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It’s About Time — for a New Regulatory Approach to Equality

Published online by Cambridge University Press:  24 January 2025

Belinda Smith
Belinda Smith*
Affiliation:
University of Sydney
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Extract

In March 2007, the Human Rights and Equal Opportunity Commission ('HREOC’) concluded that ‘it's about time for a new approach’ to the problems faced by men and women in respect of work and family responsibilities in Australia. Based on two years of consultation, HREOC issued its final report, It's About Time: Women, Men, Work and Family, noting that many Australians struggle to combine work and family and that workers with family responsibilities experience significant discrimination and inequality. HREOC concluded that the federal government could do more to address the difficulties faced by workers trying to satisfy both their work and family responsibilities and put forward a wide array of recommendations to this effect. Its central recommendation was the enactment of new federal legislation to promote cultural change through greater protection and support for workers with family responsibilities. The Family Responsibilities and Carers’ Rights Act would serve to bolster the prohibition of discrimination on the basis of carers’ responsibilities and provide employees with a right to request flexible working arrangements.

Type
Research Article
Information
Federal Law Review , Volume 36 , Issue 2 , June 2008 , pp. 117 - 144
Copyright
Copyright © 2008 The Australian National University

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Footnotes

The author would like to thank Alexandra Wasiel for her excellent research assistance and the anonymous referees for their helpful comments and suggestions.

References

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).

2 Human Rights and Equal Opportunity Commission, It’s About Time: Women, Men, Work and Family — Final Paper (2007).

3 Ibid xvii.

4 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 AGoogle Scholar.

5 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.

6 See State of Victoria, Department of Justice, Equal Opportunity Review Final Report: An Equality Act for a Fairer Victoria (2008)Google Scholar.

7 Chaney and Rees, above n 4.

8 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 312Google Scholar.

9 Human Rights and Equal Opportunity Commission Act 1986 (Cth) ss 11, 13.

10 Human Rights and Equal Opportunity Commission, Pregnant and Productive: It’s a Right Not a Privilege to Work While Pregnant (1999)Google Scholar.

11 Human Rights and Equal Opportunity Commission, A Bad Business: Review of Sexual Harassment in Employment Complaints (2002)Google Scholar.

12 Human Rights and Equal Opportunity Commission, A Time to Value: Proposal for a National Paid Maternity Leave Scheme (2002)Google Scholar.

13 Human Rights and Equal Opportunity Commission, Valuing Parenthood: Options for Paid Maternity Leave — Interim Paper (2002) [4.1]Google Scholar.

14 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 226Google Scholar.

15 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)Google Scholar.

16 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 270Google Scholar.

17 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).

18 Human Rights and Equal Opportunity Commission, Striking the Balance: Women, Men, Work and Family — Discussion Paper (2005)Google Scholar.

19 HREOC, It’s About Time, above n 2, xi.

20 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.

21 HREOC, It’s About Time, above n 2, 36.

22 Ibid.

23 Ibid.

24 Ibid 39.

25 Ibid 40.

26 Ibid.

27 Ibid 71.

28 Ibid 71 fn 188 (citations omitted).

29 Ibid 37.

30 Ibid 70.

31 Ibid 76.

32 Ibid.

33 Ibid 76–7.

34 Ibid 40.

35 Ibid.

36 Ibid 38.

37 Ibid.

38 Ibid 41.

39 Ibid 72.

40 Rosemary, Owens, ‘Decent Work for the Contingent Workforce in the New Economy’ (2002) 15 Australian Journal of Labour Law 209Google Scholar.

41 Sara, Charlesworth, ‘Managing Work and Family in the “Shadow” of Anti-Discrimination Law’ in Jill, Murray (ed), Work, Family and the Law (2005) 88, 116Google Scholar, 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, 132Google Scholar.

42 HREOC, It’s About Time, above n 2, x.

43 Ibid 42.

44 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)Google Scholar; Joan, Williams, Unbending Gender — Why Family and Work Conflict and What to Do About It (2001)Google Scholar.

45 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, 23Google Scholar.

46 HREOC, It’s About Time, above n 2, xvii.

47 Belinda, Smith, ‘Not the Baby and the Bathwater — Regulatory Reform for Equality Laws to Address Work-Family Conflict’ (2006) 28 Sydney Law Review 689Google Scholar.

48 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) 105Google Scholar.

49 Sex Discrimination Act 1984 (Cth) ss 7A, 14(3A).

50 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)Google Scholar.

51 (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 3Google Scholar.

52 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 77Google Scholar.

53 Smith, ‘From Wardley to Purvis’, above n 51.

54 HREOC, It’s About Time, above n 2, 58.

55 Ibid 77 (citations omitted).

56 Ibid 55–6.

57 Belinda, Smith and Joellen, Riley, ‘Family-Friendly Work Practices and the Law’ (2004) 26 Sydney Law Review 395Google Scholar; Adams, ‘Indirect Discrimination’, above n 45.

58 Smith and Riley, above n 57.

59 Sex Discrimination Act 1984 (Cth) s 5(1).

60 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.

61 Sex Discrimination Act 1984 (Cth) s 5(2).

62 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 (2005) 143 IR 245.

64 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.

65 Jill, Murray, ‘Work and Care: New Legal Mechanisms for Adaptation’ (2005) 15 Labour and Industry 67Google Scholar.

66 Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic).

67 Sue, Williamson and Marian, Baird, ‘Family Provisions and Work Choices: Testing Times’ (2007) 20 Australian Journal of Labour Law 53Google Scholar.

68 The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended the Workplace Relations Act 1996 (Cth) (‘WRA’) and came into effect in March 2006.

69 Sex Discrimination Act 1984 (Cth) s 7C.

70 [2003] FMCA 209.

71 [2003] FMCA 584.

72 Smith and Riley, above n 57.

73 Ibid.

74 Ibid.

75 Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) s 7.

76 In respect of current employees for example, see Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) s 8.

77 HREOC, It’s About Time, above n 2, 64 fn 181.

78 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/forwardwithfairness.pdf> at 16 June 2008.

79 Australian Government, The National Employment Standards (2008) 12Google Scholar.

80 Ibid s 13(1).

81 Ibid s 13(5).

82 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.

83 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.

84 Ibid.

85 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)Google Scholar.

86 Murray, ‘Work and Care: New Legal Mechanisms for Adaptation’, above n 65, 329.

87 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.

88 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) 161Google Scholar; Williams, above n 44.

89 See Sandra, Fredman, Discrimination Law (2002)Google Scholar; Sandra, Fredman, ‘Changing the Norm: Positive Duties in Equal Treatment Legislation’ (2005) 12 Maastricht Journal of European and Comparative Law 369Google Scholar; 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)Google Scholar; Christopher, McCrudden, ‘Equality Legislation and Reflexive Regulation: A Response to the Discrimination Law Review’s Consultative Paper’ (2007) 36 Industrial Law Journal 255Google Scholar; 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)Google Scholar; Smith, ‘A Regulatory Analysis of the SDA’, above n 48; Smith, ‘Not the Baby and the Bathwater’, above n 47.

90 Fredman, ‘Changing the Norm’, above n 89, 369.

91 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 598Google Scholar.

92 Jean, Sternlight, ‘In Search of the Best Procedure for Enforcing Employment Discrimination Laws: A Comparative Analysis’ (2004) 78 Tulane Law Review 1401, 1413Google Scholar; Aaron, Baker, ‘Access vs Process in Employment Discrimination: Why ADR Suits the US but not the UK’ (2002) 31 Industrial Law Journal 113, 118Google Scholar.

93 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 631Google Scholar.

94 Charlesworth, ‘Managing Work and Family’, above n 41, 90.

95 Ibid 113.

96 HREOC, It’s About Time, above n 2, ix.

97 Smith, ‘A Regulatory Analysis of the SDA’, above n 48.

98 Anna, Chapman, ‘Discrimination Complaint-Handling in NSW: The Paradox of Informal Dispute Resolution’ (2000) 22 Sydney Law Review 321Google Scholar; Rosemary, Hunter, Indirect Discrimination in the Workplace (1992)Google Scholar.

99 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.

100 See recommendations 16 and 17: HREOC, It’s About Time, above n 2, xx.

101 Smith, ‘A Regulatory Analysis of the SDA’, above n 48.

102 Ian, Ayres and John, Braithwaite, Responsive Regulation: Transcending the Deregulation Debate (1992)Google Scholar.

103 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) 194Google Scholar.

104 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).

105 Ibid.

106 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.

107 Smith, ‘A Regulatory Analysis of the SDA’, above n 48.

108 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 267Google Scholar; Hugh, Collins, Paul, Davies and Roger, Rideout (eds), Legal Regulation of the Employment Relation (2000)Google Scholar; Susan, Sturm, ‘Second Generation Employment Discrimination: A Structural Approach’ (2001) 101 Columbia Law Review 458Google Scholar; Christine, Parker, The Open Corporation: Effective Self-Regulation and Democracy (2002)Google Scholar.

109 Fredman, ‘Changing the Norm’, above n 89, 369.

110 Chaney and Rees, above n 4, 8–9.

111 See McCrudden, above n 89, 259, from which I have drawn heavily here, for a summary of these regulatory approaches.

112 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) 145Google Scholar; Hugh, Collins, ‘Book Review’ (1998) 61 Modern Law Review 916Google Scholar; Julia, Black, ‘Proceduralising Regulation: Part I’ (2000) 20 Oxford Journal of Legal Studies 597Google Scholar; Karen, Yeung, Securing Compliance: A Principled Approach (2004)Google Scholar.

113 McCrudden, above n 89, 259, quoting Karen, Yeung, Securing Compliance: A Principled Approach (2004) 171Google Scholar.

114 McCrudden, above n 89, 259–60.

115 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 363Google Scholar.

116 SirWilliam, Macpherson, The Stephen Lawrence Inquiry — Report (1999)Google Scholar.

117 Hepple, Coussey and Choudhury, Equality — A New Framework, above n 89.

118 Ibid xvii.

119 Race Relations (Amendment) Act 2000 (UK) c 34.

120 Race Relations Act 1976 (UK) c 74, s 71(1).

121 See Race Relations Act 1976 (UK) c 74, s 71(2).

122 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.

123 Sandra, Fredman, ‘Equality: A New Generation?’ (2001) 30 Industrial Law Journal 145, 164Google Scholar.

124 Disability Discrimination Act 1995 (UK) c 50, ss 49A, 49D.

125 The duty was introduced into the Sex Discrimination Act 1975 (UK) c 65, by the Equality Act 2006 (UK) c 3.

126 Equal Opportunities Commission, Gender Equality Duty Code of Practice — England and Wales (2006) 2Google Scholar.

127 Sex Discrimination Act 1975 (UK) c 65, s 76A(1).

128 Sex Discrimination Act 1975 (UK) c 65, s 76B.

129 Equality and Human Rights Commission, Overview of the Gender Equality Duty – Guidance for Public Bodies Working in England, Wales and Scotland (2007) 3–4Google Scholar (emphasis in original).

130 Fredman and Spencer, ‘Delivering Equality’, above n 89, 1.

131 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]Google Scholar.

132 Fredman and Spencer, ‘Delivering Equality’, above n 89, 9.

133 Equalities Review Panel, Fairness and Freedom: The Final Report of the Equalities Review (2007)Google Scholar.

134 Discrimination Law Review, A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain — A Consultation Paper (2007) 3Google Scholar.

135 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 McCrudden, above n 89.

137 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, 3Google Scholar.

138 McCrudden above n 89, 265.

139 Ibid.

140 Ibid.

141 Ibid.

142 Fredman and Spencer, Delivering Equality, above n 89, 13.

143 McCrudden, above n 89, 265. See also Fredman, ‘A New Generation’, above n 123, 164.

144 McCrudden, above n 89, 266.