By Rachel Morrison-Dayan
My pet hate is the claim made by the Australian Public Service (APS) to provide fair recruitment procedures and flexible working arrangements. It’s easy to be misled by this claim. I wonder whether this is the case for female lawyers, and indeed other professionals, with care responsibilities seeking to be recruited on a part-time basis.
When applying for a new legal position, one may turn to the APS as a sympathiser that understands how carers struggle to commit to a 37.5 hour work week because they are providing the unpaid social good of care to another person. Some APS advertisements for part-time and full-time legal workers may appear to promise such flexibility:
- ‘Candidates interested in full time and part time opportunities are encouraged to apply.’
- ‘We are a flexible employer and are open to discussing employment arrangements that might suit you best at this time.’
- ‘As an employer, we aim to be a diverse and inclusive workforce, and help our employees achieve a sense of balance between work life and personal life.’
Let’s not jump for joy too soon. For the question is, shiny advertisements aside, how many APS employers actually go on to grant part-time work arrangements to newly recruited lawyers who are mothers of a young child, carers of a disabled adult or an aged parent? My inner conspiracy theorist may be lurching forward as I say this but I hazard a guess whether many applicants are shafted from the recruitment process upon uttering the fatal words ‘part-time requested’.
I must confess, my thoughts linger as to why my own application with a public statutory authority (which noted my availability for part-time hours only) did not proceed to interview stage.
I was disappointed to discover that the Fair Work Act 2009 (Cth) (s 65) makes it clear that the legal right to request flexible working arrangements is only granted to current employees who have accumulated 12 months of service. What is more surprising is that this 12 months requisite does not seem to be quite in tune with the Sex Discrimination Act 1984 (Cth) (SDA).
The SDA (s 14) forbids discrimination on the basis of family (caring) responsibilities in determining who should be offered employment and the terms and conditions of employment that the employer affords the employee. Unfortunately, it is impossible to determine whether the SDA has been complied with because recruitment files are confidential.
The Australian Public Service Commission (APSC) does not allow non-employee applicants to challenge the recruitment process. Where is the ethical conduct and transparency in the area of APS recruitment, or is it a case of discrimination behind closed doors?
In my view, while tougher legislation is needed, at a minimum to ensure its compliance with the SDA, the APSC needs to create (and enforce) policies and procedures to ensure that female lawyers with caring responsibilities are recruited into the APS on a part-time basis. Procedures must also be developed which allow job applicants to raise allegations of discrimination and be met with an adequate response.
Perhaps the issue of discrimination of female lawyers and other professional women and also male carers with family responsibilities in the APS is a matter which the Australian Human Rights Commission would like to take an interest in investigating—sooner rather than later I hope.
Rachel is currently studying for a MPhil in Law (Migration) with Monash University. In 2016 she was awarded the Fragomen Prize for first in her year in the Masters of Law in Migration Law with ANU. She previously worked for a federal government department in Canberra, in its various forms, after legal experience abroad and acquiring a foreign legal qualification. Rachel likes to write creatively in her spare time and has been published in a number of magazines. Originally from Sydney and Newcastle in NSW, Rachel now lives in Melbourne with her two young children and kitten.