Carer's responsibilities discrimination factsheet
Examples conciliated carer's responsibilities discrimination complaints
Poster - Do you care?
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:
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 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.
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.
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:
2. Any adult of whom you are the legal guardian.
3. An 'immediate family member', which includes:
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.....
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:
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:
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 carerâ€™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
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.
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.