Chapter 6

Immediate issues and recommendations, and committee views

The evidence shows that the architecture for the work and care framework is frayed. Current workplace laws and cultures are not designed to recognise or support working carers, with the needs of people balancing work and care being easily ignored or overlooked.
It is clear to the committee that reform is needed—some of it urgently. The committee details below some areas where it believes that reform can be implemented soon and in doing so, realise immediate benefits for working carers and in particular for women’s workforce participation—for example, by implementing roster justice and increasing the period available for Paid Parental Leave (PPL).

A principled approach

In this chapter, the committee presents its views on the evidence received thus far, highlighting those areas where the committee will turn its focus in its final report and presenting recommendations in areas where immediate changes can be made to the great benefit of working carers.
Before moving to these issues, the committee wishes to recognise that a principled approach to policy development must always be applied.
This means that any proposals for amendment and recommendations for change must be developed in conjunction and consultation with those who would be most affected by the change of policy. For example, people with disability and disability advocates should of course be at the table for any discussions about workplace reform around disability and care.
The committee has also been pointed to the principle of ‘care ethics’, which ‘puts the care relationship back at the centre of our social service and welfare systems’ and can ‘provide the basis for a more productive, resilient and inclusive community, that is better able to meet the challenges of an uncertain future’.1
As the committee continues its work, it assures stakeholders that these principles will be considered, as best practice approaches to work and care policy reform.

Access to data

Consistent with a workplace relations framework which doesn’t recognise caring obligations or reflects the reality for many workers with caring responsibilities, there is an issue of ‘data poverty’—an issue which has been consistently raised with the committee, and by the committee. Because the framework doesn’t reflect reality, there are either gaps in the existing data, or an adequate dataset does not exist, which would allow stakeholders to determine the true extent and nature of issues facing working carers.
It is the committee’s view that better collection of data, the allocation of adequate resourcing to assess and examine the data (including the engagement of policy and decisionmakers) and the removal of any ‘data distortion’, would go some way to providing stakeholders and service providers with greater insights into the issues and would be the first step towards reforming the workplace relations structure.
Until such time as the data on work and care is improved, the government, policy developers and other key stakeholders will not be able to enact meaningful and effective change to the lives of working carers. The committee therefore recommends that the Government instigate a data collection project as a matter of priority, either by way of new questions in the Census, or via regular surveys.
As part of the data collection project, the survey should engage workers directly to determine what is happening on the ground in Australian workplaces, and allow proper examination of the impact of combining work and care on various cohorts. The project should capture data from workers in relation to age, gender, type of care and the extent of their workforce participation, to allow for a proper and extensive analysis of the issues. The survey should be conducted every five years to ensure the currency of the data and to establish trends over the long term.

Recommendation 1

The committee recommends that, as a matter of priority, the Australian Government include new questions in the Census and/or new regular surveys of a representative group of workers to determine the extent, nature and effects of the interaction of work and care responsibilities across Australia. This data collection project should survey workers every five years with the aim of:
analysing the extent and nature of the interaction of work and care responsibilities across Australia, with consideration of particular subgroups including (but not limited to):
type of care;
extent of workforce participation; and
generating data to allow extensive analysis of the work and care system, and how it affects outcomes for working carers.

Lifting the floor of wages across the care economy

Women are the backbone workers of the care economy, running aged, childcare and disability care. These jobs have been systematically undervalued for decades as the price of their ‘feminisation’. The care services sector is currently facing a workforce shortage crisis yet demand for care services is forecast to increase.
The negative impacts of workforce shortages and inadequate wages being paid in the care sector are being felt across the country, and both need to be improved as soon as practicable. It has been made clear by the evidence that a better funded and resourced care system would generate greater workforce participation—especially for women—and have a considerably positive impact on the national economy.
Low wages are the number one reason workers are leaving the sector. Aged care workers’ unions are pushing for a 25 per cent pay rise before the Fair Work Commission at present. If granted, an increase like this must be applied to all comparable care work. Australia needs to lift the floor of wages across the care services sector to properly value care sector workers and ensure the sector can meet growing demand, while addressing the impact of the feminised nature of the industry.
The committee welcomes the announcements by the Employment and Workplace Relations Minister about implementing multi-employer bargaining. At the time of this report the legislation is yet to be presented to Parliament. The committee looks forward to seeing the legislation and considering any possible impacts—positive or otherwise—that it may have on working carers.
These announced changes, while welcome, should serve as the first step in addressing the entrenched issues of low wages, insecure work and the gender pay gap.
The new Government, in delivering its first Budget, has the opportunity to address wages and job security, particularly in feminised workforces and workforces with large numbers of part-time and casual workers—as these are the workforces most impacted by the competing responsibilities of work and care.
To this end, the committee considers it imperative that the Australian Government develop an analysis of care work classifications and wage structures, which acknowledges the variability of such work across numerous sectors, establishes interrelationships across care types and recognises the inherent value of care work. This should all be with a view to systematically addressing underpayments in the care sector and lifting wages across the sector as a matter of priority.

Recommendation 2

The committee recommends that the Australian Government develop an analysis of care work classifications and wage structures to systematically address underpayments and lift wages in the care sector. Such an analysis should:
consider the variability and value of work across the care sector;
establish the interrelationships across care types; and
recognise the inherent value of care work.

Fair Work Commission

Officials from the Department of Employment and Workplace Relations (DEWR) advised the committee that expert panels on both pay equity and the care and community sector would be established in the Fair Work Commission (FWC).2
The committee looks forward to hearing more about how the new pay equity and care and community sector expert panels at the FWC will work in practice, and hopes these panels go some way to increasing the understanding of the unique demands of this sector and to addressing the gender pay gap.
Further, the committee heeds the call of the Work + Family Policy Roundtable for it to develop strategies to sustainably fund and support a highly skilled and properly remunerated care workforce, and it will consider this task as it continues its work.

The right to request flexibility

The scope for employers to deny a request for flexibility is incredibly broad. Employers can deny a request on many so-called ‘reasonable business grounds’, including that it would be ‘too costly’, that it would ‘impractical to change the working arrangements of other employees, or recruit new employees’, or that it would negatively impact on customer service.
As it currently stands, only those who have a specific enterprise agreement or contract allowing it, can take a denied request for working flexibility arrangements to the FWC for arbitration. As the data from DEWR shows, there are very few matters referred to the FWC regarding flexibility—and presumably, even fewer who are successful in their appeal.
While this may be driven by the restrictive legislative framework, it also speaks to the fact that people balancing work and care are already time-poor and may not have capacity to advocate for themselves in forums like the FWC.
An employer does not have to provide any reasons for denying a request beyond any ‘reasonable business grounds’. The employer therefore has a disproportionate amount of power in these circumstances, and in cases where flexible work arrangements are agreed to, they are likely attributable to the good will of particular employers rather than any legislated requirement that agreement be given.
As shown throughout this report, the lack of flexibility in the workplace has a direct, detrimental impact on people balancing work and care, regardless of industry and particularly for people in casual, part-time or shift work arrangements.
The fact that flexibility cannot be requested by employees of less than 12 months service, or by those re-entering the workforce after a period of absence, appears to ignore the key drivers of needing flexibility in the first place. New part-time or casual employees may be balancing care responsibilities or be returning to work after a period of caring ends. The workplace relations system should be structured to support workforce participation in such circumstances—not make it more difficult to secure work.
The UK has managed to implement a clear framework for requesting flexible work arrangements, without the onerous restrictions on employment status or length of tenure.
For all the above reasons, the committee recognises that the framework for requesting flexibility needs to be reset and the power imbalance between the employer and employee adjusted. The committee recommends amendments to section 65 of the Fair Work Act 2009, to ensure that the right to request flexible work is available to all workers, while removing the stigma attached to its use.
Further amendments should place the onus on employers to properly consider requests for flexibility unless it can be proven—and not just stated—that there are reasonable business grounds to deny a request—in other words, a positive duty on employers. All awards should, as a default, allow employees the right to take a denied request for flexibility to the FWC for arbitration.
The committee also suggests that a civil penalty system under the Fair Work Act be considered, for employers who are shown to not properly deliberate on requests for flexibility, against the needs of both the employee and the business. As it currently stands, there are no repercussions for employers who deny flexibility requests on spurious grounds.
The committee encourages the Government to consider this recommendation and examine this issue as a matter of priority, alongside its legislative amendments to the workplace relations system, including multi-employer bargaining. The committee will continue to advocate on this issue as its progresses its inquiry.

Recommendation 3

The committee recommends that the Australian Government amend the Fair Work Act 2009, including section 65 of that Act, to:
make the right to request flexible work available to all workers and to remove the stigma attached to its use when confined to carers;
replace the ‘reasonable business grounds’ provision at section 65(5) under which employers can refuse a flexible working arrangement, with refusal only on the grounds of ‘unjustifiable hardship’;
introduce a positive duty on employers to reasonably accommodate flexible working arrangements;
require consultation with workers about flexibility requests; and
revise sections 738 and 739 of the Act to introduce a process of appeal to the Fair Work Commission, for decisions made by employers under section 65 refusing to allow flexible work arrangements on the grounds of unjustifiable hardship, or on ‘reasonable business grounds’.
The committee will also explore how the Victorian and other models of antidiscrimination law operate in practice, whereby a parent or carer is a protected attribute and where employers must not unreasonably refuse to accommodate the responsibilities of a parent or carer.

The right to disconnect

The committee considered the impact of right to disconnect provisions on the health and wellbeing of workers, and on people already timepoor due to balancing work and care commitments.
The changing ways of work in recent years with the advancement of technology has caused an ‘availability creep’, where employees feel they need to be available all the time to answer emails, calls or simply deal with their workload.
This has only been exacerbated by the pandemic. Availability creep impacts mental health, exacerbates work-life stress, impacts on productivity and takes workers away from a fair day’s work for a fair day’s pay.
It particularly impacts workers trying to balance paid work and unpaid care and who work from home, and means that people balancing work and care are even less likely to get a break from both their work and care responsibilities.
However, recent workplace innovations have seen bargaining to contain working hours, and a number of European countries and some employers have moved to establish a ‘right to disconnect from work’.
Some enterprise agreements appear to be leading the way in terms of accommodating reasonable requests for flexibility from working carers, and also in implementing a right to disconnect. The committee will examine how these provisions are operating in practice with a view to assessing their applicability at a national level.
In light of the changes to workplace boundaries following the pandemic, and given the need for working carers to have clear parameters around their working time, the committee recommends that a right to disconnect be considered for Australian workplace relations law.
Such a right should enable and support productive work from home and flexibility of work, while ensuring workers have the capacity to disconnect from their job and to work their contractual hours. Such a right could have similar provisions to those recommended above for the right to request flexibility—in terms of applicability, appeal, penalties and so on.

Recommendation 4

The committee recommends that the Department of Employment and Workplace Relations investigate legislative reforms to the Fair Work Act 2009 and any other associated workplace laws, to enact a ‘right to disconnect’ from work. This right should:
enable and support productive work from home and flexibility of work;
protect the right of workers to disconnect from their job outside of contracted hours and to enforce this right with their employer;
place a positive duty on employers to reasonably accommodate the right wherever possible; and
allow employees to appeal to the Fair Work Commission where the right is not being enacted by employers.

Roster justice

While shift work can provide some flexibility in the workplace for people balancing work and care responsibilities, it can also reduce available work hours, create a highly unpredictable environment for employees and remove access to muchneeded income.
Unpredictable and last-minute changes being made to rosters in various employment contexts is having a clear and detrimental impact on working carers, with some having to leave employment entirely due to the impact of negative rostering practices on their care responsibilities.
The unpredictable nature of rostering has real and adverse impacts on so many people, by creating work—and therefore income—insecurity. The mental and physical toll of this uncertainty adds to the already stressful circumstances for working carers and stifles any ability for them to increase their participation in the labour market. People deserve to have decent work.
The committee is particularly concerned about the lack of access to child care for children in the care of rostered employees. As has been shown throughout this report, a lack of access to quality child care in the early stages of life can have long-lasting impacts on a child’s development.
Conversely, roster justice ensures that workers’ rights are protected in relation to the development and structure of rosters—including protections around the process for changing rosters, and the platform on which rosters are developed and accessed.
The committee finds the evidence of the SDA compelling, in calling for ‘roster justice’, whereby employees are supported in their caring roles and not subject to last minute, unexpected changes to their working hours, and are properly consulted on rosters by their employers. Roster justice would also go some way to supporting a better work-life balance for working carers.
Therefore, the committee recommends that the Fair Work Act be amended to provide roster justice to employees. The legislation should be amended to ensure that rosters are implemented by employers in ways that are predictable and implement fixed times and days wherever practicable.
Further, the committee recommends that the Act be strengthened to ensure employers genuinely consider the views of employees when considering changes to their rosters—especially those changes made at short notice, and which have the capacity to severely and adversely impact on working carers and their right to fair working conditions.

Recommendation 5

The committee recommends that the Australian Government amend the Fair Work Act 2009 to provide improved rostering rights for employees, and in particular working carers, by:
ensuring employers implement rostering practices that are predictable, stable and focused on fixed shift scheduling (for example, fixed times and days); and
amending section 145A of the Act to require employers genuinely consider employee views about the impact of proposed roster changes, and take the views of the employee, including working carers, into consideration when changing rosters and other work arrangements.
Moving forward, the committee will continue to look at this issue. It anticipates receiving evidence from large employers across Australia about their rostering systems, and how they consider the needs of working carers, especially in their use of computerised rostering systems.

Leave entitlements

The system of leave entitlements in Australia is having adverse impacts on workforce participation and the ability to provide care to those who need it—whether it be due to age, health or disability.
It is clear that the economic benefits of greater workforce participation for carers and in particular for women, will likely outweigh any costs associated with reform of the leave entitlement system.

Paid and unpaid parental leave

There is a complex relationship between the uptake of PPL, access to Early Childhood Education and Care (ECEC), and to workforce participation for carers, especially women.
Australia’s current PPL framework limits the flexibility and choices available to families, parents, and other carers of babies and young children, by providing an unnecessarily short amount of time—90 days—and not providing incentives for partners to take parental leave.
There has been strong support put forward in evidence to date for Australia extending the time available under PPL, from 18 to 26 weeks—at a minimum and as a first step to future reform. The benefits to this approach are being shown overseas, where more men are taking up more leave and unpaid caring responsibilities in the household, and babies are benefitting from more time with parents in the early stages of development.
In addition to lengthening PPL, Australia must look to comparable international jurisdictions where better, longer parental leave entitlement systems have been implemented, to positive effect. Australia does not need to start from scratch in enhancing its statutory framework for parental, carer and other leave; rather, it can turn to other countries, such as Sweden, to see what a more successful and fair approach might look like.
Further, the payment of PPL at the minimum wage and particularly the lack of superannuation guarantee payments on unpaid parental leave is an active disincentive to parents accessing the entitlement.
The committee will continue to examine these issues as it progresses its work and will continue to examine the best practice approaches adopted elsewhere for their applicability to the Australian context.
In the meantime, and given the clear evidence before the committee in support of it, the committee sees great benefit in immediate amendments which would extend the minimum paid parental leave period to 26 weeks. The committee therefore recommends that the Government amend the legislative framework to implement the 26-week period as a matter of priority.

Recommendation 6

The committee recommends the Australian Government amend, as soon as is practicable, the Paid Parental Leave Act 2010 to legislate for a paid parental leave period of 26 weeks.

Carer’s leave

The definitions applied to ‘carer’s leave’ by the Fair Work Act are restrictive, and do not fully encompass the broad scope of what carer’s leave can entail. Further, the limited access for working carers to long-term unpaid leave is directly and negatively impacting on workforce participation and limiting the capacity for working carers to maintain links to their workplace.
In addition, as shown by the evidence, other comparable jurisdictions do not combine personal/sick leave and carer’s leave into a single entitlement like in Australia.
Combining these entitlements and associating the need for carer’s leave with the various reasons for personal leave is not appropriate, and greatly diminishes the availability of carer’s leave for those who need it. It also means that those people undertaking carer roles cannot themselves access personal leave for when they are unwell, or need a break from their many responsibilities in their personal and work lives.
As it progresses its work, the committee will examine the barriers to people with work and care responsibilities accessing leave appropriate to their circumstances, and possible areas of reform of the leave entitlement system.

Early Childhood Education and Care

Carers—especially women—are still being asked to make the difficult choice between remaining engaged with paid employment and potentially progressing their career, or looking after children.
This difficult choice can be attributed to, among other things, the lack of adequate ECEC options, the financial impost of ECEC, child care deserts and the impact of working carers being employed outside of ‘core hours’.
There is also clearly an issue with a lack of adequate wages, particularly in the unique circumstances of rural and remote areas, as well as a lack of training pathways for childhood educators. The lack of retention of educators and educators turning away from the system is a real problem.
The committee welcomes the recent announcements regarding the increase to the Child Care Subsidy (CCS) from July next year, but calls on the government to consider bringing this rise forward to January 2023—in recognition of the increasingly prohibitive costs of child care.
Reform of the ECEC system, via a wide-ranging policy review, is needed and overdue. The committee has received a considerable volume of evidence on this issue, which it will continue to examine as it continues its work towards recommendations for change.
To this end, both the Productivity Commission’s examination of carer leave, alongside the ACCC’s look at the costs of childcare, will be instructive in determining whether the increased spend on the CCS is delivering benefits and efficiencies.

Childcare in First Nations communities

The committee was particularly persuaded by the evidence of the Secretariat of National Aboriginal and Islander Child Care (SNAICC), which drew attention to the inadequate funding model for ECEC services in rural, regional and some urban areas, particularly for First Nations people who also lack culturally safe ECEC services that meet their needs for holistic care.
SNAICC noted the major undersupply of ECEC in regional and remote areas, and that the current funding model does not support providers establishing services in undersupplied areas.
Further, the different nature of care in First Nations communities means that policies and programs which work in some areas of the country, will not work in others. It also means the ECEC in First Nations communities are not culturally appropriate and do not consider the unique socioeconomic and educational circumstances of these communities.
More funding is required to provide culturally appropriate and well-funded ECEC facilities in First Nations communities, to help improve career pathways and educational outcomes, especially in rural and remote areas. The committee therefore recommends that the Government, in the upcoming Budget, commit to long-term increases in funding to First Nations community-controlled ECEC.

Recommendation 7

The committee recommends that in the upcoming 2022-23 Budget, the Australian Government commits to long-term increases in funding to First Nations community-controlled Early Childhood Education and Care, with a particular focus on regional, remote and some urban areas.

Income support systems

The committee is concerned that current income support payments and programs are not fit for purpose and actively discourage increased participation in the workforce, particularly by women.
The income and asset tests have some merit in helping to better target eligibility to those people most in need of support, but the activity tests mean that people who want to engage more fulsomely with the workforce are punished for doing so, by having their support payments reduced or removed.
The onus being placed on working carers to balance not only their work and care responsibilities, but to then have to actively and constantly factor in their activities undertaken each fortnight—sometimes down to the hour—is causing undue stress and unnecessary harm.

Subsidised care in First Nations communities

The concerns around activity tests are exacerbated when turning to First Nations parents, families and communities.
The committee welcomes the Government’s commitment to increase the hours of subsidised child care for First Nations children, from 24 hours per fortnight to 36 hours, effective from July 2023.
However, the committee remains concerned about the activity test thresholds associated with the subsidies and the test’s disproportionate impact on First Nations communities.
The participation rate for First Nations children in ECEC is low, and the committee is of the view that the Government should be removing any barriers to increased participation in early learning and care. The committee therefore recommends that the activity test be amended to ensure that First Nations people are not adversely impacted by its requirements, to help increase the participation rate of First Nations children in ECEC while carers can more actively participate in the workforce as desired.

Recommendation 8

The committee recommends that the Australian Government amend the relevant Social Policy and Family Assistance Laws to ensure that First Nations people are not required to meet the requirements of the activity test in order to receive subsidised child care.

Ongoing work of the committee

While the committee has canvassed some of the key issues throughout this report, it recognises that there are further, wide-spread concerns with the work and care environment. The committee assures stakeholders that it is cognisant of these issues, and they will be considered in more detail as the inquiry progresses its work.
The committee will continue to consider ways to increase workforce participation and create more inclusive workplace practices for people balancing work and care responsibilities through an improved workplace relations framework. In doing so, the committee will consider, among other things:
the need to educate employers about the impact of the caring role on employees, and the benefits to employers who incorporate an understanding of caring responsibilities into their business practices
what a revised and reformed ECEC framework might look like
the need for the Superannuation Guarantee to attract to Paid Parental Leave
the mental health and wellbeing impacts on people combining paid work with unpaid caring responsibilities, as well as the attitudes of the community towards paid and unpaid carers, and the potential role of mental health programs for carers
the unique challenges faced by young people balancing work and care responsibilities, often at the expense of their education and their mental health
the role of technology in increasing flexibility and the ability to adopt remote working
the participation of migrant workers in the Australian workforce and the unique issues they face as working carers
the lessons arising from the COVID-19 pandemic, and how these impact on negotiating work and care responsibilities and on different cohorts (for example, young people)
the benefits to working carers of centralised sources of information regarding their rights, obligations and available financial assistance
the tax and transfer system and its impact on the support available to working carers
the feasibility and funding for alternative models of care and how these could increase workforce participation
where and how to focus investment in the work and care framework in the short, medium and long term, with regard to fiscal restraints

Job and financial security

The issue of job security overlays all the discussion about workers with care responsibilities across Australia and will continue to be a key focus of the committee.
Whether it is a lack of flexibility by employers, ineligibility for support payments, residing in a ‘childcare desert’ or needing to care for someone with disabilities, the lack of job security and the potential for unemployment is an everpresent danger to working carers.
Working carers are also at risk of having to reduce their hours or leave paid employment if caring responsibilities become too great (or the flexibility from employers is too little) and have limited opportunity to engage with skills training and seeking qualifications.
The compounding impact of a lack of skills training and progression, and a lack of income—and therefore a lack of superannuation accumulation—has dire effects for carers later in life, who are also known to participate less in the workforce the longer they are required to care for someone.

Workforce participation

Workforce participation is an important component of all people’s lives, regardless of age and ability. However, the evidence shows—and has shown for some time now—that women in particular, and therefore carers, are not participating in the workforce in satisfactory numbers, and this is directly resulting in national skills shortages.
The positive economic contribution that would be made to families and households, as well as to national GDP through women increasing their participation in paid employment cannot be understated.
Australia has a lot to learn from other jurisdictions, including comparable OECD countries, about how to better involve women in the workforce and to address skills shortages.
This is a key issue which deserves detailed future examination by the committee and the development of well-considered and sustainable suggestions for change. It is also directly relevant to the matters raised above, concerning job and financial security.

The need for reform

As shown throughout this report, the committee has received highly informative and compelling evidence from submitters, witnesses and those with a lived experience of being working carers. The committee thanks all contributors for their engagement with the inquiry so far.
Even in these early stages of the committee’s work, there is a clear consensus on what the issues are, across the spectrum of stakeholders. The gendered nature of caring responsibilities and employment in the care sector, the inadequacies of the child care system, the issues with parental leave and the overall lack of flexibility in the employment framework are just some of the areas where all agree that change is needed, and soon.
Any changes to policies and the work and care employment and support framework must be sustainable into the future and be adaptable to a fastevolving employment environment. The gig economy and the increased use of shift work and rostering are prime examples of how the nature of work is changing, and how workplace laws are not keeping pace with that change—especially with regard to flexibility and leave entitlements.
The questions before the committee are what policies, practices, support services and workplace laws need to be reformed, implemented, or perhaps done away with entirely, to best support people in a variety of work and care contexts across the country, at all stages of life. The committee looks forward to exploring these issues further as it continues its work and develops it final report with further recommendations for change.
Senator Barbara Pocock

  • 1
    WA Council of Social Service, Submission 46, p. 9.
  • 2
    Ms Lace Wang, Assistant Secretary, Safety Net Branch, Department of Employment and Workplace Relations, Proof Committee Hansard, 16 September 2022, p. 7.

 |  Contents  |