02 Whole

EMPLOYMENT LAW INITIATIVES, WORK, CARE
AND DIVERSITY
Anna-Louise Margaret Chapman

B Com (Melb), LLB (Hons) (Melb), LLM (Melb)
Ph D Thesis
Faculty of the Professions
Adelaide Law School
University of Adelaide
May 2012
TABLE OF CONTENTS
Abstract …………………………………………………………………………...…i
Declaration ……………………………………………………………………....…iii
Acknowledgements ………………………………………………………………....v
Chapter 1: Introduction and Overview ……...………………………………..…..1

1.1 Introduction …………………………………………………...…...………...1
1.2 Literature Review ………………………………………………..…………..3
1.2.1 Empirical Scholarship on Work and Care …………………………..……….3
1.2.2 Legal Scholarship on Work and Care ………………………………..………8
1.3 Aims, Significance and the Research Question ……………………….……14
1.4 Research Method ……………………………………………………….…..17
1.4.1 Industrial Law and Anti-Discrimination Law ……………………………...17
1.4.2 Minimum Standards ………………………………………………………..20
1.4.3 Legal Method ………………………………………………………………23
1.4.4 Exclusion of Volunteer Work ……………………………………………....23
1.5 Related Critical Perspectives ……………………………………………….24
1.6 Work and Care, or Work and Life? ………………………………………...26
1.7 Overview of the Thesis ……………………………………………………..28
1.7.1 Expansion in Work and Care Legal Mechanisms …………………………..28
1.7.2 A Move Towards Diversity ………………………………………………...31
1.7.3 Inadequate Recognition of Diversity ………………………………………34
1.7.4 Conclusion and Proposal …………………………………………………...43
Chapter 2: Establishing the Foundations of the Thesis ………………………...45

2.1 Introduction ……………………………………………………..………….45
2.2 The Publications: …………………………………………………………...48
• ‘Challenging the Constitution of the (White and Straight) Family in Work
and Family Scholarship’ (2005) 23 Law in Context 65-87 ……....….49
• ‘Work/Family, Australian Labour Law, and the Normative Worker’ in
Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work, and
Family: Critical and Comparative Perspectives (Oxford University Press,
2005) 79-97 …………………………………………………………….73
• ‘Regulating Family through Employee Entitlements’ in Christopher Arup
et al, (eds) Labour Law and Labour Market Regulation: Essays on the
Construction, Constitution and Regulation of Labour Markets and Work
Relationships (Federation Press, 2006) 454-469 …………………….…93
Chapter 3: Industrial Law, Work and Care ………………………………..….109

3.1 Introduction ……………………………………………………….………109
3.2 The Publications: ………………………………………………………….111
• ‘Uncovering the Normative Family of Parental Leave: Harvester, Law
and the Household’ (2007) 33 Hecate 28-42 ………………………….113
• ‘Employment Entitlements to Carer’s Leave: Domesticating Diverse
Subjectivities’ (2009) 18 Griffith Law Review 453-474 ………………129
• ‘Industrial Law, Working Hours, and Work, Care, and Family’ (2010) 36
Monash University Law Review 190-216 ……………………………..151
Chapter 4: Anti-Discrimination Law, Work and Care ………………………..179

4.1 Introduction ………………………………………………………………..179
4.2 The Publication: ………………………………………………………...…181
• ‘Australian Anti-Discrimination Law, Work, Care and Family’ (Working
Paper No 51, Centre for Employment and Labour Relations Law,
University of Melbourne, January 2012) 41pp ……………………….183
Chapter 5: Work and Care Across Law’s Disciplinary Boundaries …………223

5.1 Introduction ……………………………………………………………….223
5.2 The Publications: ....…………………………………………………….....228
• ‘Reasonable Accommodation, Adverse Action and the Case of Deborah
Schou’ (2012) 33(1) Adelaide Law Review (forthcoming) ………….. 229
• ‘Requests for Flexible Work under the Fair Work Act’ (unpublished
manuscript, January 2012) …………………………………………….267
• ‘The New National Scheme of Parental Leave Payment’ (2011) 24
Australian Journal of Labour Law 60-70 ……………………………..285
Chapter 6: Conclusion …………………………………………………………..297

6.1 Introduction ……………………………………………………………….297
6.2 The Proposal ………………………………………………………………298
6.2.1 Care Responsibilities ……………………………………………………..298
6.2.2 Justification ……………………………………………………………….300
6.3 Law’s Separation of Work from Care …………………………………….304
Appendix …………………………………………………………………………307
The Publication: ………………………………………………………………..…307
• ‘Care Responsibilities and Discrimination in Victoria: The Equal
Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)’
(2008) 21 Australian Journal of Labour Law 200-207 ……………….308
Table of Cases ……………………………………………………………………316

Table of Statutes …………………………………………………………………325
Bibliography ……………………………………………………………………...329
A. Articles/Books/Reports ………………………………………………………..329
B. Other …………………………………………………………………………..350
ABSTRACT
Conflict between work and care is one of the most significant issues for workers in
contemporary Australia. Employees report that a poor fit exists between the
obligations and expectations of their paid working lives and their responsibilities to
care for others, such as children and elderly parents. Since the early 1970s a raft of
legal initiatives designed to assist workers to better manage collision between work
and care has been developed in Australian employment law. New forms of leave
have been recognized, such as maternity, paternity and parental leave, and working
time rules now build in a consideration of care responsibilities. Concepts of
discrimination, reasonable accommodation and adverse action have been developed
in relation to care responsibilities, as has a right to request flexible work
arrangements.
The gender dimension of work and care conflict has been explored, both in the
empirical scholarship documenting it, and in the scholarship examining the legal
initiatives that seek to respond to it. However other forms of diversity, and
intersections with gender, such as sexual orientation, race, ethnicity and disability,
have received virtually no attention. This thesis fills this gap in the literature by
addressing the research question:
Have Australian legal initiatives designed to address collision between work

and care adequately recognized diversity in work and care practices?
This thesis argues that it is important to examine how well the Australian work and
care legal initiatives account for diversity. Indeed, close attention to diversity is not
only warranted, it is necessary. This is so for a number of reasons, including the
agendas of social inclusion, equality and non-discrimination, which are now well
recognized as objectives of Australian employment law.
i
The argument of the thesis unfolds in a number of stages. First, it is shown that the
legal initiatives developed since the early 1970s do recognize and support some
aspects of diverse work and care arrangements, benchmarked against the
breadwinner/homemaker model of work and care institutionalized in the early part of
the 20th Century. Principally, the legal mechanisms recognize mothers as waged
workers, male workers as carers, and same sex couples as relationships of care. This
provides a level of recognition of diversity. The close examination of legal rules
provided in the thesis reveals as a second stage a number of deficiencies in the
recognition of diverse work and care practices. These inadequacies relate to three
main matters: law’s continuing separation of work from care; a range of substantive
limitations in the schemes themselves, such as eligibility rules; and thirdly,
complexity, uncertainty and incoherency in the definitions used to recognize care
relationships. These matters have a particularly detrimental impact on diverse work
and care arrangements.
The thesis thus concludes that to date the legal initiatives of employment law provide
less than adequate recognition of diversity in work and care practices. This
undermines social inclusion, equality and non-discrimination. The broad contours of
a proposal to address these inadequacies are mapped out in the conclusion of the
thesis, and offered as the basis for future development.
ii
DECLARATION
I, Anna-Louise Margaret Chapman certify that this work contains no material which
has been accepted for the award of any other degree or diploma in any university or
other tertiary institution and, to the best of my knowledge and belief, contains no
material previously published or written by another person, except where due
reference has been made in the text.
I give consent to this copy of my thesis when deposited in the University Library,
being made available for loan and photocopying, subject to the provisions of the
Copyright Act 1968.
The author acknowledges that copyright of published works contained within this
thesis (as listed below) resides with the copyright holder(s) of those works:

2005) 79-97. Copyright resides with Anna-Louise Margaret Chapman.
and Family Scholarship’ (2005) 23 Law in Context 65-87. Copyright
resides with Anna-Louise Margaret Chapman.
et al (eds), Labour Law and Labour Market Regulation: Essays on the
Relationships (Federation Press, 2006) 454-469. Copyright resides with
Anna-Louise Margaret Chapman.
• ‘Uncovering the Normative Family of Parental Leave: Harvester, Law
and the Household’ (2007) 33 Hecate 28-42. Copyright resides with
Subjectivities’ (2009) 18 Griffith Law Review 453-474. Copyright resides
with Anna-Louise Margaret Chapman.
Monash University Law Review 190-216. Copyright resides with Monash
University.
iii
University of Melbourne, January 2012) 41pp. Copyright resides with
Schou’ (2012) 33(1) Adelaide Law Review (forthcoming). Copyright
resides with Anna-Louise Margaret Chapman.
manuscript, January 2012). Copyright resides with Anna-Louise Margaret
Chapman.
Australian Journal of Labour Law 60-70. Copyright resides with Anna-
Louise Margaret Chapman.
• ‘Care Responsibilities and Discrimination in Victoria: The Equal
Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)’
(2008) 21 Australian Journal of Labour Law 200-207. Copyright resides
with Anna-Louise Margaret Chapman.
I also give permission for the digital version of my thesis to be made available on the
web, via the University’s digital research repository, the Library catalogue and also
through web search engines, unless permission has been granted by the University to
restrict access for a period of time.
…………………………………. ……………………
Anna-Louise Margaret Chapman Date
iv
ACKNOWLEDGEMENTS
I would like to acknowledge and very gratefully thank Rosemary Owens who was
the main supervisor on this thesis. Without Rosemary’s enthusiasm, encouragement,
generosity of time and intellectual rigour, I doubt that this thesis would have been
completed.
I would also like to thank Andrew Stewart as my secondary supervisor. Andrew’s

input into this project enriched my experience of the thesis process.
This thesis initially commenced its life in the Centre for Socio-Legal Research in the
Law School at Griffith University, and I would like to thank Richard Johnstone and
Rosemary Hunter who supervised me during that time.
I acknowledge that I have received the following research and editorial assistance in
the preparation of this thesis:
• Assistance from Estelle Tang, in the form of completing citations and
footnotes in ‘Care Responsibilities and Discrimination in Victoria’, paper
included in the thesis appendix; and
• Assistance from Mary Quinn and Sarah Castles, in the preparation of the
Table of Cases, Table of Statutes and Bibliography compiled from the
publications, the Introduction and Overview, and Conclusion.
v
vi
CHAPTER 1:
INTRODUCTION AND OVERVIEW
1.1 Introduction
Conflict between work and care is one of the most significant issues for workers in
contemporary Australia. Employees report that a poor fit exists between the
obligations and expectations of their paid working lives and their responsibilities to
care for others, such as children and elderly parents. 1 Workers speak of feeling too
rushed or pressured for time, and the stress and problems caused by collisions
between shifts, and for example, school hours, or the need to accompany an elderly
relative to a medical appointment. The consequences of collision between work and
care can be seen in a number of matters for women, including fatigue and strained
relationships, the movement of women workers out of full-time positions into part-
time and casual work after they become a parent, the underutilization of women’s
skills and experience, and for many women poverty in older age. Men too experience
work and care conflict, and vocalize these concerns with increasing frequency,
especially in the context of developing masculinities that value male caring. Men are
likely to speak of overwork, and a growing sense of alienation from their partners
and children.
1
See eg, Barbara Pocock, Natalie Skinner and Philippa Williams, Time Bomb: Work, Rest and Play in
Australia Today (NewSouth Publishing, 2012); Jill Dorrian, Natalie Skinner and Sandra Pisaniello,
‘Work Quality, Not Just Quantity: Work-Related Predictors of Psychological Distress, Work-Family
Interaction and Alcohol Consumption’ (Centre for Work + Life, University of South Australia, 2011);
Barbara Pocock, Natalie Skinner and Sandra Pisaniello, ‘The Australian Work and Life Index 2010:
How Much Should We Work? Working Hours, Holidays and Working Life: The Participation
Challenge’ (Centre for Work + Life, University of South Australia, 2010); Barbara Pocock, Natalie
Skinner and Reina Ichii, ‘The Australian Work and Life Index 2009: Work, Life and Workplace
Flexibility’ (Centre for Work + Life, University of South Australia, 2009); Barbara Pocock, The
Work/Life Collision: What Work is Doing to Australians and What to Do about It (Federation Press,
2003).
1
Since the 1970s a raft of changes has been made to employment law to assist workers
to better manage their care responsibilities with their waged working lives. New
forms of leave have been recognized, such as parental leave and carer’s leave, and
there have been some attempts to constrain long working hours too. ‘Right to
request’ schemes have also been developed to assist employees to seek changes in
their working arrangements. In addition, in some parts of Australia the legal concept
of discrimination has been rethought to require that an employer accommodate an
employee’s care responsibilities to a reasonable level. In 2010 a government funded
payment system was established for the primary care-givers of babies and adopted
children, and this is expected to be extended from January 2013 to encompass a ‘dad
and partner pay’ scheme. 2 This level of activity attests to the fact that work and care
remains a central concern for successive Commonwealth, State and Territory
governments. 3
The gender dimension of work and care conflict has been explored, both in the
empirical scholarship documenting it, and in the scholarship examining the legal
initiatives that seek to respond to it. But what of other forms of diversity, and
intersecting particularities of gender, such as sexual orientation, race, ethnicity and
disability? Are these subjectivities relevant to how people experience work and care
conflict? Does legal regulation adequately take account of such diversity? Diverse
work and care practices and arrangements, such as those in queer communities,
Indigenous kinship networks, culturally and linguistically diverse communities, and
disability communities, have received virtually no attention in the Australian
2
Paid Parental Leave Act 2010 (Cth); Paid Parental Leave and Other Legislation Amendment (Dad
and Partner Pay and Other Measures) Bill 2012 (Cth); Department of Families, Housing, Community
Services and Indigenous Affairs, ‘Paid Parental Leave: Dad and Partner Pay – A Policy Statement
from the Australian Government September 2011’ (Policy Statement, Commonwealth of Australia,
September 2011).
3
The significance of, and interest in, work and care issues is also reflected in a 2012 non-government
Bill (the Fair Work Amendment (Better Work/Life Balance) Bill 2012 (Cth)) and a 2012 government
Bill (the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other
Measures) Bill 2012 (Cth)). Recent 2011 Productivity Commission inquiries into caring for older
Australians, and disability care, also attest to the high level activity around care issues: Productivity
Commission, Caring for Older Australians: Productivity Commission Inquiry Report No 53
(Commonwealth of Australia, 2011) vol 1; Productivity Commission, Disability Care and Support:
Productivity Commission Inquiry Report No 54 (Commonwealth of Australia, 2011).
2
empirical scholarship comprising the work and care field, and very little examination
in the writings on legal initiatives (outside the publications that comprise this thesis).
Is it important to examine how well the Australian work and care legal initiatives
account for diversity? This thesis argues that it is. Indeed, close attention to diversity
in the field of work and care is not only warranted, it is necessary. This is so for a
number of reasons, including the agendas of social inclusion and equality, which are
now well recognized as objectives of Australian employment law. 4
1.2 Literature Review
1.2.1 Empirical Scholarship on Work and Care
Scholars have produced a large body of literature seeking to understand the

contemporary phenomenon of work and care conflict in Australia. The bulk of this
scholarship maps various empirical dimensions of the tension. Much of the early
empirical material was brought together by Barbara Pocock in her metastudy
published in 2003 entitled The Work/Life Collision. 5 In this foundational text Pocock
articulated a useful framework for conceptualizing the Australian problem, or the
‘collision’ as she identified it, between labour market participation and care
responsibilities. 6 She mapped the problem as a ‘moving vehicle’ of changing
behaviour colliding with a ‘solid wall’ of unchanging values and institutions, both in
the home and within families, in workplaces and in the law. 7 Pocock identified the
shifting behavior, or ‘moving vehicle’, as including women, and particularly
mothers, moving into part-time and casual employment, longer working hours for
full-timers, work intensification, more time spent commuting to and from work,
rising consumption levels, and a thinning of community in residential
neighbourhoods. In Pocock’s analysis these developments were running into a ‘solid
wall’ of unchanged values, namely, workplace cultures and leave entitlements built
4
The field of employment law examined in the thesis is more closely delineated below under
subheading 1.4 research method.
5
Pocock, above n 1.
6
Ibid 2.
7
Ibid 2.
3
around an archetypal worker who has no care responsibilities, 8 the gendered (and
largely unchanged) distribution of household and care work, and the cultural
constructions of motherhood and fatherhood. Pocock characterised the legal
regulation of work as broadly part of the unchanged wall of resistance. 9
This model of collision conceptualized by Pocock remains a useful framework in

which to situate much of the surge in Australian empirical scholarship on work and
care conflict published since 2003. The field has become vast, largely tracking one or
another dimension of the conflict identified in The Work/Life Collision.
Maternity leave has been seen as a pre-eminent and foundational work and care
standard, with considerable research effort focused on mapping the empirical
dimensions of leave arrangements following birth. Marian Baird has conducted or
been a co-author of much of this work, with a focus on the availability, duration and
utilization of maternity leave by mothers, and more recently the availability and use
of paternity leave by fathers. 10
Working time is a topic that has also attracted much empirical research. The
Australian literature on working hours is not framed solely around work and care
conflict, although that is an important axis underlying much of it. Long working
hours of full-time employees (and especially men) have been documented, as has an
8
Pocock calls him a ‘care-less’ worker: Ibid 1, 3. At 1-2, she identifies him as having a wife at home.
9
Apart from legal entitlements to leave (see chapter 9), legal regulation is not examined as such in
The Work/Life Collision.
10
See eg, Marian Baird, ‘The State, Work and Family in Australia’ (2011) 22 The International
Journal of Human Resource Management 3742; Marian Baird, ‘Paid Parental Leave Policy and
Employer Response’ in Marian Baird, Keith Hancock and Joe Isaac (eds), Work and Employment
Relations – An Era of Change (Federation Press, 2011) 63; Marian Baird, Betty Frino and Sue
Williamson, ‘Paid Maternity and Paternity Leave and the Emergence of “Equality Bargaining” in
Australia: An Analysis of Enterprise Agreements 2003-2007’ (2009) 35 Australian Bulletin of Labour
671; Gillian Whitehouse, Amanda Hosking and Marian Baird, ‘Returning Too Soon? Australian
Mothers’ Satisfaction with Maternity Leave Duration’ (2008) 46 Asia Pacific Journal of Human
Resources 288; Marian Baird and Seth Litwin, ‘Re-Thinking Work and Family Policy: The Making
and Taking of Parental Leave in Australia’ (2005) 17 International Review of Psychiatry 385; Marian
Baird, ‘Orientations to Paid Maternity Leave: Understanding the Australian Debate’ (2004) 46
Journal of Industrial Relations 259; Marian Baird, ‘Paid Maternity Leave: The Good, the Bad, the
Ugly’ (2003) 29 Australian Bulletin of Labour 97; Marian Baird, Deborah Brennan and Leanne
Cutcher, ‘A Pregnant Pause: Paid Maternity Leave in Australia’ (2002) 13 Labour and Industry 1.
4
increase in unsociable working hours. Preferences around working hours have been
examined, along with the impact of long working hours on individuals and
relationships in terms of physical and mental health and well-being, family conflict,
and sustainable communities. 11 The concept of time more broadly has been used to
explore a lack of fit between different forms of time, namely the ‘clock time’ (of the
workplace) and the ‘natural time’ or ‘body time’ (of care responsibilities). 12
From 2007 the Centre for Work + Life at the University of South Australia, under the
leadership of Barbara Pocock, has conducted an annual survey – known as the
Australian Work and Life Index (‘AWALI’) – which indexes work-life outcomes
amongst working Australians. This index provides a wealth of information, including
qualitative and quantitative data in relation to working hours, in addition to
information on the types of flexible work arrangements that employees request, their
reasons for those requests, and their success in being granted the arrangement
sought. 13
On one level the empirical charting that has been carried out into work and care
conflict, and specifically relating to the matters of leave following birth, working
hours, and requests for flexibility, is impressive. A broad picture has been produced
11
See eg, Pocock, Skinner and Williams, above n 1, chapter 2; Dorrian, Skinner and Pisaniello, above
n 1; Lyn Craig, Killian Mullan and Megan Blaxland, ‘Parenthood, Policy and Work-Family Time in
Australia 1992-2006’ (2010) 24 Work, Employment & Society 27; Natalie Skinner and Barbara
Pocock, ‘Work-Life Conflict: Is Work Time or Work Overload More Important?’ (2008) 46 Asia
Pacific Journal of Human Resources 303; Mark Wooden et al, ‘Working Time Mismatch and
Subjective Well-Being’ (Working Paper No 29/07, Melbourne Institute of Applied Economic and
Social Research, 2007); Iain Campbell, ‘Long Working Hours in Australia: Working-Time Regulation
and Employer Pressure’ (2007) 17 The Economic and Labour Relations Review 37; Marian Baird and
Sara Charlesworth, ‘After the Baby: A Qualitative Study of Working Time Arrangements Following
Maternity Leave’ (2005) 17 Labour & Industry 97; Michael Bittman, ‘Sunday Working and Family
Time’ (2005) 16 Labour & Industry 59.
12
Pocock, Skinner and Williams, above n 1. Those terms first appear on p 5, p 6. On caring time, see
in particular chapter 3.
13
See eg, Pocock, Skinner and Pisaniello, above n 1; Pocock, Skinner and Ichii, above n 1. For journal
articles emanating from the index, see Natalie Skinner and Barbara Pocock, ‘Flexibility and Work-
Life Interference in Australia’ (2011) 53 Journal of Industrial Relations 65; Natalie Skinner and
Barbara Pocock, ‘Work, Life, Flexibility and Workplace Culture in Australia: Results of the 2008
Australian Work and Life Index (AWALI) Survey’ (2010) 36 Australian Bulletin of Labour 133;
Barbara Pocock, Natalie Skinner and Philippa Williams, ‘Measuring Work-Life Interaction: The
Australian Work and Life Index (AWALI) 2007’ (2008) 18 Labour & Industry 19.
5
of the contemporary problem, and this provides a base of empirical information for
this thesis’ study of legal initiatives in these areas. A close examination though of
this empirical scholarship reveals the limitations of much of it.
The Work/Life Collision is explicit in its focus on heterosexual households with

dependents, and its decision not to examine diverse family and care arrangements. 14
In its final chapter it sets out a number of principles to guide reform, and although
the language of diversity is used, this appears to refer only to gender neutrality in the
sense of both men and women having access to entitlements (except where physical
differences are relevant such as childbirth). 15 The text’s program of reform is notable
for its silence about valuing other forms of diversity such as sexual orientation and
race.
Empirical scholarship published since The Work/Life Collision has not taken up the
challenge of diversity. For example, much of Marian Baird’s empirical scholarship
into leave following birth has focused on exploring the availability and
characteristics of maternity leave in Australia. In her early scholarship she explains
paid ‘maternity leave’ as being payment made to a mother to compensate her for her
loss of income following giving birth. 16 In her more recent work Baird has examined
the empirical dimensions of ‘paternity leave’ and has done so in ways that make it
clear that she interprets this as leave for fathers, and that together, ‘maternity leave’
for the birth mother and ‘paternity leave’ for the father provide the complete picture
of leave available in relation to birth. 17 Baird’s published writings do not comment
on issues of diversity such as exist in same sex relationships and Indigenous kinship
networks, or note the exclusion of such diverse care arrangements in the legal rules. 18
14
Pocock, above n 1, 12. Discussed in ‘Challenging the Constitution of the (White and Straight)
Family in Work and Family Scholarship’ (thesis chapter 2).
15
Pocock, above n 1, 245. Discussed in ‘Challenging the Constitution of the (White and Straight)
Family in Work and Family Scholarship’ (thesis chapter 2).
16
Baird, ‘Paid Maternity Leave: The Good, the Bad, the Ugly’, above n 10, 99.
17
See in particular, Baird, ‘The State, Work and Family in Australia’, above n 10; Baird, Frino and
Williamson, above n 10; Baird and Litwin, above n 10.
18
See in particular, Baird, ‘The State, Work and Family in Australia’, above n 10. Unpaid parental
leave was extended at the federal level to same sex relationships with the enactment of the Fair Work
Act 2009 (Cth) (‘FW Act’), yet it is noticeable that this paper, which discusses many aspects of the FW
6
Only a 2009 co-authored background paper containing a recommended model for
Australia hints at an awareness of these ‘other’ groups by stating a broad principle
that eligibility for any scheme must be ‘non-discriminatory towards same-sex
couples’. 19 This limited and undeveloped acknowledgement of one form of diversity
highlights the lack of a broader engagement with diverse work and care
arrangements in this body of scholarship.
A further example of a lack of engagement with diversity is provided by AWALI,

compiled annually by the Centre for Work + Life. This index, which has become a
main source of empirical data on the Australian work and care situation, takes some
forms of diversity into account, namely, gender, age, educational attainment,
geographic location, and ‘marital status’, but other subjectivities such as sexual
orientation, race, ethnicity and disability are not recorded or explored in the study. 20
Moreover, the concept of ‘marital status’ is articulated in the index as comprising
two mutually exclusive (and exhaustive) categories: ‘married / de facto’ and
‘divorced, separated, never married or widowed’. 21 Each of these identifiers
references marriage, a legal status that is (still) only relevant and applicable to
different sex two adult couples. In using marriage as the benchmark test in ‘marital
Act scheme of unpaid parental leave, does not note this important extension. See also, Baird and
Litwin, above n 10; Baird ‘Orientations to Paid Maternity Leave: Understanding the Australian
Debate’, above n 10.
19
Marian Baird, Jenni Whelan and Alison Page, ‘Paid Maternity, Paternity and Parental Leave for
Australia: An Evaluation of the Context, Evidence and Policy Options’ (Women and Work Research
Group, University of Sydney, 2009) 78. An earlier statement of the recommended plan notes the need
for equality between men and women, but is silent regarding other forms of equality: 77.
20
Barbara Pocock, Philippa Williams and Natalie Skinner, ‘The Australian Work and Life Index
(AWALI): Concepts, Methodology and Rationale’ (Discussion Paper No 1/07, Centre for Work +
Life, University of South Australia, 2007) Table 4 (at 19). See also for its absence of discussion of
diversity beyond gender, Pocock, Skinner and Williams, above n 13.
21
See eg, Pocock, Skinner and Pisaniello, above n 1, Table 2 (at 19); Pocock, Skinner and Ichii, above
n 1, Table 2 (at 17); Natalie Skinner and Barbara Pocock, ‘Work, Life & Workplace Culture: The
Australian Work and Life Index 2008’ (Centre for Work + Life, University of South Australia, 2008)
Table 2 (at 21); Barbara Pocock, Natalie Skinner and Philippa Williams, ‘Work, Life and Time: The
Australian Work and Life Index 2007’ (Centre for Work + Life, University of South Australia, 2007)
Table 2 (at 11). The Australian Bureau of Statistics (‘ABS’) uses a similar category of ‘marital status’
in collecting data on relationships. Notably though, and in contrast to AWALI, the ABS identifies a
separate category of same sex couple in its data collection on relationships. See eg, ABS, ‘Census
Dictionary 2011’ (Report Cat No 2901.0, ABS, 2011); ABS, ‘Labour Force, Australia: Labour Force
Status and Other Characteristics of Families, Jun 2011’ (Report Cat No 6224.0.55.001, ABS, 2011).
Even prior to 2011 the ABS census recognized same sex couples: ABS, ‘Census Dictionary 2006
(Revised)’ (Report Cat No 2901.0, ABS, 2006).
7
status’, the AWALI category of ‘marital status’ sits awkwardly for people in same
sex relationships, and other people in broader intimate relationships. Ultimately it is
unclear how people in such relationships categorise themselves under the AWALI
‘marital status’ definition.
Given these gaps in the work/care literature, this thesis supplements its empirical
foundations by drawing on scholarship situated broadly in family studies, gay and
lesbian studies, and Indigenous studies to provide its understanding of diverse work
and care practices and arrangements in Australia. 22
1.2.2 Legal Scholarship on Work and Care
There is a large body of scholarship examining Australian legal initiatives designed

to assist workers with care responsibilities. This literature has a number of
objectives, including the provision of commentary and critique of particular case
decisions such as the long-running litigation in Schou v Victoria, 23 or wide-sweeping
22
See ‘Challenging the Constitution of the (White and Straight) Family in Work and Family
Scholarship’ (thesis chapter 2). More recent empirical scholarship on Australia confirms the themes
identified in this thesis publication. On diversity in terms of sexual orientation, see eg, Jennifer Power
et al, ‘Diversity, Tradition and Family: Australian Same-Sex Attracted Parents and Their Families’
(2010) 6 Gay and Lesbian Issues and Psychology Review 66; Amaryll Perlesz et al, ‘Organising Work
and Home in Same-Sex Parented Families: Findings From the Work Love Play Study’ (2010) 31
Australian and New Zealand Journal of Family Therapy 374; Amaryll Perlesz et al, ‘Family in
Transition: Parents, Children and Grandparents in Lesbian Families Give Meaning to “Doing
Families”’ (2006) 28 Journal of Family Therapy 175. On diversity in Indigenous communities, see eg,
Steering Committee for the Review of Government Service Provision, ‘Overcoming Indigenous
Disadvantage: Key Indicators 2011 Report’ (Productivity Commission, 2011); ABS, ‘Population
Characteristics, Aboriginal and Torres Strait Islander Australians, 2006’ (Report, Cat No 4713.0,
ABS, reissued 2010); Albert Zhou et al, ‘Kinship Care for Children in New South Wales’(2010) 5
Communities, Children and Families Australia 60; John Altman, ‘Beyond Closing the Gap: Valuing
Diversity in Indigenous Australia’ (Working Paper No 54, Centre for Aboriginal Economic Policy
Research, Australian National University, 2009); Frances Morphy, ‘Lost in Translation? Remote
Indigenous Households and Definitions of the “Family”’ (2006) 73 Family Matters 12.
23
Schou v Victoria (2000) EOC 93-100, 93-101; Victoria v Schou (2001) 3 VR 655; Schou v Victoria
(2002) EOC 93-217; Victoria v Schou (2004) 8 VR 120. For writings discussing this case see eg,
Margaret Thornton, ‘Sex Discrimination, Court and Corporate Power’ (2008) 36 Federal Law Review
31; Carolyn Sutherland, ‘Applying Victoria v Schou: The Approach of VCAT and the Federal
Magistrates Court’ (2007) 29 Australian Bar Review 45; Belinda Smith and Joellen Riley, ‘Family-
Friendly Work Practices and the Law’ (2004) 26 Sydney Law Review 395; Fiona Knowles,
‘Misdirection for Indirect Discrimination’ (2004) 17 Australian Journal of Labour Law 185; Marilyn
Pittard, ‘The Dispersing and Transformed Workplace: Labour Law and the Effect of Electronic
Work’ (2003) 16 Australian Journal of Labour Law 1; K Lee Adams, ‘A Step Backwards in Job
8
statutory change, such as that brought about through the Workplace Relations
Amendment (Work Choices) Act 2005 (Cth) (‘Work Choices’). 24 An overlapping
body of scholarship has as its objective an analysis of the regulatory models in which
different work and care initiatives are embedded, including anti-discrimination law, 25
common law contract, 26 and the previous industrial award test case mechanism. 27
Apart from the publications that comprise this thesis, and one other article, 28 none of
the legal scholarship on work and care initiatives, including the bodies of work
described above, has an objective of examining diversity, or indeed explicitly uses a
diversity perspective, apart from diversity in the form of law’s gendering of work
and care. Differences of sexual orientation, race, ethnicity and disability are not
investigated in the legal scholarship, reflecting a similar gap to that found in the
empirical literature on work and care.
Protection for Carers’ (2002) 15 Australian Journal of Labour Law 93; Beth Gaze, ‘Context and
Interpretation in Anti-Discrimination Law’ (2002) 26 Melbourne University Law Review 325;
Therese MacDermott and Rosemary Owens, ‘Equality and Flexibility for Workers with Family
Responsibilities: A Troubled Union?’ (2000) 13 Australian Journal of Labour Law 278.
24
The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended the Workplace
Relations Act 1996 (Cth) (‘WR Act’). For writings on Work Choices and work and care, see eg, Sue
Williamson and Marian Baird, ‘Family Provisions and WorkChoices: Testing Times’ (2007) 20
Australian Journal of Labour Law 53; Beth Gaze, ‘Work Choices, or No Choices: The Impact of the
New Industrial Relations Law on Work and Family’ in Julian Teicher, Robert Lambert and Anne
O’Rourke (eds), WorkChoices: The New Industrial Relations Agenda (Pearson Education Australia,
2006) 106; Barbara Pocock and Helen Masterman-Smith, ‘Workchoices and Women Workers’ (2006)
56 Journal of Australian Political Economy 126.
25
See eg, Dominique Allen, ‘Strategic Enforcement of Anti-Discrimination Law: A New Role for
Australia’s Equality Commissions’ (2010) 36 Monash University Law Review 103; Dominique Allen,
‘Reducing the Burden of Proving Discrimination in Australia’ (2009) 31 Sydney Law Review 579;
Belinda Smith, ‘It’s About Time – For a New Approach to Equality’ (2008) 36 Federal Law Review
117; Belinda Smith, ‘Not the Baby and the Bathwater – Regulatory Reform for Equality Laws to
Address Work-Family Conflict’ (2006) 28 Sydney Law Review 689.
26
See eg, Joellen Riley, ‘Contracting for Work/Family Balance’ (2005) 23 Law in Context 182; Smith
and Riley, above n 23, especially at 24-32.
27
See eg, Rosemary Owens, ‘Reproducing Law’s Worker: Regulatory Tensions in the Pursuit of
“Population, Participation and Productivity”’ in Christopher Arup et al (eds) Labour Law and Labour
Market Regulation: Essays on the Construction and Regulation of Labour Markets and Work
Relationships (Federation Press, 2006) 410; Jill Murray, ‘The AIRC’s Test Case on Work and Family
Provisions: The End of Dynamic Regulatory Change at the Federal Level?’ (2005) 18 Australian
Journal of Labour Law 325.
28
Marc Trabsky, ‘Deconstructing the Heteronormative Worker or Queering a Jurisprudence of
Labour: A Case Study of Family and Personal/Carer’s Leave in Australian Labour Law’ (2005) 23
Law in Context 202. This article explores how sexual orientation is constituted through award
entitlements of family and carer’s leave. In addition, sexual orientation is addressed in the practical
and accessible guide to the Paid Parental Leave Act 2010 (Cth) of Erin McCarthy, Elise Jenkins and
Andrew Stewart, Parental Leave: A User-Friendly Guide (Thomson Reuters, 2012) especially [4.60].
9
An example will suffice to illustrate this gap in the legal scholarship. The example
provides both a commentary and critique of a specific case decision, as well as being
an analysis of the arbitral test case as a form of regulation. In a 2005 paper
examining a key award test case on work and care provisions – the Parental Leave
Test Case 2005 29 – Jill Murray makes the argument that a great strength of the
former award test case function exercised by the Australian Industrial Relations
Commission (‘AIRC’) was its wide consultation process and deep examination of the
relevant issues. 30 Murray laments the passing of this test case function (through Work
Choices) as the loss of a source of ‘innovative’ and ‘dynamic’ standard setting. 31 She
writes of ‘the sophisticated, exhaustive process the Commission superintends in such
test cases’, 32 and recites that ‘[a]s one participant said of the Parental Leave Test
Case 2005, “every argument that could possibly be made was thoroughly
canvassed”.’ 33
While understanding that the primary object of Murray’s paper was to comment on
the changed character of the regulatory system introduced by Work Choices, a
critique of Murray’s analysis is revelatory of the way in which issues of diversity and
discrimination have been glossed over in the Australian legal scholarship on work
and care. Examination of the submissions in the 2005 test case reveals that
arguments regarding the recognition of diverse work and care practices were not
‘thoroughly canvassed’ in the decision. Indeed, they were ignored in one respect and
shunted to the side in another. The main written submission made by the Australian
Council of Trade Unions (‘ACTU’) (comprising 363 pages in length) contained not a
single reference or commitment to extending legal entitlements to non-heterosexual
relationships. 34 The claims of the ACTU in relation to parental leave were based on
explicitly discriminatory tests that clearly excluded same sex relationships and other
29
Parental Leave Test Case 2005 (2005) 143 IR 245.
30
Murray, above n 27.
31
Ibid 340 (‘innovative’); the word ‘dynamic’ appears in the title.
32
Ibid 340.
33
Ibid 341.
34
Australian Council of Trade Unions (‘ACTU’), ‘Submission in Family Provisions Test Case, IRC
Matter No 4201 of 2005’ (ACTU, November 2004). This submission is discussed in ‘Challenging the
Constitution of the (White and Straight) Family in Work and Family Scholarship’ (thesis chapter 2).
10
forms of diverse work and care arrangements. That discrimination was not
mentioned, let alone discussed, in the 92 page Full Bench decision. This it must be
noted was a decision handed down in 2005, not in an earlier time when diversity was
a relatively new concept. In addition to providing a reconsideration of the standard
award parental leave clause, bereavement leave and emergency leave were also
reconsidered in the test case. In relation to these latter forms of leave, the AIRC
deliberately placed to one side questions of diversity. This occurred through an
agreement being reached in conciliation between the parties (and endorsed by the
AIRC) that the parties would jointly review the definition used in the model clauses
within six months to ascertain if there ‘are any discriminatory aspects’. 35
In what appears to be a reference to the issues of bereavement and emergency leave

only, Murray notes that the status of same sex couples was left to be addressed by the
parties. 36 In this sense diversity has not been rendered wholly invisible in Murray’s
paper, or indeed in the test case process and decision itself, but Murray does not
remark, beyond that single sentence, on the test case’s lack of engagement with
diversity. Moreover, it seems clear that a diversity lens did not inform her analysis
and assessment that the Commission test case process was both ‘sophisticated’ and
‘exhaustive’. Ignoring the overtly discriminatory rules regarding parental leave, and
side-stepping the question of same sex relationships in bereavement and emergency
leave, does not speak to an ‘exhaustive’ process. Nor does it indicate a
‘sophisticated’ approach to a complex and challenging policy issue. In addition, the
outcomes were not in any sense ‘innovative’ in relation to diverse work and care
practices. The decision merely continued without any alteration the status quo
exclusion of same sex relationships in relation to parental leave. Leaving the parties
to address the issue of discrimination in emergency and bereavement leave, without
Commission supervision, was hardly ‘innovative’. Moreover, in terms of other forms
35
Parental Leave Test Case 2005 (2005) 143 IR 245 at 343 (Appendix 2) cl 1.1. This clause leaves it
entirely to the parties (the ACTU, Australian Industry Group, Australian Chamber of Commerce and
Industry, National Farmers’ Federation) to determine if there are any issues of discrimination in
relation to same sex relationships, without input or supervision by the AIRC. This approach contrasts
to the issue of hours flexibility which was also left unresolved by the hearing, but notably was referred
to the AIRC conciliation process.
36
Murray, above n 27, 342.
11
of diversity, such as care within Indigenous kinship networks, complete silence
marks the test case and Murray’s commentary upon it. In short, this test case decision
was disappointing from a diversity perspective, and this went unremarked by
Murray. 37
As observed above, like most of the legal literature on work and care initiatives, it
was not an objective of Murray’s paper to consider diversity. Nonetheless, examining
Murray’s analysis from a diversity perspective does illuminate the general point – for
which Murray’s work is used as an illustration – that a lack of engagement with
questions of diversity characterizes the legal literature.
In contrast to Murray’s paper, and most of the literature on work and care legal
initiatives, a body of legal scholarship has developed with a clear objective of
considering gender diversity in the legal regulation of work and care in Australia.
Rosemary Owens has authored a substantial body of work examining various aspects
of labour market legal regulation, and in particular non-standard or precarious work,
for its gendering of legal norms around work, and social reproduction. 38 Her
scholarship has traversed both industrial law, and the social security system, to focus
on how gender, flexibility and equality have been modeled across the public/private
divide, including between work and care. Owens’ critique is situated in the history of
the breadwinner male worker of Australian industrial relations. 39 In addition to
Owens’ work, Beth Gaze also has written on the gendered construction of work and
37
The 2005 test case is discussed in relation to diversity in the form of sexual orientation in ‘Industrial
Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3) 468.
38
See eg, Rosemary Owens, ‘Engendering Flexibility in a World of Precarious Work’ in Judy Fudge
and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenges to
Legal Norms (Hart Publishing, 2006) 329; Rosemary J Owens, ‘Taking Leave: Work and Family in
Australian Law and Policy’ in Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work and
Family: Critical and Comparative Perspectives (Oxford University Press, 2005) 237; Rosemary
Owens, ‘The Traditional Labour Law Framework: A Critical Evaluation’ in Richard Mitchell (ed),
Redefining Labour Law: New Perspectives on the Future of Teaching and Research (Centre for
Employment and Labour Relations Law, University of Melbourne, 1995) 3; Rosemary Owens,
‘Women, “Atypical” Work Relationships and the Law’ (1993) 19 Melbourne University Law Review
399.
39
See eg, Owens, above n 27.
12
care, revealing a breadwinner tradition, in her examination of part-time work in the
Australian university context.40
The work of Owens and Gaze explores the assumptions and models embedded in the
legal and policy frameworks themselves regarding work, care and gender. This
scholarship shows how work and care are in fact interconnected and are not separate
spheres of life, and how gender is constructed in the process of separation between
work and care. In short, their scholarship critiques the liberal public/private divide
through a lens of gender. Gender is the critical tool used in this work, and it is used
through a male/female binary divide. Intersecting particularities of gender, including
sexual orientation, race, ethnicity and disability are not specifically examined by
either Owens or Gaze.
In her 2002 text, Women Going Backwards: Law and Change in a Family Unfriendly
Society, 41 Sandra Berns explicitly acknowledges particularities beyond gender. In its
examination of women’s inequalities in Australia, the text engages with issues of
diversity, conceiving family as ‘no longer monolithic, but kaleidoscopic, almost
infinitely variable’. 42 Gay and lesbian families and identities, Indigenous families,
and sole parents are referred to specifically. 43 In this book Berns traces the
breadwinner model of work and care institutionalized in Australia in the early part of
the 20th Century through the Harvester judgment of 1907, and shows how that model
has largely ‘metamorphosed’ into the ‘unencumbered’ worker of Australia today – a
normative being who has neither financial responsibility to provide for a family nor
actual responsibility for family and domestic work. 44 For Berns, law’s ideal worker
40
Beth Gaze, ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling Act’ (2001)
21 Queensland University of Technology Law & Justice Journal 199. Gaze draws on the work of Joan
Williams: Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do about
It (Oxford University Press, 2000).
41
Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (Ashgate
Publishing, 2002).
42
Ibid 190.
43
See in particular, chapter 8 of Women Going Backwards.
44
Berns uses the word ‘metamorphosed’ on p 167 of her text: Berns, above n 41. The concept of
‘unencumbered’ is used throughout the text, and first appears in the preface (at vi) in relation to her
concept of the ‘unencumbered citizen’. Harvester refers to Ex parte H. V. McKay (1907) 2 CAR 1
(‘Harvester’).
13
continues to behave in the labour market as if he (or she) has a homemaker wife. Her
scholarship shows how culture, gender, government policy and legal frameworks
interrelate to constitute a subject worker who is not encumbered in the labour market
by care responsibilities. 45 While Berns examines several different areas of law,
including industrial law and policy, and anti-discrimination law, she does not go into
a detailed analysis of law. In its engagement with diversity beyond gender alone, the
book is exceptional in the Australian literature.
Other work that is exceptional in examining diversity beyond gender is a paper

authored by Marc Trabsky. Using Michel Foucault’s writings on sexuality, law and
power, Trabsky examines industrial award test cases on family leave and
personal/carer’s leave in the mid 1990s to show how law produces a heteronormative
worker of labour law. 46
1.3 Aims, Significance and the Research Question
This thesis fills the gaps left by the work of Owens, Gaze, Berns and Trabsky. The
focus of the scholarship of Owens, Gaze and Berns is on gender, although Berns’
Women Going Backwards looks beyond gender to engage with intersections of
gender in the form of sexual orientation, race and sole parenting. In contrast,
sexuality is the critical tool used in the Trabsky paper on family leave and
personal/carer’s leave. This thesis more squarely addresses the question of diversity.
Although the thesis uses sexual orientation as a main illustration of diversity, this is
not intended to suggest that sexual orientation is the only, or the main, aspect of
diversity that is relevant to work and care legal mechanisms. In addition to
examining diversity in the form of sexual orientation, gender diversity is examined in
45
Writing in the United States context, Williams uses a concept of the ‘ideal worker’ of the labour
market who does not have care responsibilities, and who is mutually interdependent with the
‘domestic caretaker’: Williams, above n 40.
46
Trabsky, above n 28.
14
the thesis, 47 as is diversity in the form of race. 48 The issues that arise from
intersecting subjectivities of diversity in particular those relating to gender and
ethnicity, and gender and sexual orientation, are also studied. 49
In addition to addressing diversity more broadly, there is a second way in which the
thesis adds to the legal scholarship on work and care. It provides a close and
sustained reading of a wide range of employment law statutory rules and case
decisions regarding work and care. This contrasts with Berns’ meta-narrative across
many fields of law, policy and social values, the more thematic work of Owens, and
the disparate work of Gaze and Trabsky. In addition, new legal mechanisms are
examined in the thesis publications, as they have been implemented. In this way the
thesis maps as it critiques detailed changes in the legal framework in relation to
diversity over time, and across the entire field of employment law comprising
industrial law and anti-discrimination law, 50 including the many important legal
mechanisms and rules that have arisen since the scholarship of Owens, Gaze, Berns
and Trabsky was published.
The research question addressed in the thesis is:
Have Australian legal initiatives designed to address collision between work

and care adequately recognized diversity in work and care practices?
Paying attention to diversity is important for a number of reasons. Valuing diversity

is central in the goal of social inclusion, which has become a main concept of social
47
‘Uncovering the Normative Family of Parental Leave: Harvester, Law and the Household’ (thesis
chapter 3); ‘Employment Entitlements to Carer’s Leave: Domesticating Diverse Subjectivities’ (thesis
chapter 3); ‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4).
48
On race, see ‘Challenging the Constitution of the (White and Straight) Family in Work and Family
Scholarship’ (thesis chapter 2); ‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis
chapter 4) 31-35; ‘The New National Scheme of Parental Leave Payment’ (thesis chapter 5).
49
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4).
50
The field of employment law examined in the thesis is more closely delineated below under
subheading 1.4 research method.
15
and labour market policy in Australia. 51 Indeed, the object of the Fair Work Act 2009
(Cth) (‘FW Act’) refers to providing a system of workplace relations that promotes
‘social inclusion for all Australians’. 52 Where legal rules articulate entitlements in
ways that exclude forms of work and care arrangements found in diverse
communities such as queer communities and Indigenous communities, this
undermines the goal of social inclusion. It reduces or negates the employment
entitlements of the excluded, and in this way undermines the opportunity for people
to engage fully in, and enjoy the benefits of, both employment and meaningful
relationships including family and community. This reinforces economic and social
disadvantage in excluded communities. Social inclusion is an attempt to account for
the pluralist character of society, as reflected through diversity. The goal is social
inclusion for all; and not just the majority. This is why attention to diversity in legal
rules is important.
Related to social inclusion is the policy goal of equality and non-discrimination, and
diversity is central also to these concerns. Equality has been, and remains, a
particular policy goal of anti-discrimination legislation, with equality and the
elimination of discrimination articulated as objectives across Commonwealth, State
and Territory anti-discrimination law. 53 The FW Act also articulates its objective of
‘social inclusion for all Australians’ by ‘protecting against’ ‘discrimination’, as well
as ‘assisting employees to balance their work and family responsibilities’. 54 A failure
to recognize and bestow legal rights in relation to diverse work and care
51
See eg, the special issue on social inclusion in (2010) 45 Australian Journal of Social Issues,
including Emily Long, ‘The Australian Social Inclusion Agenda: A New Approach to Social Policy?’
(2010) 45 Australian Journal of Social Issues 161. See also Alan Hayes and Matthew Gray, ‘Social
Inclusion: A Policy Platform for Those Who Live Particularly Challenging Lives’ (2008) 78 Family
Matters 4; Boyd Hunter, ‘Indigenous Social Exclusion: Insights and Challenges for the Concept of
Social Inclusion’ (2009) 82 Family Matters 52. Social inclusion is an explicit policy goal of the
current federal Labor Government and diversity is recognized explicitly in the federal government’s
framework of action on social inclusion which includes a reference to providing support for ‘strong,
diverse communities free from discrimination’: Australian Government, ‘A Stronger, Fairer Australia’
(Commonwealth of Australia, 2009).
52
FW Act s 3. Interestingly, the 1996 version of the WR Act recited as an objective ‘respecting and
valuing the diversity of the work force by helping to prevent and eliminate discrimination’ (s 3(j)).
The explicit reference to diversity was removed with the enactment of the FW Act.
53
See eg, Sex Discrimination Act 1984 (Cth) (‘SDA’) s 3; Equal Opportunity Act 1984 (SA) (‘EOA
(SA)’) preamble; Equal Opportunity Act 2010 (Vic) (‘EOA (Vic)’) s 3.
54
FW Act s 3(d), (e).
16
arrangements undermines the goals of equality and the elimination of
discrimination. 55
In the words of the former Chief Justice of the Family Court of Australia, Alastair
Nicholson:
One of the fundamental misconceptions which plagues me is the failure to understand that
heterosexual family life in no way gains stature, security or respect by the denigration or
refusal to acknowledge same-sex families. The sum social good is in fact reduced, because
when a community refuses to recognize and protect genuine commitment made by its
members, the state acts against everybody’s interests. 56
The values and policy goals of social inclusion, equality and non-discrimination
provide strong reasons why legal rules on work and care ought to adequately
recognize and value diversity. For this reason paying close attention to whether legal
rules do satisfactorily align with diversity in work and care practices is not only
warranted, it is necessary.
1.4 Research Method
1.4.1 Industrial Law and Anti-Discrimination Law
Many areas of Australian law shape the interplay between waged work and care
responsibilities. As reflected in Berns’ meta-study, Women Going Backwards,
candidates include employment law, the social security and welfare system, tax law
and family law, to name a few. The interest of this thesis lies in the legal regulation
of waged work and the employment relationship, rather than how work and care are
shaped and constituted more broadly across Australian law. For this reason the focus
55
On the meanings of formal equality and substantive equality, see Rosemary Owens, Joellen Riley
and Jill Murray, The Law of Work (Oxford University Press, 2nd ed, 2011) 396-402; Rosemary
Hunter (ed), Rethinking Equality Projects in Law: Feminist Challenges (Hart Publishing, 2008); Reg
Graycar and Jenny Morgan, ‘Thinking About Equality’ (2004) 10 University of New South Wales Law
Journal 5.
56
P Boers, ‘Same Sex Parenting’, Paper presented at the Law Conference (College of Law, Sydney,
2004) 3, cited in Ruth McNair, ‘Outcomes for Children Born of ART (Assisted Reproductive
Technology) in a Diverse Range of Families’ (Occasional Paper, Victorian Law Reform Commission,
2004) 6.
17
of the thesis lies in employment law in the form of industrial law 57 and anti-
discrimination law, 58 as it is these two areas that provide the main sources of legal
regulation of the employment relationship in terms of legal entitlements and
obligations regarding the intersections of work and care. 59 Mechanisms of industrial
law are examined in chapter 3, and anti-discrimination law initiatives regarding work
and care are investigated in chapter 4 of the thesis. Industrial law and anti-
discrimination law together have the most significant impact on issues of work and
care, and for this reason both are examined in the thesis.
It should be noted that although the thesis utilizes industrial law and anti-
discrimination law as two separate categories, this is somewhat of an
oversimplification, adopted in the thesis for the sake of convenience and the
manageability of material. Certainly for most of the 20th Century the tradition of
industrial law and the more recent addition of the field of anti-discrimination were
seen in Australia to occupy separate realms to each other; each with a focus on
different concerns. 60 That separation began to break down from the early 1990s as
anti-discrimination measures were enacted into the industrial system. 61 New
mechanisms enacted with the FW Act – specifically relating to discrimination as a
form of prohibited adverse action, and a right to request a change in working
arrangements in order to accommodate care responsibilities – present new challenges
57
I use the terminology of ‘industrial law’ in this Introduction and Overview, and in the Conclusion,
to refer to law regulating the individual work relationship and the collective dimensions of labour
regulation, principally through the statutory framework of the current FW Act, its federal predecessors
and State and Territory industrial legislation such as the Fair Work Act 1994 (SA) and the Industrial
Relations Act 1996 (NSW).
58
In this Introduction and Overview, and in the Conclusion, I use ‘anti-discrimination law’ in the
conventional sense to refer to federal, State and Territory statutory schemes designed to address
discrimination and bring about equal opportunity, including the SDA, the EOA (SA) and the EOA
(Vic).
59
Other areas of law that regulate the employment relationship, such as work health and safety law
and common law contract and tort, are not examined in the thesis as they do not provide initiatives
designed to assist workers to better manage the intersections between work and care.
60
See eg, Owens, Riley and Murray, above n 55, 441-4; Rosemary Hunter, ‘Representing Gender in
Legal Analysis: A Case/Book Study in Labour Law’ (1991) 18 Melbourne University Law Review
305; Margaret Thornton, ‘Discrimination Law/Industrial Law: Are They Compatible?’ (1987) The
Australian Quarterly 162.
61
See ‘Work/Family, Australian Labour Law, and the Normative Worker’ (thesis chapter 2); Owens,
Riley and Murray, above n 55, 441-452; Belinda Smith, ‘What Kind of Equality Can We Expect from
the Fair Work Act?’ (2011) 35 Melbourne University Law Review 545.
18
to the coherence of the boundaries between industrial law and anti-discrimination
law. 62
The thesis does not examine directly the social security system. In this the thesis is
positioned as part of the traditions of industrial law and anti-discrimination law, and
not social security law and policy. Again, these disciplinary borders are far from
sealed. For most of the 20th Century in Australia the industrial sphere (as with anti-
discrimination) was seen to be separate to the realm of social security, in scholarship
and in disciplinary boundaries. The separation was, however, never strict and the two
spheres interacted to produce particular outcomes. 63 For example, industrial law and
the social security and welfare system interacted around the Harvester model. The
vision for Australia under that model was as a ‘wage earners’ welfare state’ where
the financial needs of families would be provided for through the Harvester
framework, with social security playing a residual role to the workings of the labour
market. 64 In the early 1970s the Harvester wage concept was abandoned in a series
of equal pay test cases, and in a key decision the federal Commission emphasised
that it saw itself as ‘an industrial arbitration tribunal, not a social welfare agency’, 65
thereby confirming the separation of industrial law from the social security system
with its welfare orientation. Although that separation has rung true generally
speaking throughout the latter parts of the 20th Century and into the 21st Century, the
new scheme of parental leave payment established under the Paid Parental Leave
62
See ‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter
5); ‘Requests for Flexible Work under the Fair Work Act’ (thesis chapter 5).
63
See eg, Terry Carney, Gaby Ramia and Anna Chapman, ‘Comparativism, the Labour-Social Policy
Nexus and Intra-national Analysis: A Case Study’ (2007) 35 Policy and Politics 233; Terry Carney,
Gaby Ramia and Anna Chapman, ‘Which Law is Laggard? Regulation and the Gaps Between Labour
Law and Social Security Law’ in Christopher Arup et al (eds), Labour Law and Labour Market
Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work
Relationships (Federation Press, 2006) 383; Gaby Ramia, Anna Chapman and Marco Michelotti,
‘How Well do Industrial Relations and Social Policy Interact? Labour Law and Social Security Law in
the Social Protection of Sole Parents’ (2005) 21 The International Journal of Comparative Labour
Law and Industrial Relations 249.
64
The concept of the ‘wage earners’ welfare state’ is from Francis Castles: Francis Castles, ‘The
Institutional Design of the Australian Welfare State’ (1997) 50 International Social Security Review
25. See further ‘Work/Family, Australian Labour Law, and the Normative Worker’ (thesis chapter 2)
82-85. The Harvester model is discussed further in this Introduction and Overview under 1.7.2(i).
65
National Wage Case 1974 (1974) 157 CAR 293 at 299. See ‘Work/Family, Australian Labour Law,
and the Normative Worker’ (thesis chapter 2) 84-85.
19
Act 2010 (Cth) presents a further challenge to disciplinary coherence. It troubles the
category of industrial law, providing evidence that the terrain of industrial law (as for
social security and welfare law) is always under the process of construction (and
contestation).
The thesis responds to these challenges through chapter 5, entitled ‘Work and Care
Across Law’s Disciplinary Boundaries’. This chapter contains three papers. The first
examines the 2009 FW Act provisions relating to discrimination as a form of
prohibited adverse action, and a right to request a change in working arrangements in
order to accommodate care responsibilities, legal entitlements positioned as part of
industrial law that draw on the anti-discrimination tradition. 66 The second paper
explores in greater depth the question of enforceability of the federal right to request
regime. The third paper in chapter 5 examines the 2010 parental leave payment
scheme, an entitlement that worries the boundaries of industrial law and the social
security system. 67 Although this scheme shares many features of a social security
measure, it is nonetheless closely connected with industrial law and has
characteristics of an employment entitlement. Both the parental leave payment
scheme and the new provisions in the FW Act are of importance to the thesis focus
on assessing the legal regulation of waged work and employment entitlements that
address conflict between work and care, and for that reason are examined. They are
positioned in chapter 5, as they do not sit easily under either industrial law or anti-
discrimination law.
1.4.2 Minimum Standards
The legal initiatives of industrial law and anti-discrimination law investigated in the
thesis are the minimum standards that have developed since the early 1970s for the
purpose of addressing conflicts and tension between work and care. The entitlements
that are examined are those that relate to leave, namely parental leave and carer’s
66
‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5);
‘Requests for Flexible Work under the Fair Work Act’ (thesis chapter 5).
67
‘The New National Scheme of Parental Leave Payment’ (thesis chapter 5).
20
leave, 68 the parental leave payment scheme, 69 working time standards, 70 and the
rules regarding non-discrimination, adverse action and requests for flexible work
arrangements. 71 The examination of the thesis lies in these sets of legal entitlements,
as it is these matters that are the initiatives in Australian industrial law and anti-
discrimination law affected for the purpose of assisting workers with care
responsibilities.
The rules examined are those that relate to the minimum standards in relation to each
of these entitlements. A focus on the basic standards articulated in legislation and test
cases is justified for a number of reasons. Importantly, minimum standards house the
normative assumptions of the legal frameworks of industrial law and anti-
discrimination law. Assumptions about work, care and diversity are embedded
within, and articulated through, the minimum standards, and for this reason it is these
standards that provide the best site from which to excavate the issues of diversity. If
the floor of standards does not adequately take account of diversity, in that diverse
work and care arrangements are excluded from the entitlements to leave, or
protection from discrimination or adverse action for example, then this undermines
the effectiveness of the minimum entitlement itself, and the goals of social inclusion,
equality and non-discrimination.
A number of these minimum standards, and principally those relating to leave,

payment whilst on parental leave, and working hours, exist in an industrial
framework that anticipates and encourages employers and employees to bargain and
reach enterprise agreements which are more beneficial to employees than is provided
in the minima. 72 Empirical research though indicates that enterprise bargaining has
not generally speaking taken up the challenge of work and care conflict over the
68
chapter 3).
69
70
‘Industrial Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3).
71
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4); ‘Reasonable
Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5); ‘Requests for
Flexible Work under the Fair Work Act’ (thesis chapter 5).
72
Andrew Stewart, Stewart’s Guide to Employment Law (Federation Press, 3rd ed, 2011) chapter 8.
21
years. 73 Two matters may provide the exception to that. First, there is empirical
evidence that employees are successfully bargaining for better arrangements
regarding requesting flexibility than the federal minimum right to request. 74 In
addition, gains have been made through enterprise bargaining in relation to paid
maternity leave, though these are not widespread or even. 75 Apart from these two
topics, the empirical evidence suggests that broader work and care mechanisms have
not emerged through agreement-making under the previous Workplace Relations Act
1996 (Cth) (‘WR Act’), or the current FW Act.
It is unclear how the new Individual Flexibility Arrangements (‘IFAs’) under the FW
Act are being used, if at all, as these are not public documents in the sense of being
registered and available freely on the internet. 76 Anecdotally, it appears that IFAs are
not being widely utilized. 77 Other legal – and private – mechanisms such as common
law contract also appear not to be greatly utilized to assist employees to better
manage work and care tension. 78 The evidence that bargaining and contract do not
appear to have taken up the challenge of work and care, and diversity, underscores
further the importance of the minimum standards regarding work and care. For many
employees the minimum standards are the applicable standards governing their
engagement.
73
Owens, Riley and Murray, above n 55, 452-9; Barbara Pocock et al, ‘The Impact of “Work
Choices” on Women in Low Paid Employment in Australia: A Qualitative Analysis’ (2008) 50
Journal of Industrial Relations 475; Williamson and Baird, above n 24; John Burgess, Lindy
Henderson and Glenda Strachan, ‘Work and Family Balance Through Equal Employment Opportunity
Programmes and Agreement Making in Australia’ (2007) 29 Employee Relations 415; Dennis
Mortimer and Brian O’Neill, ‘Is Enterprise Bargaining Meeting the Needs of Employers and
Employees?: The Case of Family-Friendly Working Conditions in the Australian Retail Industry’
(2007) 7 Employment Relations Record 63; Richard Mitchell et al, ‘Protecting the Worker’s Interest in
Enterprise Bargaining: The “No Disadvantage” Test in the Australian Federal Industrial Jurisdiction:
Final Report’ (Report Prepared for the Workplace Innovation Unit, Industrial Relations Victoria,
2004) 48-9; John Burgess, Glenda Strachan and Anne Sullivan, ‘The Interaction between Agreement
Making and EEO Programs in Australian Retailing’(2005) 13 International Journal of Employment
Studies 1. See also Brigid van Wanrooy, ‘Women at Work in Australia: Bargaining a Better Position?’
(2009) 35 Australian Bulletin of Labour 611.
74
See Skinner and Pocock, ‘Flexibility and Work-Life Interference in Australia’, above n 13.
75
Baird, Frino and Williamson, above n 10.
76
The FW Act requires that all modern awards contain a flexibility term permitting the making of
IFAs: FW Act s 144.
77
Stewart, above n 72, [7.18]; Australian Industry Group, ‘Removing the Barriers to Productivity and
Flexibility: Submission to the Fair Work Act Review’ (AIG, 2012) 15.
78
See eg, Smith and Riley, above n 23; Riley, above n 26.
22
The thesis provides an Australia-wide study examining the minimum legal
entitlements in the Commonwealth, State and Territory jurisdictions, as relevant.
Notably, the Fair Work system now applies to all private sector employees
throughout Australia, and replaces State and Territory industrial relations systems for
those employees, except in Western Australia where the State system has been
retained for those who do not work for trading, financial or foreign corporations. 79 In
contrast, Commonwealth anti-discrimination law does not replace State and Territory
anti-discrimination law in relation to the private sector, and indeed contains
provisions that seek to save State and Territory anti-discrimination law that is
capable of operating concurrently with the Commonwealth Act. 80
1.4.3 Legal Method
The thesis research question is addressed through a well-established legal method,

drawing on industrial statutes and anti-discrimination legislation, Parliamentary
materials, decisions of courts and tribunals, reports of government inquiries, and
secondary literature in the form of articles and other scholarly papers. The thesis is a
study of the legal rules and their legal operation. It is not a socio-legal study of how
the standards are translated into actual workplace practices. Such an investigation of
law in action would not address the objective of the thesis – to develop an
understanding of the adequacy of the legal framework in reflecting diversity. The
thesis also does not examine questions of enforcement of the minimum standards, as
that too would take the examination away from the focus of the thesis on the
substantive rules themselves.
1.4.4 Exclusion of Volunteer Work
The interest of this thesis lies in the legal regulation of the labour market comprised
of remunerated work and the employment relationship. For this reason the concept of
work that is used in reference to work and care mechanisms is one of market work,
79
Owens, Riley and Murray, above n 55, 138-142; Andrew Lynch, ‘The Fair Work Act and the
Referrals Power – Keeping the States in the Game’ (2011) 24 Australian Journal of Labour Law 1.
80
See eg, SDA s 10.
23
where services are provided in return for a wage or other form of remuneration.
Unpaid work, or volunteer work, is not within the ambit of the thesis’ understanding
of work, reflecting the broader exclusion of volunteer work from the legal regulation
of the employment relation. 81 Notably, volunteer work may involve the provision of
care in the community in the form of, for example, meals on wheels, soup vans,
starlight volunteers, and youth mentoring services such as Big Brothers Big Sisters.
This type of volunteer work does not directly engage issues of diversity in the sense
of diverse work and care arrangements, and for this reason is not viewed in the thesis
as a form of ‘care’ relevant to work and care legal mechanisms. The appropriate
conceptualization and regulation of unpaid work, and especially where it involves the
provision of care services in the community, raises a set of distinct and complex
questions. Those questions do not directly go to diverse work and care arrangements.
For reasons of time and space they are not explored in the thesis.
1.5 Related Critical Perspectives
The thesis draws on a number of critical perspectives and understandings of law, and
more broadly social and cultural practices. Three warrant a brief explanation at this
point.
A foundation of the thesis lies in the liberal understanding of the public/private

divide. In the second half of the 20th Century a body of scholarship emerged
exploring the linguistic basis of law in the Western liberal tradition as lying in binary
oppositions of meaning, such as public/private. Theorists have shown how law has
traditionally seen itself as reluctant to intervene in the private sphere of life.
Liberalism has represented itself as concerned solely with the public realms of life,
such as work (the labour market), and not the private spheres of care and intimate
relations, which in liberal legal philosophy are left untouched by legal regulation.
81
Jill Murray, ‘The Legal Regulation of Volunteer Work’ in Christopher Arup et al (eds), Labour Law
and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour
Markets and Work Relationships (Federation Press, 2006) 696. See also Lourdes Beneria, ‘The
Enduring Debate Over Unpaid Labour’ (1999) 138 International Labour Review 287; Nicole Busby, A
Right to Care? Unpaid Work in European Employment Law (Oxford Monographs on Labour Law,
Oxford University Press, 2011).
24
Scholarship has convincingly shown that law does indeed shape liberalism’s so-
called private domain of life, in complex and sometimes contradictory ways. 82
Moreover, legal scholarship has moved to explore how law is one of a number of
regulatory mechanisms (including history, religion, biology and economics) that
shape subjectivity, in the sense of the ways in which each person understands
themselves, their relations with other people, and the world. 83 Work and care are not
natural, pre-defined or pre-formed products of the world that the system of law
merely acts upon, or alternatively leaves untouched as being in the private sphere.
Rather, through a process of reiteration law reinforces and produces its own
meanings of work, and care relationships, which are bestowed in the naturalization
process with normative social value. In the course of producing its ideal care
relationship, law simultaneously constitutes as non-ideal, as dysfunctional and
deviant, care relationships and forms of care that do not align with law’s normative
ideal.
A final foundational strand of the thesis lies in an understanding of

heteronormativity. Heteronormativity is used to uncover the normativity of
heterosexuality in the law it examines. Michael Warner, who coined the term in his
1993 edited collection Fear of a Queer Planet, writes:
So much privilege lies in heterosexual culture’s exclusive ability to interpret itself as society.
Het culture thinks of itself as the elemental form of human association, as the very model of
inter-gender relations, as the indivisible basis of all community, and as the means of
reproduction without which society wouldn’t exist … Western political thought has taken the
heterosexual couple to represent the principle of social union itself. 84
82
See eg, Frances Olsen, ‘The Myth of State Intervention in the Family’ (1985) 18 University of
Michigan Journal of Law Reform 835; Margaret Thornton, ‘The Public/Private Dichotomy: Gendered
and Discriminatory’ (1991) 18 Journal of Law and Society 448; Margaret Thornton (ed), Public and
Private: Feminist Legal Debates (Oxford University Press, 1995); Susan B Boyd (ed), Challenging
the Public/Private Divide: Feminism, Law, and Public Policy (University of Toronto Press, 1997).
83
The origins of this approach lie in the work of Michel Foucault, The History of Sexuality: Vol 1: An
Introduction (Pantheon Books, 1978).
84
Michael Warner, ‘Introduction’ in Michael Warner (ed), Fear of a Queer Planet: Queer Politics
and Social Theory (University of Minnesota Press, 1993) xxi. The concept of heteronormativity owes
its lineage to Foucault’s view of law as being a productive form of power, producing the
heterosexual/homosexual binary divide. See also Annemarie Jagose, Queer Theory (Melbourne
25
The word heteronormativity ‘designates a regime that organizes sex, gender and
sexuality in order to match heterosexual norms’. 85 Heteronormativity is a
naturalizing power that produces heterosexuality as not only the dominant expression
of sexuality and sexual orientation, but as the taken-for-granted, as well as the
universal, expression of it.
1.6 Work and Care, or Work and Life?
A comment on the framework of work and care is needed. From the 1980s the
Australian debate and much of the Australian research was framed around the
concepts of work and ‘family’, and the need to find balance between work and
‘family’. ‘Family’ was the preferred term to juxtapose with work, rather than ‘care’
or ‘life’. The central concern was expressed as being to assist workers with ‘family
responsibilities’, often through the development of ‘family-friendly’ initiatives.
The first three publications of this thesis (contained in chapter 2) use a framework of
work and ‘family’. In contrast to other scholarship at the time though, that approach
is used with the explicit intention of disrupting the heteronormativity of law’s
‘family’. 86 The framing of questions around work and ‘family’ has not been
continued in the thesis papers post 2006. Rather, work and ‘care’ is used, as the
terminology of ‘care’ more directly and accurately identifies the source of collision
with work commitments and the labour market. It is not ‘family’ per se that is the
source of conflict. Rather, it is care responsibilities, and these may arise in a broad
University Press, 1996). Queer is used as an umbrella term to refer to the diversity of sexual
expression that is not heterosexual. On queer, see further Aleardo Zanghellini, ‘Queer,
Antinormativity, Counter-Normativity and Abjection’ (2009) 18 Griffith Law Review 1.
85
Maria do Mar Castro Varela, Nikita Dhawan and Antke Engel, ‘Introduction’ in Maria do Mar
Castro Varela, Nikita Dhawan and Antke Engel (eds), Hegemony and Heteronormativity: Revisiting
‘The Political’ in Queer Politics (Ashgate Publishing, 2011) 1 at 11. See also, Judith Butler, Bodies
That Matter: On the Discursive Limits of ‘Sex’ (Routledge, 1993); Samuel Chambers and Terrell
Carver, Judith Butler and Political Theory: Troubling Politics (Routledge, 2008); Chrys Ingraham,
‘Thinking Straight, Acting Bent: Heteronormativity and Homosexuality’ in Kathy Davis, Mary Evans
and Judith Lorber (eds), Handbook of Gender and Women Studies (Sage, 2006) 307 at 308.
86
See ‘Challenging the Constitution of the (White and Straight) Family in Work and Family
Scholarship’ (thesis chapter 2) especially 68; ‘Regulating Family through Employee Entitlements’
(thesis chapter 2) 455 (fn 5).
26
range of contexts, whether identified as ‘family’ or not. Indeed, and as the thesis
explores, ‘family’ has been used as an ideological gatekeeper of some legal
entitlements in the work and care field.
Further, in its use of ‘care’, the thesis is primarily concerned with care for others,
rather than self-care per se, although it is acknowledged that self-care and care for
others may be merged or at least closely related in practice. The most obvious
example is provided by maternity leave following birth, which is designed to address
both the birth mother’s recovery from the birth and also for her bonding with and
care of the new baby. Maternity leave is included in the thesis’ examination.
Due to the primary interest of the thesis in care for others, the terminology used in
latter papers is work and ‘care’, rather than the more expansive work and ‘life’. The
thesis is not concerned with the broader questions of intersections and conflicts
between labour market engagement and aspects of life that do not relate to care
responsibilities for others, such as self-fulfillment through sport, hobbies, education
and training. Whilst those work and ‘life’ dynamics are important, they raise
different questions from those relevant to the dynamic of work and caring for others.
The interest of the thesis lies in work and care for others, because it is that dynamic
that presents the more pressing issue in terms of social inclusion, equality and non-
discrimination, rather than the broader work and ‘life’ debate. Indeed diversity in
work and care arrangements may be lost in a work and ‘life’ frame where having
children or other care responsibilities may be seen as merely the choice of an
individual, thereby obscuring systemic features going to social inclusion, equality
and non-discrimination.
For these reasons the thesis keeps its focus to work and care, even though it is
acknowledged that there are some advantages in adopting a broader work and ‘life’
frame of reference. The appeal lies in the potential of a work and ‘life’ model to
destigmatise carers and potentially reduce resentment towards workers with care
27
responsibilities, a category that is often seen as synonymous with women workers. 87
In addition, work and ‘life’ offers potential to move beyond the goals of social
inclusion and equality and towards the pursuit of a policy goal of decent work. 88 For
these reasons a number of scholars have moved to a work and ‘life’ framework of
analysis. 89 This thesis however does not do so, as it maintains its scholarly focus on
diversity, social inclusion, equality and non-discrimination.
1.7 Overview of the Thesis
The thesis consists of this introduction and overview, together with a conclusion, and
four other chapters. Each chapter itself contains one or more published papers, in
addition to a brief introduction to the chapter. The thesis also contains an appendix
comprising one related paper. A table of cases, table of statutes and bibliography
complete the thesis.
The linking theme of the thesis is the critical evaluation of whether Australian legal
attempts in industrial law and anti-discrimination law to address conflict between
work and care have adequately recognized diversity. The thesis unfolds in the
following four stages.
1.7.1 Expansion in Work and Care Legal Mechanisms
The first point of the thesis is to show that from the early 1970s there has been a
large expansion in legal initiatives in industrial law and anti-discrimination law
87
There do not appear to be high levels of resentment towards workers with care responsibilities in
Australian workplaces. This may be because many employer programs of work flexibility are
articulated as extending beyond care situations, in a broader work and life framework: Skinner and
Pocock, ‘Flexibility and Work-Life Interference in Australia’, above n 13.
88
International Labour Organisation, Decent Work (ILO, 1999); Owens, Riley and Murray, above n
55, 69-70.
89
See eg, The Australian Work and Life Index, Centre for Work + Life, University of South Australia,
above n 13; E Anne Bardoel, Helen De Cieri and Clarice Santos, ‘A Review of Work-Life Research in
Australia and New Zealand’ (2008) 46 Asia Pacific Journal of Human Resources 316; John Burgess
and Jennifer Waterhouse, ‘Balancing Work, Family and Life: Introduction to the Special Issue’ (2010)
36 Australian Bulletin of Labour 130.
28
designed to assist workers to better manage their work commitments and care
responsibilities. This part of the thesis also serves to identify the legal mechanisms
evaluated in the thesis.
Industrial law has instituted new forms of leave, and new rules regarding working
time, discrimination, adverse treatment and requests for flexible work arrangements.
Unpaid maternity leave became a federal award entitlement in the private sector in
1979, was extended in relation to adoption in 1985, and became available to spouses
as paternity leave in 1990. 90 Extensions were made to these entitlements in the
Parental Leave Test Case 2005, and the basic standards continue in similar terms
today – although now extended to same sex couple relationships – as parental leave
under the FW Act. 91 The minimum standards regarding this leave make no provision
for payment whilst on leave, although in January 2011 a new national scheme of
payment for primary carers commenced, 92 and in March 2012 a Bill was introduced
into Parliament to extend this scheme by introducing a new payment, known as ‘dad
and partner pay’, anticipated to take effect from 1 January 2013. 93 In addition to
parental leave, in a series of federal award test cases in the mid 1990s leave in order
to care for a member of the employee’s ‘immediate family’ or member of the
employee’s ‘household’ was recognized. 94 This form of leave has also been
continued in similar terms today as personal/carer’s leave, compassionate leave and
carer’s leave. 95
90
chapter 3) 32. These federal standards became generalised through both federal awards and
legislation, and State awards and legislation: ‘Employment Entitlements to Carer’s Leave:
Domesticating Diverse Subjectivities’ (thesis chapter 3) 456 (fn 15).
91
‘Employment Entitlements to Carer’s Leave: Domesticating Diverse Subjectivities’ (thesis chapter
3) 459-60.
92
‘The New National Scheme of Parental Leave Payment’ (thesis chapter 5) 60.
93
Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures)
Bill 2012 (Cth).
94
3) 457-8. These federal standards became generalised across State industrial systems: Employment
Entitlements to Carer’s Leave: Domesticating Diverse Subjectivities’ (thesis chapter 3) 457.
95
3) 460.
29
As well as developing new forms of leave to care, care responsibilities have been
identified as a relevant factor in the industrial regulation of working time. A 2002
federal award test case decision articulated that ‘personal circumstances’, including
‘family responsibilities’ was to be a relevant consideration in the assessment of any
requirement to work overtime, and this has been retained as a current statutory
provision. 96 The FW Act enacted important extensions to existing non-discrimination
protections in the industrial sphere by providing redress in relation to ‘adverse
action’, including discrimination, across all stages of employment, on the ground of
‘family or carer’s responsibilities’, as well as sex, race and sexual orientation. 97 This
2009 Act also introduced a statutory mechanism enabling parents and carers to
request a change in their working arrangements in order to accommodate care
responsibilities to pre-school aged children and children with a disability. 98
Since the early 1970s there has also been considerable reform in relation to anti-
discrimination legislation. Much of this has occurred at the State and Territory level,
although there have been amendments at the Commonwealth level too. Attributes of
unlawful discrimination have been incrementally expanded, including since the
1990s grounds of ‘family responsibilities’, and ‘carer’ responsibilities and status. 99
These grounds take their place beside long standing attributes such as sex, race and
parental status, and more recent grounds related to sexual orientation. As well as the
recognition of new grounds, a small number of anti-discrimination statutes prohibit a
new form of discrimination in an employer’s refusal to provide reasonable
accommodation in relation to an employee’s care responsibilities. 100
96
‘Industrial Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3) 14-15.
97
‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5)
22-34.
98
‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5) 8-
12. A similar request mechanism was first developed through a 2005 federal award test case:
‘Requests for Flexible Work under the Fair Work Act’ (thesis chapter 5) 9.
99
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4) 6-7.
100
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4) 9-10.
30
These developments together establish the large expansion since the early 1970s in
legal initiatives designed to assist workers to better manage their work commitments
with their care responsibilities.
1.7.2 A Move Towards Diversity
This raft of legal initiatives that has arisen since the early 1970s provides a level of
recognition of diversity in work and care arrangements. This is visible as a
displacement of several key markers of the Harvester model of work and care
institutionalized in the Australian industrial system in the early part of the 20th
Century.
(i) The Harvester Model
The Harvester model of work and care is associated with a 1907 decision of the
Arbitration Court known as the Harvester judgment. 101 The specific issue before the
court in this case concerned the relationship between tariffs and wage rates.
Commonwealth excise legislation provided tariff protection to manufacturers on
condition that the wage rates they paid to unskilled labourers were ‘fair and
reasonable’. 102 Justice Higgins, President of the Arbitration Court, determined that in
order to satisfy this test, the wage rate must be sufficient to support the ‘labourer’s
home of about five persons’. 103 A central assumption made by the court, and adopted
subsequently in the industrial system, was that the worker was the sole wage earner
for himself, his wife and two or three children.
As Berns has highlighted in Women Going Backwards, an often unacknowledged

implicit corollary assumption underlying Harvester’s constitution of the worker as
the family breadwinner is that the worker did not have responsibilities to undertake
care, as all care needs fell to the worker’s wife, who was for that reason not engaged
101
Ex parte H V McKay (1907) 2 CAR 1 (‘Harvester’). See ‘Challenging the Constitution of the
(White and Straight) Family in Work and Family Scholarship’ (thesis chapter 2) 82-5; ‘Regulating
Family through Employee Entitlements’ (thesis chapter 2) 458-9.
102
Harvester at 2.
103
Harvester at 6.
31
in the labour market. 104 In this way Harvester presented a strongly gendered
understanding of work and care, where work was constituted as male waged labour
of the public world of the labour market, separated (or insulated) from care which
was constituted as female and of the private world of the home and family. 105 In this
way work and care were located in two different – and gendered – people, in an
interdependent couple relationship. Workers were male breadwinners and carers
were female homemakers.
This breadwinner/homemaker model became a core pillar of the Australian industrial

system for most of the 20th Century. It was visible at many different points, including
the existence (until the 1974 National Wage Case) 106 of explicitly gendered
minimum wage rates which incorporated assumptions that women who did work in
the labour market were unmarried and childless, and rules in the Commonwealth
public service (until 1966) that women were deemed to have ‘retired’ upon
marriage. 107
(ii) Worker-Mothers, Male Workers as Carers, and Same Sex Relationships
The legal initiatives developed in industrial law and anti-discrimination law since the
early 1970s (identified above in 1.7.1) support forms of work and care outside the
Harvester model, and in this way represent a shift away from Harvester and towards
a formally non-gendered and non-heteronormative model. This shift comprises three
dimensions.
First, the legal initiatives support mothers as waged workers in the labour market.
This contrasts sharply with the gendered model of the Harvester homemaker wife-
mother who was not engaged in the labour market. Legal recognition and support for
104
Berns, above n 41, 4-5, chapter 6, discussed in ‘Challenging the Constitution of the (White and
Straight) Family in Work and Family Scholarship’ (thesis chapter 2) 85-6.
105
Notably the separation of work and care can be dated to earlier times in the processes of
industrialisation and the emergence of industrial law in the United Kingdom: ‘Regulating Family
through Employee Entitlements’ (thesis chapter 2) 456-7.
106
National Wage Case 1974 (1974) 157 CAR 293, discussed in ‘Challenging the Constitution of the
(White and Straight) Family in Work and Family Scholarship’ (thesis chapter 2) 84-5.
107
‘Challenging the Constitution of the (White and Straight) Family in Work and Family Scholarship’
(thesis chapter 2) 83.
32
the worker-mother occurs through the provision of minimum standards of parental
leave 108 (bolstered by the parental leave payment scheme), 109 personal/carer’s leave,
compassionate leave and unpaid carer’s leave, 110 and the various protections relating
to adverse action and discrimination. 111 In addition, the right to request under the FW
Act, and discrimination in anti-discrimination law in the form of an unreasonable
failure to accommodate a worker’s care responsibilities, provide further recognition
of non-Harvester work and care arrangements. 112 These various legal initiatives
recognize that workers may be mothers.
A second dimension of diversity lies in the gender neutral provision of most of these
legal entitlements since 1990. 113 The exception to the formally gender-neutral
approach of the legal framework lies in entitlements related to physiological matters
such as pregnancy related illness, miscarriage, transfer of a pregnant employee to a
safe job, and breastfeeding. 114 Access by men to the industrial and anti-
discrimination law initiatives provides a recognition that male workers may have
care responsibilities, and indeed may have substantial care responsibilities, possibly
being on leave for up to 24 months as the primary carer of a baby, infant or adopted
child. 115 The expected commencement in January 2013 of the ‘dad and partner pay’
scheme provides further support to men as carers. This gender neutral approach of
legal initiatives provides a recognition of more diverse work and care practices than
present in the Harvester gender model where men were workers with no care
responsibilities.
108
chapter 3).
109
110
3).
111
112
‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5).
113
chapter 3).
114
See eg, special maternity leave (FW Act s 80) and transfer to a safe job (FW Act s 81). See also the
anti-discrimination ground of breastfeeding (EOA (Vic) s 6(b)).
115
chapter 3).
33
Finally, in addition to the legal framework moving towards a formally gender neutral
constitution of work and care, industrial and anti-discrimination entitlements have
been extended to same sex couple relationships. Generally the States and Territories
acted in this regard earlier than the Commonwealth Parliament, which only moved to
recognize same sex relationships in some respects in anti-discrimination law in 2008
and in industrial law in 2009. 116 This is a shift away from the heterosexual couple of
Harvester, and towards a non-heteronormative model of work and care.
1.7.3 Inadequate Recognition of Diversity
The third stage of the thesis reveals that although the range of industrial law and anti-
discrimination law mechanisms on work and care have addressed some key aspects
diversity, in other ways these legal developments have been deficient in recognizing
diverse work and care arrangements. The thesis reveals three main, and intersecting,
categories of shortcomings. These relate to law’s continued separation of work and
care, substantive limitations in the legal rules themselves relating to, for example,
eligibility, and thirdly the concepts used to recognize care relations. These are
examined in turn.
(i) The Separation of Work and Care
Most of the legal initiatives of industrial law and anti-discrimination law designed to
assist workers in managing work and care collision reflect a separation of work and
care. They do this in a number of different ways. Laws prohibiting direct
discrimination, 117 and the federal adverse action provisions, 118 seek to ensure that
decision-makers do not treat a person less favourably or adversely because of their
care responsibilities. These legal rules aim to expunge any negative view of care
responsibilities from the decisions of employers, in relation to, for example,
116
3) 460-1. Note that dismissal on the ground of ‘sexual preference’ has been prohibited in the federal
industrial statute since 1993: Industrial Relations Reform Act 1993 (Cth). Federal anti-discrimination
legislation still does not contain an enforceable ground relating to sexual orientation: Anna Chapman,
‘Intersectionality: Lesbians and Same-Sex Attracted Women’ in Patricia Easteal (ed), Women and the
Law in Australia (LexisNexis, 2010) 269, 280-1.
117
118
34
recruitment, promotion, training opportunities, and dismissal. In attempting to render
care responsibilities extraneous to the decision-making of managers, these rules
maintain a strong separation between work and care.
Other legal initiatives of industrial law and anti-discrimination law bring certain
closely defined aspects of care responsibilities into specific topics of employment
rights and obligations. This is seen in leave regimes and working time rules, where
new forms of leave have been developed for care responsibilities, and care
responsibilities have been injected as a relevant consideration into the legal
provisions regarding working time. 119 Although the act of importing care
responsibilities in this way breaks down the separation of work and care in relation to
those topics, this very act confirms as it reinforces the irrelevance of care
responsibilities elsewhere in employment rights and obligations, such as for example,
in minimum wages, redundancy pay, and notice of termination provisions. In
identifying care as relevant to some limited employment entitlements, the legal rules
confirm the irrelevance of care elsewhere, highlighting and confirming the broader
separation of work and care.
In these two main ways these legal initiatives maintain a separation of work from
care. The more recent federal right to request mechanism, 120 and anti-discrimination
rules that require reasonable accommodation by employers, 121 act against that trend,
as they anticipate that an employer ought actively to take into account a person’s care
responsibilities, and across all aspects of the entire employment relationship. This
offers potential to bring care into work much more completely. Nonetheless, and as
discussed below, these mechanisms are besieged by substantive limitations including
the lack of a direct enforcement mechanism in the case of the right to request, and a
weak enforcement mechanism in the case of the anti-discrimination accommodation
requirement, and for this reason their impact on bringing care into work appears to be
quite limited.
119
chapter 3); ‘Industrial Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3).
120
121
35
Leaving aside the right to request mechanism and anti-discrimination rules on
reasonable accommodation, the remaining legal initiatives continue, in one form or
another, a separation of work and care, albeit with a recognition that the two spheres
overlap. Empirical evidence supports the view that such a separation may align
poorly with the practices of diverse communities, which appear to be more seamless
in that regard. For example, it is known that domestic work and the care of children
is more evenly shared between the adults in lesbian households, without there being
a primary care-giver as such, compared to heterosexual couples. 122 Indigenous
children move between households of extended family and kinship systems,
especially in more remote parts of Australia, suggesting much fluidity in adult caring
responsibilities. 123 This empirical information suggests that the separation between
work and care may provide a particularly poor fit in diverse communities.
(ii) Substantive Limitations
A range of substantive limitations written into the legal initiatives themselves

undermine their effectiveness in general, including (and often particularly) in
recognizing diverse work and care practices. Those limitations relate to a number of
matters. Eligibility rules are important in this regard. The entitlements of unpaid
parental leave 124 and the industrial right to request mechanism 125 contain a
precondition of 12 months of continuous service (or regular engagement as a long
term casual). Paid personal/carer’s leave does not apply to casuals at all. 126 These
preconditions of service length and type of engagement are highly gendered in that
122
3) 454. Recent research confirms the earlier empirical findings referred to in this thesis publication:
Power et al, above n 22; Perlesz et al, ‘Organising Work and Home in Same-Sex Parented Families:
Findings From the Work Love Play Study’, above n 22.
123
(thesis chapter 2) 70-1. Recent research confirms the earlier empirical research used in this
publication: ABS, above n 22; Zhou et al, above n 22.
124
chapter 3) 35; ‘Employment Entitlements to Carer’s Leave: Domesticating Diverse Subjectivities’
(thesis chapter 3). Notably the parental leave payment scheme has a much more flexible work test as a
key component of eligibility: ‘The New National Scheme of Parental Leave Payment’ (thesis chapter
5).
125
126
3) 460 (fn 35). Note that unpaid carer’s leave and unpaid compassionate leave are available to casuals.
36
they disproportionately exclude employment arrangements of women. 127 In this way
these eligibility rules undermine the effectiveness of the legal mechanisms to support
women workers who have care responsibilities.
A second substantive limitation is the standard of reasonableness that provides the

key test in a number of the legal entitlements. Notably, an employer may refuse a
request for flexible working arrangements, 128 or an extension of unpaid parental
leave 129 on ‘reasonable business grounds’. Working time rules permit only
‘reasonable’ additional hours, taking into account care responsibilities, amongst other
matters. 130 The Victorian anti-discrimination statute provides that an employer must
not ‘unreasonably refuse to accommodate’ an employee’s care responsibilities. 131
Across these different contexts, the thesis reveals that there is reason to doubt
whether the concept of reasonableness itself, in addition to the ways in which it has
been articulated in these rules, has capacity to take adequate account of diversity, and
to give proper weight to the values of social inclusion, equality and non-
discrimination. 132
A third main substantive limitation lies in the range of exceptions and exemptions
that accompany some of the legal mechanisms designed to assist workers with care
responsibilities. Anti-discrimination statutes in particular carry a number of
127
In 2007 women accounted for over half (56%) of all casuals, and almost two-thirds of all casuals
working part-time hours. Almost half (45%) of all casuals had been in their current job for less than a
year. See ABS, ‘Australian Social Trends’ (Report, Cat No 4102.0, ABS, 2009) 18, 19, 22. In 2006
employed mothers with children aged 0–14 years were much more likely to be working part-time
hours (including as casuals) than were employed women overall: ABS, ‘Australian Social Trends’
(Report, Cat No 4102.0, ABS, 2008) 4. See also Australian Human Rights Commission, ‘Submission
No 137 to the Senate Education, Employment and Workplace Relations Committee Inquiry into the
Fair Work Bill 2008’ (AHRC, 2009) [8].
128
129
3) 459.
130
‘Industrial Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3) 204-5. Note also
that a reasonableness test applies where an employer requests an employee to work on a public
holiday: FW Act s 114(2). The employee’s ‘personal circumstances, including family responsibilities’
are relevant in this assessment of reasonableness: FW Act s 114(4)(b).
131
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4); ‘Care
Responsibilities and Discrimination in Victoria: The Equal Opportunity Amendment (Family
Responsibilities) Act 2008 (Vic)’ (thesis appendix).
132
‘Industrial Law, Working Hours, and Work, Care, and Family’ (thesis chapter 3); ‘Australian Anti-
Discrimination Law, Work, Care and Family’ (thesis chapter 4).
37
exceptions and exemptions that act to cut down the scope of the prohibition on
discrimination. Some of these, such as the exemption for conduct that conforms to
religious doctrine or beliefs, found broadly across Australian anti-discrimination law,
have a differentially exclusionary impact on diverse work and care arrangements,
most notably those found in queer communities. 133 The adverse action protections of
industrial law contain an exemption that exonerates conduct that is ‘not unlawful
under’ anti-discrimination law. This appears to apply in the adverse action
jurisdiction the range of exemptions contained in anti-discrimination law, including
the religious beliefs and conduct exemption. 134
A final substantive limitation warrants attention. It is that no direct enforcement

mechanism attaches to the federal right to request regime, so that the merits of an
employer’s refusal to grant a request under the scheme cannot be challenged directly
under the legislation. 135 The same lack of a direct enforcement mechanism attaches
to the ability to request an extension of unpaid parental leave beyond the initial 12
months. 136 This reduces the potential effectiveness of these request mechanisms in
relation to diverse work and care arrangements, as for all work and care
arrangements.
In these various ways the legal initiatives of industrial law and anti-discrimination
designed to assist workers with care responsibilities have been drafted or articulated
weakly. This draws attention to the technical factors and dimensions of the rules that
limit their potential to adequately recognize diversity in work and care practices.
133
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4) fn 34.
134
135
‘Requests for Flexible Work under the Fair Work Act’ (thesis chapter 5). Note that a non-government
Bill – the Fair Work Amendment (Better Work/Life Balance) Bill 2012 (Cth) – proposes to introduce
an enforcement mechanism into the right to request scheme, in addition to making other amendments
to the scheme. At the time of writing it seems unlikely that this Bill will be enacted.
136
‘Requests for Flexible Work under the Fair Work Act (thesis chapter 5).
38
(iii) Concepts of Care
The third category of limitation on the effectiveness of the legal initiatives of

industrial law and anti-discrimination law in adequately recognizing diversity lies in
the definitions and concepts of care used in the different schemes.
The earlier publications of the thesis reveal the explicitly heteronormative

construction of care responsibilities in federal industrial law and anti-discrimination
law operating at the time of those publications. These dimensions are revealed in the
definition of ‘family responsibilities’ in federal anti-discrimination law (at 2006), 137
in the industrial rules regarding unpaid maternity and paternity leave following birth
or adoption of a child (at 2007), 138 and award test case standards in the mid 1990s
regarding carer’s leave. 139 All jurisdictions in Australia have now amended their
industrial and anti-discrimination legislation to recognize same sex couple
relationships. 140 Generally the States and Territories acted in this respect earlier than
the Commonwealth Parliament, which only moved to recognize same sex couples in
anti-discrimination law in 2008 and in industrial law in 2009. 141 This is ten years
after some State jurisdictions began this process of law reform. For example, New
South Wales recognized same sex relationships in its anti-discrimination statute in
1999. 142
137
‘Regulating Family through Employee Entitlements’ (thesis chapter 2) 462-5.
138
chapter 3).
139
(thesis chapter 2) 81-4.
140
On the broader developments in the recognition of same sex relationships in Australian law, see
Chapman, above n 116; Anna Chapman, ‘Protection from Discrimination on the Basis of Sexual
Orientation or Sex and/or Gender Identity in Australia, Research Paper’ (Research Paper, Australian
Human Rights Commission, 2010).
141
3) 460-1. Note that dismissal on the ground of race and sexual preference was prohibited in the federal
industrial statute from 1993: Industrial Relations Reform Act 1993 (Cth). Whilst discrimination on the
ground of race has been unlawful under federal anti-discrimination legislation since 1973, federal anti-
discrimination legislation still does not at this time provide that discrimination on the ground of sexual
orientation is unlawful. See Chapman, above n 116.
142
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4) fn 165. Note that
the New South Wales anti-discrimination statute has provided a ground of homosexuality since its
enactment in 1977.
39
In contrast to this story of law reform around sexual orientation, there has been little
attempt to recognize care practices in extended Indigenous care networks. Two
exceptions exist. First, the South Australian anti-discrimination statute was amended
in 2009 to recognize explicitly the caring responsibilities that Aboriginal and Torres
Strait Islander people have under kinship rules. 143 In addition, the 2011 parental
leave payment scheme introduced an ability to claim a parental leave payment in
‘exceptional circumstances’. Indigenous care arrangements were discussed as
potentially falling within that category of claim. 144 These two instances highlight the
lack of attention to this issue elsewhere in the legal framework. Apart from these two
disparate occurrences, there has been no law reform effort within industrial law and
anti-discrimination law to understand and take account of Indigenous practices in
relation to the care of children and others in extended kinship systems.
A number of the legal initiatives examined in this thesis constitute the two adult
couple as the normative care relationship, with articulations of that couple generally
referencing marriage-like indicators such as living together, pooled finances and the
public recognition of the relationship. Although this couple now includes same sex
couples, it remains a conventional two adult couple marked by marriage-like factors.
That model may not sit well with same sex relationships and relationships in queer
communities, and it fails to account more broadly for diverse care relationships that
exist outside two adult couples, such as different sex polyamorous relationships, care
relationships in extended Indigenous care networks, and care between close friends
and neighbours.
In addition, some legal initiatives also reveal a strong primary caregiver model for
babies and infants, again limiting the recognition of diversity in the form of care-
giving spread more evenly between adults. 145 The minimum legal entitlement of
143
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4) 38.
144
‘The New National Scheme of Parental Leave Payment’ (thesis chapter 5) 8.
145
Recent empirical research confirms that the primary caregiver model provides a poor fit with
arrangements to look after babies and infants in lesbian relationships, where the care is shared more
evenly between adults: Perlesz et al, ‘Organising Work and Home in Same-Sex Parented Families:
Findings From the Work Love Play Study’, above n 22. For earlier research revealing a similar
finding, see eg, Amaryll Perlesz and Ruth McNair, ‘Lesbian Parenting: Insiders’ Voices’ (2004) 25
40
unpaid parental leave contains this conventional vision of a two adult couple and
primary caregiver model, as does the parental leave payment scheme, 146 and
personal/carer’s leave, compassionate leave and unpaid carer’s leave, 147 although the
primary carer model is less pronounced in personal/carer’s leave. Anti-discrimination
law, through its concept of ‘immediate family’ in its family and care responsibilities
provisions, also uses the two adult couple that is marriage-like as its regulatory
pivot. 148
A small number of legal initiatives in industrial law and anti-discrimination law step
outside the two adult couple and recognize care in broader circumstances, and this
offers more potential to recognize diverse work and care arrangements. Some anti-
discrimination jurisdictions offer protection against discrimination in relation to care
responsibilities or carer status per se, regardless of whether that care takes place in a
couple or family setting, provided that it is not given in return for commercial
reward. 149 The industrial right to request mechanism also refers broadly to care (of a
pre-school aged child or a child with a disability), without requiring that the child be
of a couple relationship. 150 These provisions offer recognition to care outside the two
adult couple model, although these too include important limitations on the care
recognized. For example, the Victorian anti-discrimination protection only
recognizes care that is ongoing and substantial. 151
There has been little consistency in definitions of care and care relationships across
Australia, little consistency within the one jurisdiction, and even sometimes a lack of
consistency in definitions and concepts within the one statute. For example, the
provisions on working time in the FW Act recognize the concepts of ‘personal
Australian and New Zealand Journal of Family Therapy 129 at 136, discussed in ‘Challenging the
Constitution of the (White and Straight) Family in Work and Family Scholarship’ (thesis chapter 2).
146
147
3).
148
149
150
Notably the care in these provisions is limited in that it only relates to care of a pre-school aged child
or a child with a disability up to the age of 18.
151
41
circumstances’ and ‘family responsibilities’, 152 whilst ‘family or carer’s
responsibilities’ is used in the FW Act’s adverse action provisions. 153 These concepts
are not defined or further explained in the FW Act. In contrast, the concept of ‘family
responsibilities’ is used in federal anti-discrimination legislation, and is defined for
that purpose, 154 but it is unclear whether that definition applies in interpreting ‘family
responsibilities’ in the FW Act. 155 Across statutes the differences in drafting can be
pronounced, even within the one jurisdiction and even dealing broadly with the same
policy topic. For example, the unpaid parental leave provisions in the FW Act contain
quite a different understanding of a primary care-giver than is contained in the
parental leave payment scheme. 156
This lack of consistency gives rise to much complexity, uncertainty and incoherency,
undermining the effectiveness of these legal initiatives generally, including in
relation to diverse work and care practices. Indeed, uncertainty of coverage is more
likely to be a problem in relation to diverse work and care arrangements, which by
their nature are susceptible of falling on the fuzzy margins of legal definitions built
around conventional marriage relationships. Moreover, some members of diverse
communities may face particular barriers of social and financial disadvantage in
accessing appropriate legal advice in relation to such matters.
In these various ways it can be seen that the definitions and concepts of care and care
relationships in the different legal initiatives in industrial law and anti-discrimination
law provide important limits on the ability of the various schemes to adequately
recognize diverse work and care practices.
152
FW Act s 62(3)(b) (maximum working time rule); ‘Industrial Law, Working Hours, and Work,
Care, and Family’ (thesis chapter 3).
153
FW Act s 351(1); ‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’
(thesis chapter 5). The concept of ‘family or carer’s responsibilities’ is also used elsewhere in the Act,
regarding the content of awards, the role of Fair Work Australia, and the unlawful termination rules:
FW Act s 153(1), s 195, s 578(c), s 772(1)(f).
154
‘Australian Anti-Discrimination Law, Work, Care and Family’ (thesis chapter 4). The concept of
‘family responsibilities’ is also used in a number of State and Territory anti-discrimination statutes.
155
156
chapter 3); ‘The New National Scheme of Parental Leave Payment’ (thesis chapter 5).
42
1.7.4 Conclusion and Proposal
The fourth stage of the thesis provides a conclusion and a proposal.
The main conclusion of the thesis is that the legal initiatives of Australian industrial
law and anti-discrimination law designed to address collision between work and care
provide less than adequate recognition of diversity in work and care practices. In
order to take account more fully of diverse work and care arrangements, attention is
needed to a number of matters. First, the substantive shortcomings of the various
schemes need to be addressed. In addition, the definitions and concepts of care
articulated in the legal mechanisms of industrial law and anti-discrimination law
require replacement. Law’s separation of work from care also presents a thorny
challenge in the project of recognizing diverse work and care arrangements. This
latter implicates the very foundations of industrial law and anti-discrimination law
which lie in the separation of labour market work from other aspects of life.
Chapter 6 of the thesis more fully articulates the thesis conclusion, and also maps out
the broad contours of a proposal to address key inadequacies of the current legal
framework regarding diversity in work and care practices. That proposal involves a
broad definition of care as a standard for use across the different schemes, with an
obligation on the employer to establish that the accommodation sought by the worker
was not justifiable. In addition, chapter 6 deals with the deeper and more intractable
problem of separation of work and care.
43
44
CHAPTER 2:
ESTABLISHING THE FOUNDATIONS OF THE THESIS
2.1 Introduction
Chapter 2 comprises three papers that together provide the foundations of the thesis:
and Family Scholarship’ (2005) 23 Law in Context 65-87.
2005) 79-97.
Relationships (Federation Press, 2006) 454-469.
The importance for the thesis of the article published in (2005) Law in Context lies in
three related matters. First, it provides a literature review of empirical research on
work and family in Australia as it relates to the care of babies and infants, using
Pocock’s The Work/Life Collision as a vehicle for that purpose. 1 It shows how The
Work/Life Collision constitutes the two parent heterosexual couple as the normative
care relationship for children. Secondly, the article presents qualitative empirical
material on caring arrangements in Indigenous communities, and in same sex
relationships, providing the empirical foundations underlying the thesis’ examination
of diversity and legal rules. 2 The third aspect of this paper that is important for the
1
Barbara Pocock, The Work/Life Collision: What Work is Doing to Australians and What to Do about
It (Federation Press, 2003).
2
Subsequent empirical research confirms the themes presented in this (2005) article. On diversity in
terms of sexual orientation, see eg, Jennifer Power et al, ‘Diversity, Tradition and Family: Australian
Same-Sex Attracted Parents and Their Families’ (2010) 6 Gay and Lesbian Issues and Psychology
45
thesis is that it uncovers a number of ways in which legal rules regarding workers
with family responsibilities failed at that time to account for diversity in terms of
Indigenous caring practices and arrangements in queer communities. This dimension
of the paper underlines the reasons why paying attention to diversity is important in
gaining a fuller understanding of the role of employment law legal initiatives in
addressing work and care conflict.
Both the 2005 paper in the Conaghan and Rittich edited collection, and the 2006
paper in Arup et al, bring to the thesis a discussion of the Harvester
breadwinner/homemaker model institutionalized in the industrial system in the early
part of the 20th Century. 3 This material is of central importance to the thesis’ use of
Harvester as the benchmark work and care relation against which to measure whether
legal initiatives designed to address work and care collision have adequately
recognized diversity in work and care practices. The 2005 paper focuses on the
gender dimension of Harvester, and in this draws most closely on the work of Berns
in Women Going Backwards, in addition to the scholarship of Owens and Gaze on
gender. 4 The 2006 paper builds on this earlier paper to focus on diversity in the form
Review 66; Amaryll Perlesz et al, ‘Organising Work and Home in Same-Sex Parented Families:
Findings From the Work Love Play Study’ (2010) 31 Australian and New Zealand Journal of Family
Therapy 374; Amaryll Perlesz et al, ‘Family in Transition: Parents, Children and Grandparents in
Lesbian Families Give Meaning to “Doing Families”’ (2006) 28 Journal of Family Therapy 175. On
diversity in Indigenous communities, see eg, Steering Committee for the Review of Government
Service Provision, ‘Overcoming Indigenous Disadvantage: Key Indicators 2011 Report’ (Productivity
Commission, 2011); ABS, ‘Population Characteristics, Aboriginal and Torres Strait Islander
Australians, 2006’ (Report, Cat No 4713.0, ABS, reissued 2010); Albert Zhou et al, ‘Kinship Care for
Children in New South Wales’(2010) 5 Communities, Children and Families Australia 60; John
Altman, ‘Beyond Closing the Gap: Valuing Diversity in Indigenous Australia’ (Working Paper No 54,
Centre for Aboriginal Economic Policy Research, Australian National University, 2009); Frances
Morphy, ‘Lost in Translation? Remote Indigenous Households and Definitions of the “Family”’
(2006) 73 Family Matters 12.
3
Harvester refers to Ex parte H. V. McKay (1907) 2 CAR 1.
4
The heteronormativity embedded within Harvester is noted, but not explored, at p 84, p 97 of this
paper. Sandra Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society
(Ashgate Publishing, 2002); Rosemary Owens, ‘Engendering Flexibility in a World of Precarious
Work’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy:
The Challenges to Legal Norms (Hart Publishing, 2006) 329; Rosemary J Owens, ‘Taking Leave:
Work and Family in Australian Law and Policy’ in Joanne Conaghan and Kerry Rittich (eds), Labour
Law, Work and Family: Critical and Comparative Perspectives (Oxford University Press, 2005) 237;
Rosemary Owens, ‘The Traditional Labour Law Framework: A Critical Evaluation’ in Richard
Mitchell (ed), Redefining Labour Law: New Perspectives on the Future of Teaching and Research
(Centre for Employment and Labour Relations Law, University of Melbourne, 1995) 3; Rosemary
46
of sexual orientation, revealing the institutionalization of the heterosexual two adult
couple of the Harvester tradition. In addition to bringing to the thesis a discussion of
the Harvester model of work and care, these two papers, and the 2005 Law in Context
piece, contain a number of examples illustrating how Australian employment law
initiatives on work and care did not in 2005 and 2006 adequately recognize diversity.
A note arising from the character of the thesis by publication should be made at this
point. The examples of legal regulation used in the three papers in this chapter are
drawn largely from Commonwealth law, with both the Workplace Relations Act 1996
(Cth) (‘WR Act’) and the Sex Discrimination Act 1984 (Cth) (‘SDA’) featuring
prominently in this regard. Since each of these papers has been published the WR Act
has been replaced by the Fair Work Act 2009 (Cth) (‘FW Act’), and the SDA has been
amended in important respects. In addition, the award test case standards on leave
and related matters discussed in some of this material are now encompassed as part of
the legislated set of National Employment Standards contained in the FW Act. Some
of the specific topics examined in these three papers, in addition to the substance of
the recent legal developments, are examined in subsequent publications of the thesis
(contained in chapters 3-5).
Although the law itself has changed in many important respects, the analysis of the
Commonwealth legal rules in the three papers nonetheless remains important and
relevant to the thesis in mapping the explicit heteronormativity of the statutory
framework at the time of publication, and its failure to recognize forms of diverse
work and care arrangements. It also provides a basis upon which to discuss later (but
still inadequate) developments.
Owens, ‘Women, “Atypical” Work Relationships and the Law’ (1993) 19 Melbourne University Law
Review 399; Beth Gaze, ‘Working Part Time: Reflections on “Practicing” the Work-Family Juggling
Act’ (2001) 21 Queensland University of Technology Law & Justice Journal 199.
47
2.2 The Publications

and Family Scholarship’ (2005) 23 Law in Context 65-87.
2005) 79-97.
Relationships (Federation Press, 2006) 454-469.
48
Chapman, A. (2005) Challenging the Constitution of the (White and Straight) Family in Work and
Family Scholarship.
Law in Context, v. 23 (1), pp. 65-87.
NOTE:
This publication is included on pages 49-71 in the print copy
of the thesis held in the University of Adelaide Library.
49
72
Chapman, A. (2005) `Work/Family, Australian Labour Law, and the Normative Worker' in J. Conaghan
& K. Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives, Oxford
University Press, Oxford, New York, pp. 79-97.
NOTE:
73
92
Chapman, A. (2006) `Regulating Family through Employee Entitlements' in C. Arup et al (eds), Labour
Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour
Markets and Work Relationships, Federation Press, Leichhardt, NSW, pp. 454-469.
NOTE:
93
CHAPTER 3:
INDUSTRIAL LAW, WORK AND CARE
3.1 Introduction
Chapter 3 contains the following three papers on work and care in industrial law:
• ‘Uncovering the Normative Family of Parental Leave: Harvester, Law and
the Household’ (2007) 33 Hecate 28-42.
Subjectivities’ (2009) 18 Griffith Law Review 453-474.
Monash University Law Review 190-216.
These three articles examine industrial law initiatives designed to assist workers with
care responsibilities, investigating whether each legal mechanism adequately
recognizes diversity in work and care practices. Each paper maps changes to the legal
framework over time. The article in (2007) Hecate examines legal entitlements to
parental leave following birth or adoption of a child, from the development of unpaid
maternity leave in the 1970s, to its encapsulation within a concept of unpaid parental
leave in the Workplace Relations Act 1996 (Cth) (‘WR Act’) (after the changes
brought about by Work Choices). 1 The second paper in (2009) Griffith Law Review
revisits the statutory standard of unpaid parental leave, doing so after the enactment
of the Fair Work Act 2009 (Cth) (‘FW Act’), and combines this with an examination
of the leave known as ‘personal/carer’s leave’, compassionate leave and unpaid
carer’s leave developed through test cases and then encapsulated in the National
Employment Standards of the FW Act. The Monash University Law Review piece
examines various moments in the development of working time standards and
1
The Work Choices legislative package was contained in the Workplace Relations Amendment (Work
Choices) Act 2005 (Cth) (‘Work Choices’). This Act amended the WR Act.
109
regimes from the mid 19th Century in Australia, to the current FW Act provisions on
maximum working hours which attempt to take account of family responsibilities.
All three papers contribute to the thesis in a number of ways. They document the
expansion of work and care legal mechanisms in industrial law since the early 1970s.
They each show, to varying degrees, some displacement of the Harvester model, 2
especially in terms of supporting mothers as workers, male workers as carers, and in
the shift to recognizing same sex couple relationships. As well as addressing some
aspects of diversity relative to the Harvester model, each paper reveals various ways
in which the legal initiatives contain an inadequate recognition of diversity. This
occurs through the continuing separation of work from care, such as is seen in
relation to working time rules where work and leisure (rather than care) provided the
framework for thinking about standard hours throughout most of the 20th Century.
Substantive limitations in the rules, such as the requirement for unpaid parental leave
of 12 months of continuous service, and the articulation of the concept of
reasonableness in the working time rules on additional hours, provide inadequate
recognition of diverse work and care arrangements.
Finally, together the papers argue that the definitions and concepts of care used in
these industrial law schemes provide an inadequate recognition of diverse work and
care arrangements. Both the Hecate paper and the piece in the Griffith Law Review
reveal in their analyses a two adult couple as the normative care relationship of the
legal entitlements examined, especially as the legal rules relate to the care of babies
and infants. The Griffith Law Review paper articulates this argument most fully by
drawing out two interacting constructs in the legal rules: the normativity of the two
adult couple of care responsibilities, and the normativity of the primary caregiver
model. It is demonstrated that in these ways the legal initiatives do not adequately
recognize diverse work and care practices. The Monash University Law Review paper
explores the meaning of ‘personal circumstances’ and ‘family responsibilities’ used
in the working time rules, and suggests that the narrow meaning of the latter term in
2
110
the Sex Discrimination Act 1984 (Cth) – which references a marriage-like cohabiting
couple of two adults – may be applicable in the context of this industrial standard on
working time. 3
As noted in 1.4.2 Minimum Standards (chapter 1), the thesis provides an Australia-
wide study. This is achieved in the following manner. Although the Hecate article
confines its examination to the federal standards of unpaid parental leave, as
explained in that paper, State and Territory industrial jurisdictions were largely
displaced by the Work Choices amendments to the WR Act, and for that reason were
not examined in that paper. In contrast, the Griffith Law Review piece does draw on
State and Territory jurisdictions regarding the relevant legal entitlements, to provide a
fuller, and at times contrasting, picture to the federal provisions. The Monash
University Law Review paper also provides an Australia-wide study, examining
Commonwealth developments as well as State and Territory legal rules on working
time.
• ‘Uncovering the Normative Family of Parental Leave: Harvester, Law and

the Household’ (2007) 33 Hecate 28-42.
Subjectivities’ (2009) 18 Griffith Law Review 453-474.
Monash University Law Review 190-216.
3
Note that the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) was enacted after
the finalisation of the Monash University Law Review article. Although this 2011 Act did make some
amendments to the definition of ‘family responsibilities’ in s 4A of the Sex Discrimination Act 1984
(Cth), those alterations were stylistic only, in effect to substitute references to ‘employee’ with the
word ‘person’. Although not of direct relevance to the paper in the Monash University Law Review, the
2011 Act did extend the scope of the ‘family responsibilities’ protections beyond the previous
limitation of dismissal, to encompass all aspects of work engagement. The new provisions only
encompassed direct discrimination though, and not indirect discrimination. See ‘Australian Anti-
Discrimination Law, Work, Care and Family’ (thesis chapter 4) 4.
111
112
Chapman, A. (2007) Uncovering the Normative Family of Parental Leave: Harvester, Law and the
Household.
Hecate, v. 33 (1), pp. 28-42.
NOTE:
113
128
129
130
131
132
133
134
135
136
137
138
139
140
141
142
143
144
145
146
147
148
149
150
Chapman, A. (2010) Industrial Law, Working Hours, and Work, Care, and Family
Monash University Law Review, v. 36(3), pp. 190-216.
NOTE:
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178
CHAPTER 4:
ANTI-DISCRIMINATION LAW, WORK AND CARE
4.1 Introduction
Chapter 4 contains one paper on anti-discrimination law, work and care:

University of Melbourne, January 2012) 41pp.
This January 2012 working paper examines Commonwealth, State and Territory anti-
discrimination law in Australia as it has developed in relation to responsibilities to
care for others, and critically evaluates whether these legal initiatives adequately
recognize diversity in work and care practices. Its contribution to the thesis lies in a
number of matters. Importantly, it documents the expansion over the years of
attributes relating to family responsibilities, carer responsibilities or status, in addition
to others such as sex, breastfeeding and the status of being a parent. It also notes the
recognition in the Northern Territory and Victorian jurisdictions of an expansive form
of discrimination as an unreasonable failure to accommodate a person’s care
responsibilities, in addition to the use of human rights considerations in some
jurisdictions. In this way the paper reveals a level of support for diversity in work and
care practices through prohibiting workers with care responsibilities, or another
attribute such as breastfeeding, from being discriminated against in their work
arrangements.
However the focus of the paper lies in detailing the ways in which the various
schemes have been inadequate in the recognition of diversity, and this is the paper’s
main contribution to the thesis. Substantive limitations are referred to, including the
range of exceptions and exemptions found in the various schemes. Close attention is
179
paid to anti-discrimination law’s separation of work from care. The paper reveals
how the different schemes construct their vision of the public sphere of employment
and work in ways that confirm that care is separate to, and cannot count as, work
under the statutes. The jurisdictions’ production of an unencumbered benchmark
worker without care responsibilities is also examined, revealing a second way in
which anti-discrimination law separates work from care. A third dimension of the
separation of work from care is found in the value of formal equality, which gives
carers access only to the work arrangements of the unencumbered benchmark worker.
Shortcomings in the recognition of diverse work and care arrangements are also
found in the definitions and concepts of care used in the different anti-discrimination
statutes. The particularities of gender, race and sexual orientation are examined. The
statutes and case decisions tend to gender care as female (and work as male), with the
care responsibilities of men, people in queer communities and people in Indigenous
communities less well protected. Intersectional claims involving race and sexual
orientation may have been distorted or indeed erased in the case decisions, suggesting
that care may have been constituted as Anglo-Australian and as heterosexual.
Although all anti-discrimination schemes recognize same sex couple relationships,
only those that comprise a marriage-like two adult couple are likely to count for these
purposes. Notably, this requirement parallels entitlements to unpaid parental leave
discussed in the Griffith Law Review article (thesis chapter 3). In these various ways
the working paper documents how anti-discrimination legal initiatives designed to
address collision between work and care fail to adequately recognize diverse work
and care arrangements.
The examination of anti-discrimination law and diversity contained in this working

paper is further developed by an analysis of the reasonable accommodation
provisions in the Victorian anti-discrimination jurisdiction, in ‘Reasonable
Accommodation, Adverse Action and the Case of Deborah Schou’ (thesis chapter 5).
It is also supplemented by a legislative note on these reasonable accommodation
provisions, ‘Care Responsibilities and Discrimination in Victoria: The Equal
180
Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)’ (thesis
appendix).
4.2 The Publication

University of Melbourne, January 2012) 41pp.
181
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Chapman, A. (2012) Australian Anti-Discrimination Law, Work, Care and Family (Working Paper No
51), Centre for Employment and Labour Relations Law, University of Melbourne, 41pp.
NOTE:
183
CHAPTER 5:
WORK AND CARE ACROSS LAW’S DISCIPLINARY

BOUNDARIES
5.1 Introduction
For most of the 20th Century the traditions of industrial law, anti-discrimination law
and the social security system were seen in Australia to occupy separate realms, each
with a focus on different concerns. However the spheres were never sealed from each
other, and intersections between them existed.1 With the enactment of the Fair Work
Act 2009 (Cth) (‘FW Act’) and the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’),
the boundaries between them have become more blurred. 2
Chapter 5 contains three papers that examine legal initiatives on work and care that
respectively cross the categories of industrial law and anti-discrimination law, and
industrial law and social security. They are:
Schou’ (2012) 33(1) Adelaide Law Review (forthcoming).
manuscript, January 2012).
Australian Journal of Labour Law 60-70.
The first article, forthcoming in the 2012 Adelaide Law Review, sits at the boundaries
of industrial law and anti-discrimination law. It uses a hypothetical factual scenario
1
See eg, Rosemary Owens, Joellen Riley and Jill Murray, The Law of Work (Oxford University Press,
2nd ed, 2011) 441-4; Rosemary Hunter, ‘Representing Gender in Legal Analysis: A Case/Book Study
in Labour Law’ (1991) 18 Melbourne University Law Review 305; Margaret Thornton,
‘Discrimination Law/Industrial Law: Are They Compatible?’ (1987) The Australian Quarterly 162.
2
See eg, Owens, Riley and Murray, above n 1, 441-452.
223
drawn from the well-known case of Schou v Victoria, 3 to explore how more recent
reforms in the law potentially operate in relation to those facts. The legal initiatives
explored are: a claim of discrimination in the form of a failure to provide reasonable
accommodation under the Equal Opportunity Act 2010 (Vic) (also discussed in
‘Australian Anti-Discrimination Law, Work, Care and Family’, thesis chapter 4); an
adverse action claim under the FW Act (not previously explored in the thesis); and,
thirdly the right to request mechanism in the FW Act (not previously explored in the
thesis).
The paper makes a number of contributions to the thesis. First, it documents the
further expansion in work and care legal developments through the two 2009 FW Act
mechanisms, noting how these schemes interact with each other and with existing
legal entitlements regarding work and care. Secondly, it acknowledges that these new
mechanisms, along with the Victorian reasonable accommodation provision,
recognize diversity in work and care practices in the sense of prohibiting
discrimination and adverse action on the grounds of a person’s care responsibilities,
in addition to providing employees with a right to request a change in work
arrangements to better accommodate certain care responsibilities. Thirdly, while
these mechanisms represent a further move away from the Harvester model, 4 the
article uncovers important substantive limitations in all three new schemes. These
include the uncertain interpretation of the test of reasonableness articulated in the
Victorian provisions, the preconditions of service in the right to request mechanism,
and the unclear meaning of several key concepts in the adverse action provisions,
such as the test of ‘discriminates between’ and the exemption in relation to action that
is ‘not unlawful under’ anti-discrimination law. 5 These aspects undermine the
recognition of diverse work and care arrangements, as does the lack of a direct
enforcement mechanism in relation to the FW Act right to request scheme.
3
Schou v Victoria (2000) EOC 93-100, 93-101; Victoria v Schou (2001) 3 VR 655; Schou v Victoria
(2002) EOC 93-217; Victoria v Schou (2004) 8 VR 120.
4
5
FW Act s 342(1) item 1(d); s 351(2)(a).
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Lastly, and importantly, this Adelaide Law Review article reveals how the definitions
and concepts of care used in the different schemes may undermine the adequacy of
the legal mechanism in recognizing diverse work and care practices. For example, the
Victorian provisions regarding care responsibilities recognize only a relatively high
level of care provided on an ongoing basis. The adverse action provisions protect on
the basis of a ground identified (but not defined) as ‘family or carer’s
responsibilities’. As the Adelaide Law Review article investigates, it is unclear how
that FW Act concept will be interpreted.
Interestingly, and in contrast, the new federal right to request entitlement in the FW
Act contains an explicitly broader drawing of care, requiring only that it be by a
‘parent’ or alternatively by a person who ‘has responsibility for the care’ of a child
under school age or a child with a disability under the age of 18 years. Although the
care responsibilities that are recognized are limited to those groups of children, and
do not cover for example adults in need of care, notably the rules do not contain a
model of a two adult couple relationship. This contrasts with entitlements to leave
(‘Employment Entitlements to Carer’s Leave: Domesticating Diverse Subjectivities’,
thesis chapter 3), and likely understandings in working time limits as well (‘Industrial
Law, Working Hours, and Work, Care, and Family’, thesis chapter 3). Nonetheless,
all three legal mechanisms are marked by a constrained recognition of care, in one
form or another.
The lack of a direct enforcement mechanism attaching to the right to request scheme
under the FW Act, discussed in the Adelaide Law Review article, is explored in
greater depth in the second paper in this chapter – the 2012 unpublished manuscript,
‘Requests for Flexible Work under the Fair Work Act’. 6 This paper investigates the
scope of the subsidiary rules in the request mechanism that are directly enforceable,
and how those might be interpreted to build a fuller enforcement regime. In this way
6
A non-government Bill proposes to enact a full enforcement mechanism into the federal right to
request regime: Fair Work Amendment (Better Work/Life Balance) Bill 2012 (Cth). At the time of
writing it seems unlikely that this Bill will be enacted.
225
the paper investigates the extent to which this legal initiative has capacity to bring
care into work considerations in an enforceable manner.
The third paper in this chapter – the 2011 Australian Journal of Labour Law note –
provides an examination of the national scheme of parental leave payment enacted
with the PPL Act, and which commenced operation on 1 January 2011. This scheme
sits on a continuum between social security law and industrial law. It provides an
entirely tax payer funded payment, although the payment is generally administered by
employers under the authority and supervision of the Family Assistance Office in the
Department of Families, Housing, Community Services and Indigenous Affairs. The
parental leave payment scheme intersects with the FW Act in complex ways, in
particular in relation to the legal entitlement to unpaid parental leave (examined in
‘Uncovering the Normative Family of Parental Leave: Harvester, Law and the
Household’ and ‘Employment Entitlements to Carer’s Leave: Domesticating Diverse
Subjectivities’, both in thesis chapter 3). This paper in the Australian Journal of
Labour Law highlights how the scheme is an important addition to the field of
Australian legal initiatives designed to address conflict between work and care.
The paper also explores how the scheme provides for the recognition of diversity. In
important respects the system of payment under the PPL Act reflects a more genuine
attempt to take account of diverse work and care arrangements than is contained in
the unpaid parental leave provisions in the FW Act. For example, the PPL Act
provides that claims can be made in (undefined) ‘exceptional circumstances’. No
such catch all clause exists in the unpaid parental leave provisions in the FW Act.
This open-ended criterion of ‘exceptional circumstances’ was constructed with the
explicit intention of enabling claims outside biological and two parent couples to be
granted. As noted in the paper, care arrangements in Indigenous communities were
identified as potentially covered by this category. Although recognizing broader care
relationships in this respect, the paper notes that the parental leave payment scheme
nonetheless continues to reiterate a primary care-giver model, and in this way
imposes constraints on the extent of diversity recognized in this legal entitlement.
226
Two developments regarding parental leave payments have occurred since the paper
was published in the 2011 Australian Journal of Labour Law. The first is that the
Paid Parental Leave Rules 2010 (Cth) (‘PPL Rules’) have been made. They further
articulate the meaning of ‘exceptional circumstances’, and do so in ways that retain
the potentially broad application of the provision. 7 This confirms the scope of the
scheme to recognize diverse work and care arrangements, including those in
Indigenous communities.
The second development is the proposed ‘dad and partner pay’ scheme, contained in
the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and
Other Measures) Bill 2012 (Cth). 8 The objective of the new payment is stated to be to
assist fathers and other partners to take more time off work to support birth mothers
and primary carers, and to spend time bonding with their baby or adopted child. 9
The 2012 Bill will amend the PPL Act to provide eligible fathers and partners of the
birth mother or primary carer with two weeks of ‘dad and partner pay’ following the
birth or adoption of a child. The new payment will take effect in relation to a child
born or adopted from 1 January 2013, with the amount of payment set at the national
minimum wage. Similar to the paid parental leave scheme, ‘dad and partner pay’ will
not provide an entitlement to leave from work. That leave will need to be sourced
elsewhere, presumably in most instances in the statutory standard of unpaid parental
leave under the FW Act. ‘Dad and partner pay’ will have the same eligibility
requirements as the current parental leave payment scheme in terms of the residency
requirement, the means test, and the work test.
7
Paid Parental Leave Rules 2010 (Cth) Division 2.4.1.
8
Introduced into the House of Representatives and read a first time on 22 March 2012. See also
Department of Families, Housing, Community Services and Indigenous Affairs, ‘Paid Parental Leave:
Dad and Partner Pay – A Policy Statement from the Australian Government September 2011’ (Policy
Statement, Commonwealth of Australia, September 2011); Erin McCarthy, Elise Jenkins and Andrew
Stewart, Parental Leave: A User-Friendly Guide (Thomson Reuters, 2012) [1.390], [3.150].
9
Bill 2012 (Cth) Schedule 1, Part 1, clause 8; Explanatory Memorandum, Paid Parental Leave and
Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012 (Cth) 2;
Department of Families, Housing, Community Services and Indigenous Affairs, above n 8, 4.
227
Although the concept of a two adult couple, whether comprised of people of a
different sex or of the same sex, resonates throughout the new ‘dad and partner pay’
scheme, the 2012 Bill does provide potential for a broad recognition of diverse work
and care arrangements in Indigenous care networks, and beyond the two adult couple.
For example, the Bill enables claims for ‘dad and partner pay’ to be made by
biological fathers (who are not the partner of the birth mother or primary carer), and
by other claimants who satisfy the special circumstances prescribed by the PPL
Rules. 10 This latter category reflects the concept of ‘exceptional circumstances’ under
the parental leave payment scheme established in the PPL Act and, like the parental
leave payment scheme, is broad in its potential to recognize diverse work and care
arrangements.

Schou’ (2012) 33(1) Adelaide Law Review (forthcoming).
manuscript, January 2012).
Australian Journal of Labour Law 60-70.
10
Bill 2012 (Cth) Schedule 1, Part 1, item 67 (proposed s 115DD of the Paid Parental Leave Act 2010
(Cth)).
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Chapman, A. (2011) The New National Scheme of Parental Leave Payment (Legislative Note)
Australian Journal of Labour Law, v. 24 (1), pp. 60-70.
NOTE:
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296
CHAPTER 6:
CONCLUSION
6.1 Introduction
From the early 1970s there has been a large expansion in Australia in industrial law
and anti-discrimination law initiatives designed to assist workers to manage their
work commitments with their care responsibilities. New forms of leave for the
purpose of care have been developed, and new rules regarding working time,
discrimination, adverse action and reasonable accommodation have been instituted.
In important respects these mechanisms are productive of a move away from the
Harvester model of (male) waged work as sealed off from (female) concerns of care,
home and family, instituted in the industrial system in the early part of the 20th
Century. 1 This movement away from Harvester provides a shift towards recognizing
diverse work and care arrangements, most notably in the form of supporting mothers
as workers of the labour market, male workers as carers, and recognizing same sex
couples as relationships through which care occurs. As the papers comprising this
thesis have demonstrated, significant inadequacies remain in recognizing more
complex and dynamic dimensions of diversity in work and care practices. The thesis
has argued that these shortcomings of the industrial law and anti-discrimination law
mechanisms relate to three matters: the continuing separation of work from care;
substantive restrictions in the legal rules themselves relating to, for example,
eligibility and exceptions and exemptions; and, the definitions and concepts of care
used in the various sets of legal provisions.
These deficiencies in the schemes present challenges for policy makers and others in
thinking about how legal regulation might more authentically account for diverse
work and care arrangements. The continuing separation of work and care presents a
1
297
complex challenge, as this matter marks the foundations of industrial law and anti-
discrimination law, and indeed legal liberalism itself, and for this reason remains a
conundrum. It is discussed further in the final part of this conclusion.
Leaving the issue of separation of work and care to one side for the moment, the
thesis now offers a proposal which may address key shortcomings in the substantive
dimensions of the industrial and anti-discrimination mechanisms examined, in
addition to the question of how best to elaborate the definition or concept of care
protected. It is a relatively modest proposal, staying largely within the confines of the
legal rights and obligations as they currently exist, but reshaping them from within.
The proposal would bring a more standard approach to these complex legal initiatives
bestowing rights and obligations, with the benefits of certainty, consistency and
clarity for workers, employers and others. The thesis does not express a view on
whether its proposal is politically viable, or the practical realities of implementing it,
especially across different statutory schemes and jurisdictions. This would no doubt
be challenging. Rather, the proposal is put forward as a broad concept, for further
practical development, rather than as a detailed political plan or drafting agenda.
Nonetheless, the broad concept appears feasible.
6.2 The Proposal
The proposal contains two main dimensions. The first addresses how best to
articulate the care responsibilities recognized, and the second concerns the
development of a test of justification to replace both the existing use of the concept of
reasonableness in the different industrial and anti-discrimination mechanisms, and the
range of existing exceptions and exemptions in those legal rules.
6.2.1 Care Responsibilities
As shown in chapters 3-5, to date the approach taken to drafting the care relationships
and arrangements recognized in each new law reform measure designed to assist
298
workers with care responsibilities has led to complexity, inconsistency and
incoherence, where some care relationships are offered protection, whilst others are
not. As this thesis illustrates, any attempt at drawing categories and distinctions
around the care relationships and situations that should be recognized in legal
regulation will inevitably be under-inclusive. Furthermore, and as the findings of the
thesis suggest, it is likely to fail to adequately account for diversity. It is time to move
on from the two adult couple, ‘immediate family’ and the other various categories
and tests that have been developed over the years in attempts to recognize care
responsibilities in industrial law and anti-discrimination law. Workers, employers and
others ought to be able to easily ascertain and understand their legal rights and
obligations regarding the accommodation of care. In addition, care responsibilities
ought to be valued equally, regardless of the context in which they occur, as this is
inherent in the goals of social inclusion, equality and non-discrimination.
In order to address this situation, the thesis proposes that the current ad hoc
definitions of care responsibilities articulated in the various industrial law and anti-
discrimination law mechanisms be replaced with a single concept of ‘care
responsibilities’ or ‘responsibilities to care’. That concept should not be defined in
the relevant legal rule. Rather, those words should be left to their ordinary meanings,
which are appropriately broad. The Macquarie Dictionary defines ‘care’ as ‘to look
after; make provision for’ and ‘responsibility’ as ‘the state or fact of being
responsible’. 2 The advantage of adopting the ordinary meaning of these words is that
it is likely to lead to an interpretation that accords with current community
understandings, and for this reason is expected to result in a fuller recognition of
diverse work and care arrangements than currently exists.
Qualifications on care responsibilities may nonetheless be necessary in relation to

some legal mechanisms. Unpaid parental leave under the Fair Work Act 2009 (Cth)
(‘FW Act’) and the parental leave payment scheme under the Paid Parental Leave Act
2
Susan Butler (ed), Macquarie Dictionary (Macquarie Dictionary Publishers, 5th ed, 2009) 264, 1409.
299
2010 (Cth) are the main candidates for such qualifications. 3 These entitlements might
appropriately be limited in a temporal sense to care responsibilities in the first 12 or
24 months of a baby’s life, or within 12 or 24 months after a child has been placed for
adoption. The current primary caregiver model of the unpaid parental leave
provisions, and the parental leave payment scheme, would also require consideration
as to whether care responsibilities should be limited to those of a primary carer. The
interests of diversity, social inclusion and non-discrimination would suggest that the
entitlements should not be limited in this manner; although any broadening of
eligibility would necessitate some reworking of the way in which the entitlements of
different carers interact.
6.2.2 Justification
The second aspect of the proposed model addresses the concept of reasonableness
that is used to delineate a number of the legal initiatives examined in chapters 3-5.
Reasonableness provides the key test in the right to request mechanism under the FW
Act, the reasonable accommodation provisions in the Equal Opportunity Act 2010
(Vic), the anti-discrimination rules relating to indirect discrimination, and the
working time rules under the FW Act. 4 The publications of the thesis show that the
concept of reasonableness itself, and the ways in which it has been articulated in the
statutes and interpreted, raise doubts as to whether a test of reasonableness has the
capacity to give proper weight to the values of diversity, social inclusion, equality
and non-discrimination.
The proposal of this thesis is to replace the use of a test based on reasonableness in
these different contexts with one based on justification. 5 The proposal is to place the
3
The same would apply in relation to the ‘dad and partner pay’ entitlement proposed by the Paid
Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill
2012 (Cth).
4
In addition, employers may only refuse a request for an extension of unpaid parental leave beyond 12
months on ‘reasonable business grounds’ (FW Act s 76(4)) and a reasonableness test applies where an
employer requests an employee to work on a public holiday (FW Act s 114(2)).
5
The approach of ‘justification’ developed in this chapter has similarities to a proposal put forward in
Discrimination Law Experts’ Group, Consolidation of Commonwealth Anti-Discrimination Laws
300
onus on the employer (or other respondent) to establish that its conduct was
justifiable in all the circumstances. In relation to the right to request mechanism and
Victorian reasonable accommodation rules, the onus would be placed on the
employer to establish that it was justified in not providing the accommodation sought
by the worker. This approach starts from a presumption that responsibilities to care
for others ought to be accommodated by employers, unless the circumstances are
such that they justify the employer not providing the adjustment or accommodation
sought.
In terms of laws prohibiting indirect discrimination, an employer would bear the onus
of establishing that it was justified, in all the circumstances, in imposing the
requirement challenged by the worker, rather than the worker bearing the onus of
establishing that the requirement was not reasonable. In relation to the working time
rules, the proposal would require the employer or other hirer of labour to establish
that it was justified in requesting or requiring the employee to work additional hours.
This starts from a presumption that employees should not work hours additional to 38
per week, or their lesser ordinary hours of work, unless the employer can establish
that the circumstances are such that its request or requirement of additional hours was
justifiable.
The use of a presumption in the test of justification provides for an appropriate

valuing of care in the work context. Moreover, as the reasons why (for example) the
employer rejected or failed to grant a request, or required the employee to work
additional hours, lie solely within the employer’s knowledge, it is appropriate to place
the onus on the employer to establish that it was justified in coming to the decision
Submission (13 December 2011) 8-9. The thesis author is a member of the Discrimination Law
Experts’ Group. Notably, British anti-discrimination law has contained several different formulations
over the years relating to justification, to the effect that an employer will not be liable for indirect
discrimination if it can establish that the practice or criterion was objectively justifiable. The current
Equality Act 2010 (UK) provides that indirect discrimination is justifiable where the respondent is able
to show that the impugned measure was ‘a proportionate means of achieving a legitimate aim’ (s
19(2)(d)): Sandra Fredman, Discrimination Law (Oxford University Press, 2nd ed, 2011) 191-6;
Nicholas Bamforth, Maleiha Malik and Colm O’Cinneide, Discrimination Law: Theory and Context
(Sweet & Maxwell, 2008) 321-330.
301
that it did. This would operate as a reverse onus of proof. 6 Such a reverse onus
generates the additional benefit of leverage, encouraging employer best practice in
establishing processes and policies to consider properly employee requests for
accommodation and to deal with long working hours. Ultimately those pressures on
employer liability are likely to encourage and shape changes in workplace practices
and cultures regarding work and care interaction.
The concept of justification should be explained by a non-exhaustive list of factors to

take into account. That list ought to be standard across the different schemes, and
should emphasize the public interest in furthering the objects of the particular
legislative scheme, which might appropriately include the current objectives of
promoting social inclusion, fairness, and non-discrimination, and assisting employees
to manage work and care. Achieving substantive equality between all people would
be usefully added as an objective, for the purpose of drawing attention to the
understanding that equality includes the active accommodation of care
responsibilities. Given the almost complete silence at present within industrial law
and anti-discrimination law regarding Indigenous kinship networks of care, it might
be useful to draw attention to the object of substantive equality in relation to
Indigenous people specifically.
Other factors should also appear in the list of relevant factors in assessing
justification. The legislation ought to make it clear that the disadvantage to the
employee in not being accommodated is an important matter to be considered in
whether the employer’s decision was justified. The employer’s operational
arrangements and financial position would also be relevant factors to consider.
6
The employee would be required to establish as a factual matter that she or he had ‘care
responsibilities’ (within the ordinary meaning of those words). Notably, a reverse onus of proof is in
keeping with the adverse action protections in Part 3-1 (FW Act s 361) and the unlawful termination
provisions in Part 6-4 Div 2 (FW Act s 783). The Explanatory Memorandum to the Fair Work Bill
acknowledges that in the absence of a reverse onus in relation to the adverse action, ‘it would often be
extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful
reason’ under Part 3-1: Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1461].
302
This proposed test of justification envisages a process of weighing different factors,
in the context of a reverse onus of proof. The methodology of considering a range of
indicia is similar to the existing reasonableness tests in some of the current work and
care mechanisms, namely the Victorian reasonable accommodation provisions, laws
prohibiting indirect discrimination, and the working time rules. The proposal of this
thesis, however, differs from those existing reasonableness tests, in that it envisages
development in the factors to be considered, in addition to starting from a
presumption that care responsibilities ought to be accommodated. It will have a
reverse onus of proof. Importantly, a test of justification potentially provides a break
from the conservative interpretation of reasonableness that the thesis reveals has
developed, particularly in anti-discrimination law. The test of justification proposed
in this chapter is likely to be more onerous for an employer to establish, than is an
employer’s position under the current reasonableness tests. That shift is appropriate,
in furthering the objectives of social inclusion, equality and non-discrimination.
In addition to replacing reasonableness in work and care legal mechanisms, a test of

justification, accompanied by the same list of factors, should also be used in place of
a range of exceptions and exemptions in the adverse action protections in the FW Act,
and in the anti-discrimination law protections that relate to work and care. This latter
would include indirect discrimination provisions, in addition to direct discrimination
rules. For example, the adverse action provisions should be recast so that employees
are protected from the various forms of adverse action on account of their care
responsibilities, unless the employer is able to establish through the reverse onus that
its conduct was justified. This continues the existing reverse onus of the jurisdiction,
and replaces the uncertain exceptions in the adverse action provisions – including the
religious institutions exception – with the single concept of justification. Likewise,
anti-discrimination law should be reshaped so that workers are protected from direct
and indirect discrimination on the attribute of care responsibilities, unless the
employer is able to satisfy through a reverse onus that it was justified in taking the
action that it did.
303
Together the use of care responsibilities and justification (with a reverse onus of
proof) would greatly improve the potential of the industrial and anti-discrimination
law initiatives to recognize and provide protection to diverse work and care practices.
6.3 Law’s Separation of Work from Care
As documented in this thesis one of the main deficiencies of the industrial law and
anti-discrimination law mechanisms designed to address collision between work and
care relates to the ways in which these laws continue to separate work from care. This
matter presents a very difficult challenge in thinking about better forms of legal
regulation on the topic of work and care, as it implicates the very foundations of
industrial law and anti-discrimination law, and indeed legal liberalism itself. This
reflection that work and care conflict activates the very basis and continuing
legitimacy of law’s disciplinary categories is not a new one. 7 The contribution of the
thesis to that insight is that it shows how thoroughly this is so in Australia.
The current dynamic of work and care conflict is itself a creature of industrial law.
The production of work as separate from the rest of life, including care, arose through
the processes of industrialization and the establishment of industrial law as a legal
discipline. The earlier emergence of the nuclear family from the broader concept and
arrangement of the household assisted this process. That separation of work from the
rest of life then became entrenched in the Australian system of arbitration through the
Harvester judgment. Anti-discrimination law, a relative newcomer to the field of
work legal rights and obligations, has done little to usurp the Harvester separation of
work from care, and indeed as this thesis shows, contains that separation within its
own structure. All of this is to say that industrial law, as with anti-discrimination law,
reflects a classic liberal public/private dualism. These disciplines constitute their field
7
See eg, Joanne Conaghan, ‘Work, Family and the Discipline of Labour Law’ in Joanne Conaghan
and Kerry Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives
(Oxford University Press, 2005) 19; Guy Davidov and Brian Langille (eds), The Idea of Labour Law
(Oxford University Press, 2011).
304
of concern – paid work engagement – through a process of separating it off from the
rest of life (including care).
For this reason the disciplinary categories of industrial law and anti-discrimination
law are limited in their capacity to break down the separation of work and care. Their
very foundations, and indeed their continuing legitimacy as disciplines, depend on the
processes of regulation of market work away from care. Indeed, the very act of
industrial law and anti-discrimination law ‘recognising’ care and making certain care
arrangement cognisable to law is itself a powerful act of separation and hierarchy.
Audre Lorde was a political activist and scholar whose work opened up discussions
about differences between women in terms of race, sexuality and class in feminist and
civil rights movements in the USA during the 1960s-1980s. One of her best known
contributions is a speech she delivered at a feminist conference held in New York in
1979, in which she drew attention to the lack of Black, lesbian and Third World
women’s perspectives at the conference. 8 Her speech rhetorically asked, ‘[w]hat does
it mean when the tools of a racist patriarchy are used to examine the fruits of that
same patriarchy? It means that only the most narrow perimeters of change are
possible and allowable.’ 9 Later in her presentation she famously said:
[f]or the master’s tools will never dismantle the master’s house. They may allow us
temporarily to beat him at his own game, but they will never enable us to bring about genuine
change. And this fact is only threatening to those women who still define the master’s house
as their only source of support. 10
Although Lorde was using a broader concept of patriarchy and was not specifically
speaking about the legal system and law as such, her powerful words resonate in
thinking about the investigation conducted in this thesis, its proposal for a new
model, and the broader problem of separation between work and care. The thesis has
shown that Australian industrial law and anti-discrimination law, in Lorde’s parlance,
8
Audre Lorde, ‘The Master’s Tools Will Never Dismantle the Master’s House’ in Audre Lorde, Sister
Outsider: Essays and Speeches (Crossing Press, 1984) 110.
9
Ibid 110-111.
10
Ibid 112.
305
the tools of the master, are not capable of dismantling the foundations on which these
disciplines are both constructed and constantly legitimized, namely the public /
private divide of work and care, in addition to hierarchies related to gender, race and
sexuality, to name a few. The proposed model outlined in this conclusion is a modest
one, and this reflects the lack of a truly transformative potential within industrial law
and anti-discrimination law. Nonetheless, as this thesis shows, change within the
confines of ‘the master’s house’ is possible, although we should be wary to place too
great reliance or dependence on that. Legal change within industrial law and anti-
discrimination law will never dismantle the gendered, racialised and heterosexed
foundations on which law rests.
306
APPENDIX
The Appendix to the thesis contains one paper that provides a closer examination of
the reasonable accommodation provisions enacted into Victorian anti-discrimination
legislation by the Equal Opportunity Amendment (Family Responsibilities) Act 2008
(Vic). Those amendments have been substantively reenacted in identical terms in the
Equal Opportunity Act 2010 (Vic) and are examined in a broader perspective in
‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’,
thesis chapter 5.
The paper contained in the Appendix is:
• ‘Care Responsibilities and Discrimination in Victoria: The Equal Opportunity

Amendment (Family Responsibilities) Act 2008 (Vic)’ (2008) 21 Australian
Journal of Labour Law 200-207.
307
Chapman, A. (2008) Care Responsibilities and Discrimination in Victoria: The Equal Opportunity
Amendment (Family Responsibilities) Act 2008 (Vic) (Legislative Developments)
Australian Journal of Labour Law, v. 21 (2), pp. 200-207.
NOTE:
308
TABLE OF CASES
ABB Engineering Construction Pty Ltd v Doumit (Unreported, Australian Industrial

Relations Commission – Full Bench, 9 December 1996, PR N6999)
Adoption Leave Test Case [1985] AILR 322
Amalgamated Engineering Union v J Alderdice and Company Pty Ltd (1927) 24
CAR 755
Amery v New South Wales [2001] NSWADT 37 (12 March 2001)
Amery v New South Wales [2004] NSWCA 404
Anderson v Department of Justice and Industrial Relations [2001] TASADT 3 (14
November 2001)
Annual Wage Review 2009-2010 [2010] FWAFB 4000
AO v Commonwealth Bank of Australia [2007] NSWADT 135 (21 June 2007)
Application by Australian Workers Union (Queensland Branch) for a Declaration of
Policy and/or a General Ruling by the Commission in Relation to Maternity
Leave Standards (1980) 22(8) AILR 109
Application by Fanoka Pty Ltd T/A Fairview Orchards [2010] FCA 2139 (16 March
2010)
Australasian Builders Labourers’ Federation v L J Adam (1923) 17 CAR 19
Australasian Meat Industry Employees Union v Australian Meat Holdings
(Unreported, Australian Industrial Relations Commission, 18 March 1993, PR
K7063)
Australasian Meat Industry Employees Union v Meat and Allied Trades Federation
of Australia (1969) 127 CAR 1142 (‘Equal Pay Case’)
Australasian Meat Industry Employees Union v W Angliss and Co Pty Ltd (1916) 10
CAR 465
Australian Builders’ Labourers’ Federation v Archer (1913) 7 CAR 210
Australian Catholic University Limited T/A Australian Catholic University [2011]
FWA 3693 (10 June 2011)
Australian Commonwealth Post and Telegraph Officers’ Association v Public
Service Commissioner (1918) 12 CAR 71
Australian Council of Trade Unions, Queensland Branch v Queensland
Confederation of Industry Ltd [1995] AILR 9-030
Australian Glass Manufacturers Co Pty Ltd v Amalgamated Engineering Union
(Australian Section) (1960) 1 FLR 302
Australian Hearing v Peary (2009) 185 IR 359
Australian Insurance Staffs Federation v Adelaide Fire Office (1951) 73 CAR 489
Australian Licenced Aircraft Engineers Association v International Aviations Service
Assistance Pty Ltd [2011] FCA 333 (8 April 2011)
Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2011]
FMCA 58 (11 February 2011)
Australian Manufacturing Workers’ Union v Christie Tea Pty Ltd [2010] FWA
10121 (3 December 2010)
316
Australian Municipal, Administrative, Clerical and Services Union v Moreland City
Council (Unreported, Australian Industrial Relations Commission, 24 March
2006, PR 970470)
Australian Telegraph and Telephone Construction and Maintenance Union v Public
Service Commissioner (1914) 8 CAR 119
Australian Timber Workers' Union v John Sharp and Sons Ltd (1920) 14 CAR 811
Australian Timber Workers' Union v John Sharp and Sons Ltd (1922) 16 CAR 649
Australian Workers’ Union v Irvine (1920) 14 CAR 204
Australian Workers' Union v Australian Trainers' Association [2009] FWA 418 (9
October 2009)
Automotive Food Metals Engineering Printing and Kindred Industries Union v Visy
Packaging Pty Ltd [No 2] [2011] FCA 953 (31 August 2011)
Award Modernisation (2008) 177 IR 364
Award Simplification Decision (1997) 75 IR 272
Balfour v Balfour (1919) 2 KB 571

Barclay v Board of Bendigo Regional Institute of Technical and Further Education
[2011] FCAFC 14 (9 February 2011)
Basic Wage Inquiry 1949-50 (1950) 68 CAR 698
Bayford v MAXXIA Pty Ltd [2011] FMCA 202 (12 April 2011)
Board of Bendigo Regional Institute of TAFE [2011] HCATrans 243 (2 September
2011)
Bear v Norwood Private Nursing Home [1984] EOC 92-109
Bogle v Metropolitan Health Service Board [2000] EOC 93-069
Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197
Brass, Copper and Non-Ferrous Metals Case (1968) 124 CAR 190
Bread Carters (South Australia) Award (1989) 56 SAIR 265
Brisbane City Council – Sextongs and Assistant Sextons – Award (1987) 125 Qld Ind
G 763
Bupa Care Services Pty Ltd [2010] FWAFB 2762 (15 April 2010)
C M and S v Australian Telecommunications [1992] HREOCA 10 (23 June 1992)

Cahill v Tasmania [2004] TASADT 5 (28 June 2004)
Chacon v Rondo Building Services Pty Ltd [2011] NSWADT 72 (6 April 2011)
Chandra v Brisbane City Council [2002] QADT 1 (24 January 2002)
Clerks Newspapers (Metropolitan) and Other Awards Case [1976] AR (NSW) 839
Clerks (South Australia) Award [2004] SAIRComm 4 (28 January 2004)
Coal & Allied Mining Services Pty Ltd v MacPherson [2010] FCAFC 83 (12 July
2010)
Cohen v Cohen (1929) 42 CLR 91
Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232
Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 248 ALR 494
Commonwealth v Evans [2004] FCA 654
Commonwealth v Human Rights and Equal Opportunity Commission (1998) 80 IR
242
Commonwealth v Human Rights and Equal Opportunity Commission [2000] FCA
1854 (15 December 2000)
317
Commonwealth v Human Rights and Equal Opportunity Commission and Kelland
[1998] FCA 137 (27 February 1998)
Commonwealth v Human Rights and Equal Opportunity Commission and Muller
[1998] FCA 138 (27 February 1998)
Commotion Ltd v Rutty [2006] ICR 290
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and
Allied Services Union of Australia v Telstra Corporation Ltd (Unreported,
Australian Industrial Relations Commission, 16 May 2005, PR 958009)
Cook v Lancet Pty Ltd [1989] EOC 92-257
Correy v St Joseph’s Hospital Ltd [2007] NSWADT 104
D v McA (1986) 11 Fam LR 214

D H Gibson Pty Ltd [2011] FWA 911 (10 February 2011)
Dare v Hurley [2005] FMCA 844 (12 August 2005)
Deng v Inghams Enterprises Pty Ltd [2010] FWA 8797 (23 November 2010)
Djokic v Sinclair & Central Qld Meat Export Co Pty Ltd [1994] HREOCA 16 (20
July 1994)
Dridi v Fillmore [2001] NSWCA 319
Du Bois-Hammond v Raging Thunder Pty Ltd [2004] QADT 27 (26 August 2004)
Edwards v Hillier & Educang Ltd [2006] QADT 34 (11 August 2006)
Edwards v TT Line Tasmania Pty Ltd [1997] HREOCA 49 (25 August 1997)
Elizabeth Treadwell v Acco Australia Pty Ltd [1997] FCA 1440 (16 December 1997)
Erbs v Overseas Corporation [1986] HREOCA 2 (2 December 1986)
Ermogenous v Greek Orthodox Community of South Australia Inc (2002) 209 CLR
95
Escobar v Rainbow Printing Pty Ltd [No 2] [2002] FMCA 122
Evans v National Crime Authority [2003] FMCA 375 (5 September 2003)
Ex parte H V McKay (1907) 2 CAR 1
Family Leave/Personal Leave Carer’s Leave Case 1996 (Tas) (1997) 71 IR 231
Family Leave Test Case (NSW) (1995) 59 IR 1
Family Leave Test Case – November 1994 (1994) 57 IR 121
Family Leave Test Case, Supplementary Decision [1995] AILR 3-060
Family Provisions Test Case 2005 (Unreported, Australian Industrial Relations
Commission – Full Bench, 8 August 2005, PR 082005)
Fares v Box Hill College of TAFE [1992] EOC 92-554
Federated Clothing Trades v J A Archer (1919) 13 CAR 647
Federated Millers and Mill Employees’ Association v Brunton and Company (1920)
14 CAR 114
Federated Miscellaneous Workers Union of Australia v Australian Capital Territory
Employers Federation (1979) 218 CAR 120
Federated Miscellaneous Workers Union of Australia v Home Case Service (New
South Wales) (1987) 19 IR 180
Federated Seamen’s Union of Australia v Commonwealth Steam-Ship Owners’
Association (1911) 5 CAR 147
Fenton v Hair & Beauty Gallery Pty Ltd [2006] FMCA 3 (20 January 2006)
318
Flight Attendants’ Association of Australia v Qantas Airways Ltd [2006] AIRC 282
(10 May 2006)
Flight Attendants’ Association of Australia v Qantas Airways Ltd [2006] AIRC 537
(1 September 2006)
Foran v Bloom [2007] QADT 31 (5 December 2007)
Gardiner v New South Wales WorkCover Authority [2003] NSWADT 184 (11
August 2003)
Gardiner v New South Wales WorkCover Authority [2004] NSWADTAP 1 (4
February 2004)
Harley v Rosecrest Asset Pty Ltd [2011] FWA 3922 (21 June 2011)
Heikkinen v Edith Cowan University [2007] WASAT 321 (31 December 2007)
Hickie v Hunt & Hunt [1998] HREOCA 8 (9 March 1998)
Hickmott v Shaw and Bionic Products [1995] HREOCA 18 (26 July 1995)
HJ Harvey [1963] AILR 228
Ho v Regulator Australia Pty Ltd [2004] FMCA 62 (12 May 2004)
Hodkinson v Commonwealth [2011] FMCA 171 (31 March 2011)
Hope v NIB Health Funds Ltd [1995] EOC 92-716
Horman v Distribution Group [2001] FMCA 52 (19 December 2001)
Howe v Qantas Airways Ltd (2004) 188 FLR 1
Howe v Qantas Airways Ltd [2004] FMCA 242 (15 October 2004)
Hozack v The Church of Jesus Christ of Latter-Day Saints [1997] FCA 1300 (27
November 1997)
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993)
46 FCR 301
Ilian v ABC [2006] FMCA 1500 (17 October 2006)

Iliff v Sterling Commerce (Australia) Pty Ltd [2007] FMCA 1960 (3 December
2007)
In re Hospital Employees (Metropolitan) Award [1947] AR (NSW) 678
In re Watchmen (State) Award [1965] AR (NSW) 268
Inspector Trundle v M & K Angelopoulos Pty Ltd [2009] FMCA 37 (29 January
2009)
Ireland v Johnson [2009] WAIRC 00123
Italiano v Bethesda Hospital [1998] FCA 712 (19 June 1998)
Jacomb v Australian Municipal Administrative Clerical and Services Union [2004]

FCA 1250 (24 September 2004)
Jokar Holdings Pty Ltd v Said [2011] FWAFB 2628 (6 May 2011)
Jones v Queensland Tertiary Admissions Centre Ltd [No 2] [2010] FCA 399 (29
April 2010)
Kelly v TPG Internet Services Pty Ltd [2003] FMCA 584 (15 December 2003)
Kemp v Minister for Education [1991] EOC 92-340
Kennedy v Anti-Discrimination Commission of the Northern Territory [2006] NTCA
9 (3 October 2006))
319
Kennedy v Top End Women’s Legal Service [2004] NTADComm 2 (4 June 2004)
Kerr v Jaroma Pty Ld [1996] IRCA 539 (28 October 1996)
Khammaneechan v Nanakhon Pty Ltd [2010] FWA 7891 (14 October 2010)
Knecht v Renaissance Parquet [2011] FWA 1079 (21 February 2011)
Kneebone v Stuart Wines Company Pty Ltd [2011] FWA 2350 (15 April 2011)
Koppleman, Gill v Steven Moore [2000] TASADT 1 (18 December 2000)
Larsen v RSPCA [1991] HREOCA 3 (25 March 1991)

Larsen v RSPCA – Northern Division (Tasmania) [1991] EOC 92-356
Lee v Hills Before & After School Care Pty Ltd [2007] FMCA 4 (15 January 2007)
Lifestyle Communities Ltd [No 3] (Anti-Discrimination) [2009] VCAT 1869 (22
September 2009)
Lupoi v Phillips Fox [1996] IRCA 489 (3 October 1996)
MacPherson v Coal & Allied Mining Servces Pty Ltd [No 2] [2009] FMCA 881 (9
September 2009)
Marshall v Marshall White & Co Pty Ltd [1990] EOC 92-304
Master Builders’ Association (New South Wales) v Building Workers’ Industrial
Union of Australia (1985) 16 IR 284
Maternity Leave Test Case (1979) 118 CAR 218
Maxworthy v Shaw [2010] FMCA 1014 (24 December 2010)
Mayer v ANSTO [2003] FMCA 209 (6 August 2003)
Mendicino v Tour-Dex Pty Ltd [2010] FWA 9114 (1 December 2010)
Metal Trades Employers Association v Boilermakers Society of Australia (1960) 4
FLR 333
Midas Conway v GSL Custodian Services Pty Ltd [2005] AIRC 792
MIDG Pty Ltd [2010] FWA 1131 (15 February 2010)
Morris and Morris v Anglican Community Services [2000] SAIRC 6
Mount Isa Mines Ltd v Marks (1992) 35 FCR 96
Mukesh Chand v Refined Sugar Pty Ltd (Unreported, Australian Industrial Relations
Commission, 17 March 2006, PR 966177)
Mullins v National Association for Training the Disabled in Office Work [1990] EOC
92-318
Municipal Officers (Adelaide City Council) Award, 1971 (1974) 156 CAR 36
N v The Bakery [2010] FWA 3096 (20 April 2010)

National Wage and Equal Pay Cases (1972) 147 CAR 172
National Wage Case 1974 (1974) 157 CAR 293
National Wage Case – August 1988 (1988) 25 IR 170
National Wage Case – August 1989 (1989) 30 IR 81
NC v Queensland Corrective Services Commission [1997] QADT 22 (30 September
1997)
Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 495 (4 October 1996)
Newlands Coal Pty Ltd [2010] FWA 4811 (29 June 2010)
New South Wales v Amery (2003) 129 IR 300
New South Wales v Amery (2006) 230 CLR 174
320
NIB Health Funds Ltd v Hope (Unreported, Supreme Court of New South Wales,
McInerney J, 15 November 1996)
Nielson v Cadle Park Pty Ltd [2009] FWA 1737 (17 December 2009)
O’Keefe v Sappho’s Party Inc [2009] SAEOT 50 (24 April 2009)

O’Meara v Stanley Works Pty Ltd [2006] AIRC 497 (11 August 2006)
Parental Leave Case (1990) 36 IR 1

Parental Leave Case [No 2] (1990) 39 IR 344
Parental Leave Casual Employees Decision (2001) 50 AILR 4-452
Parental Leave Test Case (2005) 143 IR 245
Parker v North Queensland Animal Refuge Inc [1998] QADT 4 (16 March 1998)
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union Australia (1998) 195
CLR 1
Pawel v Advanced Precast Pty Ltd (Unreported, Australian Industrial Relations
Commission – Full Bench, 12 May 2000, Print S5904)
Personal/Carer's Leave Test Case – Stage 2 – November 1995 (1995) 62 IR 48
Personal/Carer’s Leave Test Case – Stage 2 – March 1996 (1996) 66 IR 138
Pietraszek v Transpacific Industries Pty Ltd [2011] FWA 3698 (28 June 2011)
Police Federation of Australia – Victoria Police Branch v Victoria Police Force
[2009] AIRC 201 (2 February 2009)
Poniatowska v Hickinbotham [2009] FCA 680 (23 June 2009)
Proudfoot v ACT Board of Health [1992] HREOCA 6 (17 March 1992)
Purvis v New South Wales (2003) 217 CLR 92
Qantas Airways Ltd v Christie (1998) 193 CLR 280

Quarries Case, 1919 (1920-21) 4 SAIR 5
Ramos v Good Samaritan Industries [No 2] [2011] FMCA 341 (24 August 2011)
Re Application for Adoption of Provisions for Family Leave (South Australia) (1997)
41 AILR 11-064
Re Australian Workers’ Union, Queensland [1992] AILR 40
Re Clothing & Allied Trades Union of Australia (1985) 298 CAR 321
Re CP (1997) 21 Fam LR 486
Re Electrical Trades Union of Australia – Application to Vary Metal Industry Award
1971 (1979) 218 CAR 120
Re Foremen’s (TAA) Award (1964) 106 CAR 231
Re Hospitality Industry – Accommodation, Hotels, Resorts and Gaming Award 1998
(1998) 44 AILR 3-893
Re Metal, Engineering and Associated Industries Award 1998 – Part 1 (2002) 110
IR 247
Re Vehicle Industry Award (1969) 130 CAR 711
Re Vehicle Industry – Repair, Services and Retail - Award 1980 (1983) 5 IR 100
Re Vehicle Industry Repair, Services and Retail - Award 1983 (2001) 107 IR 71
Reddy v International Cargo Express [2004] NSWADT 218 (30 September 2004)
Reference by Minister of Labour and Industry Pursuant to sec 45 of Labour and
Industry Act re Maternity Leave (1980) 22(6) AILR 78
321
Referral by Minister for Labour for Flow-on of Federal Parental Leave Test Case
Decision to Private Sector Awards [1991] AILR 250(9)
Reid v World Travel Headquarters Pty Ltd [1996] IRCA 497 (4 October 1996)
Richold v Victoria [2010] VCAT 433 (14 April 2010)
Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd [2003] FMCA 160 (3 October
2003)
Robertson v South [2000] FCA 1402 (6 October 2000)
Robson v Geoffrey Button (Sales) Pty Limited [1984] EOC 92-125
Rocca Bros (South Australia) Pty Ltd v Shop, Distributive and Allied Employees
Association (Unreported, Australian Industrial Relations Commission, 17
October 2000, PR T2113)
Rural Workers' Union v Mildura Branch of the Australian Dried Fruits
Safety New Adjustment 1994 (Unreported, Australian Industrial Relations

Commission – Full Bench, 9 October 1995, M5600)
Said v Jokar Holdings Pty Ltd [2011] FWA 977 (15 February 2011)
Sapevski v Katies Fashions (Australia) Pty Ltd [1997] IRCA 219 (8 July 1997)
Schou v Victoria [2000] EOC 93-100
Schou v Victoria [2002] VCAT 375 (24 May 2002)
Secretary, Department of Foreign Affairs v Styles (1989) 23 FCR 251
Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371
Sheaves v AAPT Ltd [2006] FMCA 1380 (7 November 2006)
Smith v Frankl [1991] EOC 92-362
Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8 March 2002)
Speering v Ministry of Education (Unreported, Equal Opportunity Tribunal of
Western Australia, Deputy President O’Brien, Members Buick and Harris, 14
May 1993)
Spencer v Greater Murray Area Health Service [2005] NSWADT 138 (23 June
2005)
Standard Hours Inquiry, 1947 (1947) 59 CAR 581
State Housing Commission (Homewest) v Homewest [1998] WASCA 327 (7
December 1998)
Stephens v Australian Postal Corporation [2011] FMCA 448 (8 July 2011)
Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702 (21 May 2008)
Stokes v Serco Sodexho Defence Services Pty Ltd [2006] NSWADT 295 (10 October
2006)
Street v Queensland Bar Association (1989) 168 CLR 461
Supplementary Award Simplification Decision (1998) 44 AILR 3-893
Teen Ranch Pty Ltd v Brown (1995) 87 IR 308

Termination, Change and Redundancy Case (1984) 8 IR 34
Termination, Change and Redundancy Case – Supplementary Decision (1984) 9 IR
115
The Clerks (State) Award [1953] AR (NSW) 199
The Timber Merchants and Sawmillers Association v Australian Timber Workers
Union (1928-1929) 27 CAR 396
322
Thompson v Big Bert Pty Ltd [2007] FCA 1978 (14 December 2007)
Thomson v Orica Australia Pty Ltd [2002] FCA 939 (30 July 2002)
Tleyji v The TravelSpirit Group Pty Ltd [2005] NSWADT 294 (15 December 2005)
Toben v Jones (2003) 129 FCR 515
Vickers Ruwolt Pty Ltd v Federated Moulders’ (Metals) Union of Australia (1963)
105 CAR 989
Victoria v Commonwealth (1996) 138 ALR 129
Victoria v Schou (2001) 3 VR 655
Victoria v Schou [2001] VSC 321 (31 August 2001)
Victoria v Schou (2004) 8 VR 120
Victoria v Schou [2004] VSCA 71 (30 April 2004)
Victorian Chamber of Manufacturers v Clothing and Allied Trades Union of
Australia (1957) 87 CAR 327
Walsh v St Vincent de Paul Society Queensland [No 2] [2008] QADT 32 (12

December 2008)
Waters v Public Transport Corporation (1991) 173 CLR 349
Waterside Workers’ Federation of Australia v Commonwealth Steamship Owners’
Welsh v Metro Tasmania Pty Ltd (Unreported, Australian Industrial Relations
Commission, Leary DP, 8 November 2004, PR 953020)
Wenman v Derwent Valley Council (1997) 42 AILR 3-547
Williams v Macmahon Mining Services Pty Ltd [No 2] [2009] FMCA 763 (14
August 2009)
Williamson v Suncorp Metway Insurance Ltd [2008] QSC 244
Wilson v Qantas Airways Ltd [1985] EOC 92-141
Windler v McDermott [1996] NTADComm 1 (13 June 1996)
Women’s Living Wage (Cardboard Box Makers) Case (1919-1920) 3 SAIR 11
Working Hours Case July 2002 (2002) 114 IR 390
X v Commonwealth (1999) 200 CLR 177
AWARDS
Fair Work Australia, ‘Graphic Arts, Printing and Publishing Award’ (Modern Award
No MA000026, FWA, 1 January 2010)
Fair Work Australia, ‘Hospitality Industry (General) Award’ (Modern Award No
MA000009, FWA, 1 January 2010)
Fair Work Australia, ‘Manufacturing and Associated Industries and Occupations
Award’ (Modern Award No MA000010, FWA, 2010)
Fair Work Australia, ‘Plumbing and Fire Sprinklers Award’ (Modern Award No
Fair Work Australia, ‘Road Transport and Distribution Award’ (Modern Award No
323
Fair Work Australia, ‘Textile, Clothing, Footwear and Associated Industries Award’
(Modern Award No MA000017, FWA, 1 January 2010)
324
TABLE OF STATUTES
Commonwealth
Acts Interpretation Act 1901 (Cth)
Age Discrimination Act 2004 (Cth)
Australian Constitution
Australian Human Rights Commission Act 1986 (Cth)
Australian Human Rights Commission Regulations 1989 (Cth)
Commonwealth Conciliation and Arbitration Act 1920 (Cth)
Commonwealth Public Service Act 1922 (Cth)
Conciliation and Arbitration Act 1904 (Cth)
Disability Discrimination Act 1992 (Cth)
Fair Work Bill 2008 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Amendment (Better Work/Life Balance) Bill 2012 (Cth)
Family Law Act 1975 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth)
Human Rights and Equal Opportunity Legislation Amendment Act (No 2) 1992 (Cth)
Industrial Relations Act 1988 (Cth)
Industrial Relations Reform Act 1993 (Cth)
Marriage Act 1961 (Cth)
Marriage Amendment Act 2004 (Cth)
Maternity Leave (Commonwealth Employees) Act 1973 (Cth)
Paid Parental Leave Act 2010 (Cth)
Paid Parental Leave (Consequential Amendments) Act 2010 (Cth)
Paid Parental Leave (Reduction of Compliance Burden for Employers) Amendment
Bill 2010 (Cth)
Paid Parental Leave Rules 2010 (Cth)
Public Service Act 1922 (Cth)
Public Service Act (No 2) 1966 (Cth)
Racial Discrimination Act 1975 (Cth)
Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law
Reform) Act 2008 (Cth)
Same-Sex Relationships (Equal Treatment in Commonwealth Laws –
Superannuation) Act 2008 (Cth)
Sex and Age Discrimination Legislation Amendment Act 2011 (Cth)
Sex Discrimination Act 1984 (Cth)
Sex Discrimination Amendment Bill 1995 (Cth)
Sex Discrimination Amendment (Pregnancy and Work) Act 2003 (Cth)
Social Services Act (No 3) 1973 (Cth)
Widows' Pensions Act 1942 (Cth)
Workplace Relations Act 1996 (Cth)
Workplace Relations Amendment (Work Choices) Act 2005 (Cth)
Workplace Relations Regulations (Amendment) (No 48) 1997 (Cth)
325
Australian Capital Territory
Civil Partnerships Act 2008 (ACT)
Discrimination Act 1991 (ACT)
Discrimination Amendment Act 1999 (ACT)
Human Rights Act 2004 (ACT)
New South Wales

Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination (Amendment) Act 1994 (NSW)
Anti-Discrimination Amendment (Breastfeeding) Act 2007 (NSW)
Anti-Discrimination Amendment (Carers’ Responsibilities) Act 2000 (NSW)
De Facto Relationships Act 1984 (NSW)
Eight Hours (Amendment) Act 1920 (NSW)
Factories and Shops Act 1896 (NSW)
Forty-Four Hours Week Act 1925 (NSW)
Industrial Arbitration (Forty Hours Week) Amendment Act 1947 (NSW)
Industrial Relations Act 1996 (NSW)
Interpretation Act 1987 (NSW)
Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 (NSW)
Property (Relationships) Act 1984 (NSW)
Property (Relationships) Legislation Amendment Act 1999 (NSW)
Northern Territory
Anti-Discrimination Act 1992 (NT)
Queensland
Acts Interpretation Act 1954 (Qld)
Anti-Discrimination Act 1991 (Qld)
Discrimination Law Amendment Act 2002 (Qld)
Industrial Arbitration Act 1916 (Qld)
Industrial Arbitration Act Amendment Act 1924 (Qld)
Industrial Conciliation and Arbitration Acts Amendment Act 1947 (Qld)
Industrial Relations Act 1999 (Qld)
South Australia
Equal Opportunity Act 1984 (SA)
Equal Opportunity (Miscellaneous) Amendment Act 2009 (SA)
Factories Act 1894 (SA)
Fair Work Act 1994 (SA)
Family Relationships Act 1975 (SA)
Statutes Amendment (Domestic Partners) Act 2006 (SA)
Tasmania
Anti-Discrimination Act 1998 (Tas)
Industrial Relations Act 1984 (Tas)
Industrial Relations Amendment (Fair Conditions) Act 2005 (Tas)
Relationships Act 2003 (Tas)
326
Sex Discrimination Act 1994 (Tas)
Sex Discrimination Amendment Act 1998 (Tas)
Tasmanian State Service Regulations 1985 (Tas)
Victoria
Charter of Human Rights and Responsibilities Act 2006 (Vic)
Education and Training Reform Act 2006 (Vic)
Employee Relations Act 1992 (Vic)
Equal Opportunity Act 1977 (Vic)
Equal Opportunity Amendment (Family Responsibilities) Bill 2007 (Vic)
Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic)
Equal Opportunity (Breastfeeding) Act 2000 (Vic)
Factories and Shops Act 1885 (Vic)
Fair Work Act (Commonwealth Powers) 2009 (Vic)
Relationships Act 2008 (Vic)
Supervision of Workrooms and Factories Statute 1873 (Vic)
Victorian Civil and Administrative Tribunal Act 1988 (Vic)
Western Australia
Acts Amendment (Equality of Status) Act 2003 (WA)
Acts Amendment (Lesbian and Gay Law Reform) Act 2002 (WA)
Acts Interpretation Act 1984 (WA)
Equal Opportunity Act 1984 (WA)
Equal Opportunity Amendment Act 1992 (WA)
Equal Opportunity Amendment Act 2010 (WA)
Minimum Conditions of Employment Act 1993 (WA)
United Kingdom
Employment Act 2002 (UK)
Employment Rights Act 1996 (UK)
Equality Act 2010 (UK)
Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (UK)
Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations
2002 (UK)
Flexible Working (Procedural Requirements) Regulations 2002 (UK)
Work and Families Act 2006 (UK)
TREATIES AND CONVENTIONS
Convention concerning Discrimination in respect of Employment and Occupation,

opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June
1960)
327
Convention concerning Equal Opportunity and Equal Treatment for Men and
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EMPLOYMENT LAW INITIATIVES, WORK, CARE

Anna-Louise Margaret Chapman

Chapter 1: Introduction and Overview ……...………………………………..…..1

Chapter 2: Establishing the Foundations of the Thesis ………………………...45

Chapter 3: Industrial Law, Work and Care ………………………………..….109

Chapter 4: Anti-Discrimination Law, Work and Care ………………………..179

Chapter 5: Work and Care Across Law’s Disciplinary Boundaries …………223

Chapter 6: Conclusion …………………………………………………………..297

Table of Cases ……………………………………………………………………316

Have Australian legal initiatives designed to address collision between work

• ‘Work/Family, Australian Labour Law, and the Normative Worker’ in

I would also like to thank Andrew Stewart as my secondary supervisor. Andrew’s

INTRODUCTION AND OVERVIEW

1.2 Literature Review

1.2.1 Empirical Scholarship on Work and Care

Scholars have produced a large body of literature seeking to understand the

This model of collision conceptualized by Pocock remains a useful framework in

The Work/Life Collision is explicit in its focus on heterosexual households with

A further example of a lack of engagement with diversity is provided by AWALI,

1.2.2 Legal Scholarship on Work and Care

There is a large body of scholarship examining Australian legal initiatives designed

In what appears to be a reference to the issues of bereavement and emergency leave

Other work that is exceptional in examining diversity beyond gender is a paper

1.3 Aims, Significance and the Research Question

The research question addressed in the thesis is:

Have Australian legal initiatives designed to address collision between work

Paying attention to diversity is important for a number of reasons. Valuing diversity

1.4 Research Method

1.4.1 Industrial Law and Anti-Discrimination Law

1.4.2 Minimum Standards

A number of these minimum standards, and principally those relating to leave,

1.4.3 Legal Method

The thesis research question is addressed through a well-established legal method,

1.4.4 Exclusion of Volunteer Work

1.5 Related Critical Perspectives

A foundation of the thesis lies in the liberal understanding of the public/private

A final foundational strand of the thesis lies in an understanding of

1.6 Work and Care, or Work and Life?

1.7 Overview of the Thesis

1.7.1 Expansion in Work and Care Legal Mechanisms

1.7.2 A Move Towards Diversity

(i) The Harvester Model

As Berns has highlighted in Women Going Backwards, an often unacknowledged

This breadwinner/homemaker model became a core pillar of the Australian industrial

(ii) Worker-Mothers, Male Workers as Carers, and Same Sex Relationships

1.7.3 Inadequate Recognition of Diversity

(i) The Separation of Work and Care

(ii) Substantive Limitations

A range of substantive limitations written into the legal initiatives themselves

A second substantive limitation is the standard of reasonableness that provides the

A final substantive limitation warrants attention. It is that no direct enforcement

The third category of limitation on the effectiveness of the legal initiatives of

The earlier publications of the thesis reveal the explicitly heteronormative

The fourth stage of the thesis provides a conclusion and a proposal.

ESTABLISHING THE FOUNDATIONS OF THE THESIS

• ‘Challenging the Constitution of the (White and Straight) Family in Work

INDUSTRIAL LAW, WORK AND CARE

3.2 The Publications

• ‘Uncovering the Normative Family of Parental Leave: Harvester, Law and