Chapter 8 - Work and family
It is fair
to say that many employers will say that they can now be trusted to manage
their employees without a third party and, my goodness, I think I have even
written that rhetoric. But the reality is that I know some who can be trusted
and some who cannot, and often the ones who cannot are the ones where we have
least coverage industrially to do something about protecting their workers, and
that is what concerns me.
Susan Halliday, Sex Discrimination
Commissioner, 1999
Introduction
8.1
One of the terms of reference for this Inquiry
was the impact of the WR Act on the balance between work and family
responsibilities, and whether the balance can be improved. The Government
Senators’ report dealt with this term of reference quite dismissively in just
five paragraphs.
8.2
This report provides a more in depth assessment
of evidence presented to the Committee regarding work and family. There were
actually many submissions to the Committee that dealt specifically with the
impact of the WR Act on women, who still tend to have primary responsibility to
care for children and elderly family members. The evidence presented in these
submissions is not encouraging. Almost all indicated that the ability to manage
both work and caring responsibilities had deteriorated under the deregulated
environment promoted by the WR Act, particularly through the deregulation of
hours of employment. For example, the Human Rights and Equal Opportunity
Commission (HREOC) made the following points about deregulation:
...the flexibility required by employers is often in conflict with
the nature of the flexibility required by workers with family responsibilities.
The reduction in the role of the AIRC, the deregulation of part-time and casual
work and the award simplification process all have potential for negative
impact on workers.[1]
8.3
However, the Committee was assured that balance
between work and family continues to be a high priority for the Government:
From its outset, the WR Act has a strong emphasis on work and
family balance. This is reflected in the principal object of the WR Act with
its specific reference to ‘assisting employees to balance their work and family
responsibilities effectively through the development of mutually beneficial
work practices with employers’.[2]
8.4
Many submissions from individual employees did
not agree that the WR Act had assisted them to reach mutually beneficial
outcomes with their employers to balance their work and family commitments. In
fact, the reality for many workers seems to be far removed from the
Government’s rosy view:
Peter Reith made a promise that no worker would be worse off
under his first wave changes. This has been a LIE. Many workers have lost
overtime entitlements, sick leave, meal breaks and are required to work
unlimited days and hours. Not only have their wages decreased but they have
lost quality of life. There is no such thing as family life – the weekend is
now work dominated.[3]
Ms S: We all work harder and harder for less pay, less security
and no other rewards. I’ve been working in this place for 7 years and there has
never been a divorce. Last year (1997) two women got divorced and 3 women
basically had a nervous breakdown. I am sure there are links between what is
happening to us at work and how this impacts on our health and relationships at
home.[4]
8.5
Many people were also very concerned that the
proposed amendments in the Bill would make the situation worse, and result in
them having to spend more time at work, away from their families:
I am forty five years old and have to work full time as a sales
assistant to survive even though my husband is also in full time employment...I
wish that I could spend more time with my precious family and have been working
towards that goal, but feel that with Mr Reith’s proposal I will be working to
my grave.[5]
My husband and I are struggling to make ends meet at the moment
and we would probably end up losing our house if this legislation is passed and
our pays are cut...I am also concerned for the future of our little girl. She is
just four years old. What will she have to look forward to, if we are required
to work weekends? We will no longer have any ‘family time’ and that is very
important to us all.[6]
I am employed full time in the retail industry and only just
manage to pay all the Bills required (mortgage, etc). Working in retail, I work
odd hours and don’t get to spend as much quality time with my family. I have to
also work overtime in order to support my family because I am on a low income.
If the proposed changes go through I will have to work longer hours with no
overtime rate and see less of my family. All this will do is add more pressure
and stress, please support ordinary hard working Australians like myself who
want to be rewarded and spend quality time with our families. Please say no to
the proposed changes.[7]
8.6
The importance to our society of balancing work
and family cannot be understated. People need to work to support themselves
financially, and the days of the nuclear family with Dad at work earning enough
to support Mum and the kids at home have long disappeared. The ‘normal’
Australian family is no longer a married couple with 2.3 children, and even
those families are finding it harder and harder to survive on single incomes.
8.7
If we do not ensure that our working
arrangements allow for people to mix work with having children, we will find
the long term effects on our population very serious:
Australian demographers are discovering that the trend towards
childlessness and smaller families is no longer confined to women at the upper
end of the income and education scale. In what amounts to a new demographic
phenomenon, women from low socioeconomic backgrounds, who have historically had
larger than average families, are also reducing their fertility, and are doing
so at a surprisingly fast rate. The result, revealed in Australian Bureau of
Statistics data released this week, is a fall in the national fertility rate
for six consecutive years to an all-time low of 1.76 births per woman.[8]
8.8
Academic researchers believe that a lack of family
friendly employment practices is contributing to the decrease in the birth
rate:
[Australian Institute of Family Studies researcher, Christine]
Kilmartin suggests that the family-friendly work practices increasingly
available to women in high-status jobs (such as job sharing, paid maternity
leave and flexible hours) are not making their way down to small businesses or
women working on the factory floor, and that this is beginning to show up in
fertility levels.[9]
Low fertility is the result of conflict between a liberal
economic agenda and the persistence of social institutions which are premised
on the male breadwinner...The answer is not the conservative social agenda
promoted by the Howard Government, but, rather, a liberal social agenda that
encourages women to have children and, at the same time, maintain a high level
of attachment to the labour market.[10]
8.9
The rest of this chapter considers in detail
evidence suggesting that the WR Act has seriously reduced the ability of
workers with children to remain in the labour market, and considers how the
proposed changes to the Act set out in the Bill could further destroy work and
family balance.
Impact of the Workplace Relations Act
8.10
The Government provided the Committee with its Work
and Family State of Play 1998 publication, which consolidates and analyses
the most recent information on work and family from various data sources. The
Report finds that ‘organisations are increasingly providing family friendly
provisions that meet the needs of employees and employers at the workplace.’[11]
8.11
The Report outlined what sorts of ‘family
friendly provisions’ are being provided by private sector workplaces, based on
data collected from the reports of 2000 firms to the Affirmative Action Agency.
The most recent figures were provided for 1997, and indicate that, from this
sample:
- paid maternity leave is provided in 15 per cent of workplaces[12];
- permanent part time work is available in 81 per cent of
workplaces[13];
- job sharing opportunities exist in 63 per cent of workplaces[14];
- child care or child care assistance is provided in 13 per cent of
workplaces[15];
and
- personal/carer’s leave is available in 72 per cent of workplaces.[16]
8.12
These data suggest that family friendly
entitlements that are costly for employers (child care and paid leave) are
still only available in a small minority of workplaces. Personal/carer’s leave
is an exception, and the report explains that the rapid increase in the
availability of personal/carer’s leave is predominantly due to the efforts of
the Commission, which established standard personal/carer’s leave clauses in
awards through the Carers’ Leave Test Case decision in 1994.[17]
8.13
The report comments on the trends as follows:
...while paid maternity and paid paternity leave are obviously
important conditions for employees, and are beneficial for employers in terms
of increasing retention rates, they are accessed at most only a few times
during the working life of an employee. Similarly, on-site child care centres
are a great facility, particularly if no other child care providers are
available close to work or home, but they are generally only used by parents
with children of pre-school age...Unlike paid maternity leave or child care,
being able to leave during the day to care for a child or other family member
and having control over start or finish times are part of ongoing conditions
that provide employees with greater choice in balancing work and family over a
number of years.[18]
8.14
The Report clearly indicates that the
Government’s current focus is to promote more flexible working hours and
arrangements to assist employees in balancing work and family commitments,
rather than more expensive options such as paid maternity leave or child care.
However, much of the evidence presented to the Committee suggests that the
legislative framework provided by the WR Act to achieve flexible working
arrangements is actually acting to the detriment of workers with family
commitments.
Flexible working arrangements
8.15
Unfortunately there was no comparable
information provided by the Affirmative Action Agency on the proportion of
workplaces where employees have access to flexible working arrangements to meet
caring responsibilities. However, data included in the Work and Family Report
from the earlier Australian Workplace Industrial Relations Survey 1995,
indicated that at only 37 per cent of workplaces employees reported that they
‘could use flextime or make the time up later, if they needed time off work to
look after family or household members.’[19]
This figure is surprising as, unlike the Affirmative Action Agency data, the
AWIRS data include public sector employees, many of whom have had access to
flextime as an established condition of employment for years.
Agreements
8.16
The Report noted that 53 per cent of certified
agreements contained flexible working hours provisions and ‘79 per cent of AWAs
provide at least one family-friendly provision when flexible hours provisions
are included.’[20]
However, the Report noted that flexible work provisions in agreements may not
actually benefit employees with families in practice:
...it should be noted that the existence of such arrangements is
not necessarily an automatic indicator of family-friendliness in agreements.
The way in which the flexible working hours arrangements are determined and
implemented will impact on the benefits for workers with family
responsibilities.[21]
8.17
For this reason, HREOC criticised the Report’s
methodology in analysing the ‘family friendliness’ of flexible hours provisions
in agreements:
...an examination of the coding fields used in the report’s
analysis raises concerns about the report’s conclusions on the incidence of
work and family provisions in agreements. Indicators of potentially work and
family friendly provisions included time off in lieu at ordinary time rates:
this provision is most commonly used to reduce the take home pay of
employees...and are at the discretion of management so would therefore not be
seen as a work and family provision;...and hours averaged over an extended
period, compressing working week and flexible start and finish times: these
provisions are equally indicative of working patterns that actively make it
difficult for employees to balance work and family responsibilities such as
increased irregularity of hours and ordinary hours or work at unsociable times
including weekends and early or late start and finish times. These figures
would be considerably different if these less robust indicators were removed
from the analysis.[22]
8.18
This is a significant point. While in theory,
many certified agreements and AWAs made under the WR Act may appear to include
family friendly hours provisions, these provisions are often open to be used in
a way that actually limits the ability of workers to balance their family
commitments.
8.19
The evidence presented to this Inquiry suggests
that flexible working hours are more often used to benefit employers, rather
than employees:
Changes to working time arrangements can provide flexibility to
both employers and employees, for example, where available, ‘make-up time’
provisions allow employees to take time off for reasons such as family
responsibilities and ‘make-up’ the time at a later stage. A significant number
of the changes in working time arrangements however appear to have provided
flexibility to, and gains for, management – particularly in terms of deploying
staff to cover peak periods of activity while limited flexibility has been
achieved for workers. For example, when asked if they could take some time off
work to care for a sick family member, a fair proportion of workers could do so
by using their own sick leave or holiday leave (42 per cent) and a smaller
proportion could take leave without pay to do so (36 per cent). But only 16 per
cent of all workers could take time off and then make it up later. The workers
who did have flexibility in this area were primarily managers and
professionals.[23]
The recent report on work and family, produced by the Department
of Employment, Workplace Relations and Small Business found that ‘flexible
hours’ were common in agreements, with 20 per cent of AWAs containing a
provision for averaging of hours of work over an extended period. While this
was presented as ‘family friendly’, the reality is that these provisions enable
employers to change hours around on a daily or weekly basis, rather than being
required to provide regularity. There is no indication that these provisions
give the workers involved any flexibility at all.[24]
8.20
Also, it was
submitted that agreements reached under the WR Act were often more likely to
trade off family friendly conditions that had previously been available to
workers. In addition, these conditions were not generally being traded off for
decent wage increases:
We are seeing perhaps the
most egregious examples of trade-offs of compensatable hours, of penalties and
of protections against working unsociable hours to be found amongst low paid
workers and in industries which are highly feminised...that can be a matter of
weekly hours of work being too long—weekly hours being regarded as normal from
Monday to Sunday— and the daily span of hours...We are also seeing in bargaining
other provisions, which are of disproportionate importance to women, not being
settled in AWAs at quite alarmingly low rates. For example [provisions
that] relate to child-care arrangements; [that] relate to carers leave. They...at
least make some attempt to allow workers time off, typically for family
reasons, or that offer some sort of compensation or subsidy, in particular for
family and child-care arrangements. Those very important provisions—which we
all hoped would be the sorts of provisions to be worked out when employers and
employees came together to bargain—have simply not eventuated. Only about 20
per cent of AWAs have mentioned those sorts of provisions at all.[25]
Some people have argued that
women are accepting lower pay rates in such bargains because they are getting
better family friendly outcomes on other questions—better hours, paid maternity
leave and so on. Unfortunately, the research evidence on that from a recent
paper developed at ACIRRT in Sydney suggests that is quite to the contrary.
Where you find low wage outcomes in highly feminised areas you find poorer
outcomes in terms of access to family friendly issues. What you find is a
pattern of double disadvantage—poor wage outcomes and, in my view, greater loss
of control over hours, which is the critical question when you want to examine
whether a provision is family friendly or not. I find much of the evidence in a
range of reports talking about family friendliness is offered to you in such
vague terms that it is very difficult to determine exactly who is benefiting
from the flexibility—the employee or the employer.[26]
8.21
The Finance Sector
Union provided a specific example. They submitted that their members who work
in the banking industry were having problems balancing work and family
commitments because agreements had limited their access to paid overtime:
...our members are
increasingly losing control over their hours of work... This is a big issue for
our members as 62 per cent of our workers are women...And more than half of our
women members have family responsibilities at any time. It is difficult for our
members to reconcile their family responsibilities with increasingly excessive
hours of work. Our industry has received a lot of publicity around this issue. The
figure of one million hours overtime per week being worked in our industry,
much of which is unpaid, is a heavily publicised figure.[27]
8.22
The Finance Sector
Union suggested measures to improve work and family balance:
In particular, we agree with
the recommendation of the ACTU that a way of overcoming this problem would be
to ask the Industrial Relations Commission and the Sex Discrimination
Commissioner to develop award provisions which would somehow scrutinise hours
of work provisions for their likely effect on workers’ ability to meet their
family responsibilities as well as their work responsibilities. Further, based
on the evidence that Australian workplace agreements are more likely to include
provisions around flexible hours of work, and that if the legislation were to
go forward Australian workplace agreements would take precedence over other
agreements, we would be concerned that the Employment Advocate would be seen to
have some responsibility for assessing the impact of flexible hours of work
provisions on workers and that this would be a key part of the no disadvantage
test.[28]
8.23
HREOC suggested that in some cases ‘flexible’
hours of work provisions were actually discriminatory in their operation and
should be referred to the Sex Discrimination Commissioner:
Hours of work agreement provisions are an area where indirect
discrimination may be difficult to identify at the time of agreement approval,
and in many cases may only be assessed as discriminatory in their impact in
retrospect. For example, a common wording of agreement provisions dealing with
hours of work is phrased in terms of ‘...hours will be worked (so far as
practicable) continuously subject to family responsibilities, seasonal
fluctuations and the operational requirements of the business’. In this case,
an employer may sensitively deal with actual hours worked by an employee in
response to caring responsibilities. Equally, organisational requirements may
consistently take precedence. In this case, the discriminatory impact of an
agreement may only become evident in retrospect.[29]
Awards
8.24
Flexible hours have also been introduced into
awards under the WR Act. One of the main ‘flexibilities’ introduced for working
hours was subsection 89A(4), which provides:
The Commission’s power to make or vary an award...does not
include: (b) the power to set maximum or minimum hours of work for regular part
time employees.
8.25
Provisions in awards setting maximum and minimum
hours of work for part time employees have therefore been removed from awards
as part of the award simplification process.
8.26
This has had a particular impact on women for
two reasons. Firstly, as discussed elsewhere in this report, women are much
more likely to rely on awards to set their terms of employment than men, who
are more likely to be covered by agreements. Secondly, women make up 72.4 per
cent of all part time workers in Australia, as it is still primarily women who
are required to combine both paid work and family responsibilities.[30]
Award simplification has enabled employers to distribute working
hours and incidence of work in ways which dislocate private life and family
commitments. Rather than providing women with increased flexibility, these
changes have negatively influenced the working lives of women by reducing their
security of employment and increasing the risk of exploitation. The
‘flexibility’ that was much touted as the end product of the 1996 amendments
has tipped the scales in favour of flexible outcomes for employers at the
expense of those employees with reduced industrial muscle.[31]
8.27
Much if the evidence about the balance between
work and family related to the removal of the Commission’s ability to regulate
hours of part time work in awards:
An indicator of how the changes have reduced the protection
afforded by award regulation for working women is the inability of the
Commission to set maximum or minimum hours of work for regular part-time
employees. Split shifts are problematic. Under the previous award system many
women in the hospitality and cleaning industry used to work two shifts: one
week from 6.00am to 1.00pm and the next week from 1.00pm to 7.00pm. Now, many
of these women are required to work split shifts; from 6.00am to 9.00am and
again from 4.00pm to 8.00pm on the same day.[32]
8.28
The Women for Workplace Justice Coalition’s submission
provided anecdotal reports from some women as to how the changes had affected
them. For instance:
Ms O: Until 2 years ago my husband and I were able to share the
child care and the car. Now that I have to work two shifts this is not possible
any more. First I used the train at 5.30 in the morning but I was attacked,
harassed and touched a few times now I am too scared and my husband drives me
to work. This means we have to drag the children out of bed at 5.30am or leave
them on their own for over an hour. Sometimes I take a taxi. I don’t know what
to do. We need the money and I like working but I also feel very worried about
my children.[33]
Ms N: My husband and I work in the same factory. There used to
be three shifts and we always got different shifts so we could look after our
children and had family time together. Now they want us to work 4 days per
week, 12 hours every day. If this happens, one of us has to leave because we
can’t leave our children at home.[34]
8.29
The Women for Workplace Justice Coalition also
pointed out that ‘the difficulties associated with employment hours are
exacerbated by the lack of flexible and affordable child care. Parents who book
their children into child care are usually obliged to give many weeks notice
and are liable to pay for the booked time. For women who then may only get a
few hours of work, this is not cost-effective and often results in a net loss
of money.’[35]
8.30
The Sex Discrimination Commissioner agreed:
It is a case of saying, ‘It
is something that you will now do because if you want your job here you have to
start at 6.30 in the morning.’ It does not coincide with the way the rest of
the world works out there. That does not mean that your child-care centre is
now going to open for you at 6 o’clock in the morning, and there are very few
that do. And to change rosters or to have rosters that rotate often means
child-care hell because child-care centres do not work with that scenario, nor
are they interested in doing so from my experience. It is about saying, ‘No,
you have got to drop your child off at 7 a.m. and pick the child up at 6 p.m.’
And the days when your rosters are changing—say, you work Monday this week,
Tuesday next—the child-care centre booking has to be permanent, so that means
you end up paying for both days both weeks, even though you only worked one
each week. So you have got to ask who does the flexibility suit and be
realistic about all the other infrastructure and support mechanisms that men
and women need to actually go to work.[36]
8.31
Other submissions reinforced the view that
flexible hours, and particularly the lack of award provisions to set maximum,
minimum or even regular hours for part time workers, had negatively affected
employees’ ability to manage work and family:
Our concerns in this area have always been to ensure regular and
predictable hours of work for part time employees and to ensure that they are
not forced into part time work when their preference is for full time work or
longer hours, as necessary for financial survival...It is essential for part time
women workers to have totally predictable hours of work so that they can meet
these [caring] commitments. Schools and childcare centres close at particular
times each day and do not open on weekends. These are the non-negotiable
realities that most women who work part time must work around.[37]
One of the issues that we
lost last time was the regulation that awards had to say what your minimum and
maximum hours would be if you were a part-time worker. Now we have many cases
of women, in particular, with no certainty in their hours of work. One week the
employer might call them in for five hours, the next week they might get
nothing at all.[38]
On the question of balancing
work and family responsibilities in an industry of approximately 70 per cent
women [education], the 1996 act has failed in its object and should be amended.
A clause in the Victoria schools award was diluted which provided for limiting
the spread of part-time hours. That means that if you are a 0.4 teacher, you
can be required to come in for four or five days, rather than concentrating the
spread of those hours in one or two days. Again, the face-to-face teaching
hours dilution is a great concern where it comes to balancing work and family
responsibilities.[39]
8.32
It should be noted
that the WR Act already purports to provide some protection for part time
workers: under subsection 89A(5) the Commission may include provisions in an
award facilitating a regular pattern of hours for ‘regular part time
employees’. A regular part time employee is defined in section 4 as:
an employee who: (a) works
less than full-time ordinary hours; and (b) has reasonably predictable hours of
work...
8.33
In light of the
evidence discussed above, these provisions are clearly not providing a
sufficient guarantee of regular hours for part time employees. The National Pay
Equity Coalition suggested that the definition of part time worker should be
amended, and provisions reintroduced to allow the Commission to regulate hours
of work for part time workers in awards:
...the availability of
part-time work is not in itself helpful to women unless the part-time work is
of a regular and predictable nature and the jobs are well designed so as to
promote career progression. We believe the definition of ‘regular part-time
employee’ currently in the act does not go far enough in protecting women’s
income and giving them the certainty they need that they will be able to meet
their other responsibilities at certain times of the day. We would like to see
the reference to ‘reasonably predictable hours of work’ replaced with ‘regular
and predictable hours of work’. This would be consistent with the government’s
publicly stated reason for wanting to make part-time work more readily
available—that is, to help women balance work and family responsibilities. For
the same reason, we believe there should also be a provision in the act to
prevent an employer unilaterally making full-time jobs part time or reducing
part-time hours without consultation with the employee.[40]
8.34
This would require
a slight reversal of the current deregulated approach to working hours.
However, the Women for Workplace Justice Coalition made an interesting point
about the effect of removing regulatory provisions from awards for the sake of
improving ‘choice’ for employers and employees:
We cannot agree that the present system provides women with
valid choices. On the contrary, we consider that the workplace now offers less
flexibility for women than it did prior to the 1996 amendments, resulting in
increased stress and greater inequity in the workplace...The limitation of the
Australian Industrial Relations Commission’s award making power means that
women cannot ‘choose’ to have certain matters safeguarded by their award, as
they used to be able to do...Nor can women ‘choose’ to have the Commission
arbitrate on matters in the way it used to.[41]
Schedule
1A - Victoria
8.35
There is evidence
that deregulation of part time hours has not only been a problem for part time
workers under awards and agreements, but also for Victorian workers whose conditions
are set in accordance with Schedule 1A of the WR Act:
The issue of flexible
working hours, which you raise, is interesting because for schedule 1A
employees we have consistent examples where women are being forced to start at
ridiculous hours in the morning, or they have been asked to work 12-hour days.
In many cases they are not even receiving payment for their overtime.
Obviously, one of the limitations of the current schedule 1A is that there is
no statutory right to enforcement for paid overtime. The issue of extension of
hours is quite pronounced under the schedule 1A.[42]
Conclusions
8.36
The WR Act is not
currently operating to allow workers to balance their work and family
commitments through flexible working arrangements. The evidence before the
Committee demonstrates that flexibility in working arrangements is most often
benefiting employers, not employees. Workers are increasingly under pressure to
work hours and shifts that suit their employers, involving longer hours,
unsociable hours without penalty rates and unpaid overtime. This is not
assisting workers with family responsibilities, and is probably discouraging
workers from having children at all.
8.37
Regarding
agreements, many provisions may appear at face value to operate to allow
employees flexibility to balance work and family. However, these provisions
will often be worded in a manner that allows them to be implemented by
employers to disadvantage workers with family responsibilities. The Commission
and the Employment Advocate should examine such provisions more carefully when
applying the no-disadvantage test to assess how the provisions will operate in
practice, and if appropriate require undertakings regarding employees with
family responsibilities prior to certification or approval of the agreements.
8.38
Regarding awards,
the removal of the Commission’s ability to set minimum and maximum, and
regular, hours of work for part time employees appears to have had disastrous
consequences for many workers attempting to combine work and family
responsibilities. The lack of minimum guaranteed hours affects women who need a
regular income to support their families, and lack of notice of changes to
shifts and working hours creates havoc with child care arrangements.
8.39
72.4 per cent of
part time workers are women, and over a million working
women have dependent children under the age of 15, of which 170,000 are sole
parents.[43]
Clearly a major proportion of part time workers are women attempting to balance
work and family commitments, and this should be a primary consideration when
considering the need for regulation of part time hours.
8.40
The Labor Senators
believe that section 89A(4)(b) should be repealed, and award provisions
regulating minimum and maximum hours of work for part time employees that have
been removed through the award simplification process should be restored by the
Commission. The Labor Senators also agree with the recommendations of the
National Pay Equity Coalition that the definition of ‘regular part-time
employee’ in section 4 of the WR Act should be amended to read ‘regular and
predictable hours of work’ rather than ‘reasonably predictable hours of work’.
The evidence presented to the Committee demonstrates that this existing
protection is insufficient.
8.41
The Labor Senators
also agree that a new provision should be introduced into the Act to ensure
that employers of part time employees cannot unilaterally decide to reduce
their hours or convert their jobs to full time status, as suggested by the
National Pay Equity Coalition.
8.42
Regarding
Victorian workers, the Labor Senators believe that the recommendations outlined
elsewhere in this report (ie. that federal award coverage be broadened) will
address the particular problems faced by Victorian workers with family
responsibilities, in conjunction with our proposed changes to awards outlined
above.
Pregnancy and maternity leave
8.43
The impact of the WR Act on pregnant workers has
already been outlined in Chapter 7 on the ‘Needs of workers vulnerable to
discrimination’. However, in the context of assisting workers to balance their
work and family commitments, some additional comments are relevant here.
8.44
It was reported that women had lost access to
paid maternity leave since 1996, even though ‘parental leave, including
maternity...leave’ remained an allowable award matter under paragraph 89A(2)(h):
We were concerned in 1996 with the move towards reducing
allowable matters in awards. Some of our fears have been realised. For example,
the award simplification process so far has resulted in women losing employment
rights such as paid maternity leave.[44]
8.45
The Community and Public Sector Union also told
the Committee that some of its members in the former Commonwealth Employment
Service have lost access to paid maternity leave as a result of the
transmission of CES staff to a new Government owned corporation, Employment
National.[45]
8.46
It is disturbing that paid maternity leave seems
to be disappearing from awards, rather than being extended to cover more
employees as working standards improve over time. It is clear that paid maternity
leave is not being picked up to a great extent in agreements, as the Work and
Family State of Play Report states that only 7% of certified agreements provide
for paid maternity leave. Paid paternity leave is even less frequent, appearing
in only 2% of certified agreements.[46]
8.47
It is matter of particular concern that the
Commonwealth Government has sought to remove paid maternity leave entitlements
from its own employees. The Government is clearly not attempting to lead by
example to back up its family friendly rhetoric.
8.48
Some submissions also raised the possibility
that employers are deliberately employing women as casual employees to avoid
entitlements to paid and unpaid maternity leave. For instance, HREOC submitted:
Due to the lack of solid data, speculative comment is the only
option, but based on the concerns documented for this inquiry, it appears there
are employers using casual employment status to avoid the rights and
responsibilities associated with pregnant employees.[47]
The vast majority of TAFE teachers are casual workers. The
senior teachers, of whom there are far fewer, are permanent employees, and they
are largely men. Then we have examples like one that came through where a
casual supply teacher who had been there for two years continuously had a
teaching load of four days, four hours and 15 minutes, which is half an hour
short of a full-time teacher’s load. So when she applied for maternity leave
payment she was denied it on the basis that she was only a casual; she had
never taught a full load. So what we see is people using the system to fall
short by 15 minutes a day of what would then offer an entitlement that every
other worker would be likely to be entitled to. That exploitation of a system
or that calculated usage is something that we find quite unsavoury. It emerged
over and over again with instances of women not being able to put their hand up
for even unpaid maternity leave. When you see that the tenure for casuals has
increased to 3½ years on average, and they are largely women, why is it that
they are disadvantaged, have to leave and are not in a position to return to
that job because of that status?[48]
8.49
The Queensland Government has recently enacted
legislation to address this problem, by extending unpaid parental leave to
casual employees who have worked for their employer on a regular basis for two
years[49]:
Probably the most
significant initiative that is in the legislation that was not in earlier
legislation is the extension of maternity leave to long-term casuals. A
significant proportion of the casual work force are women. I think it is
slightly less than a third. A significant number of casual employees are in
fact employed on that basis on a long-term basis.[50]
8.50
HREOC also stated
that the New South Wales Government had undertaken to amend the NSW Act to
‘give long term permanent casual workers (ie those who have worked more than
two years for an employer) access to maternity leave provisions.’[51]
8.51
HREOC recommended
that access to maternity leave also be extended to casuals working under the
federal jurisdiction:
For the purposes of this
submission to the Senate Employment, Workplace Relations, Small Business and
Education Committee, HREOC reiterates recommendation 25...from the Report of the
National Pregnancy and Work Inquiry...That the Workplace Relations Act 1996
(Cth) be amended to extend unpaid maternity leave to casual employees employed
for over 12 months.[52]
Conclusion
8.52
The Labor Senators agree that the issue of
extending unpaid maternity and paternity leave to casual employees should be seriously
considered at the federal level. Such legislative protection would ensure that
workers can return to their jobs after having children, which will assist
workers in balancing their work and family lives.
Other issues
8.53
Other submissions made particular comments about
the impact of the WR Act on workers’ family lives. Several ex-employees of the
Gordonstone mine wrote to the Committee about their experiences under the
deregulated bargaining system introduced in 1996, including some confidential
submissions that unfortunately cannot be included in this report. The long
running dispute between ARCO/Rio Tinto and their employees lasted for 22 months
and resulted in the mass sacking of more than 300 employees, who were later
found by the Commission to have been unfairly dismissed. The dispute took an
enormous toll on the employees and their families. For example:
I received my letter hand delivered by two security guards
informing me that I had been sacked. Not long after this I was declared
bankrupt. When I started this job I had two cars which we owned and a house I
was paying off. At the end of Arco’s carnage I had to sell the house and hand
all the money...back to the banks. My wife and family now live together apart
from me.[53]
8.54
The WR Act, with its emphasis on bargaining at
the workplace level and a reduced role for arbitration of industrial disputes,
has created a situation where intractable industrial disputes are occurring
with disturbing regularity. Other long and damaging industrial disputes
referred to in evidence before this Committee include those at the G&K
O’Connor abattoir and the Australian Dyeing Company, and the 1998 waterfront
dispute.
8.55
The impact that intractable industrial disputes
have on families should not be overlooked in our assessment of the impact of
the WR Act on work and family.
8.56
The Committee also received a submission from
the New Zealand Council of Trade Unions regarding disturbing trends that are
emerging from New Zealand, which has had a similarly deregulated industrial
relations system since the early 1990s:
[In New Zealand] there has been a bi-polar development in work
and its impacts on the discharge of family responsibilities. For some, there is
not enough work leading to inadequate incomes and an inability to attend to the
financial needs of families. At the other end there is ‘over work’ resulting in
families having too much work to attend the personal and emotional needs of
family members. These complex trends apply not only within households but
within communities (neighbourhoods) leading to cycles of social disadvantage
(low rates of couple formation, inadequate outcomes, sub-standard housing, poor
health status, low educational achievement, weak employability) which pass from
generation to generation intensifying as they do.[54]
8.57
The Labor Senators are concerned that similar
trends will occur in Australia unless the Government takes action to regulate
hours of work. More standardised and regular hours of work are necessary to
limit both underwork and overwork, and the socially dislocating effects of both
phenomena.
Amendments proposed in the Bill
Award clauses dealing with
transfers between types of employment
8.58
The Department’s submission, which outlined how
the WR Act was delivering family friendly work practices, stated that award
reliant employees had access to a number of family friendly provisions:
The WR Act also maintains an effective safety net of fair
minimum wages and conditions of employment through the award system. The
protection afforded to workers with family responsibilities by awards is
reflected in the WR Act through the inclusion of relevant allowable award
matters, notably hours of work, personal/carer’s leave, parental leave
and type of employment (emphasis added).[55]
8.59
This submission is quite astounding given that
later, at page 297, the Department also outlines the Government’s proposal to
prohibit award clauses about transfers from one type of employment to another,
which will effectively rip the guts out of current award parental leave
provisions.
8.60
An essential part of the standard award clauses
that resulted from the Commission’s Parental Leave Test Case is the right for
employees to transfer to part time work during pregnancy and following the
birth (or adoption) of a child, and to transfer back to full time work again
when the employee’s caring responsibilities have reduced. Otherwise, the
employee’s ability to provide financial support to their new family and the
employee’s career prospects will be severely impeded.
8.61
The Government merely explains that ‘[t]hese
matters are more appropriately dealt with by agreement at the workplace or
enterprise level.’[56]
8.62
This proposed amendment is considered in more
detail in Chapter 7 of this report: ‘Needs of workers vulnerable to
discrimination’. However, the Labor Senators reiterate their strong opposition
to the proposed amendment. It will reduce the ability of new parents to balance
their work and family responsibilities and should be rejected.
Part time hours of work
8.63
The Bill proposes to re-enact current subsection
89A(4) of the Act in new paragraph 89A(3A)(j). As discussed in more detail
above, this provision prevents the Commission from making awards that assist
part time workers to manage their work and family responsibilities through
regular and predictable hours of work:
A large proportion of women work part time or casual hours
because of the family responsibilities they are relied upon to meet, such as
caring for children or elderly parents. It is often essential for part-time
workers to work predictable hours so they can meet these responsibilities. The
proposed amendments do not ensure regularity of working hours, but rather
provide the opportunity for employers to make working hours less predictable.[57]
8.64
This new provision should be rejected.
General comments
8.65
The Bill would further limit the Commission’s
power to make awards, and would require employers, employees and the Commission
to go through another round of award simplification to remove more entitlements
from awards. Women, who tend to have primary responsibility for caring, are
disproportionately reliant on awards. The Bill amendments will therefore tend
to disadvantage workers with family responsibilities, who are already
marginalised from the workplace as they normally work part time or casually and
have less bargaining strength.
8.66
The HREOC Report Stretching flexibility:
enterprise bargaining, women workers and changes to working hours found
that:
...the greatest protection for women workers will be in the
maintenance and strengthening of minimum standards and protection through a
comprehensive no-disadvantage test and the maintenance and strengthening of
consultation requirements.[58]
8.67
The Government’s approach to further limiting
and reducing the award safety net would appear to ignore the complex
interaction between awards and agreements through the no-disadvantage test.
Arbitrary reductions in allowable award matters and limiting the scope of
safety net wage increases will not only affect award workers, but it will also
reduce the standard against which agreements and their provisions are tested.
8.68
HREOC recommends that the Government should
provide ‘a comprehensive no-disadvantage test in the context of properly fixed
award conditions to provide the framework for enterprise bargaining to ensure
that any increased flexibility in working time arrangements allows all
employees...the opportunity to more effectively blend their work and family
responsibilities...’[59]
8.69
The Labor Senators endorse this recommendation,
and reject the Bill’s approach to reducing the award safety net and
no-disadvantage test standards. This is discussed further in Chapter 4 on the
‘Standing of the Australian Industrial Relations Commission’.
8.70
Labor Senators also recommend that:
- transparency and review mechanisms for all forms of agreements be
provided to ensure work and family provisions deliver their stated outcomes.
Provisions such as flexible hours or spread of ordinary time should be closely
examined to ensure that work and family responsibilities for current and future
staff are enhanced; and
- priority also be given to the development of model Award and
agreement provisions to assist employees balance work and family
responsibilities.
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