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Carer's responsibilities discrimination

     

    Carer's responsibilities discrimination factsheet  PDF 147KB​

    Examples conciliated carer's responsibilities discrimination complaints

    What does the law say about carer's responsibilities discrimination?

    It is generally against the law in NSW to treat you unfairly or harass you because of your responsibilities as a carer.

    The law also applies if you don't have a carer's responsibility at the moment, but you are discriminated against or harassed because:

    • someone thinks that you have a carer's responsibility;
    • you had a carer's responsibility in the past, or someone thinks you did; or
    • you will have a carer's responsibility in the future, or someone thinks you will.

    For example, it would be against the law if an employer did not offer you a job, promotion or training because they thought that in the future you might have children for whom you would be responsible.

    Indirect discrimination

    Indirect carer's responsibilities discrimination is also against the law. This occurs when there is a rule or requirement that disadvantages people who have a carer's responsibility more than people who don't - unless it can be shown that the rule or requirement is 'reasonable in all the circumstances'.

    For example, a requirement for all staff to start work at a specific time might indirectly discriminate against a person who needs to take their child to school. It might be quite possible to organise the person's work so they could start and finish later.

    When does this law apply?

    Unlike other types of discrimination that are against the law in NSW, discrimination and harassment because of carer's responsibilities are only against the law when they occur in employment.

    In addition, the law only applies to your responsibility for caring for particular people. 

    Which people does the law cover?

    The law about carer's responsibilities discrimination applies if you are responsible for the care of a family member who is in need of care and support. This includes the following:

    1. Your child, which includes:

    • your own child;
    • your stepchild, your adopted child, your foster child and any child for whom you have a legal responsibility (for example, you are their legal guardian or authorised carer);
    • The child of your current or former husband, wife or de facto partner, including a same sex partner - this includes their own child, their stepchild, their adopted child, their foster child and any child for whom they have a legal responsibility;

    2. Any adult of whom you are the legal guardian.

    3. An 'immediate family member', which includes:

    • your husband, wife or de facto partner, including a same sex partner;
    • your former husband, wife or de facto partner, including a same sex partner;
    • your grandchild, including your own grandchild, your step-grandchild and your grandchild through adoption, fostering or any other legal arrangement;
    • the grandchild of your current or former husband, wife or de facto partner, including a same sex partner. This includes your partner's grandchild, their step-grandchild and their grandchild through adoption, fostering or any other legal arrangement;
    • your parent, including your own parent, your stepparent and your parent through adoption, fostering or any other legal arrangement;
    • the parent of your current or former husband, wife or de facto partner, including a same sex partner. This includes your partner's parent, their stepparent, and their parent through adoption, fostering or any other legal arrangement;
    • your grandparent, including your own
    • grandparent, your step-grandparent, and your grandparent through adoption, fostering or any other legal arrangement;
    • the grandparent of your current or former husband, wife or de facto partner, including a same sex partner. This includes your partner's grandparent, their step-grandparent, and their grandparent through adoption, fostering or any other legal arrangement;
    • your brother, including your own brother, your half-brother, your stepbrother and your brother through adoption, fostering or any other legal arrangement;
    • the brother of your current or former)husband, wife or de facto partner, including a same sex partner. This includes your partner's brother, their half-brother, their stepbrother and their brother through adoption, fostering or any other legal arrangement;
    • your sister , including your own sister, your half-
    • sister, your stepsister and your sister through adoption, fostering or any other legal arrangement;
    • the sister of your current or former husband, wife or de facto partner, including a same-sex partner. This includes your partner's sister, their half-sister, their stepsister and their sister through adoption, fostering or any other legal arrangement.

    If you are treated unfairly or discriminated against because of your responsibility to care for someone who is not on the above list, (for example, a cousin, niece, nephew or friend), the anti-discrimination law may not be able to help you. Please phone our Enquiry Service if you need advice about this.

    It's also unlawful to discriminate against you or harass you if you are pregnant or breastfeeding. More about pregnancy and breastfeeding discrimination.....

    What are my rights when I am looking for work?    

    In general, you have the right to apply for and be fairly considered for all jobs, apprenticeships and traineeships on the basis of merit. This also applies if you are applying for a licence to perform a job, for example a taxi licence or registration to practice as a nurse.

    If you are the best person for the job and you can do all the essential things required, then you should generally get the job, irrespective of your carer's responsibilities. Your starting pay and conditions must not be any worse just because you have a carer's responsibility.

    If you are the best person for the job, the employer must also provide any special arrangements you need to do your job at the same time as managing your carer's responsibilities - unless it would cause them 'unjustifiable hardship' to do this.

    Following are examples of the kind of arrangements that may not cause an employer unjustifiable hardship, depending on the circumstances:

    • allowing you to work from home on some or all days - in this case they may also need to provide you with the facilities to do this, such as a computer, software or reimbursement for work phone calls;
    • changing your start or finish times, roster
    • arrangements or break times;
    • allowing you to work your hours over fewer or more days;
    • allowing you to work part-time instead of full-time, or to job-share with someone else; or
    • being flexible with the amount of unpaid or paid leave you can take and when you can take it.

    There are no set rules about special arrangements, and it is up to you and your future employer to negotiate a suitable arrangement. As long as you can get the job done properly, the employer must consider whatever arrangements are necessary, unless this would cause them unjustifiable hardship.

    There will be times when an employer will be able to say that it would cause them unjustifiable hardship to provide the arrangements you need. This may be the case if these arrangements would seriously harm their business, or cost them more than they can afford. But in deciding whether a particular arrangement would cause them unjustifiable hardship, the employer must take all the circumstances into account, including the following:

    • the benefits of the arrangement to their other staff and clients, as well as to you,
    • the effects on the employer and all the people involved if they don't provide the arrangement; and
    • the costs involved in relation to their financial circumstances.

    What are my rights during employment?

    In general, you have the same right to opportunities for promotion, transfer, training and all other work benefits as other employees who do not have carer’s responsibilities. Your carer's responsibilities should not affect these decisions in any way.

    For example, if you were not given a promotion for which you were otherwise qualified, and your employer said that they did not want someone in the position who had young children because they would not be able to put in enough time, this could be carer's responsibilities discrimination.

    The rules and requirements that you have to follow to do your work must be reasonable. They must not unreasonably disadvantage people with a carer's responsibility more than people without a carer's responsibility.

    Your employer should also provide any special arrangements you need to do your job at the same time as managing your carer's responsibilities, unless this is not reasonable in all the circumstances. See the list under 'What are my rights when I am looking for work?' above for examples of possible arrangements .

    What are my rights in relation to dismissal or threatened dismissal?

    In general, your employer can only dismiss you or make you redundant because of your carer's responsibilities if they stop you from doing the essential parts of your job properly, and it would cause them unjustifiable hardship to make special arrangements that would mean that you could do the essential parts of your job.

    For more information about possible arrangements and what is meant by unjustifiable hardship, see 'What are my rights when I am looking for work?' above.

    What are my rights in relation to harassment?

    You have the right to work in a harassment-free environment throughout your employment, from applying for a job to leaving the job. You must not be harassed because of your carer's responsibilities by your employer, your co-workers, a union representative or a client.