Newsletter of the Anti-Discrimination Board of NSW
Number 71 Summer 2007-08
From the President 2
Breastfeeding amendment 4
Anti-Discrimination Amendment (Breastfeeding) Bill 2007 8
Training Calendar 2008 9
Celebrating our anniversary 10
Photo competition winners 12
Celebrating 30 years 13
Disability discrimination and the ADA 15
not so hard 19
Community events 21
Board of NSW 25
From the President
The Anti-Discrimination Board’s Annual Report for 2006–07 was presented to parliament by Attorney General John Hatzistergos, on 29 November 2007. Board President Stepan Kerkyasharian reports that the Board celebrated 30 years of anti-discrimination legislation in NSW and had a stable and successful year.
2007 marked the thirtieth anniversary of the Anti-Discrimination Act, which came into force on June 1 1977. The Act pioneered anti-discrimination legislation in Australia, and remains a powerful tool for addressing discrimination, harassment and vilification in NSW.
The Anti-Discrimination Board is the organisation established by the Act to educate the community about their rights and responsibilities under anti-discrimination law, handle complaints of discrimination, and where appropriate, advise the government on discrimination matters. The Board has continued to do this effectively in 2006-07.
The Board’s education service has maintained its excellent work, with a variety of services and events targeted at a very wide range of sectors in the community.
Our self-funding training service for employers and service providers continues successfully due to the excellent reputation of our training staff for providing interactive sessions tailored to the needs of specific employers. Along with our regular seminars and in-house training services, we also provided an information session on the relationship between discrimination law and the federal government’s Work Choices legislation to ensure that employers understood their continuing obligations under anti-discrimination law in NSW.
Our community education service continued to work with groups that have been identified as being particularly vulnerable to discrimination. As well as our usual networking, community training and displays, this year we ran further training for members of the African community, provided education for people with brain injury, and ran a highly successful art competition which culminated in an award ceremony at Parliament House in April. It was very heartening to see the spirit of community harmony that the children demonstrated in their entries, and the creative ways they expressed their vision.
Our Aboriginal and Torres Strait Islander team provide an important and accessible service for Aboriginal and Torres Strait Islander people, in answering enquiries, providing strategies for addressing discrimination, handling complaints and educating their community.
The team has been particularly effective in partnering with other agencies to provide clear and comprehensive information covering a range of jurisdictions. As accommodation continues to be a major area of discrimination for Aboriginal people, the residential tenancy seminars the team conducted for real estate agents with the Office of Fair Trading are of particular significance.
The formal complaints we received were of a similar number and breakdown to last year, apart from a rise in complaints of race discrimination. This may reflect an increase in race discrimination, and/or an increase in willingness to report discrimination, which in turn may reflect our efforts to educate vulnerable communities about their rights. The Board will continue to monitor developments in this area.
Complaint handling staff have continued to achieve excellent results in finalising complaints, with no backlog and this year’s files finalised within an average of 5.5 months. There was another significant increase in the number of complaints resolved at or after a conciliation conference, which we believe may result from the improved time taken to deal with complaints – the parties are more responsive to resolution when the issues are still immediate, and there is a better opportunity to make changes.
The Board has achieved a great deal in since 1977, and there is far greater awareness about discrimination and harassment than there was 30 years ago. However, the Board’s enquiry staff still hear stories daily which make it clear that not everyone in NSW respects the right of all people to live free of discrimination. I therefore look forward to achieving still more in the future.
My thanks to all Board staff for their professionalism and commitment, including the invaluable support staff who facilitate our work. Thanks also to the Statutory Board members for their usual wise guidance throughout the year.
Stepan Kerkyasharian AM
The Anti-Discrimination Act 1977 has been amended to strengthen the prohibition on discrimination against women who are breastfeeding
Discrimination on the ground of breastfeeding is now officially unlawful discrimination on the ground of sex. Along with pregnancy, breastfeeding has long been considered ‘a characteristic that appertains generally to persons of a particular sex’. A recent amendment to the Anti-Discrimination Act makes it clear.
Under the new law, ‘breastfeeding’ is defined as including the act of expressing milk.
According to one study, more than one in five pregnant workers encounter at least one ‘difficulty at work during their pregnancy:
• 9% received negative or inappropriate comments
• 9% missed training and development opportunities
• 7% missed opportunities for promotion 1
A range of issues have been raised in cases before the courts and tribunals. Some employers, faced with a pregnant employee, have actively tried to ‘persuade’ her to leave. This is despite the many financial benefits of keeping a valued employee in a job: loyalty, commitment, retention of experience and expertise, training investment, avoidance of recruitment costs and gaining ‘preferred employer’ status.
Employers must treat pregnant women the same as they would any other employee unless there is a legal reason to treat them differently. If they normally supply employees’ uniforms, for example, they should supply a larger size to a pregnant employee if necessary. They should not transfer a pregnant woman to a job ‘out of sight’ against her will, or to a ‘safer’ job unless there are real medical or safety issues for doing so.
They must not treat women whom they think are likely to become pregnant less favourably, either. Unfortunately, many young women report less favourable treatment when, for example, they marry.
Under NSW law, an employer does not have to employ someone who is pregnant at the time of the job interview. In most cases, however, this is unlawful under federal law
In one case2, a pregnant hairdressing apprentice claimed her manager’s attitude changed when she became pregnant: criticising; setting menial tasks; and so on. The real difficulty, however, was her manager’s decision that she could no longer work in one salon. She was required to travel to different salons from day to day.
As her pregnancy progressed, her obstetrician gave her a medical certificate stating that she could only do 8-hour shifts. The manager ignored this and required her to work 12-hour shifts. She was forced to leave her job. The Queensland Administrative Decisions Tribunal found that she had been treated less favourably because of her pregnancy and she was awarded $9,257.50 for humiliation, distress and lost wages.
Another case3 concerned a teacher who lost her job-share position as registrar at a private school, when the school decided the arrangement wasn’t working.
The registrar’s job was advertised and filled as a full-time position. The woman applied, and was willing to work full-time, but did not get the job.
The Queensland tribunal found that the decision that the Registrar’s position should be full-time was genuine, based on operational requirements, and not discriminatory. The tribunal was satisfied, however, that the real reason for refusing her the job was because of her parental responsibilities and pregnancy and this was discriminatory.
It also found that it was unreasonable to require the woman to work full-time or lose her job. It was also irrational to refuse to offer her a teaching job when many were available for which she was qualified. Instead, the school had directly discriminated against her because she was offered a low status, low paid job because she was pregnant.
The woman was awarded $42,250.
Pregnancy is not an illness
Maybe not, but the Federal Magistrate’s Court found that Qantas discriminated against a flight attendant by refusing to allow her to access her sick leave on the grounds that she was pregnant rather than sick4 .
Flight attendants have to stop flying at a certain stage of their pregnancy due to the potential radiation danger. In this case there were no ground-based jobs at an equivalent salary level, so the woman asked to use her sick leave. Qantas said she must accept a clerical position on offer or go on unpaid maternity leave.
The employee successfully argued that Qantas’ refusal of her sick leave claim meant that she was treated less favourably than another hypothetical employee who was not pregnant but was also unable to perform flying duties by reason of a medical certificate.
Accommodating the needs of pregnant employees
Employers need to have in place appropriate policies for dealing with the needs of pregnant employees. A woman who was seven months pregnant asked for ‘light duties’ because she was having trouble coping.5 She was told that there were no temporary positions for her to fill, and if she could not do her job, she would have to take leave.
The tribunal found that there was no direct discrimination. The woman was not treated less favourably than other employees who needed to be on light duties because of her pregnancy.
The tribunal, however, considered whether or not she had been indirectly discriminated against. It had to decide if requiring her to take leave if she couldn’t do her job was reasonable and whether a substantially higher proportion of men could comply with such a requirement than women in the late stages of pregnancy.
The tribunal found that, on the face of it, the requirement was reasonable. In all the circumstances, however, it was not reasonable. It pointed to a lack of written policies to deal with requests such as Ms Jordon’s, the lack of any training as to how the request should be handled; and no system for exploring options.
The Tribunal awarded the woman $7,500 for having to take leave before, rather than after her baby was born.
Mothers are entitled to return to work after maternity leave. If their old job is not available, they are entitled to expect that they will be offered something comparable in terms of such things as salary, status, or responsibilities. One woman agreed to return to a ‘different but comparable’ role.6
She was, however, placed in an inferior job with no budget, less responsibility, and no line management responsibilities or development opportunities. She later moved to better position, but it still carried a loss of status. She claimed that this was sex discrimination
The magistrate agreed that she had been discriminated against on the ground of sex. He found that she was treated less favourably than people who took leave for other reasons.
She was awarded $10,000 plus an apology.
It is unlawful to discriminate against a person because they are the prime carer for a family member, including a child, grandchild, parent, grand parent, partner, sibling or any of those relatives of a sibling. A carer is also entitled to ‘reasonable accommodation’ for their caring responsibilities.
A carer can be male or female, but accommodations are often sought by mothers returning from maternity leave.
In a recent case7 an employee returned to work after maternity leave to find that her job had been divided into two positions. She was given the more junior role. The senior role included most of her previous responsibilities.
The employer claimed that the senior role was given to the better candidate.
The Tribunal did not believe this because:
• It being the job she had held, it was not sensible to give it to someone else
• The manager had expressed concern about how women with children managed their time.
• He had told the woman to spend as much time as possible with the baby
• He had sent an email to other employees after her return saying ‘Please welcome Sally back to the office and if she s p e l l s e v e r y t h i n g o u t when talking to you, please be patient’.
The Tribunal was satisfied that she did not get the senior job because of the sales manager’s beliefs about the effect of childcare responsibilities on performance.
She was awarded $19, 685
A woman who is returning from maternity leave does not have an absolute right to return part-time. The carer’s responsibilities ground, however, entitles her to expect that her employer will give proper consideration to the question of whether or not this is possible.
A manager and long term employee, sought to return to work part-time after her maternity leave. Her request was refused. Her employer insisting that the job was full-time and that they had no obligation to assist her to manage her personal affairs.
She offered to work on the three busiest days of the week and to be on standby on the other two. The employer reiterated its refusal without negotiation.
The woman succeeded in her claim of discrimination on the ground of carer’s responsibilities, pregnancy and gender. The tribunal found that her employer had not given due consideration to her request and that requiring her to return full time was not reasonable in all the circumstances.
She was awarded $16,385 for loss of income, stress and humiliation.
Only women have babies
Finally, since only women have babies, discrimination against a woman because she is pregnant (or could become pregnant), or because she is breastfeeding, is sex discrimination. The breastfeeding amendment specifically states that it is not discrimination against men to make particular arrangements for breastfeeding women!
1 Australian Bureau of Statistics. Pregnancy and Employment transitions, Nov. 2005, 4913.0
2 Banks v Zivanovic, Anderson & Jon Le Court Pty Ltd  QADT 43 (13 December, 2006)
3 Edwards v Hillier & Educang Ltd, t/as Forest Lake College  QADT 34 911 August 2006)
4 Howe v Qantas Airways Limited  FMCA 242
5 Jordan v North Coast Area Health Service (No 2)  NSWADT 258