Anti-Discrimination Board of NSW


Fathers lose flexible hours

Legal Case - Carer's responsibility discrimination

Published: 23 Dec 2016 ​​​​

Anti-discrimination laws sometimes clash with other areas of law – and they don't always come out on top, as two painters with carer’s responsibilities found out. ​

The facts

The South West Sydney Local Health District (SWSLHD) had allowed two painters to work from 6am to 2.30pm so they could pick up their children after school. This meant the children did not have to go to after school care, which would be an additional expense. But after eight years of this arrangement, they were told that they would have to return to ordinary working hours. ​

The SWSLHD said that the change was part of its 'whole of hospital' approach to improving services, by ensuring that trades employees perform their duties in a timely and efficient manner. It argued that it has a right to regulate business arrangements unless it did so unjustly or unreasonably. It said that it will consider requests for flexible working arrangements where these are mutually beneficial.

Legal action

The painters' union took action in the Industrial Relations Commission (IRC) on their behalf. It said that the painters' arrangement did not cause any tangible inefficiencies or difficulties.

The union had argued that under s. 49V(4) of the Anti-Discrimination Act 1977 (NSW), employers must not discriminate against an employee on the basis of their carer's responsibilities, unless the arrangements required to enable the employee to perform the inherent requirements of their job would impose an 'unjustifiable hardship' on the employer. Section 169 of the Industrial Relations Act 1996 (NSW) requires the IRC to take into account the principles contained in the Anti-Discrimination Act.

The union argued that to allow flexibility for carers only where there is a positive benefit for the employer was contrary to the Anti-Discrimination Act. It said that flexible arrangements in areas such as nursing, where more women were employed, were not being extended to male-dominated areas like engineering. Furthermore, the arrangement in this case was consistent with the NSW Premier's statement that all government jobs will be 'fully flexible' by 2019.​

The decision

The IRC rejected the union's application for an order that the painters' flexible arrangements continue as long as they had children in primary school. It upheld the 'long established right of management to allocate and arrange work and for employees to respond to reasonable management requirements and directions'.

The Commission considered that as a general proposition it would not interfere with the right of the employer to manage, unless the employer is seeking something unreasonable or unlawful from its employees. It said that the union had not established that the hours of work proposed by SWSLHD would result in the painters being required to perform work which was unfair, unjust or unreasonable. The union did not produce any evidence to prove that after school care was unaffordable.   ​

The painters were ordered to resume normal working hours from January 9, 2017.   ​

Take home points

  • Under the Anti-Discrimination Act, NSW 1977, it is unlawful to discriminate (in the area of work) against people who are responsible for the care of close family members who are in need of support. 
  • 'Close family members' includes children and grandchildren, parents and grandparents, siblings, partners and in-laws. 
  • It is not unlawful to discriminate against a carer who cannot perform the inherent requirements of their job, if the services or facilities they would need to do so would cause unjustifiable hardship to the employer.
  • There is an overwhelming principle that employers have the right to allocate and arrange work and that employees must follow reasonable management requirements and directions. 
  • The IRC will not interfere unless the employer's requirements are unjust, unreasonable or unfair. 
  • This case was brought to the Industrial Relations Commission for adjudication and was lodged with the Anti-Discrimination Board. ADB investigates compliments of carer's responsibility discrimination. 

Construction, Forestry, Mining and Energy Union v South Western Sydney Local Health District [2016] NSWIRC 1047 (9 December 2016)​ 

Back to February 2017 - Equal Times Newsletter​​​​​​

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