For many working carers, the circumstances of your caring responsibilities could change over time. Perhaps you will need to reduce your working hours from full-time to part-time or it may be you will need to vary the hours of your daily shift.

Know your rights

In New South Wales, it is illegal for an employer to discriminate against a worker because of their caring responsibilities. However, the legislation only applies to carers who care for their child, the child of their current or ex husband/wife or same sex or opposite sex partner, any adult of whom you are the legal guardian or an immediate family member. If you are the carer of a niece, nephew or friend, the anti-discrimination law may not be able to help you and you should obtain advice from the Anti-Discrimination Board if this is the case.

Under the law, all employers must provide any special arrangements you need to carry out all the necessary things your job requires while you are managing your responsibilities as a carer. This may not be the case if it will cause your employer “unjustifiable hardship”. For example, it might be impossible for you to do what you need to do without seriously harming your employer’s business or costing them more than they can afford.

To assist you, your employer may be able to make any of the following arrangements without it causing them unjustifiable hardship:

• changing your start or finish times, roster arrangements or break times;
• allowing you to work your hours over fewer days;
• allowing you to work part-time instead of full-time, or to job-share with someone else;
• allowing you to work from home;
• being flexible with the amount of unpaid or paid leave you can take and when you can take it.

Conversely, if your employer wants to change your working arrangements, for example by changing your start and finish times or requiring you to work longer hours, they should take your caring responsibilities into account.

You should keep a written record, e.g. a diary, of all the events surrounding your request to change your working arrangements. If your employer says no and your complaint is then formalised, it will be essential to have a written record of what has occurred.

Sample letter or verbal approach to employer

Before you talk to your employer, you may like to talk to your workmates about your caring situation and gain their support. They may also be able to make suggestions regarding ways to lessen any disruption to your job or the workplace. Some colleagues may be carers themselves and will be able to let you know how your boss has handled their particular situation.

If your caring role is making it difficult for you to continue with your present working arrangements, you should talk with your employer or Human Resource person and advise them of your situation. If you work for a large organisation, it may be more appropriate to request an appointment in writing. You could use something along the lines of the following in a memo or letter or use similar wording when requesting an appointment face-to-face.

“Dear ......

I would like to make an appointment with you to discuss my caring responsibilities.

I am now finding it difficult to carry out my caring role and, at the same time, properly fulfil my duties at work. It would be greatly appreciated if you could make available some time for us to get together to discuss this. It should take no longer than 10-15 minutes.

Please let me know what time would be suitable for us to meet.

Regards ……

If your employer has a personal assistant or secretary, you could make the appointment through them. If you feel you may get some support, let this person know your situation as they may be able to back you up in your request. Employers often ask their assistants what they think of such requests.

If making a verbal request, be prepared for your employer to not want to make an appointment but to talk about your request straight away. The timing of your approach to make an appointment could also be important in some workplaces. It is probably better to approach your employer earlier in your shift rather than later. Wait until they have had a chance to clear their desk. After morning tea or the first break of the shift is an ideal time.

Discussion points for request to employer

When talking with your employer, explain your caring situation positively and state that you want to be able to work and care at the same time. Tell your employer you expect your caring responsibilities to last for xx number of months/years. Don’t apologise for caring. Privacy laws protect you and the person you’re caring for. You do not need to go into detail about your relationship to your care receiver, their medical condition, etc. and only do so if you want to. If the person you care for is not covered by the legislation, don’t let this stop you from requesting a change to your work situation. This may only affect your circumstances if your employer does not agree to your request and you wish to make an official complaint.

Tell your employer you have checked your award, EBA or ITEA and the anti-discrimination legislation and that there is an increasing trend for employers to support staff to work and care at the same time. Outline the benefits for employers such as increased staff retention, loyalty, commitment and productivity.

Explain that you have thought about your situation and ask your employer if he/she would consider what you need. Let your employer know that you have considered the repercussions of your request on your job and also to your workmates. For example, you could say something like “Sandra would also like to work fewer hours and is interested in job-sharing with me” or “because I now have to leave earlier each day, Harry has offered to take my messages and follow up any urgent matter for me”. Frame your request in such a way that it will cause the least trouble for everyone. Offer some other choices about how you may deal with your caring responsibilities.

When you meet with your employer, you could give him/her a copy of our Fact Sheet “Carers and Work” which provides an overview of employers’ responsibilities under NSW anti-discrimination legislation as well as the positive benefits of providing flexible working arrangements to staff who are carers.

Your Employer says “yes” to your request

Once your employer has agreed in principle, you should ask for the new arrangements to be set down in writing. If no mention has been made of a regular review, suggest to your employer that it would probably be a good idea to monitor the new system.

If you later discover there are some glitches in the arrangement, do not hesitate to discuss this with relevant workmates and your employer. Alternatives can probably be found to remedy the situation.

Your Employer says “no” to your request

If your employer refuses your request, try and resolve the situation informally. In general, an employer can only refuse your request if it is not reasonable for them to provide special arrangements. Under the law, before making a decision your employer must take into account all the circumstances including:

• the benefit that you and the workplace generally will get (including other workers and clients/customers) from the special arrangement if they provide it;
• how it will affect you, the person you are caring for and other workers, clients and customers if they don’t provide the arrangement;
• the effect on your responsibilities as a carer; and
• your employer’s financial circumstances and the cost of accommodating your carer’s responsibilities.

Ask your employer if he/she has addressed all these points before refusing your request. Obviously, there will be occasions when an employer decides that a particular arrangement would cause them unjustifiable hardship and will have no choice but to say no.

Issue resolved successfully

If after successful discussion your employer decides to reverse his/her decision and has agreed in principle to your request, you should ask for the new arrangements to be set down in writing. If no mention has been made of a regular review, suggest to your employer that it would probably be a good idea to monitor the new system. If you later discover there are some glitches in the arrangement, do not hesitate to discuss this with relevant workmates and your employer. Alternatives can probably be found to remedy the situation.

Issue not resolved and making a complaint

If informal resolution of the problem has not been successful, you should now think about making a complaint which should be done in writing. It may be the organisation you work for has a policy on unfair treatment of staff and you may be able to address the problem using their grievance handling system.

Grievance procedures are formal and agreed procedures that an employer and its representatives have agreed to follow to deal with or resolve workplace problems. They usually allow a staff member to choose to be represented or accompanied by another person at any meeting aimed at resolving conflict. This person could even be a friend. Certainly, if you are a member of a Union, you should ask them for advice and to represent you.

For more detailed information about grievance handling, go to the website of the NSW Office of Industrial Relations at www.industrialrelations.nsw.gov.au/workplace/practice/griev_handling.html

Complaint resolved by mediation or conciliation

If you have now managed to resolve the situation to your advantage, see the section “Issue resolved successfully”.

If your complaint is still not resolved

If you still feel you are being treated unfairly because of your responsibilities as a carer and no resolution to your problem has been obtained, you should now contact the Anti-Discrimination Board. The Board has the legal power to investigate your complaint, and if they find what has occurred is against the law, they will try to help you and your employer reach some kind of settlement which you both can agree to. Any settlement will depend on the circumstances of your case and on what you and your employer are willing to offer and accept.

To initiate this procedure, you can either send the Board a completed discrimination complaints form or write a letter to the President of the Board explaining why you think you have been discriminated against. The Board will also accept a complaint tendered on your behalf from your legal representative or an organisation such as a Union or other representative body. You will need to do this within 12 months of the event occurring or the Board may refuse to investigate your complaint. If you need assistance to make a written complaint, telephone the Board and they will be able to assist or refer you to an organisation that can.

All complaints are treated confidentially by the Board and their services are free. You should also be aware that it is against the law for your employer to hassle or victimise you because you’ve complained to the Board.

If after conciliation, the matter is still not resolved, it may go the Equal Opportunity Division of the Administrative Decisions Tribunal which is like a court. It provides a legal judgement that must be followed. However, very few cases need to go that far.

For more details of the anti-discrimination legislation, see www.lawlink.nsw.gov.au/lawlink/adb/ll_adb.nsf/pages/adb_carers_responsibilities#what.

To obtain advice and/or to lodge a complaint, contact the Anti-Discrimination Board. You or your employer can call the Board’s General Enquiry Service on (02) 9268 5544 for advice and, for those who live in rural or regional New South Wales, you can telephone toll free 1800 670 812. If you need to write to the Board, see the website for details.

For other relevant information and tips, read our Fact Sheets Negotiating with your employer, Working Carers and Anti-Discrimination and Carers and Work.

What next?

If you would like to learn more about the issues raised in this Fact Sheet you may like to try:

• returning to the Employees menu on the Gateway
• checking out the Federal Government Workplace Relations website for more information on Carers
• visiting the relevant state workplace and employment website
  • NSW - http://www.industrialrelations.nsw.gov.au
    VIC - http://www.business.vic.gov.au
    QLD - http://www.deir.qld.gov.au
    SA - http://www.service.sa.gov.au
    WA - http://wa.gov.au/governmentservices/jobseconomy
    TAS - http://www.service.tas.gov.au
    NT - http://www.nt.gov.au
    ACT - http://www.act.gov.au
• subscribing to our monthly newsletter, Work 'n' Care, for regular information and support regarding the issues facing working carers.

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