David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Hansard source

I think I comprehend Senator Brandis's concerns and let me now set to the task of allaying them. The government's position is that the key issue here is reasonableness and the test of reasonableness. As you would be aware, the Sex Discrimination Act has at section 7B:

Indirect discrimination: reasonableness test

(1) A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2) The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

  (a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

  (b) the feasibility of overcoming or mitigating the disadvantage; and

  (c) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

We say that in practical effect that reasonableness test means that, if, for example, a food factory owner arbitrarily changes the starting time for all employees from 9 am to 7.30 am, this may be found to constitute discrimination because it would disproportionately disadvantage those employees with young children. However, it would not constitute discrimination if that same owner made the same change because the food produced in the factory has a limited shelf life and needs to be distributed to shops as early as possible before it goes off, because this change is reasonable in the circumstances.

Further, using the example of an employer who, due to economic downturn, equally cuts the hours of all casual staff, some of whom have children and some of whom do not, this would not constitute discrimination on the basis of family responsibilities because the action applied equally to all of the employees and it was reasonable in the circumstances. The fact that the workers with children may find it harder to cope with the reduced income is not relevant to the actions of the employer; it is exactly the same situation as two employees having different sized mortgages or different lifestyles or, indeed, different spending habits. Put simply, we say the proposed provisions do not require employers to take into account the living expenses of people with family responsibilities. For example, employers will not be required to pay a worker who has a family and therefore higher expenses more for the same job than a worker who does not.

We say that section 7A relates to indirect discrimination against people with family responsibilities but indirect discrimination arises where an apparently mutual condition, requirement or practice has the effect of disadvantaging a particular group, in this case people with family responsibilities. We say that section 7B, the reasonableness test, means that common sense will prevail. We are not imposing further obligations upon the business community, let alone the small business community. You can be reassured that your concerns are dealt with through that reasonableness test.