Additional comments – Mr Bandt
I welcome the Committee’s majority support for the principle
behind my Bill, namely that our workplace laws should help people achieve a
better work/life balance.
I also welcome the support from most groups who made submissions
to the Inquiry for broadening and strengthening the right to request flexible
However, I make two points.
First, I acknowledge there is not a consensus regarding the
best way to implement some aspects of the proposed changes. In particular,
there is an issue as to whether it is appropriate to move ‘flexible working
arrangements’ outside the NES framework, as proposed in the Bill. In this
regard, I do not agree with the Committee’s conclusions regarding this matter
in paragraphs 1.42 and 1.57 of the report, although I accept that there is an
issue that needs to be resolved.
It is important to understand the rationale behind this
element of the Bill.
After a series of attacks from both Labor and Coalition
governments, awards now contain very few protections. Enterprise agreements are
now the place where many long fought for and hard-won protections are
contained. If enterprise agreements are not given primacy then there is a
possibility that flexible working arrangements may (inadvertently) provide a
way to ‘contract out’ of such an agreement.
The Bill as drafted therefore reflects the fact that in the
current legislative environment, enterprise bargaining and enterprise
agreements may be the primary mechanisms for providing better industrial
outcomes, including around work/life balance.
By inserting ‘flexible working arrangements' into the list
of permitted bargaining matters, as proposed in the Bill, this will encourage
new agreements to include such issues.
Where an enterprise agreement does include such matters,
they would take precedence. This is important because there may be some areas
where, for example, it is not appropriate to have someone working for a very
short period of hours. It is probably best left to the enterprise to determine
It may not be appropriate to have highly skilled emergency
services professionals working two or three hours a week, for example. This
situation could have the potential to undermine the important level of skills,
training and teamwork required to perform many of these jobs. I note the
submission from the United Firefighters Union of Australia to this effect.
Of course, such protections must not be used as a barrier to
women participating in such highly regulated workplaces. There is force in the
submissions to the Inquiry that requiring full-time work in highly regulated
workplaces has been a barrier to women’s participation. Indeed, that is one of
the key points of this Bill: to make it easier for those with caring
responsibilities, who are still most often women, to enter or remain in the
A balance needs to be struck. In my view, it remains
preferable that such balances be struck by the employees and employers
concerned, taking into account the specific nature of the industries concerned.
This will ultimately lead to better work/life outcomes. Against this must be
weighed the demonstrated strong preference for the National Employment
Standards remaining a clearly understood set of universal minimum conditions.
One solution, not explored at length during this inquiry,
may be to allow enterprise agreements to take precedence but require them to
meet a ‘work/life balance’ test so that all people are able to get and keep
jobs at that enterprise and so that any barriers to participation are removed.
Given the Recommendation of the Committee to consider the
Bill after the Independent Review Report and the Government’s response, I
consider it is appropriate to also revisit this issue at that time.
Secondly, paragraphs 1.44 to 1.50 and 1.58 deal with whether
requests for better work/life balance should be enforceable. There were some
very strong submissions to the Committee that if requests are not enforceable
or justiciable, the right may be of little value. I am pleased that the
Committee has not decided to keep the ‘unenforceable’ status quo and has
instead left the door open to making this right enforceable. This issue too
should be considered after the Independent Review of the Act, at which time the
strong evidence before the Committee on this question should be re-examined.