Post Implementation Review of the Fair Work Act 2009

Australian Human Rights Commission Submission to the Department of Education, Employment and Workplace Relations

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Table of contents

• 1 Introduction
• 2 Summary
• 3 Recommendations
• 4 Equal Remuneration
• 5 Workplace Discrimination
• 6 Balancing work and family responsibilities: NES right to request flexible working arrangements
• 7Procedural Limitations
  • 7.1 Unfair Dismissal
  • 7.2 Application to the Federal Court or Federal Magistrates Court
  • 8.1 Right to request and domestic/ family violence
  • 8.2 Leave provisions and domestic/ family violence under the FWA
  • 8.3 Domestic/ family violence as a ground of discrimination under the FWA

  1 Introduction

  1. The Australian Human Rights Commission makes this submission to the Department of Education, Employment and Workplace Relations in its Post Implementation Review of the Fair Work Act 2009 (FWA Review).

  2 Summary

  1. The Commission welcomes the opportunity to contribute this submission to the FWA Review, which was foreshadowed in the Explanatory Memorandum to the Fair Work Bill 2008. The Fair Work Act 2009 (FWA) [1] has been in operation for over two years which provides a useful foundation for assessing the operation of the Fair Work legislation [2] .

  • Equal Remuneration
  • Workplace Discrimination
  • Balancing work and family responsibilities: NES right to request flexible working arrangements
  • Procedural Limitations
  • Domestic/ Family violence as a workplace issue

  3 Recommendations

  1. The Australian Human Rights Commission recommends that:

  Recommendation 1: the FWA be amended to note there is no requirement for a male comparator to be identified in order to make an equal remuneration order.

  Recommendation 2: the Review pursue consistency, as far as possible, between the FWA, a consolidated Commonwealth equality law and best practice features of State and Territory anti-discrimination and equal opportunity laws.

  Recommendation 3: consideration be given to developing mechanisms for complementary, comprehensive and specialised service delivery across the Commission and FWA agencies in relation to complaints of workplace discrimination under federal law and that appropriate funding be allocated to enable the effective operation of all aspects of these services.

  Balancing work and family responsibilities: NES right to request flexible working arrangements

  Recommendation 4: extending the right to request flexible working arrangements to employees with children of all ages and to encompass all forms of family and carer responsibilities such as disability and elder care.

  Recommendation 5: the qualification requirements that restrict the categories of employees who can make a request for flexible working arrangements be removed.

  Recommendation 6: the same rights of redress applicable to the other nine NES be extended to the unreasonable refusal of a request for flexible work arrangements.

  Recommendation 7: the right to request flexible working arrangements be extended to employees with a disability.

  Recommendation 8: the 14 day time limit for unfair dismissal claims at s394(2)(a) be extended to 21 days; and the discretion provided to Fair Work Australia to extend the time limit be widened by providing that Fair Work Australia needs only to be satisfied that it is appropriate to allow for a further period in all the circumstances of the case.

  Recommendation 9: the minimum employment period to access unfair dismissal protections be reduced to three months for all employees.

  Recommendation 10: the 14 day time limit for bringing general protections court applications (s371(2) of the FWA) be extended to 60 days.

  Domestic/ family violence as a workplace issue

  Recommendation 11: s65 of the FWA be amended to provide employees affected by domestic/ family violence with a right to request flexible working arrangements.

  Recommendation 12: consideration be given to amending the FWA NES to specifically provide for paid domestic/family violence leave.

  Recommendation 13: publication of a guide to negotiating domestic/ family violence leave clauses, which could include existing and model clauses. The drafting of this guide could be undertaken by Fair Work Australia, in consultation with the Australian Council of Trade Unions, peak employer bodies and experts in the field of domestic/ family violence.

  4 Equal Remuneration

  1. In recognition that the gender pay gap (based on average weekly ordinary time earnings of full-time adult employees) is still 17.6%, [3] and that women are over-represented in low-paid industries, with high levels of part-time work in retail, hospitality and personal services sectors, [4] the Commission supports the retention of the provisions in the FWA for Fair Work Australia to make equal remuneration orders to ensure that, for employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value. [5]

  We have found that employees in the SACS industry are predominantly women and are generally remunerated at a level below that of employees of state and local governments who perform similar work. [6] We agree that it would be wrong to conclude that the gap between pay in the sector with which we are concerned and pay in state and local government employment is attributable entirely to gender, but we are in no doubt that gender has an important influence. In order to give effect to the equal remuneration provisions in these complex circumstances, we consider that the proper approach is to attempt to identify the extent to which gender has inhibited wages growth in the SACS industry and to mould a remedy which addresses that situation. [7]

  • Fair Work Australia establishing a specialist unit to develop and monitor pay equity mechanisms
  • Fair Work Australia putting measures in place to promote greater transparency in relation to pay rates, including in individual contracts. [9]

  5 Workplace Discrimination

  1. An object of the FWA is:
     

  enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms;; [10]

  (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

  Note: this subsection is a civil remedy provision see Part 4-1.

  (2) However, subsection (1) does not apply to action that is: (a) not unlawful under any anti-discrimination law in force in the place where the action is taken; or

  (b) taken because of the inherent requirements of the particular position concerned; or

  (c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken: (i) in good faith; and

  (ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed. [11]

  The Fair Work Australia/ FWO notifying the Equal Opportunity for Women in the Workplace Agency (EOWA) and the Commission if:
  

  - the FWO commences an application under s 682 of the FWA which relates to adverse action against an existing or prospective covered employee because of a relevant protected attribute, being sex, marital status, family or carer responsibilities and pregnancy; - a Fair Work Inspector issues a compliance notice where the Inspector reasonably believes that a person has contravened relevant provisions of the FWA [13] or a Fair Work Instrument, including amongst other things, relevant provisions of the NES, [14] or an equal remuneration order.

  6. Balancing work and family responsibilities: NES right to request flexible working arrangements

  1. In a week where 3.2 million employees provided unpaid care to someone, only 15% used flexible working arrangements to help them provide that care. [17]

  assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; [18]

  1. The FWA provides for the right to request a flexible working arrangement as one of the ten minimum standards in the NES [19] :

  65 Requests for flexible working arrangements

  (1) An employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:

  (a) is under school age; or

  (b) is under 18 and has a disability. [20]

  (4) The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request a

  (5) The employer may refuse the request only on a reasonable business grounds

  (6) If the employer refuses the request, the written response under subsection

  (4) must include details of the reasons for the refusal.. [21]

  1. The NES is a welcome recognition of the reality that many workers need to balance paid employment with their family and caring responsibilities.

  This qualification requirement will exclude many of the working parents of pre-school age children who are most likely to make requests. In 2006 for example, 21% of working women of child bearing age (25-44 years) and 44% of women employed on a casual basis had less than 12 months service with their current employer. [32]

  1. Recommendation 5: The Commission recommends that the qualification requirements that restrict the categories of employees who can make a request for flexible working arrangements be removed.[33]

  7 Procedural Limitations

  7.1 Unfair Dismissal

  1. The FWA requires unfair dismissal applications to be lodged with Fair Work Australia within 14 days after the dismissal took effect, or within such further period as Fair Work Australia allows. [41] Fair Work Australia may allow a further period for the application if it is satisfied there are exceptional circumstances, taking into account:
     • the reason for the delay;
     • whether the person first became aware of the dismissal after it had taken effect;
     • any action taken by the person to dispute the dismissal;
     • prejudice to the employer (including prejudice caused by the delay);
     • the merits of the application; and
     • fairness as between the person and other persons in a similar position.

  A requirement that an employee serve a minimum period before having access to an unfair dismissal remedy enables an employer to have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period. [47]

  7.2 Application to the Federal Court or Federal Magistrates Court

  1. The Commission submits that the time limit for bringing an application to the Federal Court or Federal Magistrates Court for a contravention of Part 3.1 [50] that resulted in dismissal should be extended.

  one forum, but not in another, they will be time-barred.

  8. Domestic/ Family Violence as a workplace issue

  1. Violence against women is a breach of women’s human rights. This has been recognised by the UN Committee on the Elimination of All Forms of Discrimination Against Women [57] as well as the Commission on the Status of Women [58] These bodies recognise that domestic/ family violence is an obstacle to women’s full participation in employment.

  8.1 Right to request and domestic/ family violence

  1. Employees affected by domestic/ family violence are able to use various forms of leave to enable them to attend to matters arising from experiencing domestic/ family violence. However, current leave available to employees, including personal/carer leave and annual leave, may be inadequate to enable employees to attend court, medical, legal or other appointments necessary for those affected by domestic/ family violence. Employees may not have leave accrued or not accrue leave if they are employed casually. Employees affected by violence may also be financially vulnerable, and not be in a position to take leave if this would result in losing wages.

  8.2 Leave provisions and domestic/ family violence under the FWA

  1. Existing leave provisions in the FWA may not be adequate for employees affected by domestic/ family violence, as there are no provisions which specifically aim to assist such employees. As stated earlier, employees affected by domestic/ family violence may require leave to undertake a range of activities associated with their situation, such as attending medical, legal and other appointments. While a right to request flexible working arrangements would assist employees affected by violence, employees may also benefit from an express provision for statutory paid leave. The need for paid leave has been recognised by some unions and employers, who have introduced domestic/ family violence leave through enterprise bargaining, and organisational policies. [65]

  8.3 Domestic/ family violence as a ground of discrimination under the FWA

  1. The Commission notes as a result of s. 351(1) of the FWA, in order for family violence to be included as a separate ground under s. 351(1), it would also need to be incorporated under federal, state or territory discrimination laws.

  The Commission further brings the Review Board’s attention to the recommendations made by the Australian Law Reform Commission in its recent report Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117) (See Appendix A). [70]

  Appendix A: Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117): Recommendations on family violence and employment laws [71]

  15. Employment Law—Overarching Issues and a National Approach

  Recommendation 15—3 The General Manager of Fair Work Australia, in conducting the review and research required under s 653 of the Fair Work Act 2009 (Cth), should consider family violence-related developments and the effect of family violence on the employment of those experiencing it, in relation to:

  1. enterprise agreements; and
  2. individual flexibility arrangements.

  Recommendation 15—4 The Department of Education, Employment and Workplace Relations maintains the Workplace Agreements Database which contains information on federal enterprise agreements that have been lodged with, or approved by, Fair Work Australia. The Department of Education, Employment and Workplace Relations should collect data on the incidence of family violence-related clauses and references in enterprise agreements and include it as part of the Workplace Agreements Database.

  Recommendation 15—5 The Australian Government should support research, monitoring and evaluation of family violence-related developments in the employment law sphere, for example by bodies such as the Australian Domestic and Family Violence Clearinghouse.

  16. Fair Work Act 2009 (Cth)

  Recommendation 16—1 The Australian Government should consider family violence-related amendments to the Fair Work Act 2009 (Cth) in the course of the 2012 Post-Implementation Review of the Act.

  Recommendation 16—2 Fair Work Australia should review its processes, and members and other relevant personnel should be provided with consistent, regular and targeted training to ensure that the existence of family violence is appropriately and adequately considered at relevant times.

  Recommendation 16—3 The Fair Work Ombudsman, in consultation with unions and employer organisations, should include information in Best Practice Guides with respect to negotiating individual flexibility arrangements in circumstances where an employee is experiencing family violence.

  Recommendation 16—4 The Australian Government should support the inclusion of family violence clauses in enterprise agreements. At a minimum, agreements should:

  1. include a statement outlining when and what type of verification of family violence may be required;
  2. ensure the confidentiality of personal information supplied;
  3. establish lines of communication for employees;
  4. set out relevant roles and responsibilities of employers and employees;
  5. provide for flexible working arrangements; and
  6. provide access to paid leave.

  Recommendation 16—5 The Fair Work Ombudsman should develop a guide to negotiating family violence clauses in enterprise agreements, in conjunction with the Australian Domestic and Family Violence Clearinghouse, unions and employer organisations.

  Recommendation 16—6 In the course of the 2012 review of modern awards by Fair Work Australia, the ways in which family violence terms may be incorporated into awards, consistent with the modern award objectives should be considered.

  Recommendation 16—7 In the course of the first four-yearly review of modern awards by Fair Work Australia, beginning in 2014, the inclusion of a model family violence term should be considered.

  Recommendation 16—8 The Australian Human Rights Commission, in the context of the consolidation of Commonwealth anti-discrimination laws, should examine the possible basis upon which status as an actual or perceived victim of family violence could be included as a protected attribute under Commonwealth anti-discrimination law.

  17. The National Employment Standards

  Recommendation 17—1 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending s 65 of the Fair Work Act 2009 (Cth) to provide that an employee:

  1. who is experiencing family violence, or
  2. who is providing care or support to another person who is experiencing family violence,

  may request the employer for a change in working arrangements to assist the employee to deal with circumstances arising from the family violence.

  Recommendation 17—2 As part of Phase Five of the whole-of-government strategy for phased implementation of reforms contained in Part E of this Report, the Australian Government should consider amending the National Employment Standards with a view to including provision for additional paid family violence leave.

  [1] Fair Work Act 2009 (Cth).

  [2] ‘Fair Work legislation’ refers to the Fair Work Act 2009 and the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008. The FWA is, administered by Fair Work Australia and the Fair Work Ombudsman.

  [3] ABS, Average Weekly Earnings, Australia, November 2011 Catalogue No 6302.0 (2012).

  [4] ABS, Labour Force, Australia, Detailed, Quarterly, May 2008, Catalogue No. 6291.0.55.003 (2008).

  [5] Fair Work Act 2009, Division 2—Equal remuneration orders, s302 FWA may make an order requiring equal remuneration.

  [6] Australian Municipal, Administrative, Clerical and Services Union and others Interim Decision [2011] FWAFB 2700, para 276.

  [7] Australian Municipal, Administrative, Clerical and Services Union and others v Australian Business Industrial [2012] FWAFB 1000.

  [8] Australian Human Rights Commission, Submission to the Application by the Australian Municipal, Administrative, Clerical and Services Union and Others for an Equal Remuneration Order in the Social and Community Services Industry, 4 August 2010, paras 10-18, Australian Human Rights Commission, Submission to the Application by the Australian Municipal, Administrative, Clerical and Services Union and Others for an Equal Remuneration Order in the Social and Community Services Industry, 24 March 2011, paras 50-55 .

  [11] Fair Work Act, s351

  [12] The Commission has previously made this recommendation in Australian Human Rights Commission, Submission to the Consolidation of Commonwealth Discrimination Law (2011). At http://www.hreoc.gov.au/legal/submissions/2011/20111206_consolidation.html (viewed 15 February 2012).

  [13] Relevant provisions would be defined to include adverse action on ‘gender equality employment matters’, being sex, marital status, family or carer responsibilities and pregnancy.

  [14] Relevant provisions of the NES would be defined to include the NES on unpaid parental leave, and rights in relation to family and carer leave and responsibilities.

  [15] Australian Human Rights Commission, Submission on Inquiry into the Equal Opportunity for Women in the Workplace Act 1999 and Equal Opportunity for Women in the Workplace Agency (2009). At http://www.hreoc.gov.au/legal/submissions/2009/20091030_EOWA.html (viewed 12 February 2012).

  [16] Australian Human Rights Commission, Submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 (2009), p 10-11. At http://www.hreoc.gov.au/legal/submissions/2009/20090123_Fair_Work.html (viewed 15 February 2012)

  [17] ABS, Employment Arrangements, Retirement and Superannuation, Australia, April to July 2007 (Re-issue), Catalogue No. 6361.0 (2009). At www.abs.gov.au/ausstats/abs@.nsf

  [20] Fair Work Act, s65 (1)

  [21] Fair Work Act, s65 (4),(5) and(6)

  [22] See, further, Australian Human Rights Commission, Submission to the Australian Government Department of Education, Employment and Workplace Relations on the discussion paper, ‘National Employment Standards Exposure Draft’ (2008) pp 8 – 11.

  [23] Australian Bureau of Statistics, Population Projections, Australia, 2006 to 2101 3222.0 September 2008. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/3222.02006%20to%202101?OpenDocument (viewed 15 February 2012).

  [24] Australian Bureau of Statistics, Caring in the Community, Australia 4436.0 January 2009. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4436.0Main+Features12009?OpenDocument (viewed 14 February 2012).

  [25] The Treasury, Australia to 2050: Future Challenges Intergenerational Report 2010, p. 26-29. At http://www.treasury.gov.au/igr/igr2010/ (viewed 15 February 2012).

  [26] Australian Bureau of Statistics, 4102.0 - Australian Social Trends, 2008: Barriers to work, July 2008. At http://www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4102.0Chapter7102008#end2 (viewed 14 February 2012).

  [27] A Page, M Baird, A Heron & J Whelan, Taking Care: Mature Age Workers with Elder Care Responsibilities, Women and Work Research Group, University of Sydney Background Briefing Paper (2009), p 16-17.

  [28] Employment Rights Act 1996 (UK).

  [29] Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (NZ).

  [31] Australian Human Rights Commission, Submission to the Senate Legal and Constitutional Affairs Committee on the Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equity (1 September 2008), p 105.

  [32] Sara Charlesworth and Iain Campbell, ‘Right to request regulation: Two new Australian models’ (2008) 21(2) Australian Journal of Labour Law 116, p 5.

  [33] Australian Human Rights Commission, n16, p4.

  [35] ILO Convention (No 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, Opened for signature 23 June 1981, entered into force 11 August 1983, 1991 ATS 7.

  [36] The Commission has previously made this recommendation in Australian Human Rights Commission, Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation (2011). At http://www.hreoc.gov.au/legal/submissions/2011/20110421_family_violence.html (viewed 15 February 2012).

  [37] Australian Human Rights Commission, n9.

  [38] See, further Australian Human Rights Commission, WORKability 2: Solutions, Final report of the national inquiry into employment and disability, December 2005.

  [39] Convention on the Rights of Persons with Disabilities, (GA Res 61/106 of 13 December 2006) opened for signature 30 March 2007, entered into force on 3 May 2008, Article 27(1)(i).

  [40] The Commission has previously made this recommendation in its Submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008 see, n16, p6.

  [43] Explanatory Memorandum, Fair Work Bill 2008 (Cth), p240.

  [44] Australian Human Rights Commission, n16, p17.

  [45] A small business employer employs fewer than 15 employees: s23(1).

  [47] Explanatory Memorandum, Fair Work Bill 2008 (Cth), p240.

  [48] This is consistent with certain State unfair dismissal regimes: Industrial Relations Act 1996 (NSW), s83; Industrial Relations (General) Regulation 2001 reg 6, Industrial Relations Act 1999 (Qld), s72; Industrial Relations Act 1979 (WA), s23A.

  [49] The Commission has previously made this recommendation in its Submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008, see n16, p16.

  [50] Fair Work Act, s351 (Part 3.1)

  [51] Fair Work Act, ss365, 368.

  [53] Fair Work Act, ss369, 371(1).

  [55] Section 46PO(2) Australian Human Rights Commission Act 1986 (Cth)

  [56] The Commission has previously made this recommendation in its Submission to the Senate Education, Employment and Workplace Relations Committee Inquiry into the Fair Work Bill 2008, see n16, p15.

  [57] UN Committee on the Elimination of Discrimination Against Women, General Recommendations 12 and 19 – Violence Against Women, 11th Session, http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (viewed 15 February 2012)

  [58] Commission on the Status of Women Agreed Conclusions (2011) http://www.un.org/womenwatch/daw/csw/55sess.htm#agreed, 14 March 2011.

  [59] Australian Bureau of Statistics (2006) Personal Safety, Australia, 2005 (Reissue), Cat. No. 4906.0, 35, at www.abs.gov.au/AUSSTATS/abs@.nsf/Lookup/4906.0Main+Features12005%20(Reissue)?OpenDocument (viewed 15 February 2012)

  [60] National Council to Reduce Violence Against Women and their Children, The Cost of Violence Against Women and their Children, (2009) p4.

  [61] Australian Human Rights Commission, n36.

  [62] R Braaf and I Barrett Meyering Seeking Security: Promoting women’s economic wellbeing following domestic violence, Australian Domestic and Family Violence Clearinghouse (2011), p90.

  [63] The Commission has previously made this recommendation in its Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation, see n36

  [65] For example, family violence clauses were incorporated into the enterprise agreement between the Victorian Surf Coast Shire Council and the Australian Services Union Victorian Authorities and Services Branch. As of 2011, employees in the NSW Public Service who experience domestic or family violence are able to access certain leave entitlements and where those entitlements are exhausted the employee shall be granted special leave. See Australian Domestic and Family Violence Clearing House, Safe at Home, Safe at Work: Domestic Violence Workplace Rights and Entitlements Project. At http://www.adfvc.unsw.edu.au/projects.htm (viewed 15 February 2012).

  [66] K Swinton, ‘Accommodating Equality in the Unionized Workplace’, Osgoode Hall Law Journal, (1996) pp704-747; A Blackett and C Sheppard, ‘Collective Bargaining and Equality: Making connections’, International Labour Review, (2003) 142:4, pp419-457.

  [67] The Commission has previously made this recommendation in its Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation, see n36

  [68] Australian Human Rights Commission, n36

  [69] The Commission has previously made this recommendation in its Submission to the Australian Law Reform Commission Inquiry into Family Violence and Commonwealth Laws: Employment and Superannuation, see, n36

  [70] Australian Law Reform Commission, Family Violence and Commonwealth Laws—Improving Legal Frameworks (ALRC Report 117) (2012), recommendations 20-1 to 20-6. At http://www.alrc.gov.au/publications/family-violence-and-commonwealth-laws-improving-legal-frameworks-alrc-report-117 (viewed 15 February 2012).

  [71] Australian Law Reform Commission, above.