The Acts

Discrimination means treating someone unfairly because they belong to a particular group of people. The NSW Anti-Discrimination Act 1977 passed by the NSW Parliament makes the types of discrimination listed below unlawful:

Part 9A of the Anti-Discrimination Act 1977 is about Equal Opportunity in Public Employment. The purpose of this part is to:

1. eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and disability, and
2. to promote equal employment opportunity for women, members of racial minorities and persons who have a disability.

Section 122J of Part 9A, outlines the requirements for Public Sector agencies (including Universities) to produce EEO Management plans to achieve EEO outcomes and submit them to the Director of Equal Opportunity in Public Employment.

The Anti-Discrimination Amendment (Carers' Responsibilities) Act 2000 created an obligation on employers to accommodate, where possible, an employee's responsibilities as a carer. Genuine consideration should be given to employees' requests to accommodate responsibilities as a carer or provide the "care or support" to another person.

The legislation amended the Anti-Discrimination Act 1977 ('the ADA'), to prohibit direct or indirect discrimination in employment because of an employee's responsibilities as a carer.

On 28 November 1995, the commission handed down Stage 2 of its decision, now known as the Personal/Carer's Leave Test Case - Stage 2 decision 1996 AILR [Australian Industrial Law Reports] 3-246. This decision provided federal award employees with the ability to take carer's leave out of the aggregated entitlements to sick leave and bereavement leave. It placed a ceiling on the number of days per year, namely five, which may be used for that purpose and also made provisions for greater flexibility in the use of annual and rostered days off. This decision was subsequently flowed on to awards in New South Wales, Tasmania, and South Australia.

In December 2005, the Full Bench of the Industrial Relations Commission of New South Wales (“the Commission”) made a general order under section 50 of the Industrial Relations Act 1996 to flow on the National Decision in the Family Provisions Test Case 2005. The general order provided that NSW awards were to be varied by general order to give effect to standard clauses in the following relation to the following matters:

• parental leave,
• personal carer’s leave, and
• unpaid carers and bereavement leave for Casual Employee’s.

Carers leave expanded to include emergencies

It was decided that part time and full time employees may draw on their Personal/Carers Leave in order to provide care for persons who require care due to an unexpected emergency.

The provisions have been operating since 19th December 2005. The NSW public sector, including State Owned Corporations, was excluded from the General Order, as per the terms of the Memorandum of Understanding (MOU) between the NSW Government and Unions NSW.

The MOU between the NSW Government and Unions NSW provides an exemption from the General Order on the basis that public sector employment conditions were more beneficial than provisions in the proposed General Order. For example, it was agreed that the MOU would not flow-on the provisions of clause 2 and 3 of the Proposed Order concerning Personal Carers' Leave for non-casual employees.

However, where the Family Provisions Test Case introduced more beneficial provisions the MOU committed the NSW Government to varying individual public sector instruments to provide the more beneficial conditions in the following areas:

• access for casuals to unpaid bereavement, personal carers and parental leave;
• increased access to annual leave in single days to fulfil personal/carers responsibilities (if not already available);
• an obligation for the employer to communicate with an employee on parental leave about their position;
• the right to request an additional year of unpaid parental leave
• the right to request up to 8 weeks simultaneous unpaid parental leave
• the right to request return to part time work until the child reaches school age.

For more information on the Family Provisions Test Case, please refer to the following Memo (M2005-15 Family Provisions Test Case Flow On).