Review of the Fair Work Act 2009 (Cth)

Transcription

1 Review of the Fair Work Act 2009 (Cth) Prepared by JobWatch Inc s Legal Practice: Fiona Warner, Ian Scott and Gabrielle Marchetti With the assistance of Sue Reid, Volunteer Job Watch Inc Level 10, 21 Victoria Street, Melbourne 3000 Ph (03) Fax (03) admin@jobwatch.org.au Job Watch Inc. February

2 TABLE OF CONTENTS TABLE OF ABBREVIATIONS...6 INTRODUCTION...7 ABOUT JOBWATCH...8 GENERAL...13 QUESTION 4:...13 HAS THE FAIR WORK ACT FACILITATED FLEXIBLE WORKING ARRANGEMENTS TO ASSIST EMPLOYEES TO BALANCE THEIR WORK AND FAMILY RESPONSIBILITIES?...13 Recommendation 1:...14 That the right to request flexible working arrangements be extended to any employee who is a carer defined broadly in accordance with s4 of the Vic EO Act. In the alternative, we recommend that as a minimum, the right to request flexible working arrangements be extended to include parents and carers of primary school aged children...14 Recommendation 2:...15 That the right to request flexible working arrangements be extended to all employees with carer responsibilities, regardless of their length of continuous service. Alternatively we recommend that the right to request flexible working arrangements be available to employees who have completed the minimum employment period applicable in the unfair dismissal provisions of the FW Act. That is, 6 months for employees in businesses with 15 or over employees and 12 months for employees in smaller businesses...15 Recommendation 3:...19 That section 65 of the FW Act mirror the flexible work arrangements provisions in the Vic EO Act and/or the United Kingdom s Employment Act...19 Recommendation 4:...19 That what constitutes reasonable business grounds should be clearly defined or at least it should be made clear that the term reasonable business grounds is not related to the concept of managerial prerogative but rather necessitates an objective requirement which is directly related to an employer s business...19 Recommendation 5:...19 That the right to request flexible working arrangements be made a civil remedy provision so that it is enforceable...19 Recommendation 6:...20 That FWA should have the power to, upon request from an employee, review a decision of an employer to refuse a request for flexible working arrangements and make binding orders on an employer...20 Additionally, where a request for flexible working arrangements has been made but the employer fails to respond within the 21 day time frame in accordance with section 65(4), the request should be taken to have been accepted by the employer. If the employer wishes to dispute its ability to accommodate the request on reasonable business grounds, then it could apply to FWA for a determination...20 Recommendation 7:...20 That where a request for flexible working arrangements has been made but the employer fails to respond within the 21 day time frame in accordance with section 65(4), the request should be taken to have been accepted by the employer. If the employer wishes to dispute its ability to accommodate the request on reasonable business grounds, then it could apply to FWA for a determination...20 Recommendation 8:

3 That any parental leave (paid or unpaid) should count as service for the purpose of calculating the accrual of entitlements such as annual leave, personal leave and long service leave...21 Recommendation 9:...22 That employees be given an automatic right to the following:...22 an increase in simultaneous parental leave of up to eight weeks (as opposed to the current 3 weeks) at the time of the birth or adoption of a child; and the automatic right to return to work on a part-time basis after a period of parental leave until the child reaches school age...22 Recommendation 10:...22 That, prior to commencing employment, parental leave replacement employees must be informed that they are a temporary replacement for a person who is on parental leave and the date upon which the employment will end...22 Recommendation 11:...24 That section 67 of the NSW Act be adopted so that there be an onus on employers to notify pregnant employees of the notice and evidence requirements regarding parental leave. Alternatively, we recommend that section 74(7) of the FW Act be amended so as to better protect employees in circumstances where an employer knows that an employee intends to take parental leave but does not require or seek the employee s compliance with this section. In these circumstances, employers should be prevented from relying on an employee s noncompliance with the notice requirements to deny the employee the rights associated with parental leave...24 Recommendation 12:...25 That the right to apply for an extension of unpaid parental leave be made a civil remedy provision so that it is enforceable...25 SAFETY NET...26 QUESTION 12:...26 ARE EMPLOYEES RESPONSIBLE FOR THE CARE OF YOUNG CHILDREN USING THE RIGHT TO REQUEST PROVISIONS UNDER THE NATIONAL EMPLOYMENT STANDARDS TO NEGOTIATE FLEXIBLE WORKING ARRANGEMENTS OR REQUEST ADDITIONAL UNPAID PARENTAL LEAVE IN ORDER TO CARE FOR CHILDREN? IF NOT, WHY NOT?...26 GENERAL PROTECTIONS...27 QUESTION DO THE GENERAL PROTECTIONS PROVISIONS PROVIDE ADEQUATE PROTECTION OF EMPLOYEES WORKPLACE RIGHTS, INCLUDING THE RIGHT TO FREEDOM OF ASSOCIATION AND AGAINST WORKPLACE DISCRIMINATION?...27 Recommendation 13:...32 That the protected grounds of discrimination in the FW Act be expanded so as to include: breastfeeding; gender identity; lawful sexual activity; physical features; political belief or activity; sex; sexual orientation; irrelevant criminal record; homelessness; survivors of domestic and family violence and personal association with a person who is identified by reference to any of the above attributes. Discrimination on the basis of these attributes should include discrimination on the basis that a person has or is presumed to have had that attribute at any time or on the basis that a person has a characteristic that is generally imputed to a person with that attribute.32 Recommendation 14:...32 That the FW Act be amended to include a new sub section (2)(d) which clearly identifies the exceptions to the protections in section 351(1)...32 Recommendation 15:...33 That section 12(c) of the FW Act be amended to include common law contracts of employment...33 QUESTION

4 DO THE PROVISIONS PROVIDE EFFECTIVE RELIEF FOR PERSONS WHO HAVE BEEN DISCRIMINATED AGAINST, VICTIMISED OR OTHERWISE ADVERSELY AFFECTED AS A RESULT OF CONTRAVENTIONS OF THE GENERAL PROTECTIONS?...34 Recommendation 16:...34 That employers should be obliged to attend conferences where non-termination applications have been filed. FWA should be empowered to issue a fine or a penalty against a respondent for refusing to attend a scheduled conference...34 Recommendation 17:...35 That section 342 of the Fair Work Act be amended to include provisions to protect employees of sub-contractors from unlawful adverse action by principals...35 QUESTION SHOULD DISMISSED EMPLOYEES BE ABLE TO INVOKE THE GENERAL PROTECTION PROVISIONS TO CHALLENGE THEIR TERMINATION WITHOUT ANY TIME LIMIT ON MAKING AN APPLICATION? IF SO, WHY, AND IF NOT, WHY NOT?...36 Recommendation 18:...36 That the 14 day timeframe post FWA conference for filing general protection court applications be extended to 12 months...36 UNFAIR DISMISSAL...36 Recommendation 19:...38 That FWA be given the power to hold a workplace conciliation conference prior to a dismissal taking place...38 Recommendation 20:...38 That Division 5 of Part 3-2 be amended so as to introduce an obligation on FWA to issue a workplace conciliation certificate at the end of a workplace conciliation conference...38 Recommendation 21:...39 That the time limit for filing of unfair dismissal claims be extended to three months from when the dismissal takes effect...39 Recommendation 22:...41 That the minimum employment period should be reduced to three months for all employees (including regular and systematic casuals) regardless of the size of the employer...41 Recommendation 23:...42 That all forms of authorised leave, whether paid or unpaid, count as service for the purpose of calculating an employee s minimum employment period...42 Recommendation 24:...46 That for the purposes of unfair dismissal, the FW Act should be amended so as to provide express recognition of the fact that two separate entities in a labour hire scenario may be deemed to be joint employers in circumstances where they share or co-determine matters governing employment. This should extend to situations where labour hire workers are engaged as independent contractors on sham arrangements (where they really ought to be employees) and are placed with host employers who control their work...46 Recommendation 25:...47 That the FW Act should be amended so as to expressly recognise the possibility that in a labour hire scenario (where joint employment does not apply) a host employer will, in certain circumstances, be deemed to be the true employer for the purposes of unfair dismissal...47 Recommendation 26:

5 That unfair dismissal remedies should include compensation for injury to feelings and aggravated or exemplary compensation...47 Recommendation 27:...49 That FWA s standard terms of settlement should allow an applicant to obtain an order from FWA for the agreed settlement sum if the Respondent fails to comply with a settlement agreement...49 Recommendation 28:...50 That in addition to the definition of associated entities in S 50AAA of the Corporations Act 2001, franchise arrangements and arrangements involving a common company director should be recognised for the purposes of calculating the number of employees in a business...50 Recommendation 29:...50 That as a matter of course FWA should forward to the applicant the employer s Form F3 response once it is filed at FWA...50 INSTITUTIONAL FRAMEWORK...51 QUESTION 68:...51 IN COMPARISON TO THE PREVIOUS ARRANGEMENTS, DOES THE INCREASED EDUCATIVE ROLE FOR THE FWO HELP EMPLOYERS AND EMPLOYEES BETTER UNDERSTAND THEIR RIGHTS AND OBLIGATIONS UNDER THE FW ACT?...51 Recommendation 30:...52 That the FWO should increase its educative role to assist employees and employers to better understand their rights and obligations under the FW Act...52 QUESTION 69:...53 WHAT HAS BEEN THE IMPACT OF THE NEW ABILITY FOR THE FWO TO ACCEPT ENFORCEABLE UNDERTAKINGS AS AN ALTERNATIVE TO PROSECUTION?...53 CONCLUSION

6 Table of Abbreviations FWO FWA Office of Fair Work Ombudsman Fair Work Australia FW Act Fair Work Act (Cth) 2009 Vic EO Act Equal Opportunity Act (Vic) 2010 United Kingdom s Employment Act Employment Rights Act 1996 (United Kingdom) VCAT Victorian Civil and Administrative Tribunal VEOHRC NES The NSW Act Victorian Equal Opportunity and Human Rights Commission National Employment Standards Industrial Relations Act 1996 (NSW) 6

7 Introduction Job Watch Inc (JobWatch) is pleased to make a submission to the Review Panel about how we believe the Fair Work Act 2009 (Cth) (FW Act) is operating in practice. Overall, we are of the view that the FW Act is a vast improvement on the previous WorkChoices legislation, in that the FW Act has achieved a far greater balance between the interests of employees and employers and it provides a workplace relations system that is fairer to working Australians. However, we consider that many workers, particularly the most vulnerable, continue to be at risk of exploitation and the FW Act could be improved in a number of respects in order to provide a fairer and more equitable framework for Australian workplace relations. The focus of this submission is on the questions regarding General Protections and Unfair Dismissal, as set out in Attachment B of the Background Paper. We have also made some brief comments on the issues of flexible working arrangements, the educative role of the Fair Work Ombudsman (FWO) and on the use of enforceable undertakings as an alternative to prosecution. Our comments are made both from the perspective of the lawyers who routinely advise and represent clients in matters regulated by the FW Act and from the perspective of the callers to JobWatch s telephone information service, who are often unrepresented in their applications to Fair Work Australia (FWA). We have used case studies to highlight particular issues where we have considered it appropriate to do so. The case studies are those of actual but de-identified callers to JobWatch s telephone information service and/or legal practice. 7

8 About JobWatch JobWatch is an employment rights community legal centre which is committed to improving the lives of workers, particularly the most disadvantaged. It is an independent, not-for-profit organisation which is a member of the Federation of Community Legal Centres (Victoria). JobWatch was established in 1980 and is the only service of its type in Victoria. The centre is funded by the Victorian Government to do the following: Provide information and referral to Victorian workers via a free and confidential telephone information service; Engage in community legal education through a variety of publications and interactive seminars aimed at workers, students, lawyers, community groups and other organisations; Represent and advise disadvantaged workers; and Conduct law reform work with a view to promoting workplace justice and equity for all Victorian workers. Since 1999, we have maintained a comprehensive database of the callers who contact our telephone information service. To date we have collected over 148,300 records (we start a new record for each new caller or for callers who have rung us before but who are calling about a new matter. One record may canvass multiple workplace problems, including, for example, contract negotiation, discrimination, bullying and unfair dismissal). Our database allows us to report on our callers experiences, including what workplace problems they face and what remedies, if any, they may have available at any given time. 8

9 Summary of Recommendations: 1. That the right to request flexible working arrangements be extended to any employee who is a carer defined broadly in accordance with s4 of the Vic EO Act. In the alternative, we recommend that as a minimum, the right to request flexible working arrangements be extended to include parents and carers of primary school aged children. 2. That the right to request flexible working arrangements be extended to all employees with carer responsibilities, regardless of their length of continuous service. Alternatively we recommend that the right to request flexible working arrangements be available to employees who have completed the minimum employment period applicable in the unfair dismissal provisions of the FW Act. That is, 6 months for employees in businesses with 15 or over employees and 12 months for employees in smaller businesses. 3. That section 65 of the FW Act mirror the flexible work arrangements provisions in the Vic EO Act and/or the United Kingdom s Employment Act. 4. That what constitutes reasonable business grounds should be clearly defined or at least it should be made clear that the term reasonable business grounds is not related to the concept of managerial prerogative but rather necessitates an objective requirement which is directly related to an employer s business. 5. That the right to request flexible working arrangements be made a civil remedy provision so that it is enforceable. 6. That FWA should, upon request from an employee, have the power to review a decision of an employer to refuse a request for flexible working arrangements and make binding orders on an employer. 7. That where a request for flexible working arrangements has been made but the employer fails to respond within the 21 day time frame in accordance with section 65(4), the request should be taken to have been accepted by the employer. If the employer wishes to dispute its ability to accommodate the request on reasonable business grounds, then it could apply to FWA for a determination. 9

10 8. That any parental leave (paid or unpaid) should count as service for the purpose of calculating the accrual of entitlements such as annual leave, personal leave and long service leave. 9. That employees be given an automatic right to the following: an increase in simultaneous parental leave of up to eight weeks (as opposed to the current 3 weeks) at the time of the birth or adoption of a child; and the automatic right to return to work on a part-time basis after a period of parental leave until the child reaches school age. 10. That, prior to commencing employment, parental leave replacement employees must be informed that they are a temporary replacement for a person who is on parental leave and the date upon which the employment will end. 11. That section 67 of the NSW Act be adopted so that there be an onus on employers to notify pregnant employees of the notice and evidence requirements regarding parental leave. Alternatively, we recommend that section 74(7) of the FW Act be amended so as to better protect employees in circumstances where an employer knows that an employee intends to take parental leave but does not require or seek the employee s compliance with this section. In these circumstances, employers should be prevented from relying on an employee s non-compliance with the notice requirements to deny the employee the rights associated with parental leave. 12. That the right to apply for an extension of unpaid parental leave be made a civil remedy provision so that it is enforceable. 13. That the protected grounds of discrimination in the FW Act be expanded so as to include: breastfeeding; gender identity; lawful sexual activity; physical features; political belief or activity; sex; sexual orientation; irrelevant criminal record; homelessness; survivors of domestic and family violence and personal association with a person who is identified by reference to any of the above attributes. Discrimination on the basis of these attributes should include discrimination on the basis that a person has or is presumed to have had that attribute at any time or on the basis that a person has a characteristic that is generally imputed to a person with that attribute. 14. That the FW Act be amended to include a new sub section (2)(d) which clearly identifies the exceptions to the protections in section 351(1). 10

11 15. That section 12(c) of the FW Act be amended to include common law contracts of employment. 16. That employers should be obliged to attend conferences where non-termination applications have been filed. FWA should be empowered to issue a fine or a penalty against a respondent for refusing to attend a scheduled conference.\ 17. That section 342 of the Fair Work Act be amended to include provisions to protect employees of sub-contractors from unlawful adverse action by principals. 18. That the 14 day timeframe post FWA conference for filing general protection court applications be extended to 12 months. 19. That FWA be given the power to hold a workplace conciliation conference prior to a dismissal taking place. 20. That Division 5 of Part 3-2 be amended so as to introduce an obligation on FWA to issue a workplace conciliation certificate at the end of a workplace conciliation conference. 21. That the time limit for filing of unfair dismissal claims be extended to three months from when the dismissal takes effect. 22. That the minimum employment period should be reduced to three months for all employees (including regular and systematic casuals) regardless of the size of the employer. 23. That all forms of authorised leave, whether paid or unpaid, count as service for the purpose of calculating an employee s minimum employment period. 24. That for the purposes of unfair dismissal, the FW Act should be amended so as to provide express recognition of the fact that two separate entities in a labour hire scenario may be deemed to be joint employers in circumstances where they share or co-determine matters governing employment. This should extend to situations where labour hire workers are engaged as independent contractors on sham arrangements (where they really ought to be employees) and are placed with host employers who control their work. 25. That the FW Act should be amended so as to expressly recognise the possibility that in a labour hire scenario (where joint employment does not apply) a host employer 11

12 will, in certain circumstances, be deemed to be the true employer for the purposes of unfair dismissal. 26. That unfair dismissal remedies should include compensation for injury to feelings and aggravated or exemplary compensation. 27. That FWA s standard terms of settlement should allow an applicant to obtain an order from FWA for the agreed settlement sum if the Respondent fails to comply with a settlement agreement. 29. That in addition to the definition of associated entities in S 50AAA of the Corporations Act 2001, franchise arrangements and arrangements involving a common company director should be recognised for the purposes of calculating the number of employees in a business. 30. That as a matter of course FWA should forward to the applicant the employer s Form F3 response once it is filed at FWA. 31. That the FWO should increase its educative role to assist employees and employers to better understand their rights and obligations under the FW Act. 12

13 General Question 4: Has the Fair Work Act facilitated flexible working arrangements to assist employees to balance their work and family responsibilities? Requests for flexible working arrangements 1 JobWatch congratulates the federal Government for including in the NES a right for certain employees to request flexible working arrangements where they are a parent of, or have a responsibility for, the care of a child under school age or a child under 18 with a disability. We believe that the FW Act has facilitated flexible working arrangements to assist employees to better balance their work and family responsibilities. However, JobWatch has the following concerns regarding section 65 of the FW Act: (a) The entitlement is too limited as it only applies where the employee is a parent or has responsibility for the care of a child (under school age or under the age of 18 with a disability). Employees who are carers of children of primary or secondary school age or of adults who depend on them for care (e.g. spouses, partners, parents, siblings or relatives) are not given the same right to request flexible working arrangements even though they often require flexibility in the workplace in the same way that parents of young children do. We submit that the right to request flexible working arrangements should be extended to all carers and that the term carer should be defined as a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis, as per the definition of carer in the Vic EO Act. 1 This part of JobWatch s submission is partly based on JobWatch s Submission (and case studies) to the Senate Standing Committee on Education, Employment and Workplace Relations Inquiry into the Fair Work Act

14 Case study employee requires flexible work arrangements to care for mother Lucy has worked on a permanent full time basis for an education provider for over 6 years. Recently her mother was diagnosed with a terminal illness and now requires full time care. She cannot afford to pay for a private carer so Lucy has been trying to negotiate flexible working arrangements so she can help care for her mother. Her employer told her that if she wanted flexibility, she would have to take a demotion and he then suggested that she resign. Case study employee requires flexible work arrangements to care for wife and primary school aged children John has worked for the same accounting firm for over 7 years. It is a very large business employing hundreds of people. Over the last year his wife developed cancer. She then worsened and developed a brain tumour as well. He had to take a couple of months of unpaid leave over the year to care for her and his primary school aged children. He provided medical certificates and other documentation to his employer but he was nevertheless dismissed. Recommendation 1: That the right to request flexible working arrangements be extended to any employee who is a carer defined broadly in accordance with s4 of the Vic EO Act. In the alternative, we recommend that as a minimum, the right to request flexible working arrangements be extended to include parents and carers of primary school aged children. (b) The right to request flexible working arrangements under section 65 of the FW Act only applies to employees with a minimum of 12 months continuous service. Therefore employees with less than 12 months continuous service are not entitled to have their parental (or carer) responsibilities reasonably accommodated. 14

15 Case study flexible work arrangements for employee with less than 12 month service Judy was employed on a permanent full time basis as a manager in a retail outlet. A couple of months after she commenced employment, she asked her employer for flexible working arrangements to accommodate her family responsibilities. Her employer initially agreed however shortly afterwards, he terminated her employment. The reason given was that he had sold the business however Judy discovered that he had simply replaced her with a new manager who was prepared to work full time hours. Judy was not paid her final wages, notice of termination or accrued annual leave. Recommendation 2: That the right to request flexible working arrangements be extended to all employees with carer responsibilities, regardless of their length of continuous service. Alternatively we recommend that the right to request flexible working arrangements be available to employees who have completed the minimum employment period applicable in the unfair dismissal provisions of the FW Act. That is, 6 months for employees in businesses with 15 or over employees and 12 months for employees in smaller businesses. (c) The ability of an employer to refuse a request on reasonable business grounds (without any definitive guidance in the FW Act as to what constitutes reasonable business grounds ) and the lack of enforcement rights (currently s65 is not a civil remedy provision) means that, in practice, an employer need not genuinely consider a request for flexible working arrangements or can make a decision based on unreasonable grounds. Combined, these issues effectively render the right to request flexible working arrangements meaningless. 15

16 Case study - refusal of flexible work arrangements Katie works on a casual full time basis as a console operator at a service station. She is a single parent and her child is in day care when she is at work. Katie s child care provider is closed over the Christmas period and as a result she is not able to work because she has to look after her son. The employer has told Katie that if she isn t available on a full-time basis over the Christmas period she is of no use to him and she won t be getting offered shifts in the future. In order to strengthen the FW Act s provisions to do with flexible working arrangements, we recommend that the Vic EO Acts and the United Kingdom s Employment Act be used as models. Vic EO Act Sections 17 and 19 of the Vic EO Act provide good example of how a legislative obligation on employers to reasonably accommodate the parental or carer responsibilities of employees (and those of people whom are offered employment). Section 19 of the Vic EO Act states as follows: 19 Employer must accommodate employee's responsibilities as parent or carer (1) An employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer. Example: An employer may be able to accommodate an employee's responsibilities as a parent or carer by allowing the employee to work from home on a Wednesday morning or have a later start time on a Wednesday or, if the employee works on a part-time basis, by rescheduling a regular staff meeting so that the employee can attend. (2) In determining whether an employer unreasonably refuses to accommodate the responsibilities that an employee has as a parent or carer, all relevant facts and circumstances must be considered, 16

17 including:- (a) (b) (c) (d) (e) (f) the employee's circumstances, including the nature of his or her responsibilities as a parent or carer; and the nature of the employee's role; and the nature of the arrangements required to accommodate those responsibilities; and the financial circumstances of the employer; and the size and nature of the workplace and the employer's business; and the effect on the workplace and the employer's business of accommodating those responsibilities, including:- (i) (ii) the financial impact of doing so; the number of persons who would benefit from or be disadvantaged by doing so; (iii) the impact on efficiency and productivity and, if applicable, on customer service of doing so; and (g) (h) the consequences for the employer of making such accommodation; and the consequences for the employee of not making such accommodation. Under the Vic EO Act, a complaint in relation to an employer s refusal to accommodate parental or carer responsibilities can be made to the VEOHRC (who can hold a voluntary conciliation) and/or an application can be made to the VCAT for determination of the matter. JobWatch acknowledges that section 66 of the FW Act states that State and Territory laws are not excluded by the application of the FW Act but submits that section 65 should mirror this legislation which provides an actionable right to the employee (not just a right to request) and places the onus on the employer to accommodate the request. 17

18 The United Kingdom s Employment Act JobWatch believes that the United Kingdom s Employment Act also provides a useful model for the right to request flexible working arrangements, which if implemented would provide better protection for employees with family and carers responsibilities. Section 80F of the Act provides a statutory right to request a change to certain terms and conditions of employment for any employee with 26 weeks continuous service who: a) has/expects to have parental responsibilities of a child under 17; b) has/expects to have parental responsibilities of a disabled child under 18 (who receives a Disability Living Allowance); c) is the parent/guardian/special guardian/foster parent/private foster carer of the child or a person who has been granted a residence order in respect of the child or is the spouse, partner or civil partner of the parent/guardian/special guardian/foster parent/private foster carer and are applying to care for the child; and d) is a carer who cares, or expects to be caring, for an adult who is a spouse, partner, civil partner or relative; or although not a relation, lives at the same address. Such a request can be made every 12 months and an employer has a legal obligation to consider the request, which can only be refused on legitimate business grounds. 2 An employee can appeal the employer s decision to refuse a request (within 14 days) and, if the matter remains unresolved, can use the Advisory, Conciliation and Arbitration Service (ACAS), a voluntary arbitration scheme for the resolution of flexible working disputes. Where an employee believes the employer s decision to reject their request was based on incorrect facts, didn t follow the correct procedure or didn t provide an adequate explanation of their refusal, s/he can make a complaint to the Employment Tribunal. 2 Who can request flexible working? UK Government, p. 2 18

19 Recommendation 3: That section 65 of the FW Act mirror the flexible work arrangements provisions in the Vic EO Act and/or the United Kingdom s Employment Act. Recommendation 4: That what constitutes reasonable business grounds should be clearly defined or at least it should be made clear that the term reasonable business grounds is not related to the concept of managerial prerogative but rather necessitates an objective requirement which is directly related to an employer s business. (d) As stated above, it is JobWatch s understanding that the FWO does not formally investigate an alleged contravention of section 65 of the FW Act, except possibly where an employer has not provided a written response within 21 days. However the reality is that even if a contravention letter or compliance notice is issued, the FWO is not able to escalate the matter further where an employer does not respond or take steps to comply with the FW Act. The employee s right to request flexible working arrangements under section 65 of the FW Act is not a civil remedy provision under Part 4(1), meaning that it is not enforceable. This essentially means that the protection has no effect because an individual or the FWO is not able to commence proceedings in relation to a contravention or seek a civil penalty against the employer. Recommendation 5: That the right to request flexible working arrangements be made a civil remedy provision so that it is enforceable. In the alternative, where a request for flexible working arrangements is rejected by an employer, there should at least be a right to have the decision reviewed by FWA. FWA should also have the power to make binding orders where a request for flexible working arrangements has been denied for reasons which do not amount to reasonable business grounds. 19

20 Recommendation 6: That FWA should have the power to, upon request from an employee, review a decision of an employer to refuse a request for flexible working arrangements and make binding orders on an employer. Additionally, where a request for flexible working arrangements has been made but the employer fails to respond within the 21 day time frame in accordance with section 65(4), the request should be taken to have been accepted by the employer. If the employer wishes to dispute its ability to accommodate the request on reasonable business grounds, then it could apply to FWA for a determination. Case study unreasonable refusal of flexible work arrangements Jon has been employed as a bus driver for over 6 years on a permanent full time basis. When he originally went for the job he was told that he would be required to work every second weekend. Jon s employer is now claiming he has to work every weekend. He can t do this as he has custody of his children every second weekend. Jon has asked the employer to explain why the change is required and he has confirmed that he still needs every second weekend off but he has not received any response from the employer. Recommendation 7: That where a request for flexible working arrangements has been made but the employer fails to respond within the 21 day time frame in accordance with section 65(4), the request should be taken to have been accepted by the employer. If the employer wishes to dispute its ability to accommodate the request on reasonable business grounds, then it could apply to FWA for a determination. 20

21 Parental leave and related entitlements JobWatch congratulates the Government on its move to, subject to certain requirements, provide parents with the right to request a further 12 months unpaid parental leave upon expiry of the first 12 month period. We also welcome the legislative obligations to consult about workplace change during parental leave. JobWatch submits that any such period of parental leave (paid or unpaid) should count as service so that employees retain their normal employment rights and benefits throughout their parental leave. In this respect, JobWatch believes that the United Kingdom s Employment Act provides a useful model. Under section 77 of the Act, an employee who is absent on parental leave is entitled to the benefit of the terms and conditions of employment which would have applied if the employee had not been absent, excluding remuneration. This includes matters connected with the employee s employment whether or not they arise under an employment contract. This allows employees to continue to build up their entitlements throughout parental leave. Recommendation 8: That any parental leave (paid or unpaid) should count as service for the purpose of calculating the accrual of entitlements such as annual leave, personal leave and long service leave. However, in the absence of such provision being made, we would at least call for the inclusion in Division 5 of the recently recognised rights of request, as stipulated by the Full Bench of the Industrial Relations Commission in the Family Provisions Test Case 2005, as automatic rights with limited exceptions. 21

22 Recommendation 9: That employees be given an automatic right to the following: an increase in simultaneous parental leave of up to eight weeks (as opposed to the current 3 weeks) at the time of the birth or adoption of a child; and the automatic right to return to work on a part-time basis after a period of parental leave until the child reaches school age. Employers should not be permitted to refuse requests for part-time work after parental leave unless they have reasonable and objective grounds for the refusal such as the considerations set out in the Vic EO Act (see above). Additionally, an employer should be obligated to inform any parental leave replacement employee that they are being employed on a temporary basis as a parental leave replacement employee. Currently, there is nothing in the FW Act about replacement employees although there was such a requirement under the WR Act. Recommendation 10: That, prior to commencing employment, parental leave replacement employees must be informed that they are a temporary replacement for a person who is on parental leave and the date upon which the employment will end. In relation to Subdivision B parental leave (and specifically to section 76(4) of the FW Act, which gives an employer the right to refuse a request for an extension of parental leave on reasonable business grounds ) JobWatch has the same concerns as outlined above. That is we are concerned that: a. there is no recourse to FWA/the FWO by an employee where the request is refused; b. an employer is not obligated to genuinely consider such a request; 22

23 c. reasonable business grounds is not defined in relation to an employer refusing a request for an extension of unpaid parental leave (under section 76(4)) 3 ; and d. an employer may base its decision on subjective reasoning. JobWatch is concerned that the notice requirements for parental leave under the NES are still too onerous on the employee. JobWatch submits that the notice requirements for parental leave should mirror or incorporate Section 67 of the NSW Act which states the following: 67 Employer s obligations Information to employees. On becoming aware that an employee (or an employee s spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of: (i) (ii) the employee s entitlements to parental leave under this Part, and the employee s obligations to notify the employer of any matter under this Part. An employer cannot rely on an employee s failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee. This change would place the onus on the employer to make sure an employee is at least aware of the notice and evidence requirements regarding parental leave. Case study problem of onus being on employee Susan had a verbal agreement with her employer regarding maternity leave. However, in her fourth month of leave she was contacted by her employer stating that the leave had not been finalised in writing and therefore she is not actually on maternity leave. The employer said that because of this she had abandoned her employment. 3 The FWO s fact sheet on Parental leave and related entitlements and the National Employment Standards provides some guidance, stating that relevant factors may include the effect on the workplace, inability to manage the workload among existing staff and inability to recruit a replacement employee. However there is no definitive list of indicia in the FW Act. 23

24 Case studies informal maternity leave Meredith has been employed on a full time basis as a Manager at a small florist for over 6 years; she is a friend of the owner of the business. Employment arrangements at the workplace have always been fairly informal for instance there are no written contracts and everything is agreed to verbally. Meredith is currently on maternity leave and before she went on leave she informed the owner that she would like to return to work on a part-time basis when her leave expired. She is due to return from maternity leave in a couple of months time, when she contacted her employer, she was informed that there may not be any work for her at all (an apprentice was hired in a full-time role and someone was employed on a casual basis when Meredith went on maternity leave). Kathryn worked for a couple years as a casual full-time kitchen hand before she went on maternity leave. Upon commencing maternity leave she was verbally promised her job back and while on leave she contacted her employer about the date she wanted to return to work. Kathryn was told by her employer that there were no vacancies and she would have to wait until there was a vacancy. She is aware that the employer has taken on 2 new staff since she started her leave. Recommendation 11: That section 67 of the NSW Act be adopted so that there be an onus on employers to notify pregnant employees of the notice and evidence requirements regarding parental leave. Alternatively, we recommend that section 74(7) of the FW Act be amended so as to better protect employees in circumstances where an employer knows that an employee intends to take parental leave but does not require or seek the employee s compliance with this section. In these circumstances, employers should be prevented from relying on an employee s non-compliance with the notice requirements to deny the employee the rights associated with parental leave. Moreover, it is JobWatch s experience that a large proportion of employees on parental leave have only entered into informal parental leave arrangements with their employer, 24

25 especially where the employer s business may be characterised as a small to medium enterprise. Anecdotal evidence suggests that this figure would be well in excess of 50% of employees on parental leave that call JobWatch. The current wording of section 74(7) allows many employers to simply refuse to allow employees who are on authorised but informal parental leave to return to their pre-parental leave position which effectively undermines and weakens the whole of the parental leave entitlements division of the FW Act. This is especially so where there is no obligation on the employer to inform a parental leave replacement employee that they are only employed on a temporary basis. We view as problematic the fact that the employee s right to apply for an extension of unpaid parental leave under section 76 of the FW Act is not a civil remedy provision under Part 4(1), meaning that this section is not enforceable. This essentially means that the protection has no effect because an individual or the FWO is not able to commence proceedings in relation to a contravention or seek a civil penalty against the employer. Further, as stated above in relation to requests for flexible work arrangements, it is JobWatch s understanding that the FWO does not formally investigate an alleged contravention of this section. The reality is that, even if a contravention letter or compliance notice is issued, the FWO cannot take any further action if the employer does not respond or take steps to comply with the FW Act. Recommendation 12: That the right to apply for an extension of unpaid parental leave be made a civil remedy provision so that it is enforceable. 25

26 Safety Net Question 12: Are employees responsible for the care of young children using the right to request provisions under the National Employment Standards to negotiate flexible working arrangements or request additional unpaid parental leave in order to care for children? If not, why not? Flexible working arrangements According to JobWatch s records, our telephone information service has not received any calls from employees who have expressly used the NES to request flexible working arrangements to accommodate their parental responsibilities (under section 65 of the FW Act). The likely reason for this is that employees are often not aware of this right until they call our service or a similar service (such as the Fair Work Infoline). JobWatch regularly receives queries from employees who are trying to negotiate flexible working arrangements to accommodate their family or carer responsibilities and would like to know their legal options. These callers are fully informed by JobWatch about their rights and entitlements across all jurisdictions at Commonwealth and State level (e.g. the right to request flexible working arrangements under both the FW Act and the Vic EO Act). However, the practical reality is that in this respect, the Vic EO Act is utilised more frequently than the FW Act. As discussed above, this may be due to several factors including that the Vic EO Act has stronger coverage and protection for employees with parental or carer responsibilities, that a complaint/application regarding this section can be made to the VEOHRC or the VCAT and that it is an enforceable, actionable right (as opposed to the equivalent section under the FW Act). The experience of JobWatch s legal practice matches that of our telephone information line. JobWatch s lawyers often use the Vic EO Act to assist employees to negotiate flexible working arrangements to accommodate their family or carers responsibilities. The relevant provisions under the FWA Act are often cited or referred to (for example in correspondence 26

27 to employers), however as stated above, the right is not actionable or enforceable so it is of limited assistance. Additional unpaid parental leave According to JobWatch s records, JobWatch has only received a small number of calls from employees who have expressly used or plan to use the right to request an extension of unpaid parental leave (under section 76 of the FW Act). This may be due to the fact that employees are not aware that this right exists or they do not have the option of extending their parental leave due to financial reasons. The more common scenario for callers to JobWatch involves employees on unpaid parental leave who are attempting to vary the duration of their parental leave (e.g. to return to work early or later but within the 12 month time frame) or attempting to negotiate part-time work arrangements for their return to work (as discussed above). General Protections Question 37 Do the general protections provisions provide adequate protection of employees workplace rights, including the right to freedom of association and against workplace discrimination? Additional discrimination grounds The FW Act currently recognises the following grounds of discrimination: race colour sex sexual preference age physical or mental disability marital status family or carer s responsibilities pregnancy religion 27

28 political opinion national extraction or social origin. JobWatch submits that these grounds should be expanded so as to be consistent with the most far-reaching existing State and Federal anti-discrimination laws and the proposed consolidated Federal anti-discrimination legislation. For example, Part 2 of the Vic EO Act includes these additional attributes: breastfeeding; gender identity; lawful sexual activity; physical features; political belief or activity; sex; sexual orientation; personal association (whether as a relative or otherwise) with a person who is identified by reference to any protected attributes. In addition to the attributes that are currently protected by the Vic EO Act, we recommend that the attributes of irrelevant criminal record, homelessness and survivors of domestic violence be recognised by the General Protections Provisions of the FW Act. Irrelevant criminal record Case study irrelevant criminal record Dimitri has a history of drink driving and he has even spent a short time in jail because of it. However, he has never been charged or found guilty of a dishonesty offence. He secured employment as a cleaner in a large suburban shopping complex. After working for three weeks, his employer found out about his criminal record and terminated his employment. He was told his services were no longer required because of his record. Dimitri was devastated, having competently run his own cleaning business in the past. Inclusion of irrelevant criminal record as a protected ground would be in line with the Australian Human Rights Commission Act 1986 (Cth), which makes it unlawful to discriminate in employment on the basis of criminal record. There is an important reason for including this ground in the FW Act and not merely relying on the provisions of the AHRC Act. That is, currently, if a person complains under the AHRC Act, s/he can only go as far as conciliating the matter through the Australian Human Rights Commission. Beyond that, there are no enforcement mechanisms. If this ground is included in the FW Act, an employee whose employment has been terminated for a discriminatory reason will be able to file an 28

29 application with FWA and, if necessary, proceed to the Federal Magistrates Court or the Federal Court of Australia for relief. Homelessness In a recent submission on the proposed consolidation of Federal anti-discrimination legislation JobWatch highlighted the need to provide protection for people experiencing discrimination on the basis of homelessness 4. This was to acknowledge the high levels of unemployment amongst people experiencing homelessness due to the difficulty that is often experienced in finding and maintaining employment. Securing employment is difficult if a person is unable to provide a fixed address or satisfy identity requirements as a result of discrimination on the basis of their homelessness. In taking this position, Job Watch is endorsing the position paper of the PILCH Homeless Persons Legal Clinic entitled Discrimination on the Basis of Homelessness 5. Inclusion of homelessness as a protected attribute in the FW Act would align the legislation with the international human rights instruments to which Australia is a signatory: the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). 6 Case studies imputed homelessness Anne has completed a university degree and has a successful career in HR. She was offered a position in the Victorian Public Service, subject to a police check. She worked for three months when she was told that her police check had been unsatisfactory because it disclosed two court appearances she had made in her teens when she was homeless and had stolen food. Despite the fact that no conviction was recorded, they still appeared on her check. Anne s employment was terminated. John works as a personal care assistant. About six month before he called Jobwatch, his manager claims to have received an anonymous complaint that his 4 Consolidation of Commonwealth Discrimination Law, JobWatch, January Available at PILCH website: 6 Consolidation of Commonwealth Discrimination Law, JobWatch, January