For this reason the National Review recommends amending the SDA to ensure that discrimination on the ground of includes ‘family responsibilities’ ‘indirect discrimination’. Implementation of several other outstanding recommendations from the 2008 Senate Inquiry would assist in addressing pregnancy/return to work discrimination including those relating to costs, comparator and the role of the Commission. Further analysis and information on the relevance to the focus of the National Review of each of these outstanding recommendations from the 2008 Senate Inquiry is provided in Appendix G. Positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities In an effort to work towards substantive equality, the National Review received submissions proposing that the SDA be amended to include a positive obligation on employers to take all reasonable and appropriate measures, including special measures, to provide a workplace free of pregnancy/return to work discrimination. The National Review received several submissions to include within the SDA an express duty on employers to reasonably accommodate or make reasonable adjustments for persons (including employees and prospective employees) who are pregnant or who have family and caring responsibilities, including requests for flexible working arrangements to accommodate family or carer responsibilities. Whilst in practice, the existing indirect sex discrimination provision under the SDA already requires that policies and practices do not unreasonably disadvantage people with a particular attribute, it would be clearer to have an express provision to this effect. This provision would require reasonable accommodation, except where those adjustments would cause unreasonable hardship to the employer. This would also align the SDA with similar obligations under the Disability Discrimination Act 1992 (Cth) relating to reasonable accommodation of persons with a disability. The National Review recommends including under the SDA a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family/carer responsibilities. Prohibiting employers from collecting information not related to the job and/or using information collected to discriminate against an employee The SDA prohibits collection of information relating to pregnancy, potential pregnancy, or marital or relationship status, if it is being collected for a discriminatory purpose (ie the information will be used to treat that person less favourably than someone without the protected attribute). However, the National Review received submissions noting that some employers do collect such information, on the basis that it will not be used for a discriminatory
For this reason the National Review recommends amending the SDA to ensure that discrimination on the ground of ‘family responsibilities’ includes ‘indirect discrimination’. Implementation of several other outstanding recommendations from the 2008 Senate Inquiry would assist in addressing pregnancy/return to work discrimination including those relating to costs, comparator and the role of the Commission. Further analysis and information on the relevance to the focus of the National Review of each of these outstanding recommendations from the 2008 Senate Inquiry is provided in Appendix G. Positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities In an effort to work towards substantive equality, the National Review received submissions proposing that the SDA be amended to include a positive obligation on employers to take all reasonable and appropriate measures, including special measures, to provide a workplace free of pregnancy/return to work discrimination. The National Review received several submissions to include within the SDA an express duty on employers to reasonably accommodate or make reasonable adjustments for persons (including employees and prospective employees) who are pregnant or who have family and caring responsibilities, including requests for flexible working arrangements to accommodate family or carer responsibilities. Whilst in practice, the existing indirect sex discrimination provision under the SDA already requires that policies and practices do not unreasonably disadvantage people with a particular attribute, it would be clearer to have an express provision to this effect. This provision would require reasonable accommodation, except where those adjustments would cause unreasonable hardship to the employer. This would also align the SDA with similar obligations under the Disability Discrimination Act 1992 (Cth) relating to reasonable accommodation of persons with a disability. The National Review recommends including under the SDA a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family/carer responsibilities. Prohibiting employers from collecting information not related to the job and/or using information collected to discriminate against an employee The SDA prohibits collection of information relating to pregnancy, potential pregnancy, or marital or relationship status, if it is being collected for a discriminatory purpose (ie the information will be used to treat that person less favourably than someone without the protected attribute). However, the National Review received submissions noting that some employers do collect such information, on the basis that it will not be used for a discriminatory
SWP_Report_2014.docx