BILLS DIGEST NO. 137, 2011–12, 25 May 2012

Fair Work Amendment (Better Work/Life Balance) Bill 2012

Steve O’Neill, Economics Section
Michele Brennan, Law and Bills Digest Section

Date introduced:  13 February 2012

House:  House of Representatives

Portfolio:  Mr Adam Bandt, MP

Commencement:  The day after the Bill receives Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and its reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

To amend the Fair Work Act 2009 to extend the right to request flexible working arrangements to all employees with 12 months or more service and to long term casual employees. In addition, the right to request would be strengthened for those employees with caring responsibilities through a stronger business case reason to be given in cases where a request was rejected. Fair Work Australia (FWA) will be able to resolve disputes over requests, including through the issue of orders.

Background

The Fair Work legislation regulates the majority of private sector workplaces by providing terms and conditions of employment through ten National Employment Standards[1] and minimum rates awards[2], which set out classifications, wage rates, penalty rates, employment classes and so on. As well, employers and employees may make enterprise agreements providing employees superior terms (often in the form of remuneration and leave) to awards in return for changes to working arrangements. Enterprise agreements must be assessed to ensure that employees are better off than they would be under an applicable award.[3]

This Bill proposes to expand the National Employment Standard which provides employees with a right to request flexible work arrangements.[4] In introducing the Bill, Mr Bandt noted that the current right to request flexible hours is limited to employees with certain caring responsibilities:

The current legislated mechanism to request flexible working arrangements is only available to employees who have caring responsibilities for children under school age, or children under 18 with a disability...

We need a better match between the hours people want to work and the hours they actually work.[5]

The Bill is proposing more general access to flexible work arrangements including hours worked, their scheduling and the location of work.

Some of the more common flexible work arrangements include:

•       flextime which permits flexible starting and finishing times and hours accrual above the daily minimum, within limits, such as a 20-hour maximum accrual

•       permanent part-time employment which provides job security and similar benefits available to full-time employees and is an alternative to casual employment

•       teleworking and telecommuting through working from home. It is usually based on personal computer use or access and facilitates decreased staff accommodation overheads for employers and enables staff to escape the daily commute

•       compressed workweek refers to a standard workweek that is condensed into fewer than five days, such as four 10-hour days

•       job sharing is a form of regular part-time work in which two people voluntarily share the responsibilities of one full-time position, with salary and leave accruals pro-rated

•       work sharing is often used to stave off redundancies - an organisation’s workforce agrees to a temporary reduction in working hours to reduce salary and operating costs for the business

•       purchasing leave through schemes such as 48/52, allowing employees to purchase additional (four weeks) annual leave by reducing their salaries by the equivalent amount (of the leave) over the course of one year

•       annualised salary is often used in industries with continuous operations, whereby overtime rates, shift rates and any allowances are rolled into weekly or fortnightly pay

•       timesharing allows one individual to work for more than one organisation on a regular basis and

•       phased or partial retirement allows individuals to retire gradually by reducing full-time commitment over a year or more; the reduced salary may or may not be combined into (partial) retirement income.

Most often, these arrangements are accessed via provisions in enterprise agreements. However, the bulk of employees are not able to alter start and finish times. According to the Australian Bureau of Statistics’ working time survey, 32 per cent of employees have agreements with their employer to work flexible hours. Some 17.1 per cent of employees have informal agreements to work flexibly, while 13.7 per cent have formal arrangements. Women (32.2 per cent) are slightly more likely than men (29.6 per cent) to have a flexible work arrangement. About 17.9 per cent of women have informal arrangements and 14.3 per cent formal agreements, while 16.4 per cent of men have informal arrangements and 13.2 per cent formal. The survey also revealed that 27 per cent of employees who usually work extra hours or overtime are not compensated for it; 39.3 per cent are able to get time off by working extra hours; 16 per cent of employees usually performed shift work and 58 per cent had no say over their start and finishing times.[6]

Family Provisions Test Case

According to academics Sara Charlesworth and lain Campbell, the right to request flexible hours first came to public attention in the Australian Council of Trade Unions‘ (ACTU) Family Provisions Test Case before the Australian Industrial Relations Commission (AIRC) in 2004.[7] The potential need for mothers to return to work on a part-time basis after child birth had been recognised in awards and maternity leave legislation from the 1990s.[8] The Family Provisions case was designed to introduce new standards into federal awards for flexible working-time arrangements to help workers balance their paid work and family responsibilities:

… one of the main ACTU claims was for an employee to be able to request a change in hours to enable the employee to provide care, with an obligation on the employer to consider such requests seriously. The change requested related not only to the number of hours worked but also to the times at which work is performed … among the ACTU claims were new rights for an employee to work on a part-time basis after returning from parental leave until the child reaches school age and to access up to an additional 12 months unpaid parental leave.[9]

The considerable changes to the role of the AIRC and its award-making function under the Work Choices’ legislation (2006) stalled the spread of the AIRC’s Family Provisions decision (2005) across federal awards.[10] Also, the High Court’s effective endorsement of the Work Choices legislation made attractive the statutory provision of basic employment entitlements.[11]

The ‘right to request’ flexible work hours was instead incorporated into proposed National Employment Standards in the Australian Labor Party’s (ALP) 2007 Federal election workplace relations policy document, ‘Forward with Fairness’. It was seen as a mechanism for parents to adjust working hours (with employer approval) to assist in caring responsibilities for young children:

A Rudd Labor Government will guarantee a right for parents to request flexible work arrangements until their child reaches school age. Employers will only be able to refuse any request on reasonable business grounds.[12]

The Rudd Government accordingly broadened the (former) Australian Fair Pay and Conditions Standard (AFPCS) into the current National Employment Standards of the Fair Work Act. The inclusion of a right to request flexible hours for caring reasons in part reflected similar provisions operating in the United Kingdom.

In its annual report, Fair Work Australia states that 33 flexible work arrangement disputes were brought before it in 2010–2011 under the Fair Work Act, section 739.[13] FWA has also commenced a review of the right to request provisions, as required by the legislation.[14]

Working Flexibly

In certain respects, the Bill’s proposals might be seen to complement directions which the Government and the Information Technology (IT) sector are pursuing currently, particularly for teleworking. New developments in IT are driving changes with wireless networking allowing people to work from anywhere in a building. ‘Cloud’ computing provides computation, software applications, data access, data management and storage resources without requiring cloud users to know the location and other details of the computing infrastructure, which means the office no longer has a role as a technology support hub.[15] The mining industry in Western Australia has heralded centralising operation of actual mining work processes in regions like the Pilbara to control centres in Perth, through similar developments in technologies.[16]

As well, the Government is seeking to double the percentage of workers who telework (from six per cent to 12 per cent by 2020), by grafting the potential for working from home to the development of the National Broadband Network, evident in Minister Conroy’s press statement earlier this year and the views of certain IT executives:

The Australian Government wants more employers and employees to reap the many social, economic and environmental benefits of telework …

Philip Cronin, General Manager of Intel Australia & New Zealand, said ubiquitous and affordable high-speed broadband would mean many Australian workers will have the potential to become just as effective at home as they are in the office.

"Teleworking has the potential to save Australian businesses millions of dollars, offer greater flexibility to the workforce and open up new job opportunities for rural and regional communities," he said.[17]

The problem for management in responding to requests for flexible hours generally relates to the size and structure of their businesses. Employer submissions to the House of Representatives inquiry into the Bill have argued that the Bill not be debated until the Government’s review of the Fair Work Act is completed and responded to later this year.[18] However, Gary Bracks from the Australian Federation of Employers and Industries argues that small businesses find it difficult to cope with the extra administrative load created by employees who want flexible working hours:

If you are in an organisation like the public service or in a large corporation where they can afford the additional people, they can afford the people who run the human resources department and they can massage all of that, they can manage the fact that someone is here one day and not here tomorrow. Not all large organisations can do that. And the smaller and smaller you get, the more difficult it becomes because you simply can't afford to manage the process or have the extra person power to fill up the little bits of work that are not getting done because somebody is off doing something else in their flexible-working hours time.[19]

Notwithstanding the positions for and against flexible work arrangements, standard working hours appear to have polarised over 20 years. At one end, very long shifts based on regular roster working are now evident in sectors as diverse as mining and nursing. At the other, casual work and short hours have at least doubled over the same period, with labour hire organisations increasingly facilitating job placement.[20] These moves towards extremes in hours and shifts reflect, in large part, employers’ priorities for labour market flexibility in the context of their enterprises (and industries). Employers seek the following flexibilities: numerical flexibility, allocative flexibility and wage flexibility, as described in the table below:

Type of Labour Flexibility

Definition

Numerical flexibility

External

The capacity of a firm to adjust to changes in demand through changes in the size of its workforce.

Internal

The capacity to adjust the quantity and timing of labour without altering the number of employees (for example, changing the number of working hours of existing employees).

Allocative flexibility

Functional

The capacity to redeploy labour between different tasks within the workplace. Functional flexibility relies upon removal of demarcation barriers and multi‑skilling workers to enable workers to undertake different tasks.

External

The capacity to redeploy labour between different firms either within or between occupations and industries.

Wage flexibility

General

The ability to adjust average real wage levels to changes in economic conditions.

Relative

The ability to adjust wage differentials between and within occupations, regions, industries and age groups.

Minimum standards

The ability to adjust minimum wage standards, usually measured by reference to the scope of minimum legal wage rulings and capacity of firms to lower wages in response to changes in economic conditions.

Procedural flexibility

The capacity of firms to make decisions free from external constraint, either jointly with their workforce/unions or unilaterally.

Source: M Rimimer and J Zappalà, 'Labour market flexibility and the second tier', Australian Bulletin of Labour, vol. 14 (4), 1988, pp. 567-568.

The influence of these preferences for organising labour and working hours can be gleaned in standard working hours and the ‘normal’ pattern of work, across a range of industries, but taking the coal mining industry as an example:

Two decades ago, a 35-hour week was the norm in the coal industry, but now average hours have shot up to 44 hours a week.  Fly-in-fly-out was scarce and generally only something for mining executives.  Now airports near mining centres are packed with our (CFMEU) members, and more miners than ever are doing big commutes to work by car.[21]

As a result of these forces for casual labour on one hand and very long standard work hours on the other, the ACTU instigated a national inquiry into casual and precarious employment with former Hawke Government Minister, Brian Howe as chair.[22] There also appears a growing backlash from local communities severely affected by large mining projects based on ‘fly-in, fly-out’ (FIFO) and ‘drive-in, drive-out’ (DIDO) work arrangements. It is important to note that these work arrangements are in turn predicated on 12 hour shifts or similar long shift arrangements, and on block rostering. As one submission to a Parliamentary inquiry into fly-in, fly-out work arrangements put it:

Non-resident (FIFO/DIDO) workforces could not have occurred without other changing employment practices including 12-hour shifts within rosters with extended work cycles.[23]

In such a prescribed working pattern, any one individual’s request for flexible hours or arrangements may well be given a response similar in nature to the response given to Oliver Twist’s classic plea for ‘more’. Finally, the Fair Work Act provides for employers and employees to agree to changes in work arrangements, such as start and finish times as prescribed by either the relevant award or enterprise agreement, through Individual Flexibility Agreements (IFAs). IFAs were devised in part as a response to the withdrawal of Australian Workplace Agreements which had facilitated individual employment arrangements for ten years in the federal system. The need for provisions broadening access to ‘right to request’ options under this Bill is likely to result in charges that the IFA provisions of the Act are not working.

Committee consideration

The Bill was referred to the House of Representatives Standing Committee on Education and Employment for inquiry and report (without a report-by date specified).[24]

Key provisions

Fair Work Act 2009

Item 2 of Schedule 1 of the Bill inserts a flagpost definition of flexible working arrangements orders into the Dictionary of the Fair Work Act.  The term is substantively defined at proposed section 306F, which is discussed below.

Item 8 of Schedule 1 of the Bill repeals Division 4 of Part 2-2 of the Fair Work Act, which contains the existing Fair Work Act provisions (sections 65 and 66) regarding requests for flexible working arrangements.

Item 10 of Schedule 1 of the Bill adds flexible working arrangements as a permitted matter in the making of an enterprise agreement in subsection 172(1) of the Fair Work Act.[25]

Item 12 of Schedule 1 of the Bill inserts a new Part 2-7A into the Fair Work Act, regarding flexible working arrangements.  Flexible working arrangements are currently dealt with in Division 4 of Part 2-2 of the Fair Work Act, which is repealed by item 8 of Schedule 1 of the Bill.  

Part 2-7A – Flexible working arrangements

Division 1—Introduction

Proposed section 306B of the Fair Work Act explains that, in Part 2-7A, ‘employee’ means a ‘national system employee’ and ‘employer’ means a ‘national system employer’.  These terms are defined at current sections 13 and 14 of the Fair Work Act, respectively.  The current right to request flexible working arrangements at section 65 of the Fair Work Act also applies only to national system employees and employers – see current section 60 of the Fair Work Act.  As a result, proposed section 306B of the Fair Work Act continues current arrangements.

Proposed subsection 306C(1) of the Fair Work Act allows state or territory laws that provide employee entitlements in relation to flexible working arrangements to operate where their provisions are more beneficial to employees than the entitlements under proposed Part 2-7A of the Fair Work Act.  Proposed subsection 306C(1) substantively reproduces current section 66 of the Fair Work Act.

Proposed subsection 306C(2) of the Fair Work Act provides that a state or territory law has no effect in relation to an employee to the extent that it provides an employee entitlement in relation to flexible working arrangements that is inconsistent with a term of an enterprise agreement that applies to the employee.  It is not clear that the proposed provision is necessary, in view of current subsection 29(1) of the Fair Work Act, which provides that ‘a modern award or enterprise agreement prevails over a law of a state or territory, to the extent of any inconsistency’.  

Division 2—Process for requesting flexible working arrangements.

Proposed subsection 306D(1) of the Fair Work Act stipulates that employees, or organisations entitled to represent them, may request an employer to change the employee’s working arrangements (including hours of work, patterns of work and location of work). A request can only be made if an employee has at least 12 months of continuous service with the employer or the employee is a long term casual with a reasonable expectation of continuing employment (proposed subsection 306(D)(2)).

Although any employee is able to approach their employer about changes to working arrangements, only certain employees have a ‘right to request’ flexible working arrangements recognised in the Fair Work Act.  The relevant current provision is section 65 of the Fair Work Act.

Comparing the current and proposed provisions, the length of service requirements will be the same (that is, an employee must have been employed for at least 12 months continuously by the employer or, in the case of casual employees, be a long term casual employee with a reasonable expectation of continuing employment by the employer on a regular and systematic basis – see current subsection 65(2) and proposed subsection 306D(2) of the Fair Work Act).  However, the right to request will no longer be limited to employees with responsibility to care for a child, as is the case under current subsection 65(1) of the Fair Work Act.  Instead, any employee who is a national system employee (see discussion in relation to proposed section 306B, above) will have a statutory right to request flexible working arrangements.  As is currently the case under subsections 65(3) to (6) of the Fair Work Act, proposed subsections 306D(3) to (6) provide that a request must be in writing, the employer must respond to the request within 21 days and may only refuse the request on ‘reasonable business grounds’.  This term is not defined in the Fair Work Act.  The Explanatory Memorandum to the Fair Work Act explained that:

... the reasonableness of the grounds is to be assessed in the circumstances that apply when the request is made. Reasonable business grounds may include, for example:

•       the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service

•       the inability to organise work among existing staff or

•       the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.[26] 

Proposed subsection 306E(1) of the Fair Work Act allows an employee who has responsibility for the care of another person , or an organisation that is entitled to represent that employee, to request a change to the employee’s working arrangements to assist the employee to fulfil their caring responsibilities.  When a request for flexible working arrangements is made in these circumstances the employer may only refuse the request on serious countervailing business grounds (proposed subsection 306E(5)).  This may be contrasted with the general right to request flexible working arrangements set out at proposed section 306D (discussed above), which an employer may refuse on the lower threshold of ‘reasonable business grounds’.  As is the case with ‘reasonable business grounds’, ‘serious countervailing business grounds’ will not defined in the Fair Work Act.  The other requirements under proposed section 306E are the same as those in proposed section 306D – that is, a request must be in writing, the employer must respond to the request within 21 days and, if refusing the request, must include details of the reasons for the refusal in the written response.

Division 3—Arrangements for flexible working arrangements orders.

Proposed section 306F of the Fair Work Act gives FWA the power to make any order that it considers appropriate to ensure that an employer complies with proposed section 306D or 306E.  Such an order is called a ‘flexible working arrangements order’.  Proposed subsection 306F(2) provides that an application to FWA for a flexible working arrangements order may be made by an employee whose request to an employer under proposed section 306D or 306E has been refused, or by an employee organisation on the employee’s behalf. An application may also be made by the Age Discrimination Commissioner, the Disability Discrimination Commissioner or the Sex Discrimination Commissioner. 

The terms of proposed section 306G (discussed below) suggest that proposed section 306F is intended to allow the FWA to make an order that sets up flexible working arrangements for the requesting employee.  However, there may be some doubt as to whether proposed section 306F as currently drafted would permit such an order to be made.  This concern could be addressed by re‑drafting proposed section 306F to specifically allow FWA to make an order providing an employee with flexible working arrangements.  Current subsection 302(1), which allows the FWA to make an equal remuneration order, may be instructive in this regard.  In addition, the Department of Education, Employment and Workplace Relations’ (DEEWR) submission to the inquiry into the Bill by the House of Representatives Standing Committee on Education and Employment raised concerns that subsection 306F ‘may result in constitutional issues relating to judicial power’, but advised that these issues ‘could be remedied by re-drafting the provision’.[27]

Proposed section 306G allows FWA to make a flexible working arrangements order that implements the changed working arrangements in stages as FWA thinks appropriate.

Proposed section 306H of the Fair Work Act provides that an employer must not contravene a term of a flexible working arrangements order and makes a breach of an order subject to civil remedy provisions. There are currently a number of civil penalty provisions in the Fair Work Act, which are listed in a table in subsection 539(2) of the Fair Work Act.  That table also sets out who has standing to apply for an order in relation to a breach of a civil penalty provision, the courts to which such applications may be made, and the maximum penalty that may be imposed by the court if the alleged breach is proven.  Item 13 of Schedule 1 of the Bill amends the table at subsection 539(2) of the Fair Work Act to provide that a person to whom a flexible working arrangements order relates, or an organisation entitled to represent that person, may apply to the Federal Court, the Federal Magistrates Court or an eligible state or territory court[28] for an order in relation to the breach of a flexible working arrangements order.

Section 557 of the Fair Work Act, which provides that two or more contraventions of a civil penalty provision listed in subsection 557(2) of the Fair Work Act are taken to be a single contravention if they are committed by the same person and arose out of a course of conduct by the person.[29] Item 15 of Schedule 1 of the Bill amends subsection 557(2) of the Fair Work Act to include contraventions of flexible working arrangements orders under proposed section 306H in the list of civil penalty provisions that may be treated in this way.  This means that if an employer contravenes two or more terms of a flexible working arrangements order, or contravenes a term of flexible working arrangements orders of more than one employee, and these contraventions arose out of a course of conduct by the employer, the contraventions will be taken to be a single contravention, for which a court may impose the maximum penalty of 60 penalty units, but not multiples of this penalty, as would be available if the contraventions were treated separately.

Subsection 675(1) of the Fair Work Act provides that it is a criminal offence to engage in conduct that contravenes an order of the FWA, except those orders listed at subsection 675(2) of the Fair Work Act.  Item 18 of Schedule 1 of the Bill inserts proposed paragraph 675(2)(ea) into the Fair Work Act to clarify that a breach of a flexible working arrangements order is not a criminal offence.

Proposed section 306I of the Fair Work Act sets out the relationship between flexible working arrangements orders, modern awards and enterprise agreements. This proposed section will provide that a term of a modern award has no effect if it is less beneficial to the employee than a term of a flexible working arrangements order and that a term of a flexible working arrangements order has no effect to the extent that it is inconsistent with a term of an enterprise agreement that applies to the employee.

Section 576 of the Fair Work Act sets out the functions of the FWA. Item 16 of Schedule 1 of the Bill inserts proposed paragraph 576(1)(fa) into the Fair Work Act to provide that FWA has functions in relation to flexible working arrangements.

Subsection 653(1) of the Fair Work Act requires the General Manager of FWA to conduct certain research, including, as required by current paragraph 653(1)(c), research into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements under subsection 65(1) of the Fair Work Act (current subparagraph 653(1)(c)(i)) and requests for extensions of unpaid parental leave under subsection 76(1) of the Fair Work Act (current subparagraph 653(1)(c)(ii)).

Item 17 repeals current paragraph 653(1)(c) and inserts proposed paragraphs 653(1)(c) and 653(1)(ca) into the Fair Work Act. Proposed new paragraph 653(1)(c) reproduces the terms of current subparagraph 653(1)(c)(ii).  Proposed new paragraph 653(1)(ca) continues the General Manager’s obligation to conduct research into requests for changed working arrangements, but reflects that the relevant provisions will be located at proposed Part 2-7A of the Fair Work Act, rather than section 65 of the Fair Work Act.

Section 716 of the Fair Work Act allows a Fair Work Inspector to issue a compliance notice if he or she reasonably believes that a person has contravened certain requirements, including a provision of the National Employment Standards or a term of a modern award or enterprise agreement. Such notices require the relevant person to take specified action to remedy the effects of their contravention.  Item 19 inserts proposed paragraph 716(1)(g) into the Fair Work Act to permit a Fair Work Inspector to issue a compliance notice in relation to a breach of a term of a flexible working arrangements order.

Items 20 to 23 of Schedule 1 of the Bill are consequential amendments to remove references to subsection 65(5) of the Fair Work Act in subsections 739(2) and 740(2) of the Fair Work Act.  Currently the effect of these provisions is that the FWA, or another person authorised to deal with disputes, cannot deal with a dispute about whether an employer had reasonable business grounds to refuse a request for a change in working arrangements under section 65 of the Fair Work Act unless the parties have agreed in writing to FWA dealing with the matter (including in an employment contract or enterprise agreement) or a determination under the Public Service Act 1999 authorises FWA to deal with the matter.  The amendments proposed by items 20 to 23 of Schedule 1 of the Bill will mean that there will be no special restrictions on FWA dealing with disputes as to the grounds on which an employer refused a request for more flexible working arrangements. They will be able to be dealt with in the same way as other disputes under the Fair Work Act.

Concluding comments

The Bill places a new emphasis on employee workplace choice to pursue their preferences for working time arrangements. The Bill marks a break with previous practice by extending the legislative right to request flexible work arrangements to those without traditionally justifiable reasons (child-rearing and related). Also, the ability of FWA to resolve flexible work requests without employer consent (see Fair Work Act subsection 739(2) and (4)) will mark a change from previous practice. As discussed above, there may be value in re-drafting proposed section 306F of the Fair Work Act to ensure that it operates as intended and does not raise constitutional issues. 
Members, Senators and Parliamentary staff can obtain further information on background to the Bill from the Parliamentary Library on (02) 6277 2463, and on the Bill’s main provisions on
(02) 6277 2764.

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ISSN 1328-8091

[1].               The NES cover maximum weekly hours, requests for flexible work, annual leave, parental leave, personal and carers’ leave, community service leave, public holidays, notice of termination and redundancy pay, long service leave and an information statement for new employees. Sections 59 to 125 of the Fair Work Act, viewed 21 May 2012, http://www.comlaw.gov.au/Details/C2011C00580

[2].               Now referred to as modern awards.

[3].               Section 193 of the Fair Work Act.

[4].               Section 65 of the Fair Work Act.

[5].               A Bandt, ‘First reading speech: Fair Work Amendment (Better Work/Life Balance) Bill 2012’, House of Representatives, Debates, 13 February 2012, p. 804, viewed 5 March 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F26088656-df77-4f73-8605-47271c5ff5cf%2F0103%22

[6].               Australian Bureau of Statistics, ‘Working time arrangements’, Australia, abs.gov.au, November 2009, viewed 1 March 2012, http://www.ausstats.abs.gov.au/Ausstats/subscriber.nsf/0/8BDEA6D74F8569BDCA257729002069D4/$File/63420_november%202009.pdf

[7].              Parental Leave Test Case 2005 (2005) 143 IR 245, [2005] AIRC 692 (Family Provisions Test Case).

[8].               ‘History – Part time work clauses in awards’, CCH Australian Labour Law Reporter at pp. 40-495.

[9].               S Charlesworth and I Campbell, ‘Right to request regulation: two new Australian models’, Australian Journal of Labour Law, vol. 21, 2008, p. 119, viewed 24 February 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2FUNIR6%22

[10].               The AIRC’s Family Provisions decision was limited to an increased period of simultaneous parental leave; an additional 12 months unpaid parental leave; and for employees with children below school age a return to work on a part-time basis after parental leave, with the employer to 'consider' the request and only to refuse the request 'on reasonable grounds related to the effect on the workplace or the employer's business', AIRC PR082005, 8 August 2005, viewed 24 February 2012, http://www.airc.gov.au/fullbench/PR082005.htm

[11].               New South Wales v Commonwealth [2006] HCA 52, viewed 22 May 2012,  http://www.austlii.edu.au/au/cases/cth/HCA/2006/52.html

[12].              K Rudd and J Gillard, ‘Forward with fairness: Labor’s plan for fairer and more productive Australian workplaces’, April 2007, viewed 27 February 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fpartypol%2FWTWM6%22I

[13].               Fair Work Australia, Annual report 2010–11, p. 81, viewed 11 March 2012, http://www.fwa.gov.au/documents/annual_reports/ar2011/FWA_annual_report_2010-11.pdf

[14].               Fair Work Australia, section 653, Issues paper 2/12, Commonwealth of Australia, 9 March 2012, viewed 17 March 2012, http://www.fwa.gov.au/documents/admin/issue_paper_nes.pdf

[15].               F Smith, ‘Next evolutionary stage: the office vanishes’, The Australian Financial Review, 28 February 2012, viewed 3 March 2012, http://afr.com/p/technology/next_evolutionary_stage_the_office_qqSDBYJhvFfXaVVgsGstAN

[16].               A Topf, ‘Rio Tinto boost driverless truck fleet for use in the Pilbara’, Mining.com, 2 November 2011, viewed 2 March 2012, http://www.mining.com/2011/11/02/rio-tinto-boosts-driverless-truck-fleet-for-use-in-pilbara/

[17].               S Conroy (Minister for Broadband, Communication and the Digital Economy), Telework week to showcase benefits of working from home, media release, 14 January 2012, viewed 29 February 2012, http://www.minister.dbcde.gov.au/media/media_releases/2012/001

[18].               Business Council of Australia, Submission to the House of Representatives Standing Committee on Education and Employment, Inquiry into the Fair Work (Better Work/Life Balance) Bill 2012, 1 March 2012, viewed 22 May 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/ee/betterworklife/subs.htm

[19].               R Browne, ‘Flexibility didn’t deliver’, Sun Herald, 1 August 2010, p. 16, viewed 5 March 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22media%2Fpressclp%2FIOHX6%22

[20].              A Louie, A Ostry, M Quinlan, T Keegel, J Shoveller and A LaMontagne, ‘Empirical study of employment arrangements and precariousness in Australia’, Industrial Relations, vol. 61, no. 3, 2006, viewed 5 March 2012, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22library%2Fjrnart%2F7A8M6%22.

[21].               A Vickers, ‘Long-term safety study of Australian coal and energy workers’, Construction Forestry Mining and Energy Union website, 29 August 2011, viewed 29 February 2012, http://cfmeu.com.au/long-term-safety-study-of-australian-coal-energy-workers

[22].               Australian Council of Trade Unions, Unions launch new inquiry into insecure work as part of push for better future for Australian workers, media release, 24 October 2011, viewed 2 March 2012, http://www.actu.org.au/Media/Mediareleases/UnionslaunchnewinquiryintoinsecureworkaspartofpushforbetterfutureforAustralianworkers.aspx. The report to the ACTU, Lives on hold, unlocking the potential of Australia’s workforce
is available from the ACTU.

[23].               K Carrington, R Hogg, J McIntosh and A Scott, Submission to the House of Representatives Regional Committee’s, Inquiry into the use of ‘fly-in, fly-out’ (FIFO) workforce practices in regional Australia, paragraph 1.13, submission 95, 9 October 2011, viewed 25 May 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=ra/fifodido/subs.htm

[24].               House of Representatives Standing Committee on Education and Employment, Inquiry into the Fair Work Amendment (Better Work/Life Balance) Bill 2012, viewed 25 May 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/ee/betterworklife/index.htm

[25].               Enterprise agreements may deal with permitted matters which include matters pertaining to the employment relationship, the relationship between employer and employee organisations, deductions from wages and how an agreement is to operate.

[26].              Explanatory Memorandum, Fair Work Bill 2008, p. 12.

[27].               Department of Education, Employment and Workplace Relations, Submission to the House of Representatives Standing Committee on Education and Employment, Inquiry into the Fair Work Amendment (Better Work/ Life Balance) Bill 2012, March 2012, p. 10.

[28].               An ‘eligible state or territory court’ is defined in the Dictionary at section 12 of the Fair Work Act as a District, County or Local Court, a magistrates court, the Industrial Relations Court of South Australia, or the Industrial Court of New South Wales.

[29].               Explanatory Memorandum, Fair Work Amendment (Better Work/Life Balance) Bill 2012, p. 4.