Coalition Senators offer the following comments on Recommendations 3 to 6 of the committee’s report.
Recommendation 3
Most of the decisions included within this report fall under the purview of the Fair Work Commission and should remain so. Coalition Senators note that the Fair Work Act 2009 (Cth) (Fair Work Act) allows for the right of flexible working arrangements under section 65 and that this issue has been dealt with by the Fair Work Commission before.
Coalition Senators note that the Fair Work Commission has recently dealt with a case brought forward to include ‘family friendly’ working arrangements in modern awards, in 2018. The decision by the Fair Work Commission rejected the claim, and proposed a provisional model term facilitating family friendly working arrangements to supplement the National Employment Standards (NES).
Coalition Senators note that evidence before the Fair Work Commission in its 2018 decision, submitted by Dr Murray, shows that the vast majority of requests (both informal and those made pursuant to section 65 of the Fair Work Act) are approved in full, with some requests being approved after amendments and only a proportion are rejected outright.
Coalition Senators note that currently, under section 653 (1) of the Fair Work Act, the General Manager of the Fair Work Commission is required to:
conduct research into the extent to which individual flexibility arrangements (IFAs) under modern awards and enterprise agreements are being agreed to, and the content of those arrangements; and
conduct research into the operation of the NES provisions relating to employee requests made under sections 65(1) and 76(1) of the Fair Work Act.
Coalition Senators note that the General Manager of the Fair Work Commission’s report in 2021, states:
Refusals were rare, particularly among employers who provide greater access to flexibility than the statutory provisions
Coalition Senators note that employers need to make operational decisions, and evidence provided to the Fair Work Commission during the 2018 decision shows that section 65(5) of the Fair Work Act currently strikes the appropriate balance for providing flexible working arrangements and ensuring businesses’ operational needs are met.
Coalition Senators note that the Fair Work Commission in its 2018 decision agreed with this section of the submission by the Australian Chamber of Commerce and Industry:
No coherent understanding of a fair and relevant minimum safety net could confer on an employee a unilateral right to determine their hours, regardless of the operational considerations of the employer.
Coalition Senators also note that the Government is pursuing legislation at this point in time which would reduce flexibility in the workplace, through its disparaging of certain forms of work. Coalition Senators believe that the recommendation may clash with other reforms the Government has already proposed to the workplace relations system.
Coalition Senators note that at this stage the Fair Work Commission has not been called to submit any evidence to the committee, and there is minimal research done by the independent workplace relations umpire in relation to Recommendation 3, and work needs to be done before any change is made to the Fair Work Act.
Recommendation 4
Coalition Senators note the recommendations from the interim report in relation to 'the right to disconnect'.
Coalition Senators note that the report does not take into consideration the flexibility aspect that is requested in Recommendation 3, and how it would work in relation to any legislated 'right to disconnect'.
Coalition Senators note that the recommendations would likely add further complexity and a prescriptive nature that may in fact adversely affect those it is intended to help.
Coalition Senators note that the employer/employee relationship is better when it is approached from a position of flexibility and common sense, and both the needs of the employer and employee are taken into consideration—not by a one-size-fits-all approach.
Coalition Senators note that the report does not have data from the independent workplace relations umpire in regard to this recommendation, and that any consideration of a legislated 'right to disconnect' needs appropriate evaluation from the Fair Work Commission before any change to the Fair Work Act.
Recommendation 5
Coalition Senators note that Recommendation 5 does not take into consideration the flexibility aspect that is requested in Recommendation 3, and how it would work in relation to any 'rostering rights'.
Coalition Senators note that casual employment is underpinned by the concept of being on a needs-based requirement, and casuals are compensated for unpredictability through casual loading.
Coalition Senators note that at this time, despite the report’s concern about casualisation, casual employment equates to approximately a quarter of the workforce—the same it has been for over two decades.
Coalition Senators also note that the Government is pursuing legislation at this point in time which would reduce flexibility in the workplace, through its disparaging of certain forms of work—including flexible arrangements such as permanent-part time.
Coalition Senators note that the first half of the recommendation may clash with other reforms the Government has already proposed to the workplace relations system.
Coalition Senators note that most flexible working arrangements, including changing start/finish times, days worked and change in averaging hours could potentially be adversely impacted by any prescriptive legislation or regulation around rostering.
Coalition Senators note that employers need to make operational decisions and that prescribing rostering requirements in a one-size-fits-all approach across businesses and industry does not take into consideration individual business requirements.
Coalition Senators note that the second part of Recommendation 5 is already in place in terms of consultation and consideration of changes to rosters and hours of work as presented below:
Consultation about changes to rosters or hours of work
Without limiting paragraph 139(1)(j), a modern award must include a term that:
requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and
allows for the representation of those employees for the purposes of that consultation.
The term must require the employer:
to provide information to the employees about the change; and
to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
to consider any views about the impact of the change that are given by the employees.
Recommendation 6
Coalition Senators note that the Government has already made a commitment to, and is pursuing, Recommendation 6 regarding legislating paid parental leave for 26 weeks.
Senator the Hon Anne RustonSenator Wendy Askew
MemberMember
Liberal Senator for South AustraliaLiberal Senator for Tasmania
Senator Andrew Bragg
Member
Liberal Senator for New South Wales