Two recent decisions of the Fair Work Commission demonstrate the need for significant changes to employment laws in Australia. While in both decisions the tribunal made improvements to employment conditions for working people, it was prevented by the existing rules from providing more than marginal gains. In March 2018 the Commission rejected a union movement claim to provide for a right for parents and carers to access family-friendly working hours.
As working people (especially women) have to juggle work and caring responsibilities, the Australian Council of Trade Unions (ACTU) sought the right for an employee to work part-time if their existing position is full-time or on a reduced hours basis if their existing position is part-time or casual.
The claim also included a right for the employee to revert to their previous hours when their child reaches school age and for carers to do the same after two years on family-friendly hours.
While the Commission accepted most of the union arguments including that there is a significant unmet employee need for flexible working arrangements, the tribunal rejected the claim for a right to obtain flexible working arrangements on the basis that the claim provided no means for employers to refuse requests.
Instead the Commission decided that awards, which provide minimum wages and conditions for employees (including nurses) across Australia, should be amended to provide parents and carers only with a right to request flexible working arrangements.
An employer would be able to refuse requests on ‘reasonable business grounds’. The decision provides marginal improvements on an existing right to request under the Fair Work Act. Before refusing any request, an employer will have to confer with the employee and genuinely try to reach agreement regarding a request, and must provide more detailed written reasons if a request is refused.
One of the biggest problems regarding the existing legislative right to request is that an employee cannot challenge an employer refusal to grant a request. While the tribunal accepted that the Act lacks an effective enforcement or appeal mechanism, it was unable to override the Act, which prevents it from deciding whether a particular refusal based on ‘business grounds’ is reasonable. Thus the right to request remains largely unenforceable.
The other recent decision by the Fair Work Commission related to family and domestic leave provisions. In July 2017 the tribunal rejected a union movement claim for 10 days paid family and domestic violence leave to be included in all awards, however decided to create an entitlement to unpaid leave instead.
In March 2018, the tribunal made a further decision regarding the details of this entitlement. Awards will be varied to include a new entitlement to five days unpaid leave for employees experiencing family and domestic violence.
Regular casual and part-time employees will also have access to the full five day entitlement, ie. the entitlement is not pro-rated. The five days will be available in full on the commencement of employment and the start of each year thereafter, however the entitlement does not accumulate.
The leave will be available in the event that the employee needs to do something to deal with the impact of family and domestic violence and it is impractical for them to do it outside their ordinary hours of work. This is expected to include such things as the need to attend court appointments or police services, meet with lawyers, arrange alternative housing and make care arrangements for a dependant. The tribunal will review the operation of the entitlement in 2021 including the issue of whether paid leave should be introduced. On the same day as the tribunal decision, the federal government announced that it would legislate to include five days unpaid leave in the Fair Work Act, which would extend the benefit of the decision to more employees.
While the decision (and the proposed legislation) is a step in the right direction, the difficulty lies in the fact that the entitlement is unpaid and therefore does not address the issue that employees will need to forego pay to access the entitlement.
Given the pervasiveness of domestic violence and that two thirds of the 400,000 plus people (mostly women) who experience domestic violence each year are workers, it is time that the rules were changed to introduce paid leave as has occurred in Queensland, which introduced 10 days paid leave in 2016. The federal Greens also introduced a Bill for 10 days paid leave in February 2018, which the federal ALP has previously stated it would support. At the time of writing, the Coalition government has made no commitment to supporting paid leave.