Carers’ rights: Juggling home and work

According to Carers Australia, in 2012 Australia had 2.7 million unpaid carers. Many of these people are trying to balance the demands of their caring responsibilities with the demands of their employment. It’s no mean feat. If you’re a carer in this position, it’s important to know what entitlements are available to help you shoulder the load.

Definition of a carer

The Carer Recognition Act defines a carer as an individual who provides personal care, support and assistance to another individual who:

  1. has a disability
  2. has a medical condition (including a terminal or chronic illness)
  3. has a mental illness, or
  4. is frail and aged.

Carers need to be active in providing personal care, support and assistance to another individual, for example, driving them to medical appointments or preparing their meals. It’s not enough to simply be living with an individual who requires care. For the purposes of this definition, a person is not considered to be a carer if the service they’re providing is under an official contract, or in a voluntary capacity for a community organisation.

Carer’s leave

Under the National Employment Standards of the Fair Work Act, employees are entitled to personal carer’s leave to provide care or support to a member of their immediate family or household who requires care or support because of a personal illness, injury or unexpected emergency.

Permanent employees with caring responsibilities are entitled to 10 days paid leave per year or two days unpaid, if they’ve used up their paid leave. The leave is paid at the base rate, with no overtime or penalty rates. Part-time employees are entitled to the same leave pro rata. Casual employees can only access the two days unpaid leave.

It’s important to note that personal carer’s leave comes from the same pool as personal sick leave. It’s a combined entitlement, so if you use up your 10 days for your own sick leave, you can only access the two unpaid days for carer’s leave.

The National Employment Standards apply to the vast majority of Australian employees. However, some of us are governed by different awards, for example, same state public service employees. If you’re unsure where you stand, ask your human resources manager about workplace policies, awards and agreements in relation to carer’s rights and entitlements.

Notice and documentation

If you need to access carer’s leave, be sure to give notice as soon as is practicable and advise your employer of the period of leave or expected period of leave. In some circumstances, such as emergencies, notice can be given after the fact.

You need to be able to provide evidence of your caring commitments that would satisfy a reasonable person. For example:

  • a medical certificate
  • a letter from a medical practitioner
  • in some circumstances, a statutory declaration.

If your leave is refused and your leave satisfied the requirement of the Act, your employer may be hit with a fine of up to $54,000.

Flexible working arrangements

Under the National Employment Standards in the Fair Work Act, carers can request flexible working arrangements from their employer once they’ve completed at least 12 months of continuous service.

These arrangements can include changes to:

  • hours of work
  • patterns of work (such as split shifts or job sharing)
  • work location (for example, the ability to work from home).

Employer responsibilities

An employer must seriously consider a request for a flexible working arrangement and provide a written response within 21 days.

They may only refuse on reasonable business grounds, which may include:

  • if the request is too costly
  • if there’s no capacity to change the working arrangements of other employees to accommodate the new working arrangements of the carer
  • if it would be impractical to change the working arrangements of other employees or to recruit new employees
  • if it would be likely to result in a significant loss in efficiency or productivity
  • if it would be likely to have a significant negative effect on customer service.

When a request is denied

It is unlawful for an employee to refuse a request for flexible working arrangements unless they have reasonable business grounds.

That said, if your employer denies your request on these grounds, your ability to challenge or unreasonably dispute their decision is limited and they cannot be prosecuted for refusing your request. One approach may be to consider a discrimination case.

Anti-discrimination laws vary across states and territories but in New South Wales, for example, you can’t discriminate against a person because of their responsibilities to care for a family member. This means that you can’t treat an employee less favourably than another person in the same or similar circumstances, just because they have family responsibilities.

If you find yourself in this situation, seek legal advice. Unpaid carers play an important role in our society and should be supported accordingly. We all need to care for the carers.

TOPIC: Employment law

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Alexandra Grayson

Maurice Blackburn Sydney
Alexandra (Alex) Grayson is a Principal Lawyer who manages the Employment and Industrial Relations Practice of Maurice Blackburn’s Sydney office. She has almost 20 years’ experience in industrial relations, including almost a decade as a labour lawyer. The prestigious Doyles Guide lists Alex as a recommended lawyer for employee and trade union representation in NSW in 2018 and her team as one of the top law firms for employee & trade union representation in NSW in 2018. Alex is a passionate and committed lawyer with a keen interest in social justice and industrial relations. Her clients have included many senior executives within the finance and banking sector, the legal fraternity and in the public sector. She helps people through their difficult times by negotiating with their employers and, if necessary, litigating on their behalf. Alex is particularly skilled in litigation, strategic negotiations, interpreting industrial instruments and contracts, advocacy and providing legal advice to executives. Areas of her practice include advice and representation on workplace bullying, sexual harassment, breach of contract, redundancy situations and restraint of trade issues. Alex is in a unique position. In addition to her extensive experience as a labour lawyer, she has a deep understanding of what it is to be an executive, as she also sits on the board of the superannuation fund, HostPlus, as a Director. “Knowing that people of all walks of life need my help and that my help can get them through one of the most difficult times, ie when they are in trouble at work or when they need help on landing a good employment contract or a smooth exit, is what drives me to fight for my clients,” says Alexandra. “My family has a long history of involvement in industrial relations. It’s a tradition I am proud to continue by working as a labour lawyer, helping people who need assistance in navigating the minefield that is workplace relations.” Alex has personally advocated cases in the Industrial Relations Commission of New South Wales, the Chief Industrial Magistrate’s Court, the Fair Work Commission and the former Australian Industrial Relations Commission. She also appears in the High Court of Australia, the Federal Court of Australia, the Supreme Court of NSW, the Court of Appeal (NSW), the Anti Discrimination Board of NSW, the New South Wales Civil and Administrative Tribunal and the NSW Industrial Court. Alex has many career highlights, including: preventing the Commonwealth Bank of Australia from forcing the entire workforce onto individual contracts, see: Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372  the making by a Full Bench of the Industrial Relations Commission of New South Wales of the first Safe Staffing Award for prisons in Australia, see: Crown Employees (Corrective Services NSW — Safe Staffing Levels) Award (369 1-.G. 1228) High Court proceedings involving a constitutional challenge to legislation, see: Public Service Association and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment [2012] HCA 58, and persuading a Full Bench of the Fair Work Commission to provide a broad interpretation of the concept of the reasonableness of redeployment. see: Pykett v Technical and Further Education Commission [2014] FWCFB 714. Alex regularly presents at many industry functions and legal seminars and has previously worked at the Industrial Relations Commission of New South Wales and tutored in industrial relations at the University of Western Sydney. Associations & memberships NSW Law Society member HostPlus Board Director Listed in Doyles Guide 2018 Listed in Doyles Guide 2017 ...

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