EQUAL OPPORTUNITY (CARER'S RESPONSIBILITIES) AMENDMENT BILL 2003

Part 2—Amendment of Equal Opportunity Act 1984

Long title—after "race," insert:

carer's responsibilities,

Section 5—after subsection (2) insert:

(3) A reference in this Act to a person's responsibilities as a carer is a reference to the responsibilities of the person to provide care or support (other than on a commercial or voluntary basis) for another who is—

(a) wholly or substantially dependent on the person for the provision of that care or support; and

(b) a member of the person's family or household or a close acquaintance.

5—Amendment of section 11—Functions of the Commissioner

Section 11—delete "ground of sex, sexuality, marital status, pregnancy, race, impairment or age" wherever occurring and substitute in each case:

grounds to which this Act applies

6—Insertion of Part 4A

After Part 4 insert:

Part 4A—Discrimination on the ground of a person's responsibilities as a carer

Division 1—Discrimination to which this Part applies

65A—Criteria for establishing discrimination on the ground of a person's responsibilities as a carer

For the purposes of this Act, a person discriminates on the ground of the person's responsibilities as a carer—

(a) if he or she treats another person unfavourably because of the other's responsibilities as a carer;

(b) if he or she treats another person unfavourably because the other does not comply, or is not able to comply with a particular requirement and—

(i) the nature of the requirement is such that a substantially higher proportion of persons without responsibilities as a carer complies, or is able to comply, with the requirement than those with responsibilities as a carer; and

(ii) the requirement is not reasonable in the circumstances of the case; or

(c) if he or she treats another person unfavourably on the basis of a characteristic that appertains generally to persons with responsibilities as a carer, or on the basis of a presumed characteristic that is generally imputed to persons with responsibilities as a carer.

65B—Criteria for determining unjustifiable hardship

For the purposes of this Part, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account, including—

(a) the nature of the benefit or detriment likely to accrue to or be suffered by any persons concerned; and

(b) the effect of the relevant responsibilities as a carer of a person concerned; and

(c) the financial circumstances of and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.

Division 2—Discrimination in employment

65C—Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) in determining, or in the course of determining, who should be offered employment; or

(b) in the terms or conditions on which employment is offered.

(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's responsibilities as a carer—

(a) in the terms or conditions of employment; or

(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits connected with employment; or

(d) by subjecting the employee to any other detriment.

(3) Nothing in subsection (1)(a) or (2)(c) renders unlawful discrimination by an employer against a person on the ground of the person's responsibilities as a carer if, taking into account the person’s past training, qualifications and experience relevant to the particular employment and, if the person is already employed by the employer, the person's performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer—

(a) would be unable to carry out the inherent requirements of the particular employment; or

(b) would, in order to carry out those requirements, require arrangements that are not required by persons without those responsibilities as a carer and the making of which would impose an unjustifiable hardship on the employer.

(4) This section does not apply—

(a) in relation to employment within a private household; or

(b) if the number of persons employed by the employer, disregarding any persons employed within the employer's private household, does not exceed 5.

65D—Discrimination against agents

(1) This section applies to a principal for whom work is done by agents remunerated by commission.

(2) It is unlawful for the principal to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) in determining, or in the course of determining, who should be engaged as an agent; or

(b) in the terms or conditions on which such an engagement is offered.

(3) It is unlawful for the principal to discriminate against an agent on the ground of the agent's responsibilities as a carer—

(a) in the terms or conditions on which the agent is engaged; or

(b) by denying or limiting access to opportunities for promotion, transfer or training or any other benefits connected with the agent's position; or

(d) by subjecting the agent to any other detriment.

(4) Nothing in subsection (2)(a) or (3)(c) renders unlawful discrimination by the principal against a person on the ground of the person’s responsibilities as a carer if, taking into account the person’s past training, qualifications and experience relevant to engagement as an agent and, if the person is already engaged by the principal as an agent, the person’s performance as an agent, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer—

(a) would be unable to carry out the inherent requirements of an agent; or

65E—Discrimination against contract workers

(1) This section applies to a principal for whom work is done by contract workers in pursuance of a contract between the principal and the employer of those contract workers.

(2) It is unlawful for a principal to enter into any contract or arrangement with an employer of contract workers under which the employer is to discriminate against a person on the ground of the person's responsibilities as a carer.

(3) It is unlawful for the principal to discriminate against a contract worker on the ground of the contract worker's responsibilities as a carer—

(a) in the terms or conditions on which the contract worker is allowed to work; or

(b) by not allowing the contract worker to work; or

(d) by subjecting the contract worker to any other detriment.

(4) Nothing in subsection (3)(b) renders unlawful discrimination by a principal against a contract worker on the ground of the contract worker’s responsibilities as a carer if, taking into account the contract worker’s past training, qualifications and experience relevant to working as a contract worker and, if the contract worker is already working for the principal as a contract worker, the worker’s performance as a contract worker, and all other relevant factors that it is reasonable to take into account, the contract worker because of his or her responsibilities as a carer—

(a) would be unable to carry out the inherent requirements of a contract worker; or

65F—Discrimination within partnerships

(1) It is unlawful for a firm consisting of one or more members, or for one or more persons promoting the formation of a firm, to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) in determining, or in the course of determining, who should be offered a position as partner in the firm; or

(b) in the terms or conditions on which that person is offered a position as partner in the firm.

(2) It is unlawful for a firm consisting of two or more partners to discriminate against a partner on the ground of the partner's responsibilities as a carer—

(a) in the terms or conditions of membership of the firm; or

(b) by denying or limiting access to any benefit arising from membership of the firm; or

(d) by subjecting the partner to any other detriment.

(3) Nothing in subsection (1)(a) or (2)(c) renders unlawful discrimination against a person on the ground of the person’s responsibilities as a carer if, taking into account the person’s past training, qualifications and experience relevant to the proposed partnership or the partnership and, if the person is already a partner, the person’s performance as a partner, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer—

(a) would be unable to carry out the inherent requirements of a partner in the proposed partnership or the partnership; or

Division 4—Discrimination by other bodies

65G—Discrimination by qualifying bodies

(1) It is unlawful for an authority or body empowered to confer an authorisation or qualification that is needed for, or facilitates, the practice of a profession, or the carrying on or engaging in of a trade or occupation, to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) by refusing or failing to confer or renew that authorisation or qualification; or

(b) in the terms or conditions on which it confers the authorisation or qualification; or

(2) Nothing in subsection (1) renders unlawful discrimination by an authority or body against a person on the ground of the person’s responsibilities as a carer if, taking into account—

(a) the person’s past training, qualifications and experience relevant to the particular profession, trade or occupation; and

(b) if the person is already a member of the profession, carrying on the trade or engaged in the occupation, the person’s performance in the profession, trade or occupation; and

the person because of his or her responsibilities as a carer would be unable to carry out the inherent requirements of the profession, trade or occupation.

65H—Discrimination by employment agencies

(1) It is unlawful for an employment agency to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) by refusing to provide the person with any of its services; or

(b) in the terms on which it offers to provide the person with any of its services; or

(2) Nothing in subsection (1) renders unlawful discrimination by an employment agency against a person on the ground of the person's responsibilities as a carer if, taking into account the person's past training, qualifications and experience relevant to the particular work sought, and all other relevant factors that it is reasonable to take into account, the person because of his or her responsibilities as a carer would be unable to carry out the inherent requirements of the work sought.

65I—Discrimination by associations

(1) It is unlawful for an association to which this section applies to discriminate—

(a) against an applicant for membership of the association on the ground of the person's responsibilities as a carer—

(i) by refusing or failing to admit the applicant to membership, or to a particular class of membership of the association; or

(ii) in the terms on which the applicant is, or may be, admitted to membership or to a particular class of membership; or

(b) against a member of the association on the ground of the member's responsibilities as a carer—

(i) by refusing or failing to provide a particular service or benefit to that member; or

(ii) in the terms on which a particular service or benefit is provided to that member; or

(iii) by expelling the member from the association or subjecting him or her to any other detriment.

(2) Without limiting the generality of subsection (1), an association to which this section applies discriminates against a member of a particular class in the association if, on application by the member to join a different class of membership in the association, the association accords the member a lower order of precedence on the list of applicants for that class of membership than that accorded to an applicant who is not a member of the association.

(3) Nothing in subsection (1)(b)(i) or (ii) renders unlawful discrimination by an association to which this section applies against a person on the ground of the person’s responsibilities as a carer where, because of the person’s responsibilities as a carer, the person requires the benefit to be provided in a special manner and the benefit cannot be provided in that manner by the association without unjustifiable hardship to it.

(4) In this section—

association to which this section applies means—

(a) an association or organisation incorporated or registered under a law of the State or of the Commonwealth including an industrial association or organisation; or

(b) any other association formed to promote the interests of employees; or

65J—Discrimination by members of councils

It is unlawful for a member or members of a council acting (whether alone or jointly) in the course of official duties to discriminate against another member of the council on the ground of his or her responsibilities as a carer.

Division 5—Discrimination in education

65K—Discrimination by educational authorities

(1) It is unlawful for an educational authority to discriminate against a person on the ground of the person's responsibilities as a carer—

(a) by refusing or failing to accept an application for admission as a student; or

(b) in the terms or conditions on which it offers to admit the person as a student.

(2) It is unlawful for an educational authority to discriminate against a student on the ground of responsibilities as a carer—

(a) in the terms or conditions on which it provides the student with education or training; or

(b) by denying or limiting access to any benefit provided by the authority; or

(d) by subjecting the student to any other detriment.

Division 6—Discrimination in relation to land, goods, services and accommodation

65L—Discrimination by person disposing of an interest in land

(1) It is unlawful for a person to discriminate against another person on the ground of responsibilities as a carer—

(a) by refusing or failing to dispose of an interest in land to the other person; or

(b) in the terms or conditions on which an interest in land is offered to the other person.

(2) This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift.

65M—Discrimination in provision of goods and services

(1) It is unlawful for a person who offers or provides—

(a) goods; or

(b) services to which this Act applies,

(whether by payment or not) to discriminate against another person on the ground of responsibilities as a carer—

(d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.

65N—Discrimination in relation to accommodation

(1) It is unlawful for a person to discriminate against another person on the ground of responsibilities as a carer—

(a) in the terms or conditions on which accommodation is offered; or

(b) by refusing an application for accommodation; or

(c) by deferring such an application or according the applicant a lower order of precedence on any list of applicants for that accommodation.

(2) It is unlawful for a person to discriminate on the ground of responsibilities as a carer against a person for whom accommodation has been provided—

(a) in the terms or conditions on which accommodation is provided; or

(b) by denying or limiting access to any benefit connected with the accommodation; or

(d) by subjecting the person to any other detriment.

(3) This section does not apply to discrimination in relation to the provision of accommodation if—

(a) the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, on the premises; and

(b) accommodation is provided on the premises for no more than six persons apart from that person and his or her family.

7—Amendment of section 100—Proceedings under the Industrial and Employee Relations Act

Section 100—delete "the sex, sexuality, marital status, pregnancy race, impairment or age of the person" wherever occurring and substitute in each case:

a ground of discrimination under this Act

South Australian Bills

EQUAL OPPORTUNITY (CARER'S RESPONSIBILITIES) AMENDMENT BILL 2003