New discrimination duties for Victorian employers

New laws requiring Victorian employers to accommodate their workers’ family obligations could leave SMEs struggling to cope, the state’s leading business group says.

Under the changes, Victorian employers may not “unreasonably refuse” any request by a new or existing employee to make changes to their or the business’s work patterns so that they can meet their obligations as a parent or carer.

Examples given in the legislation of requests employers may have to agree to include:

• A request to an employer to allow an employee to work from home or have a later start time one day per week.
• If an employee works on a part-time basis, to reschedule a regular staff meeting so that the employee can attend.
• Allowing an employee to work additional daily hours so that they can start later or finish earlier on other days.

The size of the business, the nature of the employee’s job and the cost of accommodating the request are among the factors that will be relevant in considering whether it is reasonable for an employer to refuse an employee’s request.

If an employee believes an employer has unreasonably refused a request they will be able to lodge a claim with the Victorian Equal Opportunity & Human Rights Commission that can ultimately lead to orders for compensation or other payments.

The changes will add an equal layer of legal red tape to the employment process that some SME owners could find difficult to cope, with according to David Gregory, the head of workplace relations policy with VECCI.

“It will potentially create a further minefield for small business. Many won’t be aware of these legal requirements and it’s not necessary when you consider that most are already doing what they can to accommodate employees because they are desperate to attract and retain workers,” Gregory says.

While the changes are new to Victorian legislation, they are not a quantum leap ahead of obligations employers already have under federal discrimination law and the common law, according to Holding Redlich partner Charles Power.

He says to a large extent business owners simply need to exercise common sense in dealing with employees.

“For most businesses it just means they need to think about these issues in relation to their own business and have some management guidelines on what we can do in terms of flexible work arrangements to ensure there is a consistent approach,” Power says.

A commencement date has yet to be set for the laws, which also have a sunset clause under which they will lapse in September 2009 unless renewed.

Meanwhile unions are calling for reforms to federal discrimination laws to give employees a right to ask for two years parental leave and flexible hours to care for children.

Labor has promised to give employees the right to request these benefits, but unions say employees need the right to access a dispute settlement tribunal if their request is refused.