Discrimination, work and family: recent regulatory responses to promote equality
To date, state and federal anti-discrimination legislation has been largely unsuccessful at challenging the gender norms and cultural inequalities that exist in Australian workplaces. There remains a significant reduction in labour force participation of women aged between 25 and 44 years, of which the main drivers are caring for children and other caring and household responsibilities. This policy and legislative failure is why Australia has one of the lowest labour force participation rates for women in these age ranges compared with other OECD countries.
Family caring responsibilities are the most common non-work commitments that compete with work demands. Unable to challenge the notions of the ‘ideal’ worker or the ‘Harvester family’, many women and men with family and caring responsibilities are still struggling to achieve equality at work despite the issue of work-life balance being on the public policy agenda for many years.
Some advances in helping workers balance their paid work and family responsibilities have been achieved, the recent introduction of paid parental leave being a very significant one. Yet, over the past 20 or so years, governments have been noticeably reluctant to act, especially in contrast to many countries in the European Union. The OECD noted in 2002 that there is only a ‘low penetration’ of family-friendly work practices in Australia.
As a result, anti-discrimination legislation has been one of the only avenues for workers with family responsibilities to pursue flexible working conditions. Yet, even here the courts have consistently interpreted anti-discrimination legislation narrowly, viewing the statutes through a prism of formal equality. The Courts have failed to recognise that the aim of the legislation is to bring about social change. Consequently, there a number of technical barriers for complainants in both direct and indirect discrimination claims. In effect, whilst the laws have been effective in their remedial goal of compensating victims and resolving complaints they have failed in their stated purpose of eliminating inequality.
Recently, Governments at both a state and federal level have recognised the limitations of the current regulatory approach and have introduced a number of new mechanisms through both anti-discrimination legislation and workplace laws. This paper will focus primarily on recent developments in Victoria and in the Federal Government’s Fair Work Act 2009 (Cth) and examine how these recent changes might bring about substantive equality for working families by improving flexibility at work and imposing positive duties on employers to alleviate inequality.
This paper will discuss the two ‘right to request’ models in Victoria and in the National Employment Standards at a federal level, the new positive duties on employers in the new Equal Opportunity Act 2010 (Vic) and the new general discrimination provisions contained in the Fair Work Act. Up until now, there has been no positive duty on employers to eliminate discriminatory customs and practices. Whilst innovative, the lack of enforcement mechanisms for these new rights and duties may mean that the regulation is unlikely to better promote substantive equality in Australia.
To assess these new mechanisms this paper will examine recent legislative developments in equality in the UK. The UK, with influence from the policies of the European Union, introduced a statutory right to request flexible work provision in 2003 and drawing on their experience this paper will consider how effective the Australian models might be. The UK have also had positive duties on public authorities in relation to eliminating discrimination and promoting equality and these have been substantially strengthened and expanded in the new Equality Act 2010 (UK).