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Family-friendly Work Practices and The Law

32 Pages Posted: 17 Apr 2005  

Belinda Smith

The University of Sydney Law School

Joellen Riley

The University of Sydney Law School

Abstract

Finding an acceptable and workable balance between paid work and family commitments "has been, and will continue to be, one of the central tasks for employment law." For women, finding this balance is also fundamental to the quest for gender equality in work. In this paper, prompted by a number of recent cases, we examine how two alternative regulatory approaches in employment law can be - and have been - used in Australia to enforce or encourage work practices that are family-friendly and hence assist in achieving the two related goals of a more acceptable work-family balance and gender equality in work. On the one hand are public equality laws, and on the other private contract law.

The claimants in the cases we consider used these two approaches to make claims for particular family-friendly provisions, specifically unpaid maternity leave and the right to work part-time hours after maternity leave. These are only two particular benefits, but we consider these as examples of family-friendly practices more generally and attempt to draw implications for a wider range of practices. While Australian anti-discrimination legislation is primarily reactive and does not impose any positive duty on employers, by characterising practices that are contrary to work-family balance as discriminatory (on the basis of sex or pregnancy), workers in these cases had some success in compelling family-friendly practices. Further the cases show that human resource policies and manuals that express aspirations about commitments to work-life balance and family-friendly practices can be contractually enforceable in Australia.

Keywords: discrimination, work-family, work-life, family-friendly, employment, contract, gender equality, mutual trust and confidence

JEL Classification: J7, J71, J78, J79, J16, J2, K31, M51

Suggested Citation

Smith, Belinda and Riley, Joellen, Family-friendly Work Practices and The Law. Sydney Law Review, Vol 26, No. 3, pp 395-426, September 2004. Available at SSRN: https://ssrn.com/abstract=694941

Belinda M. Smith (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Joellen Riley

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia
+61 2 9351 0205 (Phone)
+61 2 9351 0200 (Fax)

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