian Government, The National Employment Standards (2008) 12.
[79] Ibid s 13(1).
[80] Ibid s 13(5).
[81] Sex Discrimination Act 1984 (Cth) s 4A. Note the section also defines 'immediate family member' to include: '(a) a spouse of the employee; and (b) an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse of the employee' and 'spouse' to include 'a former spouse, a de facto spouse and a former de facto spouse.' Section 4 of the Sex Discrimination Act 1984 (Cth) defines 'de facto spouse' to exclude same-sex couples.
[82] Work and Family Policy Roundtable, 2007 Benchmarks — Work and Family Policies in Election 2007 (2007) 5 <http://www.familypolicyroundtable.com.au/pdf/benchmarksFINAL.pdf> at 16 June 2008.
[83] Ibid.
[84] Ibid 4–5, quoting Colette Fagan, Ariane Hegewisch and Jane Pillinger, Out of Time — Why Britain Needs A New Approach to Working-Time Flexibility (2006).
[85] Murray, 'Work and Care: New Legal Mechanisms for Adaptation', above n 65, 329.
[86] Charlesworth, 'Managing Work and Family', above n 41, 117, quoting Ariane Hegewisch, 'Individual Working Time Rights in Germany and the UK: How a Little Law Can Go a Long Way' (Paper presented at the Working Time for Working Families: Europe and the United States Conference, American University WCL, Washington DC, 7–9 June 2004) 10.
[87] Joanne Conaghan, 'The Family-Friendly Workplace in Labour Law Discourse: Some Reflections on London Underground Ltd v Edwards' in Hugh Collins, Paul Davies and Roger Rideout (eds), Legal Regulation of the Employment Relation (2000) 161; Williams, above n 44.
[88] See Sandra Fredman, Discrimination Law (2002); Sandra Fredman, 'Changing the Norm: Positive Duties in Equal Treatment Legislation' (2005) 12 Maastricht Journal of European and Comparative Law 369; Sandra Fredman and Sarah Spencer, Delivering Equality: Towards an Outcome-Focused Positive Duty — Submission to the Cabinet Office Equality Review and to the Discrimination Law Review (2006); Christopher McCrudden, 'Equality Legislation and Reflexive Regulation: A Response to the Discrimination Law Review's Consultative Paper' (2007) 36 Industrial Law Journal 255; Bob Hepple, Mary Coussey and Tufyal Choudhury, Equality: A New Framework — Report of the Independent Review of the Enforcement of UK Anti-Discrimination Legislation (2000); Smith, 'A Regulatory Analysis of the SDA', above n 48; Smith, 'Not the Baby and the Bathwater', above n 47.
[89] Fredman, 'Changing the Norm', above n 89, 369.
[90] This analysis draws on Fredman and Spencer, Delivering Equality, above n 89. See also Sandra Fredman and Sarah Spencer, 'Beyond Discrimination: It's Time for Enforceable Duties on Public Bodies to Promote Equality Outcomes' (2006) 6 European Human Rights Law Review 598.
[91] Jean Sternlight, 'In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis' (2004) 78 Tulane Law Review 1401, 1413; Aaron Baker, 'Access vs Process in Employment Discrimination: Why ADR Suits the US but not the UK' (2002) 31 Industrial Law Journal 113, 118.
[92] Charlesworth, 'Managing Work and Family', above n 41, 93, drawing on the work of William L F Felstiner, Richard L Abel and Austin Sarat, 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming…' (1980–81) 15 Law and Society Review 631.
[93] Charlesworth, 'Managing Work and Family', above n 41, 90.
[94] Ibid 113.
[95] HREOC, It's About Time, above n 2, ix.
[96] Smith, 'A Regulatory Analysis of the SDA', above n 48.
[97] Anna Chapman, 'Discrimination Complaint-Handling in NSW: The Paradox of Informal Dispute Resolution' [2000] SydLawRw 16; (2000) 22 Sydney Law Review 321; Rosemary Hunter, Indirect Discrimination in the Workplace (1992).
[98] The UK's Equality and Human Rights Commission has power to develop statutory, evidentiary codes of practice setting out legal obligations under anti-discrimination laws and recommended best practice: Equality Act 2006 (UK) c 3, s 14.
[99] See recommendations 16 and 17: HREOC, It's About Time, above n 2, xx.
[100] Smith, 'A Regulatory Analysis of the SDA', above n 48.
[101] Ian Ayres and John Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992).
[102] A term used in John Braithwaite, 'Restorative and Responsive Regulation of OHS' in Elizabeth Bluff, Neil Gunningham and Richard Johnstone (eds), OHS Regulation for a Changing World of Work (2004) 194.
[103] John Braithwaite, 'Webs of Explanation, Webs of Regulation, Webs of Capacity' (Speech delivered at the Regulatory Institutions Network (RegNet), Research School of Social Sciences, The Australian National University, Canberra, 21 February 2006).
[104] Ibid.
[105] Equal Opportunity for Women in the Workplace Agency, EOWA Employer of Choice for Women (2007) <http://www.eowa.gov.au/EOWA_Employer_Of_Choice_For_ Women.asp> at 16 June 2008.
[106] Smith, 'A Regulatory Analysis of the SDA', above n 48.
[107] See, eg, Ayres and Braithwaite, Responsive Regulation, above n 102; Michael Dorf and Charles Sabel, 'A Constitution of Democratic Experimentalism' (1998) 98 Columbia Law Review 267; Hugh Collins, Paul Davies and Roger Rideout (eds), Legal Regulation of the Employment Relation (2000); Susan Sturm, 'Second Generation Employment Discrimination: A Structural Approach' (2001) 101 Columbia Law Review 458; Christine Parker, The Open Corporation: Effective Self-Regulation and Democracy (2002).
[108] Fredman, 'Changing the Norm', above n 89, 369.
[109] Chaney and Rees, above n 4, 8–9.
[110] See McCrudden, above n 89, 259, from which I have drawn heavily here, for a summary of these regulatory approaches.
[111] Ibid, quoting Colin Scott, 'Regulation in the Age of Governance: The Rise of the Post-Regulatory State' in Jacint Jordana and David Levi-Faur (eds), The Politics of Regulation (2004) 145; Hugh Collins, 'Book Review' (1998) 61 Modern Law Review 916; Julia Black, 'Proceduralising Regulation: Part I' (2000) 20 Oxford Journal of Legal Studies 597; Karen Yeung, Securing Compliance: A Principled Approach (2004).
[112] McCrudden, above n 89, 259, quoting Karen Yeung, Securing Compliance: A Principled Approach (2004) 171.
[113] McCrudden, above n 89, 259–60.
[114] Christopher McCrudden, Robert Ford and Anthony Heath, 'Legal Regulation of Affirmative Action in Northern Ireland: An Empirical Assessment' (2004) 24 Oxford Journal of Legal Studies 363.
[115] Sir William Macpherson, The Stephen Lawrence Inquiry — Report (1999).
[116] Hepple, Coussey and Choudhury, Equality — A New Framework, above n 89.
[117] Ibid xvii.
[118] Race Relations (Amendment) Act 2000 (UK) c 34.
[119] Race Relations Act 1976 (UK) c 74, s 71(1).
[120] See Race Relations Act 1976 (UK) c 74, s 71(2).
[121] Note that the three anti-discrimination commissions in the UK — Equal Opportunities Commission (sex), Commission for Racial Equality and Disability Rights Commission — were merged on 1 October 2007 to become the CEHR, which was established by the Equality Act 2006 (UK) c 3. With some exceptions, the CEHR has taken over the powers and functions of the three commissions and been granted further powers in respect of other grounds.
[122] Sandra Fredman, 'Equality: A New Generation?' (2001) 30 Industrial Law Journal 145, 164.
[123] Disability Discrimination Act 1995 (UK) c 50, ss 49A, 49D.
[124] The duty was introduced into the Sex Discrimination Act 1975 (UK) c 65, by the Equality Act 2006 (UK) c 3.
[125] Equal Opportunities Commission, Gender Equality Duty Code of Practice — England and Wales (2006) 2.
[126] Sex Discrimination Act 1975 (UK) c 65, s 76A(1).
[127] Sex Discrimination Act 1975 (UK) c 65, s 76B.
[128] Equality and Human Rights Commission, Overview of the Gender Equality Duty – Guidance for Public Bodies Working in England, Wales and Scotland (2007) 3–4 (emphasis in original).
[129] Fredman and Spencer, 'Delivering Equality', above n 89, 1.
[130] Ibid 2, quoting Women and Equality Unit, Advancing Equality for Men and Women: Government Proposals to Introduce a Public Sector Duty to Promote Gender Equality (2006) [30].
[131] Fredman and Spencer, 'Delivering Equality', above n 89, 9.
[132] Equalities Review Panel, Fairness and Freedom: The Final Report of the Equalities Review (2007).
[133] Discrimination Law Review, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain — A Consultation Paper (2007) 3.
[134] See, eg, Sandra Fredman, 'A Critical Review of the Concept of Equality in UK Anti-Discrimination Law' (Working Paper No 3, Independent Review of the Enforcement of UK Anti-Discrimination Legislation, 1999) [3.7]–[3.19]; Fredman, 'A New Generation', above n 123; Fredman, Discrimination Law, above n 89; Fredman, 'Changing the Norm', above n 89.
[136] Ibid 263, quoting Olivier De Schutter and Simon Deakin, 'Reflexive Governance and the Dilemmas of Social Regulation' in Olivier De Schutter and Simon Deakin (eds), Social Rights and Market Forces: is the Open Coordination of Employment and Social Policies the Future of Social Europe? (2005) 1, 3.
[137] McCrudden above n 89, 265.
[138] Ibid.
[139] Ibid.
[140] Ibid.
[141] Fredman and Spencer, Delivering Equality, above n 89, 13.
[142] McCrudden, above n 89, 265. See also Fredman, 'A New Generation', above n 123, 164.
[143] McCrudden, above n 89, 266.