For some time the Equal Opportunity Act 1995 (Vic) (EO Act) has
prohibited discrimination on the basis of a person's parental
status or status as a carer in certain areas of public life,
including employment. Discrimination against job applicants,
employees, contract workers and partners in firms is specifically
The Victorian Parliament has passed legislation to amend the EO
Act so as to further the protections provided to employees who have
responsibilities as a parent or carer. The Equal Opportunity
Amendment (Family Responsibilities) Act 2008 (Vic) (Amendment Act)
received assent on 11 February 2008 and will come into operation on
1 September 2008.
The main purpose of the Amendment Act is to expand the range of
what constitutes discrimination against parents or carers in
employment. Specifically, it introduces into the EO Act new
provisions which state that an employer must not unreasonably
refuse to accommodate a person's responsibilities as a parent
or carer in relation to the work arrangements of:
a person offered employment
an existing employee.
As examples, the Amendment Act suggests that an employer might
be able to accommodate the parental responsibilities of a job
applicant by agreeing that he or she can work additional daily
hours to provide for a shorter working week or occasionally work
from home. Similarly, an employer may be able to accommodate an
employee's carer responsibilities by allowing the employee to
work from home one morning each week or have a later start time on
a certain day. Depending on all the circumstances of each
individual case, there may actually be a number of different ways
in which an employee's responsibilities can be reasonably
In determining whether an employer has unreasonably refused to
accommodate the parental or carers' responsibilities of an
employee or job applicant, all relevant facts and circumstances
will need to be considered, including:
the nature of the role
the individual's circumstances (including the nature of his
or her responsibilities as a parent or carer)
the arrangements required to accommodate those
the financial circumstances of the employer
the size and nature of the workplace and the employer's
the effect on the workplace and the employer's business of
accommodating those responsibilities, including:
the financial impact
the number of persons who would benefit or be disadvantaged
the impact on efficiency and productivity and, if applicable,
on customer service.
the consequences for the employer of making such
the consequences for the person of not making such
This list is not intended to be exhaustive, and the legislation
makes it clear that none of these factors are determinative on
their own. They are, however, intended to reflect a common-sense
approach to balancing the needs of both parties.
Examples of other factors that could be relevant in a particular
case might include when the arrangements are to commence, how long
they will continue, what information has been provided by the
individual in respect of his or her situation and whether there are
any legal or other constraints that affect the feasibility of the
employer accommodating the responsibilities.
The Amendment Act provides that it will be unlawful
discrimination for an employer to contravene the requirement to
accommodate family responsibilities. An individual will be able to
make a complaint to the Victorian Equal Opportunity and Human
Rights Commission (Commission) but will not have to prove direct or
indirect discrimination (as defined in the EO Act) to make out the
complaint – it will be enough to demonstrate that the
employer failed to reasonably accommodate the person's parental
or carer responsibilities.
Practical guidance about these new requirements is contained in
guidelines that have been published by (and are available through)
Implications for employers
All Victorian employers should now consider how they might be
able to accommodate their workers' family responsibilities in
the arrangements implemented at the workplace. Employers should not
refuse to accommodate family responsibilities unless it is
unreasonable in all the circumstances.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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