End of discrimination against unwed employees?

By Harley Dennett

Wednesday May 18, 2016

If you thought the federal de facto relationship reforms of 2009 and the anti-discrimination amendments in 2013 ended all unfair hurdles for unmarried government employees, you’d be wrong.

Such discrimination is insidious, often because the public servants writing the policies and procedures are unaware of their responsibility to prevent discrimination on marital status, or how indirect discrimination can creep into processes.

However, some good news inside one government department coincided with the International Day Against Homophobia and Transphobia this week. The Department of Defence announced to its staff that it will act to fix differences in how it treats Australian Defence members who are in de facto relationships.

In coming months Defence will remove previous requirements for “truckloads of evidence” for interdependent relationship recognition, that unfairly discriminate against unmarried opposite-sex and same-sex couples in the ADF.

“We wish to be clear to those joining the ADF that our policies are aligned with the Australian community.”

Defence will also remove “interdependent” terminology from policies that ADF members complained reduced the dignity of their relationships.

Now, similar to other Commonwealth Departments, the process will align to those for married couples, requiring one piece of evidence for benefits eligibility.

The department says its new policy is designed to ensure compliance with legislation and demonstrating Defence’s commitment to fostering an inclusive workforce that delivers enhanced capability for Australia.

Acting Defence chief Vice Admiral Ray Griggs said the change reflects the Australian community’s expectations of its Defence Force:

“Defence is committed to policies that support a contemporary and diverse workforce. This policy change ensures equity in accessing conditions to those that serve in the ADF. We also wish to be clear to those joining the ADF that our policies are aligned with the Australian community,” Griggs told The Mandarin in a statement.

Keeping with the times

Defence’s longstanding hurdles for unmarried couples have been out of step with federal government policy for seven years, and illegal for nearly three years. During this period three federal watchdogs cast their gaze over the system.

The Australian National Audit Office noticed the discrimination and recommended its removal, while the Attorney General’s Department gave blanket advice to updates policies to prevent discrimination. However, the Australian Human Rights Commission missed it entirely in then-commissioner Tim Wilson’s Resilient Individuals report and then-commissioner Elizabeth Broderick’s extensive work with the department.

Irrespective of legal issues, government organisation leaders have been pushing for internal practices to mirror the expectations of the community they serve. This has perhaps been most notable and clear in Defence’s leadership team. It’s a recruitment and retention factor critical to the future viability of their organisation.

“Tim Wilson wrote to ADF chief Mark Binskin and department secretary Dennis Richardson about Defence’s non-compliance.”

Internal representative bodies, including Defence Families of Australia and DEFGLIS (this writer was a board member of both during this period), argued it was unfair for unmarried federal workers to have up to four different definitions of what makes a couple depending on their situation — with passports, income tax and Centrelink benefits all differing slightly in their criteria requirements.

Then, if they were Defence members, the most restrictive criteria of all with legitimacy of the relationship seemingly at the whim of commanding officers’ individual bias.

DEFGLIS described the obligations as “truckloads of evidence” for one group, versus a single sheet of paper for the other group and claimed same-sex Defence families were going to drastic and extraordinary lengths to prove their relationships ahead of distant postings and deployments.

Married couples needed supply only one supporting document. Neither it, nor the legitimacy of their relationship could be challenged by commander officers.

That disparity was allowed to continue largely due to internal resistance from a small number of key service leaders and policy officials blocking a Navy, Army, Air Force consensus to move forward with a proposed update that had languished for more than four years.

Frustrated ADF members sought outside support for their case and brought in the Australian Human Rights Commission. On his last day as human rights commissioner, Wilson wrote to Air Chief Marshal Mark Binskin and department secretary Dennis Richardson about the non-compliance with anti-discrimination laws. The Mandarin does not know if this played any role in the final decision. It was at this point tri-service consensus was reached on going with Centrelink’s approach.

No ADF member disadvantaged

Commencing July 1 this year, ADF’s married and unmarried couples will have the same requirements and process. The DEFGRAM on Tuesday announced the intent of the policy change, while the final details of implementation are still being finalised. Language previously referring to interdependent partners will now simply use the term “partners”.

Rebecca Skinner, the department’s deputy secretary for Defence People Group said decision makers will generally only need to see one piece of evidence of the relationship to make a decision, and that single piece of evidence can include relationship certificates issued by state and territory governments. Policy previously required four pieces of evidence, and it was unclear to commanders if 90 days of continuous cohabitation was required — that requirement has been explicitly dropped.

Defence will also have the ability to impose a change in member’s benefits if it becomes aware of a change in the relationship. This may include members providing incorrect information about their relationship. Members should notify their chain of command within 14 days of a change.

It also gives Defence the ability to look behind the paperwork to ensure the dependants of a member are not disadvantaged by the member’s failure to apply for benefits.

Other changes include benefits associated with child dependency, to cover children in an ADF member’s care by permanent court order, and so eligibility can be based on the family’s anticipated living arrangements — important for Defence families where children may move with the member or live with other relatives or carers for consistent schooling.

Skinner say further information will be provided to ADF members in the coming months. Defence People Group is coordinating with services and stakeholders on communicating the changes.

It is important that the information and fact sheets provided to our ADF members are clear and support the best implementation of this important policy,” Skinner told The Mandarin.

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