PR082005
Download Word Document

AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

Workplace Relations Act 1996
s.113 applications for variations

Shop, Distributive and Allied Employees Association

RETAIL AND WHOLESALE INDUSTRY—SHOP EMPLOYEES—AUSTRALIAN CAPITAL TERRITORY—AWARD 2000
(ODN C No. 30030 of 1993)
[AW794740CRA Print T3309]
(C2003/4198)

Australian Municipal, Administrative, Clerical and Services Union

CLERICAL AND ADMINISTRATIVE EMPLOYEES (VICTORIA)
AWARD 1999
(ODN C No. 34749 of 1995)
[AW773032CRV Print S1367]
(C2003/4199)

CPSU, the Community and Public Sector Union

PHARMACEUTICAL GENERAL: CSL AWARD 1998
(ODN C No. 36986 of 1989)
[AW792955 Print Q6855]
(C2003/4203)

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union

METAL, ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998
(ODN C No. 2568 of 1984)
[AW789529CRV Print Q0444]
(C2003/4301)

GRAPHIC ARTS—GENERAL—AWARD 2000
(ODN C No. 22956 of 1995)
[AW782505CR Print S1716]
(C2003/4302)

The Australian Industry Group

METAL, ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998
(ODN C No. 2568 of 1984)
[AW789529CRV Print Q0444]
(C2003/5142)

GRAPHIC ARTS—GENERAL—AWARD 2000
(ODN C No. 22956 of 1995)
[AW782505CR Print S1716]
(C2003/5143)

BUSINESS EQUIPMENT INDUSTRY—TECHNICAL SERVICE—AWARD 1999
(ODN C No. 639 of 1971)
[AW769412CRV Print S1768]
(C2003/5144)

Victorian Employers’ Chamber of Commerce and Industry

RUBBER, PLASTIC AND CABLE MAKING INDUSTRY—GENERAL—
AWARD 1998
(ODN C No. 1800 of 1982)
[AW794720CRV Print R4420]
(C2003/5166)

STORAGE SERVICES—GENERAL—AWARD 1999
(ODN C No. 32518 of 1995)
[AW796791CRV Print R1040]
(C2003/5168)

Printing Industries Association of Australia

GRAPHIC ARTS—GENERAL—AWARD 2000
(ODN C No. 22956 of 1995)
[AW782505CR Print S1716]
(C2003/5167)

Confederation of A.C.T. Industry

RETAIL AND WHOLESALE INDUSTRY—SHOP EMPLOYEES—AUSTRALIAN CAPITAL TERRITORY—AWARD 2000
(ODN C No. 30030 of 1993)
[AW794740CRA Print T3309]
(C2003/5268)

Craig Mostyn Packing Co and others

STORAGE SERVICES—FRUIT PACKING—VICTORIA—AWARD 2002
(ODN C No. 31226 of 1993)
[AW818390 PR922587]
(C2003/5272)

Various industries

   

JUSTICE GIUDICE, PRESIDENT

  

VICE PRESIDENT ROSS

  

SENIOR DEPUTY PRESIDENT CARTWRIGHT

  

DEPUTY PRESIDENT IVES

  

COMMISSIONER CRIBB

MELBOURNE, 8 AUGUST 2005

 
 

CONTENTS

 
 

LIST OF MAIN ABBREVIATIONS

In this decision the following abbreviations are used:

ABS:

Australian Bureau of Statistics

   

ACA:

Australian Council for Adoption

   

ACCER:

Australian Catholic Commission for Employment Relations

   

ACCI:

Australian Chamber of Commerce and Industry

   

ACIRRT:

Australian Centre for Industrial Relations Research and Training

   

Act:

Workplace Relations Act 1996

   

ACTU:

Australian Council of Trade Unions

   

AiG:

The Australian Industry Group and the Engineering Employers Association, South Australia

   

AWAs:

Australian Workplace Agreements

   

BCA:

Business Council of Australia

   

Clerical Award:

Clerical and Administrative Employees (Victoria) Award 1999 [AW773032CRV]

   

Commonwealth:

Australian Government

   

DEWR:

Department of Employment and Workplace Relations

   

Family Leave decision:

Family Leave Test Case decision [Print L6900; (1994) 57 IR 121]

   

HILDA:

Household, Income and Labour Market Dynamics in Australia

   

HREOC:

Human Rights and Equal Opportunity Commission

   

Metal Industries Award:

Metal, Engineering and Associated Industries Award 1998 [AW789529CRV]

   

NFF:

National Farmers’ Federation

   

OECD:

Organisation for Economic Co-operation and Development

   

Parental Leave decision:

Parental Leave Case decision [Print J3596; (1989–1991) 36 IR 1]

   

RDO:

rostered day off

   

Stage 2 decision:

Personal/Carer’s Leave Test Case—Stage 2 decision
[Print M6700; (1995) 62 IR 48]

   

States and Territories:

States of New South Wales, Queensland, South Australia, Tasmania, Victoria, Western Australia and the Australian Capital Territory and Northern Territory

   

WAD:

Workplace Agreements Database

   

WEL:

Women’s Electoral Lobby

 
 

DECISION

1. INTRODUCTION

[1] There are a number of applications before the Commission which are said to be conducive to a better balance between work and family responsibilities. The claims were the subject of lengthy conciliation before Senior Deputy President Marsh and a measure of agreement was achieved in some areas. The conciliation was followed by an arbitral proceeding of some magnitude. There was a considerable amount of evidence from academics and researchers, employees, employers and others. The Commission is faced with the task of doing justice to wide-ranging and detailed cases presented in written and oral form.

2. THE CLAIMS

2.1 The ACTU Claims

[2] A number of unions have sought to vary a total of five awards. The case in support of the variations was put by the Australian Council of Trade Unions (the ACTU) on behalf of each of the organisations. We shall refer to the applications generally as the ACTU claims. The ACTU claims will be dealt with under the following headings:

[3] The claim concerning variations in hours provides that an employee may request a change in hours to enable the employee to provide care. The change requested can relate not only to the number of hours worked but also to the times at which work is performed. An aspect of the claim concerning the location of work was not pursued. Pursuant to the claim the employer must not unreasonably refuse the request. Other obligations are placed on the employer in relation to the request. If the employer and employee cannot reach agreement the request is to be dealt with under the relevant award’s dispute resolution procedure.

[4] The claim for emergency leave provides for an employee entitlement to “reasonable time off” for a number of specified purposes relating either to the provision of emergency care for dependants or for other family emergencies. A typical claim is that contained in Annexure B to the application to vary the Clerical and Administrative Employees (Victoria) Award 1999  1 (the Clerical Award). It reads:

[5] During conciliation before Senior Deputy President Marsh agreement was reached on this claim and we deal later in the decision with the terms of the agreement.

[6] The claim in relation to purchased leave has a number of elements. It permits an employee to take up to six weeks’ unpaid leave on four weeks’ notice. If the employer and the employee are unable to agree on the amount and time of the leave the relevant award’s dispute resolution procedure is to apply. An employee taking unpaid leave of this kind may elect to receive a lower rate of pay for a period, including the period of leave, so as to spread the financial impact of the arrangement.

[7] Parental leave is already the subject of a model clause of general application which originated in Full Bench proceedings in 1990.  2 The claim in this case in relation to parental leave seeks to amend the existing model clause in a number of respects.

[8] The first claim is to increase the period of unpaid parental leave in the model clause from 12 months to two years. The second claim is to impose obligations on employers to communicate with employees who are on parental leave in relation to significant change at the workplace and to impose reciprocal obligations on employees on parental leave. The third claim is to increase the period of simultaneous maternity and paternity leave for employees, following the birth or adoption of a child, to eight weeks.

[9] The claim concerning part-time provisions is also related to parental leave. It permits an employee to work part-time following a period of parental leave until his or her child reaches school age.

2.2 ACCI/NFF Claims

[10] A number of applications were pursued by the Australian Chamber of Commerce and Industry (ACCI) on behalf of its constituent members and by the National Farmers’ Federation (NFF). These can be dealt with under the following headings:

[11] The claim concerning hours flexibility is intended to facilitate employee requests to vary hours of work on an ongoing basis and as single or periodic variations. If introduced the provision would prevail over inconsistent award provisions but would only be accessible for work and family purposes.

[12] A related claim deals with payment for hours of work that have been altered at the employee’s request under the previous claim. It provides that any such changed hours of work shall be paid at ordinary time.

[13] The claim in relation to flexibility in rostered days off is designed to free up the use of rostered days off and, by agreement, to permit employees to better balance work and family responsibilities.

[14] The claim in relation to make-up time is intended to permit employees to take particular time off for family responsibilities by agreement and to make the time up.

[15] The claim concerning time off in lieu of overtime would permit an employee to elect not to be paid for overtime and to take an equivalent amount of time off by agreement with the employer.

[16] The claims concerning time off in lieu of penalties would permit an employee by agreement with the employer to take time off in lieu of receiving penalty rates.

[17] The claims in relation to part-time and casual employment flexibility provide that award restrictions on part-time and casual employment should be inoperative when part-time and casual employment is entered into for the purpose of assisting employees to balance work and family responsibilities.

[18] The claim in relation to extended annual leave was advanced as an alternative to the ACTU claim for purchased leave, rather than as a claim in its own right. The provision permits periods of annual leave to be doubled and taken at half pay by agreement.

[19] The claim relating to the exchange of annual leave loading for additional annual leave permits the conversion of leave loading to annual leave by agreement at the employee’s election. Like all of the other ACCI/NFF claims, its operation would be limited to assisting employees to balance work and family responsibilities.

[20] The claim in relation to carrying forward annual leave simply provides that annual leave may be carried forward indefinitely by agreement.

[21] The claim in relation to the taking of annual leave partly in single days would permit employees to take annual leave in single days by agreement in order to assist in balancing work and family responsibilities.

[22] The claim concerning long service leave flexibility is advanced only in relation to comprehensive long service leave provisions in federal awards. It would permit employees, by agreement, to take long service leave in a variety of different periods to assist them in balancing their work and family responsibilities.

2.3 The AiG Claims

[23] The Australian Industry Group (AiG) has a number of applications before the Commission which include claims in the following areas:

[24] The claim concerning hours of work is designed to allow flexibility in hours by agreement between an employee and their employer. The claim permits an employee to work additional hours and bank time over a period of 12 months to enable the employee to have time off later.

[25] The claim concerning job-sharing deems the two job-share partners to be part-time employees, allows a job-share employee to agree to cover their job-share partner’s absences and governs the manner in which the job-share arrangement is to be terminated.

[26] The AiG application aimed to provide for additional annual leave flexibility by agreement between the employer and employee. The application contained three components, two of which are proposed as alternatives to the ACTU claims:

[27] The claim for flexibility in long service leave involves three elements. The first concerns the length of periods of leave. The second would permit additional unpaid leave to be taken in conjunction with a period of long service leave with the long service leave pay averaged over the entire period. The final element provides shiftworkers with the option, subject to the employer’s agreement, to have the normal shift loading added to their long service leave pay but to take a shorter period of leave.

2.4 The State and Territory Governments’ Proposals

[28] The State and Territory Governments (the States and Territories) supported the making of award provisions which contain a combination of employee entitlements, a number of “rights to request” which an employer must not unreasonably refuse and the capacity for employers and employees to agree on periods of unpaid child-rearing leave before children reach school age.

[29] The States and Territories supported award variations which provide for an employee’s right to:

[30] With respect to the right to request changes in working arrangements the States and Territories submitted:

3. WORK AND FAMILY—CONTEXT AND EVIDENCE

3.1 Introduction

[31] This part of our decision sets out the context in which the claims before us are to be determined. It begins with an overview of the legislative framework and some historical background regarding the Commission’s past decisions in respect of these matters. Against that background we deal with the following matters:

3.2 Legislative Framework

[32] The principal object of the Workplace Relations Act 1996 (the Act) is to provide a framework for cooperative workplace relations, which promotes the economic prosperity and welfare of the people of Australia, by, among other things:

[33] The objects of the Act also make reference to:

[34] We note here the Australian Government’s (the Commonwealth) contention that the most effective means of assisting employees balance their work and family responsibilities is by maintaining the existing fair minimum standards in the award safety net and maximising flexibility through the range of options available for agreement-making at the workplace level, including certified agreements and Australian Workplace Agreements (AWAs). We deal with this issue later in this part of our decision.

[35] The Act specifies a number of responsibilities of the Commission which focus on employees with family responsibilities:

[36] In addition, under the unlawful termination provisions of the Act, it is unlawful for an employer to terminate an employee’s employment for a range of reasons, including family responsibilities and absence from work during maternity leave or other parental leave (s.170CK(2)(f) and (h)).

3.3 Background—Commission Decisions

[37] The current federal test case standard provisions directed at the reconciliation of work and family responsibilities have been developed through a series of Commission decisions, including:

[38] In the Parental Leave decision, the Commission established a “package of leave . . . associated with the birth or adoption of a child . . . [in order to] . . . provide additional choices for families”.  13 In granting the parental leave test case clause, the Commission said:

[39] The parental leave test case clause granted certain employees, but not casual employees, unpaid maternity, paternity and adoption leave. The basic entitlement embodied in that test case clause is that after 12 months’ continuous service parents are entitled to a combined total of 52 weeks’ unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for males paternity leave may be taken. Adoption leave may be taken in the case of adoption.

[40] In the Supplementary Award Simplification decision, the parental leave test case clause established by the Parental Leave decision was reviewed with the aim of expressing it in plain English and making it easier to understand while maintaining its entitlements.

[41] The Parental Leave—Casual Employees—Test Case decision extended the benefits of the standard clause to “eligible casual employees”. An “eligible casual employee” was defined to mean:

[42] In the course of its decision the Commission noted that extending parental leave to eligible casual employees would promote the objects of the Act by assisting:

[43] The current parental leave test case standard award clause is set out as Appendix 1 to this decision.

[44] We also note that Schedule 1A to the Act, which provides the minimum terms and conditions of employment for Victorian employees,  16 makes provision for, among other things, an entitlement to unpaid maternity, paternity and adoption leave in a form which is broadly consistent with the earlier test case provision. However Schedule 1A does not reflect the simplified version of the current test case standard, nor does it extend parental leave to eligible casual employees. Schedule 1A also makes provision for personal leave and carer’s leave.17

[45] The 1994 Family Leave decision dealt with an application by the ACTU for a test case standard with respect to special family leave of up to five days’ additional paid leave per year. The contextual issues noted in the decision are broadly similar to the evidence before us. In particular the 1994 Full Bench noted:

[46] Accompanying these demographic shifts were changes in attitudes to gender roles. A number of studies cited in the decision noted that increasing numbers of women regarded both employment and parenthood as important aspects of their life and that there was an increasing recognition of the need for men to share more of the family and household responsibilities.

[47] The Commission concluded that awards at that time did not adequately cater for the needs of employees who have the responsibility of caring for sick family members. In fact awards were found to contain a number of barriers which inhibited the capacity of employers and employees to agree to flexible working arrangements as a means of dealing with conflicting work and family responsibilities. These barriers included:

[48] Against this background the Commission decided to introduce a package of measures designed to assist workers in reconciling their employment and family responsibilities. A two-stage implementation process was adopted.

[49] In the first stage access to sick leave was extended so that employees may use their sick leave entitlement to provide care or support for a member of the employee’s family who is ill and to introduce a range of facilitative provisions.

[50] The extension of sick leave was subject to the following conditions:

[51] The 1994 Full Bench decided to introduce the following facilitative provisions:

[52] The Family Leave decision foreshadowed that Stage 2 would be implemented at the conclusion of a further hearing to be held in August 1995. At that time it was proposed that the existing award provisions with respect to sick leave and compassionate/bereavement leave would be aggregated and employees would be able to access the aggregated entitlement for the purpose of providing care or support for a member of the employee’s family who is ill. Additional facilitative provisions would also be introduced to provide greater flexibility with respect to the use of rostered days off and part-time work. In addition to these two specific matters the parties would be able to raise the following issues for consideration by the Commission:

[53] The Stage 2 decision was handed down on 28 November 1995. In that decision the Commission decided to:

[54] The Commission also decided not to provide a general entitlement to unpaid family leave.

[55] In the Working Hours case  18 the Commission awarded a test case provision in the following terms:

[56] We also note that in the course of its decision the Commission found that the existing award safety net provided various types of leave and hours regulations that recognised the need for employees to be able to balance work and family obligations:

3.4 Work and Family Conflict

[57] Balancing work and family obligations can create conflict and tension. As Glezer and Wolcott (1999) observe:

[58] The Glezer and Wolcott study concluded that 47 per cent of fathers and 41 per cent of full-time working mothers with partners and children under 18 years of age, indicated that their work interfered with home life. Mothers who worked part-time were significantly less likely to feel that work interfered with home life (21 per cent). They also found that:

[59] In a separate study Bittman reported that feelings of time pressure are greatest amongst those with children and spouses. Sixty-two per cent of couple mothers with a child under four years, and 59 per cent of single mothers always or often felt rushed, as shown in Table 1:

Table 1: Perceived Time-Pressure by Marital Status and Age of Youngest Child  21

 

Alone,
no child

Married, no child

Married, youngest
0–4 years

Lone parent, youngest
0–4 years(a)

 

%

%

%

%

         

Women

        

Always feels rushed or pressed for time

5.1

14.6

20.2

34.4

Often feels rushed or pressed for time

26.1

32.5

41.7

25.0

Sometimes feels rushed or pressed for time

44.6

34.0

29.5

34.4

Rarely feels rushed or pressed for time

14.0

13.5

4.6

3.1

Never feels rushed or pressed for time

5.1

1.7

0.3

3.1

Not stated

5.1

3.7

3.6

0.0

Men

        

Always feels rushed or pressed for time

6.7

11.3

11.7

  

Often feels rushed or pressed for time

21.2

30.3

38.8

  

Sometimes feels rushed or pressed for time

37.8

34.0

36.3

  

Rarely feels rushed or pressed for time

28.0

16.2

6.3

  

Never feels rushed or pressed for time

3.1

2.5

2.2

  

Not stated

3.1

5.7

4.7

  

Note: (a) Lone fathers are excluded from the analysis as estimates based on very small sample numbers would be unreliable.

[60] A number of the employee witnesses in the proceedings referred to time pressure. Ms Sonia Tatchell, a witness on behalf of the ACTU, works at night so that her days are free to care for her baby and other children. In her statement Ms Tatchell commented:

[61] Mr Graeme Pearce and Ms Bri-anne Keen, witnesses for the ACTU, told of the constant rush to be at work on time. Ms Keen gave evidence of the importance of her RDO and lunch break to get done the things that cannot be done with a toddler in tow.  23

[62] Australian time-use surveys show that the caring associated with child-rearing is substantial and falls disproportionately on women despite the increase in care provided by fathers between 1974 and 1997.  24 Further, the Commonwealth’s Background Report to the Organisation for Economic Co-operation and Development (the OECD) notes:

[63] There is very little evidence of a gender redistribution of family work. It appears that mothers adjust their jobs and personal lives to accommodate family commitments more than men do.  26 For example, Campbell and Charlesworth refer to work by Baxter et al which shows that despite other changes that have occurred, gender stratification within the household appears to have undergone relatively little change:

[64] Family responsibilities can have a negative effect on the employment patterns and earnings prospects of women who are mothers. Long interruptions in female employment through caring commitments have a negative impact on women’s earnings.  28 This affects the choices women make about combining work and family commitments.

[65] The impact of the assumption by women of caring responsibilities is that they mould their working hours and arrangements in order to accommodate their caring needs. For example, women are more likely than men to take leave for family reasons.  29 In 1999, 70 per cent of families with two parents working reported using the mother’s working arrangements to care for children, 33 per cent reported using the father’s working arrangements. In such families, 37.7 per cent of mothers used flexible working hours and 34.3 per cent used permanent part-time work. Data such as these show that:

[66] Parents who take time off work after the birth of children generally take different forms of leave. The majority of women take longer periods of unpaid leave. Men tend to take short periods of leave—which are usually paid.  31 However, fathers report that they want to be more involved in parenting32 and that they perceive barriers associated with work as the most critical factor preventing them from such involvement.33

[67] Fathers report that, despite their desire to be more involved in parenting, they take up parental leave at low rates for reasons including money, career (fear of losing status or position), workplace culture and work pressure.  34

[68] In a review of research, Thornwaite  35 found that employees’ priorities in regard to measures to facilitate the combination of work and family fall into three general categories:

[69] Research has consistently found a strong preference for part-time work among women with dependent children. By contrast men prefer to work full-time.  36 The working hours preferences of Australian women vary according to the age of their dependent children. As Table 2 shows, when their youngest child is under five years, the majority of employed mothers prefer part-time work. Of mothers working up to 29 hours per week, 79 per cent are happy with the hours they work and the remainder are split in terms of those who would prefer either more or fewer hours, or no paid work at all.

Table 2: Actual v Preferred Working Hours—Australian Women  37

 

Hours in Paid Work per week

Happy with hours

Prefer more hours

Prefer fewer hours

Prefer no paid work

   

%

%

%

%

           

Women with youngest child 0–4 years

 

1-14 hours

79

15

3

3

 

15-29 hours

79

5

8

8

 

30-34 hours

70

0

30

0

 

35+ hours

50

0

43

8

Women with youngest child 5–12 years

 

1-14 hours

69

31

0

0

 

15-29 hours

75

13

7

4

 

30-34 hours

70

7

19

4

 

35+ hours

56

2

35

7

[70] The evidence suggests that many women take up part-time employment to balance their work and caring responsibilities.

[71] Table 3 sets out Household, Income and Labour Market Dynamics in Australia (HILDA) data on the main reasons part-time female employees worked part-time rather than full-time, for all women and for women with children under the age of 12 years.

Table 3: Main Reason for Working Part-Time—Female Employees Working Less Than 35 Hours Per Week—2002–03

 

All women

Women with children under 12 years

 

%

%

     

Own illness/disability

2.1

**

Caring for children

26.7

73.6

Caring for elderly/disabled

0.4*

**

Other personal or family responsibilities

4.1

1.6

Going to school/university

25.3

**

Could not find full-time work

8.0

4.1

Prefer part-time work

20.7

10.6

Involved in voluntary work

0.5*

**

Attracted to casual premium

0.3*

-

Welfare payments may be affected

0.3*

**

Getting business established

0.2*

-

Prefer job and part-time hours are a requirement

6.0

5.5

Other

5.4

3.0

Notes:
* Indicates that relative standard error is between 25% and 50%.
** Indicates that relative standard error is over 50% and reliable estimates cannot be made.
Resident own child excludes step and foster children and own children not usually resident in respondent’s household.

[Source: HILDA Wave 2, first release.]

[72] The main reason given by almost 74 per cent of part-time working women with children under the age of 12 for working part-time was to care for their children. For all women working part-time, caring for children was cited by 26.7 per cent as the main reason for working part-time, followed by going to school/university (25.3 per cent) and having a preference for part-time work (20.7 per cent).

[73] Part-time work is not the only way employees accommodate their caring commitments. Australian Bureau of Statistics (ABS) data show that employees with dependent children have access to a range of different flexible working arrangements. Table 4 shows that flexible start and finish times were available to almost 37 per cent of employees with children under 12, compared to 33 per cent of employees without children under 12.

Table 4: Working Arrangements for Employees in Main Job

 

Had children under 12

Did not have children under 12

 

Males

Females

Persons

Males

Females

Persons

 

%

%

%

%

%

%

             

With flexible start and finish times

40.2

31.6

36.5

36.3

29.0

32.9

Able to choose when holiday leave is taken

72.2

67.9

70.4

71.6

68.1

70.0

Able to work extra hours in order to take time off

44.2

43.6

43.9

40.9

39.9

40.4

Works in a job-share arrangement

0.2

8.5

3.8

0.5

3.4

1.9

Paid leave entitlements in main job

84.6

64.3

75.9

76.3

73.1

74.8

Total

100.0

100.0

100.0

100.0

100.0

100.0

[Source: ABS, Working Arrangements, November 2003, Cat. No. 6342.0.]

[74] There was no substantial difference between employees with children under 12 and without children under 12 on whether they were able to choose when holiday leave is taken. Employees with children under 12 were better able to work extra hours in order to take time off (43.9 per cent compared to 40.4 per cent) than employees without children under 12. The use of job-sharing arrangements was more prevalent amongst women employees with children under 12 (9 per cent) compared to other female employees (3 per cent).

[75] There was little difference between the proportion of employees with children under 12 with leave entitlements (76 per cent) compared to those without (75 per cent). Women with children under 12 though had a significantly lower level of access to leave entitlements relative to other female employees (64 per cent compared to 73 per cent). This may reflect the fact that women with children are more likely to be working on a part-time casual basis relative to other working women.

[76] There is a consensus among the parties that achieving a balance between work and family is fundamental to Australia’s national interest and to a cohesive, productive society.  38 The essential difference between the parties is about how best to achieve such a balance.

3.5 Workforce Changes

[77] The parties generally agreed with the proposition that considerable changes have taken place in the structure and nature of the Australian labour market over the past 30 years.  39 The labour market has been shaped by social trends such as the rising participation of women with children in the workforce, increased flexibility in employment arrangements and wider economic changes such as increased global competition.

[78] The past three decades have seen significant changes in workforce composition and the way in which work is carried out. As the Commonwealth noted in its submission:

[79] In combination these trends have led to demographic compression. Key life events such as partnering, family formation, home purchase and caring for parents are compressed into a shorter period placing greater demands on caregivers, who may be raising their own children and caring for elderly parents.

3.5.1 Participation Rates

[80] The labour force participation rate within Australia has been gradually increasing in trend terms from 61.2 per cent in 1978 to 63.5 per cent in September 2004.  41 Women have increased their involvement in the labour market across all age groups, and cohort trends suggest it will continue.42 The participation rate for men has been slowly declining whereas the participation rate for women has been steadily increasing.

[81] Women’s participation rates show the M-shaped curve typical of Western societies, with a dip in workforce participation levels when women begin to have children (typically between the ages 20 to 39 years). The peak in female labour force participation has shifted from the 20–24 years age group (69 per cent in 1978) to the 45–49 years age group (79 per cent in 2004).  43

Chart 1: Labour Force Participation Rates by Age—September 1978 and 2004

[Source: ABS, Labour Force, detailed data release, Cat No. 6291.0.55.001, Data Cube LM8.]

[82] However, there have been significant increases in female labour force participation across all ages over the last 25 years.

[83] Women’s participation in the Australian workforce has climbed by around 12 percentage points over the last 25 years, from 44 per cent in February 1978 to 56 per cent in April 2004. Conversely, men’s rate of participation has declined from 80 per cent in February 1978 to 72 per cent in April 2004, a decrease of 8 percentage points.  44

Chart 2: Labour Force Participation Rates—Persons Aged 15–64 Years—1978–2004

[Source: ABS, Labour Force, SuperTABLE LM8, Cat No. 6291.0.55.001.]

[84] The decline in the participation rate for men can be attributed to a number of factors including the rising proportion of younger men involved in full-time study, the decline in full-time work relative to the size of the male population and industry restructuring. Employment growth has weakened in some traditionally male-dominated industries characterised by full-time and less-skilled jobs such as electricity, gas and water and transport and storage.

[85] Male and female participation rates are converging.  45 Further, young people are staying in education longer and delaying entry to paid work, which shortens the duration of an individual’s working life.46

[86] Converging levels of labour force participation does not mean men’s and women’s participation patterns are the same. Having children and elder care responsibilities affect female employment, while male participation rates are largely unaffected by parenthood or family caring responsibilities.  47

[87] Women remain the primary caregiver to younger children. As noted by Glezer and Wolcott “The age of the youngest child significantly affects mothers’ workforce participation rates, but it does not affect men’s participation rates.”  48

[88] Although there has been some convergence in male and female participation rates, women who have young children in their household remain the least likely to be involved in the paid labour force. The age of the youngest child is a factor in this regard. There is a lower proportion of women with an infant (i.e. less than one year old) employed as compared to women with a child aged one to two, and a lower proportion of women with a child aged one to two employed compared to women with a child aged three to five. For women in couple relationships, 28 per cent of those with an infant worked at least one hour per week. This increased to 50 per cent of women with a youngest child aged one to two years, and 62 per cent with a youngest child aged three to five years. For single women, these proportions are 10, 30 and 44 per cent respectively.  49

[89] The ACTU contended that compared to other OECD countries, Australia rates low on labour force participation rates of mothers with young children.  50 Campbell goes further and argues that “motherhood in Australia is the site of barriers to women’s labour market integration”.51 However, the Commonwealth contended that the Australian and OECD data on which Campbell relies are not strictly comparable. Other OECD countries use a different method of collecting data on mothers with children than the ABS.52

[90] The age group in the comparative table for all other OECD countries is for children under the age of six. In Australia, the ABS collects data on those with children under the age of five, and on a household rather than a family basis. This is noted in the OECD table, although not in Campbell’s paper. The Commonwealth submitted that it is likely that this discrepancy lowers Australian mothers’ comparative participation rates, as many mothers prefer to wait until their youngest child begins school (usually at age five) before taking up paid work.

[91] Dr Campbell, in his oral evidence, concurred that Australia is likely to be higher on the OECD table of mothers’ participation rates than first appears if methodologies were aligned:

[92] However his primary point remains valid—the labour force participation rate of mothers with young children is low in Australia relative to other OECD countries.

[93] A paper by Gray and McDonald examined factors that encourage the labour force involvement of mothers with young children. The following factors were found to be statistically significant in predicting maternal involvement:

[94] The paper also found that family responsive working conditions were positively related to employment for mothers with pre-school aged children.  54

[95] In a paper entitled “Work–Family Policies are the Right Approach to the Prevention of Very Low Fertility”,  55 Professor McDonald examined, among other things, employee preferences and found that the acceptability of a child in childcare increases sharply with the age of the child and as the number of hours in care falls below the 20 hour divider. Table 5 below shows that very low percentages of fathers and mothers consider that organised childcare is acceptable for babies (under one year of age) and this is especially the case for longer hours of care. On the other hand, 72 per cent of fathers of pre-schoolers and 89 per cent of mothers consider that it is acceptable to have a four year old child in organised childcare for up to 20 hours per week.

Table 5: Acceptable Age for Child to Attend Organised Childcare—Australia 2000  56

 

Less than 20 hours

20 hours or more

Age

Father

Mother

Father

Mother

 

%

%

%

%

         

Under age 1

14

26

6

13

Under age 2

41

42

19

27

Under age 3

53

63

29

35

Under age 4

72

81

44

49

Under age 5

86

89

64

69

At no age under 5

8

7

28

27

Don’t know

6

4

8

4

Number

135

191

135

192

[96] The Gray and McDonald paper to which we have referred also considered the extent to which workplace benefits influence maternal employment. The authors found that 45.1 per cent of mothers who have a child aged up to four years were employed in circumstances where they had access to three or fewer “workplace benefits”. By contrast the provision of four or more benefits was associated with 67.7 per cent of employed mothers.

[97] We note that the Gray and McDonald paper does not directly support the claims advanced by the ACTU in this case as the workplace benefits modelled in the paper are different from the ACTU claim.  57 However we think that the paper provides general support for the proposition that the provision of family friendly benefits in the workplace is associated with a higher rate of maternal employment.

[98] We also think that it is reasonable to conclude, on the basis of both common experience and Professor McDonald’s evidence  58 that some women without children look to their likely future circumstances if they were to have a child and decide that the losses incurred would be too great.

[99] Better work and family balance strategies provide an important means of giving Australian women more opportunities to participate and remain in the labour market, while fulfilling their caring responsibilities.

3.5.2 Part-Time and Casual Employment

[100] The increase in women’s participation in the workforce has coincided with an increase in women’s part-time employment. In February 1978 only 13.5 per cent of the female population (aged 15 and over) worked part-time, this proportion has now risen to 23.7 per cent. Two million women work part-time. Chart 3 shows that 34 per cent of all employed females worked part-time in 1978 rising to 46 per cent in 2004.  59

Chart 3: Women Working Part-Time as a Proportion of all Women Employees

[Source: ABS Labour Force, SuperTABLE E04, Cat. No. 6291.0.55.001.]

[101] For women with dependent children, part-time work is an important source of employment. Table 6 shows labour force statistics for women by relationship in household as of April 2004.  60 They reveal that around 60 per cent of employed women with children under 15 worked part-time, compared to around 30 per cent of employed women without children or living alone. Employed women without children or who lived alone tend to be employed on a full-time basis.

Table 6: Labour Force Status by Relationship in Household—April 2004

Women

Proportion of female population

Part-time employment

Full-time employment

Rate of unemployment

Participation rate

 

%

%

%

%

%

           

Wife/partner with children under 15

20.4

61.2

38.8

4.0

62.5

Lone mother with children under 15

5.5

60.8

39.2

12.6

53.4

Wife/partner with no dependants but with children aged 15 or over

5.0

46.9

53.1

2.8

53.7

Wife/partner with no children under 15, with dependent student

3.8

46.0

54.0

3.0

77.7

Lone mother with no dependants but with children aged 15 or over

2.4

39.0

61.0

7.1

38.1

Lone mother with no children under 15, with dependent students

1.1

38.5

61.5

5.3

73.2

Wife/partner with no children

25.6

33.5

66.5

3.4

51.9

Non-family member not living alone

3.8

33.1

67.0

8.7

75.8

Living alone

12.1

27.0

73.0

5.6

37.6

Total

79.6*

46.1

53.9

5.8

55.6

Note: * Total does not add to 100 per cent as total female population includes dependent students (6.3 per cent), non-dependent students (6.1 per cent), other family members (2.4 per cent) and relationship not determined (4.8 per cent), categories not listed in the table.

[Source: ABS, Labour Force, April 2004, SuperTABLE FM2, Cat. No. 6291.0.55.001].

[102] Total casual employment grew by 22 per cent between August 1996 and August 2003, while permanent employment grew by 12 per cent. In the seven years prior to August 1996 casual employment grew by 42 per cent, while permanent employment stagnated, growing by only 0.4 per cent.  61

[103] While casual employment among prime-age and mature age males may have increased in recent years it is still much lower than that recorded for all casual workers. According to the ABS  62 around 13 per cent of prime-age male employees in November 2001 were self-identified casuals along with 13 per cent of mature-age male employees. Casual density for all employees at this time was 25 per cent.

[104] Casual employees generally have no leave entitlements, but are paid a loading in lieu of these entitlements, often between 20–25 per cent. Unpublished ABS data from the Employee Earnings and Hours Survey show that 88 per cent of casual employees receive a loading.

3.6 Bargaining

[105] The role of bargaining and the extent to which it has delivered measures which assist employees to balance their work and family responsibilities was one of the main areas of contention between the parties.

[106] The Commonwealth and the employers submitted that the best way to promote greater flexibility in working arrangements to assist employees in balancing their work and family responsibilities is for employers and employees to take advantage of the full range of options available for agreement making such as AWAs and certified agreements. This submission was predicated on the view that agreement making is particularly suited to tailoring working conditions and arrangements in ways that assist employees to balance work and family responsibilities “freed from the one-size-fits-all constraints of award prescription”.  63

[107] In support of its contentions the Commonwealth relied on data from the Department of Employment and Workplace Relations (DEWR) Workplace Agreements Database (WAD). It submitted that as at 30 June 2004, 87 per cent of employees on certified agreements were covered by an agreement containing at least one family friendly provision. Around 92 per cent were covered by an agreement containing at least one family friendly or flexible hours provision.

[108] In this context family friendly provisions include: flexible use of annual leave; access to single days annual leave; purchased leave; unlimited sick leave; all purpose paid leave; paid family leave; other paid leave for caring purposes; unpaid family leave; extended unpaid parental leave; paid maternity or paternity leave; paid adoption leave; part-time work; job-sharing; home based work; and childcare provided or subsidised by the employer. Flexible working provisions include: make-up time; time off in lieu at either ordinary or penalty rates; hours averaged over an extended period; compressed hours; flexible start/finish times; flexitime systems; negotiable hours of work; hours decided by a majority of employees; and banking/accrual of rostered days off.

[109] The Commonwealth submitted that the WAD data show that:

[110] The Commonwealth also relied on unpublished data from the Office of the Employment Advocate. The data are said to show that:

[111] Professor William Mitchell referred to the discrepancy between the Australian Centre for Industrial Relations Research and Training (ACIRRT) figures of low incidence of family friendly measures in agreements and the WAD data and said that it can be accounted for by the Commonwealth including flexible hours provisions in its data and argues that flexible hours provisions are not necessarily used for family friendly purposes.

[112] The ACTU and the States and Territories contended that the degree of family friendly measures in agreements is limited  64 and that award prescription is needed. They argued that workplace bargaining has not delivered measures which assist workers in balancing the demands of work and family. This was said to be evidenced by the uneven distribution of work and family provisions in agreements.

[113] The ACTU relied on a number of studies in support of its contentions. For example, Whitehouse found:

[114] We note that this analysis excluded provisions which did no more than reiterate test case standards or statutory rights.

[115] ACIRRT undertook an analysis of family friendly provisions in federal and Queensland agreements for the Queensland Department of Industrial Relations.  66 Family friendly provisions were defined to include any one or more of the following:

[116] Part-time work provisions and purchased leave schemes were not included as direct family friendly measures on the basis that they are not specifically designed to cater for an employee’s particular work and family commitments. Whilst they have a strong potential to do so, such measures can, and have, also been introduced to address other issues at the workplace.

[117] Similarly, while flexible hours of work provisions have the potential to be family oriented, they were excluded on the basis that “in most cases they lack the direct initiative to specifically cater for an employee’s personal needs”.

[118] The ACIRRT analysis found that 24.3 per cent of the 721 federal agreements analysed contained a reference to family friendly measures.

[119] For our part we note that the WAD data are more comprehensive and contemporary than the studies relied on by the ACTU. However, the Commonwealth’s analysis of the WAD data is likely to overstate the extent to which bargaining has increased access to measures which assist employees to balance their work and family responsibilities. Three things may be said about this.

[120] The first is that the Commonwealth’s analysis includes provisions which do no more than reiterate test case standards or statutory rights. Hence it does not focus on what was actually achieved through bargaining as opposed to recording the retention of existing entitlements in agreements.

[121] The second observation relates to the characterisation of flexible hours provisions as family friendly. While such provisions have the potential to be family friendly they are not necessarily so. As the OECD has noted:

[122] Finally, the evidence reveals that bargaining has not delivered family friendly arrangements uniformly. Certainly, some sectors and some workplaces have agreed to implement some family friendly measures—but the results are uneven and mixed.

[123] We conclude by noting that many employees lack sufficient bargaining power to insist upon agreements which enshrine family friendly policies. As the Commission observed in the Safety Net Review—Wages May 2004 decision:

[124] While many of the employee witnesses were able to reach agreement with their employer about changes to working arrangements to enable them to better balance their work and family responsibilities, a number could not.  69

3.7 Demographic Change

[125] Fertility and population issues are not often canvassed in connection with workplace relations and, obviously, are not the primary responsibility of the Commission. However, to the extent that changing population issues provide a context for the work and family debate, a discussion of these issues provides relevant background.

[126] The parties to this case are in general agreement that over the past three decades there have been significant demographic changes, as well as changes in workforce composition and the way in which work is carried out.  70

[127] Like many other developed countries Australia’s population is ageing and the rate of population growth is slowing. These demographic changes impact on labour force participation and productivity, and will significantly affect Australia’s economy and living standards.

[128] We now turn to consider some of these trends in more detail.

3.7.1 Fertility

[129] Fertility rates in Australia have been declining. Australia’s fertility rate was at its peak in 1961, with an average of 3.6 babies per woman. The total fertility rate  71 has been falling and since 1976 has fallen below the replacement level of 2.1 babies per woman.72 The total fertility rate had dropped to under two babies per woman by 200273 and the trend is unlikely to be quickly reversed.74

[130] Both the rate of population growth and the structure of the population have an impact upon economic growth. The age structure of the population influences the proportion of the population available to be in paid employment and thus contribute to economic activity. Low fertility levels create an imbalance between the working age and dependent populations.

Chart 4: Fertility Rate—Australia 1921–2002

[Source: ABS, Births, Australia 2002, Cat. No. 3301.0.]

[131] Australia’s declining fertility rate is consistent with the experience in many other developed countries. The world average fertility rate has been in decline since the 1960s.  75

[132] In 2002 Australia’s total fertility rate was 1.75 babies per woman. This is lower than that of the United States of America (2.1 babies per woman), New Zealand (2.0) and France (1.9), but higher than that of the United Kingdom (1.6), Japan (1.3) and many European countries such as Germany (1.4), Greece (1.3) and Italy (1.2).  76

[133] Women are having children at increasingly later stages of their lives. In his evidence Professor McDonald said that this delay in child bearing can be partially attributed to women’s investment in higher education and longer engagement in full-time work in order to better compete in the labour market.  77 The trend to defer children until later in life impacts on the total fertility rate.78 In 2002, the median age of Australian women giving birth was 30.2 years, the highest on record. The median age of fathers (32.5 years in 2002) has been relatively steady.

[134] Over the period 1982 to 2002, women in the 20–24 year age group experienced the greatest decrease in fertility, almost halving over the period, while teenage fertility decreased by 38 per cent and the fertility of women aged 25–29 years fell by 28 per cent. Fertility rates for the older age groups increased over the two decades to 2002. The fertility rate for women aged 30–34 years increased by 38 per cent while the rate for women aged 35–39 years more than doubled.  79

[135] While the timing of the first birth is a factor, the principal cause of low fertility across all countries remains low rates of second and third births.  80

[136] The Commonwealth referred to work by Dr Bob Birrell suggesting that the “decline in partnering is . . . the major cause of the decline in the number of births”.  81 In his supplementary witness statement82 Professor McDonald challenged this proposition and said that the estimation method used by Dr Birrell “makes the naive and patently incorrect assumption that fertility rates after marriage are independent of the age at which a women marries.”83

[137] Professor McDonald was not cross-examined with respect to his supplementary statement and Dr Birrell was not called. In the circumstances we accept Professor McDonald’s criticism of the proposition advanced in the Commonwealth’s Contentions in Response.

[138] One of the long-term consequences of a low fertility rate is population decline. Unless the fertility rate stabilises at around current levels, Australia’s population level will suffer a long-term decline, all other things being equal.

[139] The ACTU contended that the key to improving fertility levels is to assist women to compensate for the late start by making it easier to combine having second and subsequent children with continued employment.  84 It submitted that measures that assist mothers to return to work (childcare for the under three-year-olds and flexible working hours) have stronger associations with increases in fertility than measures that assist mothers to withdraw from the labour force.85

[140] The Commonwealth submitted that factors other than childcare and working hours are just as important or more important in analysing fertility levels and argued that the ACTU had not clearly demonstrated that its claims, if granted, would have any significant impact on the fertility rate.

[141] The OECD has found that efforts to improve work and family balance may produce positive results for women’s employment. Greater workplace flexibilities enable longer, more significant involvement by women in the workforce.  86

[142] Castles (2003) draws out a number of implications of low fertility rates for policy makers from his analysis of fertility rates and policies of 21 OECD countries. One conclusion he draws is that the most effective family friendly policies relating to fertility outcomes are targeted at formal childcare provision and flexi-time work options for women.  87 He also notes that policies which make it easier to combine work and family “are now those most likely to promote higher levels of fertility”.88

[143] In a review of the research Professor McDonald  89 found that in European countries low rates of second and third births are associated with poor levels of support for both parents to combine work and family. He also found:

[144] Professor McDonald identified three broad policies which can help ease the transition for mothers between work and non-work: family payments; workplace policies; and early childhood education and care.  91 He also noted that in the 1990s the trend of declining fertility was reversed in France and Norway, while the downward trend continued in Australia. He attributed the change in France and Norway to the introduction of family friendly policies.

[145] During the course of cross-examination Professor McDonald confirmed his opinion that “The division between countries on low fertility and very low fertility and . . . moderate fertility is . . . very, very clearly correlated with their policies in regard to work and family.”  92

[146] The weight of the evidence supports the proposition that efforts to improve work and family balance will have a positive impact on fertility levels.

3.7.2 Ageing

[147] In addition to falling fertility levels, most developed countries are also experiencing ageing populations. Across OECD countries the ratio of older people (aged over 65 years) to those of working age (15–64 years) in 1990 was 19 per cent. This ratio is referred to as the dependency ratio. By the year 2030, the dependency ratio is expected to double to 38 per cent across the OECD. In Germany, it is expected to rise to 46 per cent, in Italy 47 per cent, in the US 33 per cent, and in Australia 32 per cent.  93

[148] The ageing of Australia’s population is a consequence of longer life expectancy and declining fertility levels. Between 1947 and 1999 average male life expectancy increased from 66.67 years to 76.22 years and average female life expectancy increased from 70.65 years to 81.77 years.

[149] The current net annual growth in the Australian workforce of about 170 000 will fall to just 125 000 for the entire decade of the 2020s.  94 With time, the ageing of the population will result in a greater demand for age pensions and health and aged care spending.

[150] Based on the projections in the Intergenerational Report, spending by the Government on health, aged care, pensions and education will exceed the amount it raises in taxes by around 5 per cent of Gross Domestic Product by 2041–42.  95

[151] Future demographic changes will see a shrinking of the pool of labour available to employers. Attracting and retaining quality employees will be more difficult. We agree with the Commonwealth that it is likely that the availability of flexible, family friendly working arrangements will be a consideration for employees in choosing the organisation in which they prefer to work. As one OECD report noted:

[152] The ageing of the population implies, among other things, an increase in the number of Australian workers providing care for elderly family members aged 65 and over, which will impact on their labour force participation.

[153] The 1998 ABS Survey of Disability, Ageing and Carers identified 2.3 million carers in Australia, representing 13 per cent of people living in households. Women assume most of the responsibility for caring for older or disabled family members.

[154] These demographic trends led the States and Territories to contend that:

[155] Some researchers predict that care for dependent aged people is likely to become a larger issue for employers than childcare because “aged care can last much longer than child care, . . . can involve more employees than child care (i.e. employees without children), and . . . involves issues of dignity, rights and choices for both the aged relative and employee which are not as pronounced as in child care.”  98

[156] There has been a rise in the number of carers who are also employed, and have an obligation to both their employer and their dependant. A large number of people who care for the elderly, sick and disabled are employed. Campbell and Charlesworth report that in a 1998 survey, 44.6 per cent of primary carers were employed while 62.7 per cent of other types of carers were employed.  99 In addition a significant minority of employed people (i.e. 12.6 per cent) provided informal assistance to older people and or people with a disability.

[157] In addition to the impact of an ageing population on caring responsibilities, it is relevant to note that disability rates in the community have increased across all age groups. The rate of disability in the community is predicted to increase as the population ages, both numerically and structurally. Between 1993 and 1998 there was an increase of 257 500 people aged 5–64 years with severe or profound core activity restrictions living in the community, mainly with relatives. The number of people across all ages with severe or profound core activity restrictions in 1998 was 954 900, more than twice that of 1981.

[158] The deinstitutionalisation of care for people with disabilities of all ages has been a feature of the Australian system, and is expected to continue. This places demand on the community to provide care and support to individuals with a disability or impairment. More disabled people live at home, and rely on relatives and friends for their support, often for routine daily personal care.  100

3.7.3 Family Formation

[159] The structure of Australian families and their working arrangements is far more diverse than 20 or even 10 years ago. This has significant consequences for employees in terms of the nature and extent of their caring responsibilities now and into the future.

[160] Families tend now to be characterised by longer dependence of children upon their parents, increased participation and longer durations in education, delayed marriage or non-marriage, delay of child-bearing and childlessness.  101 Families are increasingly heterogeneous, with more single parent families and blended families.

[161] People are marrying later in life. The median age for men at time of marriage was 31 years in 2002, up from 26 years of age in 1982. For women the median age rose to 29 years in 2002, up from 24 years in 1982.  102

[162] While families comprising couples with children remain the most common family type, the increase in the number of these families was relatively small (3 per cent) between 1986 and 2001.

[163] In contrast, the number of lone parent families increased by 53 per cent and couple families without children living with them increased by 33 per cent over the same period. There has also been a 64 per cent increase in the number of people who lived alone, from 1 million in 1986 to 1.6 million in 2001.  103 One in five families with children are sole parent families.104 In 2001, 762 600 men and women were living as lone parents, up 38 per cent from 552 300 in 1991. The vast majority of lone parents were females. In 2001, 17 per cent of lone parents were male and 83 per cent were female.105

[164] These changes in household and family composition have an impact upon the supply of parental care for children in households. They also affect the availability of informal carers for the disabled and elderly in households, as the next generation of older dependents will be less likely than the current aged population to live with a spouse, and may well live geographically remote from their families and service providers.  106

[165] The way that families participate in paid employment has also changed. The traditional family model of one parent working full-time and the other at home full-time is now less prevalent.  107 Couple families with children are now overwhelmingly dual income families.108 Sole parents have increased their participation in paid employment. Most children grow up in households where all of the adults work.

[166] In the 1980s, the single full-time earner and full-time carer model reflected the working arrangements of the majority of Australian couples with children. However in 2001, only 28 per cent of couples with children opted for this arrangement, while around 43 per cent of all families with children aged less than 15 years were couple families where both parents were employed.  109

[167] The June 2002 Labour Force Survey indicated that more than half of all couple families with children aged less than 15 years were those where both parents worked. It was more common for families to have a father employed full-time and a mother employed part-time (34 per cent) than for both parents to be employed full-time (19 per cent).  110

[168] As of June 2003, there were around 1.7 million couple families with dependent children (aged up to 14 years). Of these, around 60 per cent had both parents employed, around 35 per cent had one parent employed and the remaining families had neither parent employed.  111

[169] Table 7 provides a breakdown of the employment status of parents in couple families with children, by age of youngest child.

Table 7: Employment Status of Parents with Children in Couple Families

 

Age of youngest child (years)

 

0–2

3–4

5–11

12–14

All dependent childrena

Totalb

 

Proportion of Families (%)

             

Father employed full-time

           

Mother employed full-time

12.3

16.7

22.5

33.0

22.0

22.4

Mother employed part-time

29.3

37.2

38.9

33.7

34.0

31.4

Mother not employed

43.9

32.1

22.7

14.9

27.5

25.0

             

Father employed part-time

            

Mother employed full-time

1.6

*1.4

2.0

2.3

2.0

1.9

Mother employed part-time

1.3

*1.5

2.5

*2.0

2.0

2.1

Mother not employed

2.7

3.0

2.5

*1.9

2.4

2.6

             

Father not employed

            

Mother employed full-time

1.3

*1.7

1.6

2.3

2.0

2.0

Mother employed part-time

*1.0

2.0

1.9

2.4

1.9

2.2

Mother not employed

6.6

4.6

5.4

7.6

6.3

10.3

             

Total couple families with childrenc

100.0

100.0

100.0

100.0

100.0

100.0

Notes:
* Estimate has a relative standard error of 25% to 50% and should be used with caution.
a Includes families with dependent students aged 15 to 24.
b Includes families with non-dependent children aged 15 and over.
c May not sum to 100 per cent due to rounding.

[Source: ABS Family Characteristics, Cat. No. 4442.0, June 2003, Table 11, page 27.]

[170] About one in five couple families with dependent children have two full-time working parents (22 per cent). Families with one full-time and one part-time earner (at 34 per cent), or families with the father as the sole full-time wage earner (at 27.5 per cent) are more common.

[171] Table 8 also shows the age of the youngest child is a key factor in women’s employment status.  112 When the child is very young, many women tend to move out of the labour force, but as the child grows older, part-time employment then full-time employment becomes more common.

Table 8: Employment Status of Women Aged 15–69 Years—2002–03

Age of Youngest Resident Own Child

Employed full-time

Employed part-time

Total employed

Not in the labour force

 

%

%

%

%

         

0 years

7.1*

20.0

27.1

69.6

1 year

8.9

30.0

38.9

57.4

2 years

13.6

32.6

46.2

48.9

3 years

15.9

32.7

48.6

46.5

4 years

17.2

35.0

52.2

43.8

5 years

26.7

34.9

61.6

30.5

6 years

21.8

38.4

60.2

31.2

7 years

24.9

48.6

73.5

23.1

8 years

19.8

45.1

64.9

30.9

9 years

23.9

49.3

73.2

26.5

10 years

29.7

40.2

69.9

24.2

11 years

33.0

43.2

76.2

15.6

12 years

33.4

34.0

67.4

30.8

13 years

38.8

41.9

80.7

19.3

14 years

32.9

41.1

74.0

24.7

15 years

37.6

33.0

70.6

27.0

No resident children

35.9

26.4

62.3

33.7

Notes:
* Indicates that relative standard error is between 25% and 50%.
Columns do not add to 100% because the small number of unemployed women is not included.
Estimates of unemployed women by age of youngest resident own child are too small to be reliable.
Resident own child excludes step and foster children and own children not usually resident in respondent’s household.

[Source: HILDA Wave 2, first release.]

[172] The data show that mothers with the youngest resident child aged five have much higher employment rates (61.6 per cent) than mothers with the youngest child aged four years (52.2 per cent). The employment rate for women trends upwards as their youngest child grows older.

[173] Part-time work provides women with flexibility in working time arrangements and is a particularly important option for working mothers. The research suggests that the reason many women work part-time is to achieve a better balance between work and family responsibilities.  113

3.8 The Impact on Employers

[174] There is a general consensus that the introduction of family friendly work practices can provide a range of benefits to employers. The differences between the parties are about the means of introducing such practices and whether it can be assumed that benefits will flow in all cases.

[175] The ACTU contended that family friendly practices improve business performance by providing a range of benefits such as reduced costs of recruitment, lower absenteeism, better morale and a positive corporate image.

[176] The submissions of the States and Territories were in similar terms.  114

[177] The Commonwealth has consistently argued the case for the voluntary introduction of family friendly measures. Its web site “Why family friendly policies are good for business” notes that some of the benefits of introducing such measures include:

[178] The stated purpose of the site is to encourage organisations and individuals to adopt best practice work and family policies using the opportunities for agreement-making in the workplace relations system.

[179] For its part, ACCI/NFF accepted that “there can be and often are very real gains being delivered from accommodating work and family in Australian workplaces on a daily basis”,  116 but contended that such changes have been introduced in the context of businesses having the right to assess the business and operational benefits of particular work and family measures. ACCI/NFF opposed the extrapolation of such benefits and the assumption that they apply in all cases. ACCI/NFF contended that a cost-benefit analysis can only be properly done from the perspective of an individual business, based on that business’ particular circumstances.

[180] Similarly AiG submitted that “the introduction of appropriate measures to assist employees to better balance work and family responsibilities would most likely improve business performance.”  117 It contended that the evidence of many of the employer witnesses in the proceedings supported this view. For example, Mr Paul Kelly of Brownbuilt said:

[181] AiG also relied on a recent longitudinal study which surveyed over 1500 businesses across all industry sectors. The study found that the implementation of work/life strategies at the enterprise level has resulted in reduced absenteeism, lower turnover, higher job attraction and retention rates, improved employee satisfaction and improved service delivery or productivity.  119

[182] Consistent with the submissions of the Commonwealth and ACCI/NFF, AiG contended that the potential improvements in business performance that can be derived from appropriate work/family balance initiatives will only be realised if a facilitative, rather than prescriptive, approach is taken.

[183] There is an absence of high quality evaluation data in relation to the business benefits associated with family friendly practices. However, the available data support the view that the introduction of family friendly initiatives can benefit business. For instance, such initiatives are associated with lower employee turnover.  120 But there is insufficient data to determine whether granting the ACTU claim would or would not provide a net benefit to business.

[184] The common sentiment expressed by the employer witnesses in these proceedings was that they did not want to be bound to provide particular work/family measures in circumstances where the cost to their businesses was unacceptably high. They generally opposed the creation of unilateral employee rights. There was some support for a mechanism whereby the needs of the business can be balanced against employees’ needs. For example, Mr Jeffrey Cage (Trelleborg Queensland Rubber) said:

[185] Ms Raquel Casswell (Tech Pacific Australia Pty Ltd) said:

[186] ACCI/NFF characterised the picture emerging from the evidence as “one of employees requesting all manner of conditions and arrangements to meet their needs and overwhelmingly one of employers seriously and appropriately considering such requests and responding.”  123

[187] We acknowledge that much of the employer evidence supports this view.  124 Similarly, the ACCI/BCA Work and Family Award winners evidence the range of innovative ways in which work and family issues are addressed at the workplace level.125 But the evidence does not support the view that all negotiations about these issues are successful.126

[188] We accept that regard needs to be had to the circumstances of the business as well as to the reasons for the employee’s request. The relief we propose to grant has been framed accordingly.

4. SUBMISSIONS ABOUT THE ACTU CLAIMS

4.1 Variations in Hours

[189] Pursuant to this claim an employee would have a right to apply to alter hours and times of work to meet caring responsibilities. Employers would have an obligation not to unreasonably refuse such applications. If the employer did not support the application it would be required to explore all other reasonable alternatives to allow the employee to meet caring responsibilities. Furthermore the employer may only refuse the application if it could demonstrate that the employee’s attendance at the workplace was necessary and no other option would meet the needs of the workplace or enterprise. Where no agreement was reached the issue would be dealt with pursuant to the dispute settlement procedure in the relevant award. The ACTU submitted that the provision is necessary because few employees have access to flexible work arrangements that allow them to attend work and meet caring responsibilities. A typical claim is that contained in Annexure A to the application to vary the Clerical Award. It reads:

[190] The ACTU took issue with AiG on the question of whether flexible working arrangements are generally available. Both relied on the ACIRRT report entitled Working Time Arrangements (2001). The ACTU submitted that the report demonstrates that many of the hours flexibility arrangements do not help workers with caring responsibilities but reflect the needs of employers. The report in turn examined a publication produced by DEWR entitled Agreement-Making Under the Workplace Relations Act 2000 and 2001. An examination of the hours flexibility provisions in federal agreements reveals, in the ACTU submission, that few agreements provide any flexibility to workers.

[191] The ACTU submitted that the benefits of flexible working arrangements are widely acknowledged. Reliance was placed on a publication entitled About Time: Flexible Working, a report produced in 2001 by the Work and Parents Taskforce in the United Kingdom. (This shall be referred to as the UK Flexible Working Report.) The UK Flexible Working Report concluded that flexible working patterns generally lead to improved morale, reduced absenteeism, retention of skilled staff, better returns from training, reduced turnover, improved recruitment at lower cost and that changing market conditions are dealt with more effectively. A range of other publications were referred to.

[192] It was also submitted that the provision of flexible hours arrangements will encourage both parties to share caring responsibilities as studies have shown that men are more likely to use flexible working arrangements than any other family friendly provision (except paid leave). Such provisions are also likely to be used by working mothers who are nevertheless more likely to work part-time or from home. The introduction of flexibility in hours will allow men to contribute fully at work while still meeting their caring responsibilities.

[193] Following the UK Flexible Working Report, legislation was enacted introducing a right for employees to request a change in hours and placing an obligation on employers to seriously consider the request. The legislation is contained in the Employment Act 2002 (UK) and applies to working parents with children under six years of age or disabled children under 18 years of age.  127 The ACTU drew attention to the subsequent evaluation of the operation of the legislation which indicates that 68 per cent of employers agreed or strongly agreed that the new rights had a positive effect on employee attitudes/morale, 76 per cent of employers agreed or strongly agreed that the impact of the new rights had been negligible and 90 per cent of employers disagreed or strongly disagreed that they had significant problems complying with the legislation.128

[194] The ACTU submitted that employer concerns that they would be obliged to vary hours arrangements at the employee’s request are unfounded. A test based on reasonableness would be familiar and practical.

[195] The ACTU criticised the claims made by ACCI/NFF and AiG for flexible arrangements on the basis that the claims permitted an individual employee to agree with the employer to vary hours regardless of any other provisions in the award and because employees would lose the benefit of any additional payments that would otherwise be required under the award.

[196] ACCI/NFF submitted that this claim was rejected by the Commission in the Working Hours Case.  129 In that case the ACTU unsuccessfully sought a general prohibition on unreasonable hours of work with reasonableness to be tested against a range of criteria including an employee’s social and community life and an employee’s family responsibilities. Accordingly, the Commission should not reconsider that decision without a significant change in circumstances or new evidence. It was said that the Full Bench in that case reached a number of conclusions inconsistent with granting this claim. These conclusions were that introducing a general right to reasonable hours would undermine the concept of a specified number of ordinary hours for a week’s work, the certainty and predictability of the standard working week should not be abandoned for a less predictable test based on reasonableness and requiring an employee to work ordinary hours should not lead to the employer being in breach of an award because the hours of work were unreasonable.

[197] ACCI/NFF also submitted that the claim is inconsistent with the objects and scheme of the Act. It relied in particular on the emphasis given by the objects of the Act to the determination of matters by employers and employees at the workplace or enterprise level (s.3(b)), the adequacy of the existing minimum award standards (s.3(d)(i)), the separation of minimum standards from bargaining (s.3(a)(ii)) and the development of mutually beneficial work practices with employees (s.3(i)). It was also submitted that the claim deals with matters of detail or process that are more appropriately dealt with by agreement at the workplace or enterprise level (s.143(1B)). It was further submitted that the evidence shows that the issues raised by the witnesses are being addressed consensually and successfully at the workplace level. ACCI/NFF also relied on s.143(1B)(b) to (d).

[198] ACCI/NFF criticised the structure of the claim and suggested that it contained conflicting obligations—one being to “consider and not unreasonably refuse” an employee application, the other being based on the necessity for the employee to work. The structure of the provision would lead to confusion and dispute about its application. It was submitted that the terms of the clause also discouraged the development by the employer of alternatives where the employee request could not be met. Overall it amounts to a demand for employee regulation.

[199] ACCI/NFF was also critical of the part of the claim which would render the operation of the provision subject to the award facilitative provisions. It submitted that it might lead to situations in which the view of the majority might override the family and caring needs of a particular individual and be in practice a right of veto in relation to inconsistent individual arrangements. In other respects award provisions facilitating alterations in award conditions on an enterprise basis are cumbersome and act as a discouragement to individual employee requests for special treatment. Because many awards deal with working hours alterations purely on a majority basis, there is the potential for a small minority of female employees to be oppressed by male employees and by unions.

[200] Objection was also taken to that part of the claim which prohibits discrimination against an employee making an application under the clause on the basis that adequate statutory protections already exist.

[201] ACCI/NFF drew distinctions between the claim and the provisions of the 2002 UK legislation relied upon by the ACTU. That legislation permits parents with children under six years of age or disabled children under 18 years of age to request flexible working hours and obliges employers to consider the request. The provisions operate subject to a number of qualifications and limitations as to length of service, the reason for the request and the specification of precise grounds upon which an employer may refuse the request. It was also submitted that there is no ultimate right in the UK for any tribunal or external agency to arbitrate on the employee’s request, whereas the ACTU provision would empower the Commission to settle such disputes by arbitration.

[202] ACCI/NFF asked the Commission to conclude that the ACTU evidence does not justify the claim. To the contrary it shows that agreed hours variations are currently working well and delivering the outcomes employees seek. The evidence supports the ACCI/NFF claim as much as it does the ACTU claim.

[203] AiG also opposed the claim. It submitted that it would be detrimental to efficiency and contrary to the objects of the Act because it seeks to regulate aspects of employment best dealt with at the enterprise level. The terms of the provision, particularly the test of reasonableness, are unclear and would cause disputation. If granted the application would impede the ability of businesses to schedule staff efficiently and impose additional costs without necessarily preventing longer hours of work. It relied on the evidence of a number of witnesses to support these propositions and submitted that we should find that the proposed clause is unworkable, without merit and unsuitable for inclusion in a safety net award.

[204] The Commonwealth doubted that the ACTU proposal was an allowable award matter or a s.89A(6) provision, but submitted in any event that the levels of the current entitlements are appropriate and that “no additional costs should be imposed upon employers by enriching the award safety net”.  130 While the Commonwealth submitted that awards could be reviewed to ensure they provide sufficient flexibility, for example in relation to make-up time, time off in lieu and rostered days off, the Government’s policy priority is the achievement of mutually beneficial outcomes through agreement-making at the enterprise. Flexible arrangements either exist or can be obtained through formal or informal bargaining. It relied on survey data indicating that, amongst other things, of employees on certified agreements, 65 per cent were satisfied with their hours and 61 per cent had some control or significant control over their start and finish times. For employees on AWAs the figures were broadly similar. At the award level there is a comprehensive range of general provisions for flexible working arrangements.

[205] The Commonwealth urged the Commission not to accept the ACTU reliance on the procedures under the Employment Act 2002 (UK) permitting employees to request flexible working patterns and placing a duty on employers to consider the requests seriously. It pointed to a number of differences between the UK provisions and the ACTU claim and submitted that the assessments of the operation of the UK provisions are flawed or inconclusive.

[206] The objective underlying this claim, to assist employees to reconcile their work and family responsibilities, is one that all parties regard as important, as does the Commission. Although the employers and the Commonwealth criticised the claim, we think it has some merit in giving employees a right to raise relevant family considerations and have the employer give proper consideration to them. However, there are a number of aspects of the claim which have the potential to create problems. The provision is a complex one. It permits an employee to challenge a broad range of conditions related to hours and times of work using a detailed procedure. As important as the objective of the provision is, the risk of disruption to the organisation of work is significant. We are not satisfied that the benefits for employees outweigh the disadvantages for employers. In particular, we agree with the employers that the onus on the employer is too heavy. We refer in particular to that part of the claim which provides that an employer may only refuse the application if the employer can demonstrate that the employee’s attendance at the workplace is necessary and no other option will meet the needs of the workplace or enterprise.

4.2 Purchased Leave

[207] An example of the purchased leave claim can be found in Annexure C to the application to vary the Clerical Award. It reads:

[208] The ACTU submitted that purchased leave can provide employees with additional time away from work in a planned way to provide care. At the same time unplanned absences may reduce and planning may become easier. In particular, carers will have options for providing care during school holidays and at times when childcare centres are closed. It will allow family members to provide elder care, for example, while still retaining some annual leave for their own use.

[209] The ACTU contended that most of the concern expressed by employer witnesses is based on the misapprehension that employees would have a right to purchased leave, rather than a right to ask for it.

[210] The ACTU rejected the ACCI/NFF suggestion that various aspects of the claim are impractical. It submitted that the ACCI/NFF criticisms were based on a misunderstanding of the claim, in particular ACCI/NFF failed to appreciate that an employee may only purchase leave with the employer’s agreement. It also submitted that the ACCI/NFF criticisms about the potential increase in annual leave accruals and difficulties with the capacity of payroll systems to cope should be disregarded.

[211] ACCI/NFF submitted that there is no ambit for this claim and that it is not an allowable award matter pursuant to s.89A(2)—not being a type of leave specified in the Act. It submitted that the ACTU provision is flawed, bureaucratic and complex and will be detrimental to workplaces, employee peers and individuals. ACCI/NFF submitted that its own proposals, based on agreement at the workplace, were simple, adapted to meet the needs of different workplaces and cheaper.

[212] It was submitted further by ACCI/NFF that the ACTU provision is inconsistent with ss.143(1B)(c) and (d) in that the matters it deals with should not be included in awards but dealt with at the workplace through bargaining. It pointed to evidence that this is already occurring with many agreements containing purchased leave or unpaid leave arrangements. Also, there is scope for informal agreement-making for unpaid leave, which amounts in substance to purchased leave. If granted, the ACTU claim would create new employee rights to the detriment of businesses.

[213] ACCI/NFF amplified its criticism that the provision is impractical by pointing out that there is no minimum service requirement before an employee can make a request for purchased leave. It also submitted that six weeks’ purchased leave is too much when the separate claim for an additional four weeks’ purchased annual leave is taken into account. ACCI/NFF alleged that there are payroll complexities, potential for disagreement about the time for taking the leave, difficulties for employers in managing the extra absences, replacement problems, problems managing leave accruals, payroll administration difficulties (particularly for small business) and a number of other matters.

[214] ACCI/NFF submitted that there is no evidence from which to conclude that there is a demand for purchased leave, from parents of school-aged children, from carers or from anyone else. It subsequently submitted, however, that “the utility of some iteration of purchased leave to some employees seeking to balance work and family is not contested”. Their situation could be adequately catered for by the ACCI/NFF proposal that employees might, by consent, take any part of their annual leave at half pay and be entitled to double the period of leave.

[215] While AiG opposed the claim it conceded that it had agreed with the ACTU on a number of the elements of a purchased leave clause. The outstanding issues it identified were:

[216] AiG made it plain that it strongly opposed any provision which did not secure the employer’s right not to grant the leave, primarily because of the difficulties and problems any other arrangement would cause for employers, particularly small business employers.

[217] The Commonwealth submitted that additional unpaid or purchased leave provisions can and are being negotiated at the workplace where employees want them and the ACTU has not shown unmet demand for this type of leave. Purchased leave provisions should be tailored to the circumstances of the workplace and the area does not lend itself to award prescription as the complexity of the ACTU provision illustrates. Some organisations cannot function effectively if staff take additional leave and it is not practical to engage replacement staff. With respect to the ACTU statement that this claim would provide respite to assist carers of family members with disabilities, the Commonwealth submitted that it is not the role of the workplace relations system to accommodate the needs of people with disabilities and their carers.

[218] It seems to us that this claim while having some acceptable aspects, also has some negatives. The ACTU has not made out its case for a right to an additional six weeks of unpaid leave. Even though the purpose of the leave is to be confined, it would be an unwarranted imposition on employers. Furthermore the process to be followed in the event of disagreement as to the timing of the leave is unnecessarily cumbersome and time-consuming. In addition, the purchase element of the claim is too complex. Like the AiG proposal we deal with later, the provision is unnecessarily detailed and has the potential to create confusion over a relatively simple matter. Averaging over a longer period of pay foregone during a period of unpaid leave could assist employees with their budgeting and can be done in ways which are unlikely to disadvantage employers greatly if at all. In this area a significant amount could be achieved by agreement without the need for award variation.

4.3 Parental Leave

4.3.1 Extension of Parental Leave from 12 Months to Two Years

[219] Twelve months’ leave for mothers was introduced as a general standard in 1979, extended to adoptive mothers in 1985 and since 1990 has been available to be shared between fathers and mothers following the birth or adoption of a child.

[220] In the Parental Leave decision  131 the Commission rejected a claim that each parent be entitled to 12 months’ parental leave. In its submissions in this case the ACTU set out to address the concerns expressed by the Commission in the 1990 decision. It submitted it had recognised the cost considerations which led the Bench to refuse the 1990 claim by providing that leave continue to be taken in unbroken periods, that only one parent may take leave at any one time (except for a short period at the time of the birth) and leave taken by one parent reduces the amount available to the other. The current claim does not disadvantage sole parents compared to parents with partners. If granted, the claim would be more likely to isolate the impact to one employee because fathers are less likely to take parental leave of any significant duration.

[221] The ACTU contended that the safety net needs to be updated because of significant labour market changes since 1979. Women’s attachment to the labour market has increased. In August 2001, 35 per cent of couple mothers with a child aged under one year were in employment and 48 per cent of mothers whose youngest child was under two were employed.  132 There has been a significant change in the post-birth return to work behaviour of Australian women. If granted the claim would give parents greater choice and would further the retention of mothers in the workforce.

[222] The ACTU submitted that if granted the claim would permit parents greater latitude to decide the age at which young children should enter non-parental care with benefits for parents. The Australian community is generally wary of formal childcare for infants and young children. Reliance was placed on the evidence of Dr Dissanayake that the end of maternity leave—when typically the child is under eight months—is not the best time to settle children into care. In the context of the World Health Organisation recommendation that breastfeeding should continue until age two, it was pointed out that breastfeeding is difficult to combine with full-time employment.

[223] Other benefits were said to be that extended parental leave would reduce the stress for mothers who would otherwise have to put children into non-parental care earlier than they would like and would ease the pressure on the limited number of infant care spaces.

[224] The ACTU said that the evidence suggests that longer periods of leave are associated with the return to work of some mothers who would otherwise leave the labour market following the birth of their child. On the other hand, claims by employers that extended parental leave reinforces gender stereotypes, introduces occupational segregation and is associated with reduced women’s wages are incorrect. Extended leave will permit some mothers to maintain their employment, thereby retaining the benefits of past service.

[225] The ACTU argued that employer claims that there is no demand for extended parental leave and that granting the claim will reduce international competition and cost jobs are contradictory and untrue. There is moderate demand for extended unpaid parental leave. The estimated level of demand for longer leave is somewhere between 20.4 and 23 per cent of employed mothers of young children. International data are not very reliable, but even so Australia is one of the least generous among developed nations in relation to parental leave. When the full range of work and family measures are taken into account Australia lags behind the US. Comparisons with Asian nations show fewer weeks of unpaid parental leave but greater periods of paid parental leave than in Australia.

[226] The ACTU submitted that research by Alewall and Pull,  133 relied on by ACCI/NFF to support its contention that parental leave suppresses women’s employment, shows that parental leave is less costly for employers if it is either very short and no replacement is employed, or longer so the replacement costs can be amortised over a longer period. Objections to the cost associated with replacement employees and retraining of employees after their return from leave were rejected and it was further submitted that any costs should be weighed against the benefits. Estimates of costs arising in relation to the recruiting of replacement employees and the termination of their employment are exaggerated. The ACTU was prepared to adopt provisions which might alleviate problems related to termination.134 The cost of recruiting suitable replacement employees should not increase simply because the duration of the leave increases.

[227] The ACTU conceded that the cost of re-orientating employees returning from extended parental leave might increase marginally, but submitted that this is not a major cost issue.

[228] The ACTU summarised its submissions this way:

[229] ACCI/NFF strongly opposed the claim, contending that the current entitlement of 52 weeks is an appropriate safety net standard, that there is insufficient evidence of the need for an extension and that agreed approaches to extending minimum parental leave are successful and should be preferred.

[230] AiG submitted that 52 weeks of unpaid parental leave is the standard in Schedule 14 of the Act and the Commission should defer to the Parliament’s view. The Commission should maintain a facilitative rather than a prescriptive approach to issues of work/family balance. The evidence indicates that many businesses have substantial difficulty in finding and training replacements for employees on parental leave, covering costs, keeping positions open for 12 months and then retraining employees on their return, particularly in industries where technological change is rapid. AiG also expressed concern that the claim had the potential to create discrimination against women of child-bearing age. The problems are likely to be magnified in small businesses with fewer staff and less flexibility in job design. Other difficulties were predicted to occur arising from the need to attract suitable casual employees and to retain them for more than 12 months.

[231] AiG also submitted that the demand for leave in excess of 52 weeks was not likely to be great in light of existing patterns and economic needs. It contended that an extension of parental leave to 24 months would place Australia in an uncompetitive position internationally. In the US recent legislation provides for only 12 weeks’ unpaid parental leave. In the UK the entitlement is 39 weeks, 26 of which are paid, and in addition the provisions under the Employment Act 2002 (UK) are capable of application.

[232] The Commonwealth opposed the claim. In doing so it noted with disapproval that casuals entitled to parental leave would also benefit from the extension—something which it submitted was contrary to the nature and intent of casual employment. Extended parental leave can be and has been the subject of enterprise negotiations but 104 weeks is not “a widely accepted level or standard”. In the Commonwealth’s view there is little evidence of demand for extended parental leave. For example, two-thirds of women took leave of less than 12 months when their youngest child was born.

[233] Rather than increasing parents’ attachment to the labour force, the Commonwealth submitted, the provision would weaken labour force attachment by acting as a deterrent to the employment of employees with caring responsibilities on the basis of cost, particularly in relation to high-skilled jobs. This may increase occupational segregation by gender. The Commission has already recognised the cost of parental leave in the Parental Leave decision and the Commission’s reasons for rejecting the ACTU claim for 24 months’ leave in that case are still valid. The problem is a particularly acute one for small businesses where adequately replacing employees on leave is harder than in larger businesses with more employees. The Commonwealth reiterated its view that child development policies are outside the scope of the workplace relations system and the ACTU appeal to the beneficial effects of extra leave on parent/child relationships should be ignored. The Government itself looks after such matters by its policies in other areas.

[234] We think that the evidence establishes that an extension of parental leave would be desirable from the point of view of parents and the development of their children. We have in mind particularly the evidence concerning the availability of childcare and the importance of parental nurturing during the first two years of life. It is also likely that such an extension would have a beneficial effect on fertility rates, although it is impossible to say how significant the effect would be. Those advantages must be weighed against the potential effects on some businesses. These include effects such as the difficulty of attracting and retaining good quality replacement employees, training costs for replacement employees and employees returning from parental leave and the interaction between technological change and employee aptitudes and skills. One or all of these factors may operate in particular workplaces or enterprises and drive up business costs in an unjustifiable way. For those reasons we reject the ACTU claim for a right to a further 12 months’ parental leave. Nevertheless, as we indicate later, we intend to provide for an extension of parental leave on a basis which takes the constraints of employers’ businesses into account.

4.3.2 Communication During Parental Leave

[235] The ACTU submitted evidence from employees that regular communication during parental leave facilitates an effective return from leave and re-integration into the workforce. Some employers also recognised this. In most respects ACCI/NFF and AiG agreed with the claim, as their counter-proposals indicated.

[236] The ACTU claim is in the following terms:

[237] There appears to be only one significant area of difference between the main parties on this claim. ACCI/NFF, AiG and the States and Territories agree that an employer should be required to inform an employee on parental leave of significant and relevant changes at the workplace. ACCI/NFF and AiG did not support the ACTU proposal that an obligation be imposed on the employer to provide an opportunity for discussions with the employee concerning the impact of the change on the employee’s job. We deal with our conclusion on this claim later.

4.3.3 Eight Weeks’ Simultaneous Leave

[238] While parental leave is available to both parents they may only take one week concurrently for the birth of a child and three weeks concurrently following an adoption. This claim seeks to increase this to eight weeks’ leave taken concurrently. The claim is in the following terms:

[239] The ACTU relied on increases in multiple births, deliveries by caesarean section and shorter periods of post-natal hospitalisation to support this change. Breastfeeding and other caring tasks are time-consuming. The increased female labour force participation rate means new mothers may have less support from female friends and relatives. There is evidence that male parents are using other leave in addition to parental leave in order to be at home with their partners and newborn babies.

[240] The ACTU submitted that the ACCI/NFF objection that, if granted, this claim will lead to an increase in the quantum of maternity leave is erroneous and apparently flows from a misunderstanding of the ACTU position. The ACCI/NFF opposition rests on the cost of the claim.

[241] ACCI/NFF and AiG opposed the claim saying it is too prescriptive and will lead to increased costs and practical difficulties, particularly for small businesses. Along with the Commonwealth the employers submitted that there was no evidence of demand for an increase in simultaneous leave and it was a matter which in any event would be dealt with at the enterprise level. The Commonwealth emphasised research which suggests that men are reluctant to take unpaid parental leave and that international studies show very low take-up of unpaid parental leave entitlements by men.

[242] We think this claim has some merit. It is not designed to, nor does it, extend the period of parental leave. It simply extends the period for which the child’s parents might take parental leave together. As we understand it, the effect of the claim upon employers would be confined to cases in which both parents were employed by the same employer. In those cases, for the period of simultaneous leave, two employees would be away. The likelihood of both parents taking two months of unpaid leave is not high. There are very clear economic penalties in such a course. Nevertheless where it did occur there might be considerable cost and other difficulties for the employer. In rejecting the claim in the form in which it was made, we foreshadow that later in this decision we grant the claim in a limited form and one which requires the legitimate interests of the employer to be taken into account. In the circumstances the employer submissions about the cost of the claim do not carry great weight.

4.4 Part-Time Provisions

[243] This claim provides a right for a parent to work part-time on return from parental leave, until the child reaches school age. The hours, their arrangement and the employee’s classification would all require to be settled by agreement. If the ACTU claim dealing with the right to request a variation in hours of work is granted, it would govern the process. If that claim is not granted the award dispute settlement procedure would apply. Any variation would also require agreement, although overtime would be permitted. The terms of the provision sought are:

[244] The rationale for the claim is to ease the transition from full-time parenting back to work. A provision for part-time work was part of the parental leave model clause until it was removed in 1998 on the basis that part-time work provisions had become common and no separate provision was necessary. The claim goes beyond the earlier provision and seeks new rights for part-time work.

[245] The ACTU relied upon what it alleged is the demand for part-time work amongst mothers of pre-school aged children. It referred to a number of studies which it alleged evidence that demand and relied on the views of parents that parental care is important to pre-school aged children, the difficulty in combining full-time work with infant care and the lack of access to alternative full-time childcare. ACCI/NFF submitted, on the other hand, that Australia already has very high levels of part-time work and the only serious barrier to part-time work is in awards which do not provide for it.

[246] The ACTU further submitted that the right to return to work is an empty one if an employee wishes to return to work on a part-time basis and the employer has no part-time positions. Growth in permanent part-time employment has not been satisfactory and the lack of predictability in casual work is hard to reconcile with caring responsibilities. Parents should not be forced into casual work or excluded entirely because they are not able to work part-time. The claim is intended to reduce discrimination in employment, particularly indirect discrimination. ACCI/NFF refuted these submissions. They contended that there was no evidence of a widespread failure to bargain effectively over the return to work from parental leave on a part-time basis and suggested that bargaining was ultimately successful in the cases advanced by the witnesses.

[247] The ACTU submitted that European nations such as Germany and the Netherlands provide similar benefits to new mothers who wish to work part-time. In the UK the relevant legislation provides a framework for requests for part-time work to be considered and that legislation appears to be working very well with most requests approved in whole or in part. Employer objections to the claim based on the unsuitability of some work to part-time performance owe more to management culture than to operational requirements. ACCI/NFF submitted that the international comparisons do not support the claim. In particular it stressed the fact that the European Union directive on part-time work does not provide for an entitlement to part-time work. Furthermore the limited number of countries which provide a right to part-time work have not been shown to have the same social, economic and labour relations environment as Australia. In relation to “right to request” provisions in the UK, it was submitted that those provisions were introduced after a three-year, government funded, public awareness campaign.

[248] The ACTU concluded its submissions with the following paragraph:

[249] ACCI/NFF strongly opposed the ACTU claim for a right to return to work part-time after parental leave, although it did not oppose the concept of agreement between the employer and employee that the employee return to work on a part-time basis. It was particularly concerned that the ACTU proposal involved an employee option to return to work part-time in any given period until the child reaches school age regardless of the practical and cost consequences for the workplace. It stressed the practical problems that were likely to arise, saying:

[250] ACCI/NFF submitted that there was no evidence of the need for the provision—to the contrary, employers accommodate requests for part-time work where they are able to. It also predicted that disputation would arise in the negotiation of the precise part-time hours which would apply, in defining what school age means and in changes of mind and multiple periods of part-time work. It also objected to the provisions requiring part-time employees to be paid overtime for work performed beyond the agreed part-time hours.

[251] AiG also strongly opposed this claim. Its submissions and evidence focused on the effect on employers who were unable, for one reason or another, to provide part-time work. The substance of its case was that employees should not have an absolute right to part-time work because of the impact that would have upon Australian businesses and the employment aspirations of Australian women. Like ACCI/NFF, it submitted that agreement-making on part-time work for returning parents is prevalent and there is no need for additional regulation.

[252] AiG drew our attention to the terms of the relevant International Labour Organization Conventions and submitted that none of them required positive discrimination in favour of employees with family responsibilities. It also contended that nothing in anti-discrimination case law supports the creation of the provision sought. To the contrary the cases indicate that “the needs of the employer are a central consideration in any determination of whether or not a request for alternate arrangements is reasonable”.

[253] The Commonwealth also opposed the ACTU claim for a right to part-time work on return from parental leave. It did so on grounds that included the following:

[254] We believe that the ACTU claim, based as it is upon a right to return to work on a part-time basis, is impractical and would impose costs and constraints on employers which could not be justified. Many businesses, particularly small and medium-size businesses, would be unable to provide part-time work and it would be unjust to require them to do so. We accept the employers’ submission that employers should not be required to provide part-time work regardless of the circumstances of the enterprise. On the other hand there are good reasons why the Commission should take some steps to encourage employers to provide part-time work for parents. Research has consistently found a strong preference for part-time work among women with dependent children and on the evidence in this case it is undeniable that many women take up part-time employment to balance their work and caring responsibilities. Both full-time and part-time employment rates for women increase steadily as their youngest child grows older.

[255] We are satisfied on balance that the provision of family friendly benefits in the workplace is associated with higher rates of maternal employment. By increasing the availability of part-time employment, women in particular will have more opportunities to participate and remain in paid employment while fulfilling their parental responsibilities. It is also possible that increasing part-time employment opportunities might have a positive effect on the fertility rate. As we indicate later, the availability of part-time work for returning parents can be increased in a way which takes into account the circumstances of the employer’s enterprise and does not require the employer to provide part-time work where such a requirement would be unreasonable in the circumstances.

5. SUBMISSIONS ABOUT THE ACCI/NFF CLAIMS

[256] The ACCI/NFF claims can be dealt with under the following headings:

5.1 Hours Flexibility and Changed Hours at Ordinary Time

[257] The claim concerning hours flexibility is intended to facilitate employee requests to vary hours of work on an ongoing basis and as single or periodic variations. If introduced the provision would prevail over inconsistent award provisions but would only be accessible for work and family purposes. The claim is as follows:

[258] A related claim dealt with payment for hours of work that have been altered at the employee’s request under the previous claim. It provided that any such changed hours of work shall be paid at ordinary time. The provision reads:

[259] As contended by the ACTU  141 comments of the Full Bench in its Section 109 Review Decision are relevant to these proposed provisions. That case concerned a number of applications under s.109 of the Act by the then Minister for Workplace Relations and Small Business to review a number of decisions and awards made by the Commission as part of the award simplification process. Those applications included a challenge made to clause 6 of the Water Ecoscience Award 1998.142 In effect, clause 6 provided for the employer and an employee to agree to enter into an individual employment agreement that would take precedence over the terms of the award. The Minister, supported by ACCI/NFF and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, submitted that clause 6 was neither an allowable nor an incidental award matter within the meaning of s.89A(2) or s.89A(6) respectively. Further, it was submitted that the clause provided for individual agreements that could override any term of the award and so change the level of entitlement provided by that term. In concluding that the clause should be deleted from the award, the Full Bench made the following comments:

[260] The ACTU submitted that if these claims were granted an employer and employee could arrange hours of work in any way they like, including by failing to ensure minimum breaks between shifts and rest days. It would therefore be possible under these clauses for the employer and employee to agree to what are, in effect, unsafe work practices.  144 The ACTU further submitted that:

[261] In written submissions the ACTU contended that the bases for hours of work clauses and associated penalties (including concerns for employee health and safety and imposing disincentives to roster and provide rewards for working long or unsociable hours) are well established since the Penalty Rates Test Case,  146 and that “overwhelming and cogent evidence” of changes in social attitudes should be provided before those bases can be disturbed.147 In addition it was submitted that the ACCI/NFF claims would be exploitative of employees who are constrained due to their roles as carers, in that:

[262] ACCI/NFF denied that these clauses would facilitate an “opt out”, submitting that they would simply provide access to arrangements under the award and ensure the “primacy of scope for part-time work”, where the changes were requested by the employee, while protecting employers from the adverse financial and operational consequences of meeting potential requests.

[263] We have decided not to grant either of these claims on the basis that both effectively allow parties to “opt out” of their award obligations in relation to the penalties, loadings, allowances and other payments to which employees working those particular hours would otherwise be entitled.

[264] Our decision in relation to these claims is supported by submissions made on behalf of the Commonwealth during proceedings. In response to queries relating to the “contracting out” effect of the proposed provisions, the Commonwealth submitted that the flexibility sought should be only “a means to vary the application of the award entitlements not the level of the entitlement”  149 and further, that:

5.2 RDO Flexibility

[265] The claim in relation to flexibility in rostered days off was designed to free up the use of rostered days off and, by agreement, to permit employees to better balance work and family responsibilities. The provision reads:

[266] The parties in the Personal/Carer’s Leave Test Case made submissions on the issue of RDO flexibility.  151 The clause ultimately incorporated into the Commission’s order in that case was as follows:

[267] In the present case, the ACTU submitted that the Commission has already established a fair and effective standard for the flexible use of RDO’s in awards, and that the ACCI/NFF claim would be unlikely to enhance employees’ ability to meet their caring responsibilities as it retains employer control over the timing of the substituted or banked RDO.  152 The ACTU further submitted that ACCI/NFF have not presented any analysis of the extent of flow-on of RDO flexibility.153

[268] ACCI/NFF submitted that current RDO arrangements operate “inflexibly and rigidly” in many cases. It submitted that there is “nothing new or novel to the system” in the clause proposed and that it “reflects existing RDO flexibilities contained in various awards and agreements”.  154 ACCI/NFF further submitted that the form of majority veto over scope for flexible RDO use in awards is “inherently contrary to the concept of work and family reconciliation” and is not a process which can “meet the inherent need for working parents to rapidly access agreed paid leave approaches”.155

[269] RDO flexibility is one of a number of issues that are the subject of ACCI/NFF’s present claims that the Commission has dealt with, at least in part, in previous test cases. In relation to a number of those issues, we are unable to be satisfied on the material before us that clauses previously awarded by the Commission should be altered in the manner proposed. Nevertheless it is important that other options be examined for providing the flexibilities which both ACCI/NFF and the ACTU see as desirable. Furthermore, the conclusions we have reached in this case might assist the parties in any future discussions directed to achieving greater flexibility. In addition to RDO flexibility, the other ACCI/NFF claims we consider fall into this category are the claims in relation to:

[270] Bearing that conclusion in mind we set out each of those claims and, with one exception, deal briefly with the parties’ submissions in relation to them. The exception concerns the claim in relation to part-time and casual flexibility.

5.3 Make-Up Time

[271] The claim in relation to make-up time is intended to permit employees to take particular time off for family responsibilities by agreement and to make the time up. The provision reads:

[272] In the Stage 2 decision the Full Bench made the following comments in relation to make-up time:

[273] In the subsequent Personal/Carer’s Leave Test Case,  158 the Full Bench decided that the model clause regarding make-up time should also be made subject to the agreement of the employer and the majority of employees at the enterprise (as set out above in relation to the RDO clause).

[274] ACCI/NFF submitted that the alterations it seeks to the existing test case make-up time provision, which include removing the requirement for majority facilitation of make-up time requests and allowing make-up time to be made up at any time mutually agreed, will significantly improve the access and utility of make-up time arrangements for work and family purposes.

[275] The ACCI/NFF claim was opposed by the ACTU on the basis that the Commission has already established a make-up time standard.  159 The ACTU submitted that to the extent that ACCI/NFF seek to depart from the existing test case provision they do so in a way that is unfair to employees and is a device to avoid award obligations.160 The ACTU also submitted that ACCI/NFF provided insufficient evidence to support its application.

5.4 Time Off in Lieu of Overtime

[276] The claim concerning time off in lieu of overtime would permit an employee to elect not to be paid for overtime and to take an equivalent amount of time off by agreement with the employer. The provision reads:

[277] In the Stage 2 decision, the Commission decided upon the following standard in relation to time off in lieu of overtime:

[278] ACCI/NFF submitted that many key awards “have not delivered the options and capacities this clause is so clearly designed to deliver” and that in practice “many federal award provisions differ from this model, they are complicated, and they do not actually deliver direct access to direct toil arrangements”.  163 Reasons given included that time off in lieu provisions in many awards have been made subject to employee majority veto clauses, a circumstance that ACCI/NFF submitted is inappropriate and impractical.164

[279] The ACTU opposed any variation to the existing standard, submitting that there is no evidence of problems with it or sufficient evidence to justify removal of the safeguard entitling an employee to elect to convert their time off back to wages if more than four weeks has elapsed since the entitlement was earned.  165 The ACTU also submitted that a majority of awards already containing time off in lieu provisions provide for such time off at overtime rates (rather than ordinary rates) and that if the ACCI/NFF proposal was granted, workers taking time off for family reasons would be disadvantaged.

5.5 Time Off in Lieu of Penalties

[280] The claims concerning time off in lieu of penalties would permit an employee, by agreement with the employer, to take time off in lieu of receiving penalty rates. The provision reads:

[281] ACCI/NFF submitted that this second time off in lieu proposal “would see time off in lieu arrangements also be applied to weekend and public holiday penalty rates to provide additional sources of paid time off/leave for employees by agreement with their employers”.  167 It was further submitted that:

[282] The ACTU submitted that this ACCI/NFF claim should fail for want of evidence.  169

5.6 Part-Time and Casual Employment Flexibility

[283] The claims in relation to part-time and casual employment flexibility provide that award restrictions on part-time and casual employment should be inoperative where part-time and casual employment is entered into for the purpose of assisting employees to balance work and family responsibilities.

[284] The ACTU submitted that the ACCI/NFF application for part-time employment generally is unnecessary and not supported by sufficient evidence.  171 In addition to a part-time flexibility clause, ACCI/NFF seeks a general principle in favour of the inclusion of part-time work in all awards. As submitted by ACCI/NFF,172 the Full Bench in the Stage 2 decision173 decided upon the following general statement of principle in favour of the inclusion of part-time work in awards:

[285] In addition to a re-affirmation of the existing principle’s “importance and utility”, ACCI/NFF seeks the following:

[286] We endorse and adopt the Statement of Principles made by the Full Bench in the Stage 2 decision and reaffirm that those principles should apply generally in respect of all applications to vary awards for the inclusion of particular clauses providing for part-time work.

[287] However, we have decided not to grant the particular part-time provision sought by ACCI/NFF on the basis that its effect in rendering restrictions on part-time work inoperative would potentially be too broad. We consider that the effect of the provision sought would be to remove restrictions that may be valid and appropriate in some circumstances, including, for example, in relation to safeguarding the health and safety of employees. We are not prepared to grant a clause with such broad effect without an examination of its impact in particular circumstances.

[288] In support of its claim in relation to casual employment flexibility ACCI/NFF submitted that there is “near universal recognition of the critical role that non-full time work plays in allowing family responsibilities with paid work”.  174 Concerning casual employment in particular, it was submitted that it holds “additional advantages” for some people relative to part-time work. ACCI/NFF submitted that overall there is no difference to employees in terms of income between part-time and casual employment because while part-time work may provide more regular income, casual employment will generally provide higher levels of income.175 Further, it was submitted that provisions in awards that limit the length of time for which an employee can be engaged as a casual can have a “detrimental effect on income, skill development and the capacity of people with family responsibilities to have access to ongoing work”.176

[289] The ACTU contended that ACCI/NFF provided no or insufficient evidence in support of the contention that employees may desire casual employment for family reasons and further submitted that this claim is designed to avoid limits on the duration of casual employment.  177

[290] We are not prepared to grant the claim without proper examination of its effects and broader implications. We do not consider that the material put to us in the course of these proceedings is sufficient in that regard. It may be that this issue is better canvassed in a separate application to the Commission so that its broader implications can be more fully examined.

5.7 Extended Annual Leave and Leave Loading/Annual Leave Trade-Off

[291] The claim in relation to extended annual leave was advanced as an alternative to the ACTU claim for purchased leave, rather than as a claim in its own right. The provision, which follows, permits periods of annual leave to be doubled and taken at half pay:

[292] The claim relating to the exchange of annual leave loading for additional annual leave permits the conversion of leave loading to annual leave by agreement at the employee’s request. Like all of the other ACCI/NFF claims its operation would be limited to assisting employees to balance work and family responsibilities. The provision reads:

[293] We consider it appropriate in the circumstances that the ACCI/NFF claims in relation to extended annual leave and the exchange of annual leave loading for additional annual leave be further discussed.

5.8 Carrying Forward Annual Leave

[294] The claim in relation to the carrying forward of annual leave simply provides that annual leave may be carried forward indefinitely by agreement. The provision reads:

[295] In the alternative, and recognising that it was not the intent of ACCI/NFF that this proposed provision allow for indefinite carrying forward of annual leave which the employee would never take, it was submitted that a limit of three years on such carrying forward would be unobjectionable (rather than the two year limit proposed by the ACTU).  181

[296] We are not prepared to permit annual leave to be carried forward indefinitely by agreement. Such a provision would have the potential to undermine the purpose of annual leave. However, in view of the extent of agreement between the ACTU and ACCI/NFF we think it is appropriate to provide some greater flexibility in the carrying forward of annual leave. We shall provide for annual leave to be carried forward for a maximum of two years from the date of entitlement.

5.9 Single Days Annual Leave

[297] The claim in relation to the taking of annual leave partly in single days would permit employees to take annual leave in single days by agreement in order to assist in balancing work and family responsibilities. The provision is:

[298] The ACCI/NFF primary submission was that there be no limit on the number of annual leave days that can be taken as single day absences. The ACTU opposed the extension of single annual leave days beyond the existing five day standard. In the alternative, the ACTU proposed that employees could access five days out of every 20 days of leave accrued as single days.  183

[299] ACCI/NFF submitted in support of unlimited single day annual leave absences that there are awards currently in existence that provide for such unlimited access and that therefore, “based on the evidence of the existing award safety net”, it is not an “unknown or inherently undesirable concept”.  184 ACCI/NFF referred to the Contract Call Centre Industry Award 2003185 in this regard. Clause 25.4.1 of that award provides:

[300] In the alternative, ACCI/NFF suggested during proceedings that solely in those awards where single day annual leave absences currently are limited to less than 10 single days, the Commission could consider expanding that towards the 10 single days standard of the Metal, Engineering and Associated Industries Award 1998 (the Metal Industries Award).  186

[301] Clause 7.1.7 of the Metal Industries Award provides:

[302] We agree with the ACTU that it is appropriate to retain award provisions that preserve a portion of annual leave to be taken as a block of consecutive days. For that reason, we are not prepared to grant the ACCI/NFF claim for access to unlimited single days of annual leave. We consider that, in line with the ACCI/NFF alternate proposal, a maximum of 10 single days is an appropriate extension.

5.10 Long Service Leave Flexibility

[303] The claim concerning long service leave flexibility is advanced only in relation to comprehensive long service leave provisions in federal awards. It would permit employees, by agreement, to take long service leave in a variety of different periods to assist them in balancing their work and family responsibilities. This provision reads:

[304] The ACTU opposed the ACCI/NFF claim for flexible taking of long service leave on a number of bases. These included that single day and other short duration absences are contrary to the purpose of long service leave, long service leave is a matter that is “overwhelmingly regulated” at state level and it would entrench women’s labour market disadvantage as women would be more likely than men to use their long service leave entitlements to undertake caring responsibilities.  188

[305] The ACCI/NFF submissions in support of this proposed clause included that it would only vary long service leave arrangements where a federal award already contains a stand alone, comprehensive long service leave provision that applies in place of state or territory arrangements that would otherwise apply.  189 ACCI/NFF submitted that the rationale for long service leave is changing and that its proposed flexibilities reflect the “contemporary role” for long service leave.190 It was further submitted that more than half of Australia’s state and territory long service leave systems already allow for an exchange of long service leave entitlements for an equivalent benefit.

[306] We have decided not to grant this claim. We are not prepared to interfere with the regulation of long service leave entitlements, which are predominantly the province of state legislation.

6. SUBMISSIONS ABOUT THE AIG CLAIMS

6.1 Work and Family Balance (Hours of Work)

[307] The claim concerning hours of work is designed to allow flexibility in hours by agreement between an employee and his or her employer. The claim permits an employee to work additional hours and bank time over a period of 12 months to enable the employee to have time off later. The provision reads:

[308] In support of its application, AiG relied upon reports from DEWR and ACIRRT, contending that the use of flexible working hours has been identified as a key element in the work/life balance agenda and is a popular method of implementing family friendly working arrangements. AiG submitted that as the employer’s capacity to provide flexible working arrangements varies across enterprises and industries, the insertion of “mutual agreement” provisions into awards will prevent any negative impacts on efficiency and productivity felt by employers. AiG further submitted that the flexibility provided by its proposal allows some employees to work times best suited to their work and family commitments, including working extended hours, at nights or on weekends.

[309] It contended that the proposed provision also contains adequate safeguards for employees, including the requirement that time off be taken at a time nominated by the employee (with the agreement of the employer), and that the employee must not work more than 12 hours per day. Accordingly, AiG claimed that the inclusion of such provisions will benefit employers and employees alike, being both “balanced and fair”.

[310] The ACTU contended that AiG led no evidence in support of its application and provided no justification for banking hours over a 12-month period. Further, it claimed that this application allows for the working of long and unsafe hours of work and that it would be possible for an employee to work 12-hour shifts back-to-back without a break for an unlimited period. The ACTU said this is inappropriate and when applied to some industries could be dangerous to the employee, colleagues and to members of the public. The ACTU submitted that, currently, awards contain clauses which recognise the need for some limitations and there is no evidence of a need for the Commission to go beyond those hours of work clauses.

[311] The States and Territories and the Commonwealth did not respond to this aspect of the AiG claim.

[312] This is one of several competing applications designed to increase flexibility in hours of work. We note that AiG led little evidence in support of its particular application, but consider it likely such practices apply at an informal level in workplaces now. However, we are not persuaded that the proposed clause should be included in the award safety net. Together with other proposed clauses on hours flexibility, we think this could be included amongst matters to be further considered by the parties as part of a simpler approach, to which we return later.

6.2 Job-Share Employment

[313] AiG was the only party to propose a job-share clause. The aim of the clause is to facilitate the employment of permanent staff instead of casuals. The proposed clause deems two job-share partners to both work part-time, allowing one partner to agree to cover the other’s absence and governs the manner in which the job-share arrangement is to be terminated. The provision is as follows:

[314] AiG claimed that its application was “modest and balanced” and consistent with best practice approaches to job-sharing, deeming job-share partners to be part-time employees, allowing partners to agree to cover each other’s absences and dealing with the dissolution of the job-share arrangement. AiG also noted the advantages of inserting a provision facilitating the employment of permanent staff, in an environment where a high percentage of work arrangements involving less than full-time hours are casual arrangements.

[315] In support of its application, AiG referred to reports and surveys from DEWR, the Business Council of Australia (BCA) and other institutions which indicate that job-sharing offers flexibility that is attractive to employers and employees alike, and that the incidence of job-sharing in Australia is increasing.

[316] AiG also relied on the evidence of six witnesses, who noted the practicality and value of job-sharing arrangements, enabling employees to continue working while managing their personal and family circumstances,  191 as well as the difficulties encountered where employers are not inclined to consider job-sharing as an option.192

[317] The ACTU, while conceding job-share is a valuable tool for implementing part-time work, said the AiG application was unnecessary because part-time work is already provided for in awards and on the AiG formulation, the job-share employees would be engaged on terms and conditions less favourable than other part-time employees. For example, it said that under the AiG proposal part-time employees would be paid overtime, but job-share employees working additional hours would not. The ACTU also expressed concern that the employment of one job-share partner is contingent upon the continued employment of the other. If one job-share partner leaves that role, there is no guarantee of ongoing employment for the other job-share employee.

[318] The States and Territories and the Commonwealth did not address this part of the AiG claim.

[319] We accept the submission that the incidence of job-sharing in Australia is increasing, but we have decided not to grant this claim. We are not persuaded that AiG has made out a case for detailed regulation of existing flexible job-share arrangements. Given the variety of part-time provisions in awards, we cannot be satisfied that this is an appropriate model clause.

6.3 Unpaid Leave Taken in Conjunction with Annual Leave

[320] The AiG application aimed to provide for additional annual leave flexibility by agreement between the employer and employee. The application contained three components, two of which are proposed as alternatives to the ACTU claims:

[321] The claims are as follows:

[322] AiG argued that the evidence suggests flexible annual leave options are a common technique for implementing family friendly working arrangements. Each of the three components should be subject to the employer’s consent.

[323] The ACTU and AiG have agreed on wording for unpaid leave taken in conjunction with annual leave, except that the ACTU proposed that an employer “not unreasonably refuse” a request and must “explore all other reasonable alternatives”. AiG said it relied on its wording because it is consistent with the Act, employers already have problems arranging coverage for employees absent on annual leave, many employers have problems with excessive leave accruals, and because the ACTU proposal is not feasible for small business.

[324] Much of the AiG “purchased additional annual leave” proposal was common to the ACTU proposal, except that AiG contemplates two weeks per year compared to the ACTU claim for six weeks and, as above, the ACTU would oblige the employer to “not unreasonably refuse” a request and to “explore all other reasonable alternatives”. Periods of purchased leave are, in the AiG proposal, inclusive of any public holidays falling during the leave, and exclusive in the ACTU version. AiG added more detail to its formula for calculating pay averaging for purchased leave. AiG submitted its proposal is more appropriate because of administrative, payroll, coverage, leave accrual and small business difficulties associated with the ACTU proposal. It opposed any purchased leave clause unless it is accessible only by agreement with the employer.

[325] In support of its application, AiG relied on six witnesses whose evidence was said to support its proposed annual leave flexibility provisions. The ACTU, however, submitted that the evidence advanced by AiG appeared to be at odds with the AiG application for purchased leave, such that it was not clear whether AiG supported or opposed purchased leave.

[326] The States and Territories responded to the ACTU application on purchased leave, proposing that the employer must consider and not unreasonably refuse a request, by reference to listed criteria.

[327] The Commonwealth also directed its response to the ACTU application on purchased leave, contending that the ACTU had not demonstrated unmet demand as employees are able to access this type of leave by agreement-making. Approximately 19 per cent of employees are covered by federal certified agreements containing purchased leave provisions. It argued the proposed provisions are complex, annual leave provisions vary and that a standardised provision would create difficulties for employers. Training requirements mean that it is not practical for many organisations to engage replacement workers, meaning that others would work excessive hours to cover the gap. Such a complex area is more appropriate for agreement-making than for award prescription.

[328] Like the Commonwealth, we are wary of the complexity of the proposed provisions, but not only in relation to purchased leave. We do not see the need for the complexity of these various applications. If award regulation is appropriate, the needs argued by the parties could be met, in our view, by a simple provision allowing flexible use of unpaid leave, with the employee and employer to determine whether pay averaging is to apply and, if so, the appropriate mechanism. We return to this later.

6.4 Long Service Leave

[329] The AiG claim for flexibility in long service leave involved three elements. First, it would allow an employee to take long service leave in separate periods. It is in these terms:

[330] Secondly, an employee, with the consent of the employer, may combine unpaid leave with long service leave, having pay averaged over the total period. Thirdly, shiftworkers would have the option, subject to the employer’s agreement, to have the normal shift loading added to their long service leave pay but to take a shorter period of leave. The provision is as follows:

[331] AiG submitted that the proposal for taking long service leave in separate periods is consistent with amendments to annual leave in awards over recent years. This application was said to be practical, fair and balanced and would address the concerns of some employees who value greater flexibility of leave more than income. AiG relied on two witnesses who commented on the utility of long service leave,  193 and on two certified agreements.194 It also submitted that flexible long service leave provisions are common in enterprise agreements, citing data from DEWR indicating 8.7 per cent of certified agreements contain flexible long service leave provisions of some kind.195

[332] AiG also emphasised the importance of flexibility in maintaining the relevance of long service leave, referring to an Industrial Relations Victoria discussion paper,  196 which compares and analyses the long service provisions in each State and Territory. It further submitted that its proposal for flexibility was more “modest” than the “cashing out” provisions already available under some agreements and State long service leave legislation.197

[333] The ACTU, the States and Territories and the Commonwealth did not specifically address this part of the AiG claim.

[334] Many awards do not deal with long service leave and there are differences between States in the legislation governing such leave. We are not convinced the clause as proposed takes account of such differences, which are best handled at the enterprise or workplace level. Accordingly, we do not propose to expand the scope of award regulation of long service leave.

7. INTERVENERS’ SUBMISSIONS

7.1 The Commonwealth

[335] We have dealt extensively with the Commonwealth’s submissions in relation to particular claims advanced by the parties. With very limited exceptions the Commonwealth supported the position advanced by employers and opposed the ACTU claims other than those to which the employers have agreed. We note that the Commonwealth did not advance any proposals of its own for award variation. We have also dealt with a number of the Commonwealth’s contentions in the sections of this decision dealing with the context for the case. In this part of our decision we deal with the Commonwealth’s overall approach to the reconciliation of work and family responsibilities.

[336] The Commonwealth submitted that achieving a better balance between work and family is fundamental to Australia’s national interest and a cohesive, productive society. It stated that it has “consistently supported and encouraged employers to introduce and implement family friendly policies and practices to address the needs of employees in balancing their work and family responsibilities”. Against that background, the Commonwealth outlined a number of principles upon which its position is based. The first principle is that agreement-making is the best means of implementing family friendly working arrangements suitable to the needs of employers and employees. Agreement-making is critical for employers to meet the productivity and flexibility requirements necessary to operate in highly competitive and global markets. The award safety net is the foundation for fair and effective agreements. The level of current award entitlements is generally appropriate, particularly when various protections in the Act are taken into account. Granting the ACTU claim would increase costs for business, particularly small business, and have an adverse impact on employment levels, which would be the least friendly outcome for many families.

[337] The Commonwealth supported the employers’ contentions that there is scope to review award provisions to ensure they are operating in a fair, flexible and family friendly way. It also supported the removal of out-of-date, inflexible or unduly prescriptive or process-laden award provisions which reduce flexibility in hours of work and leave arrangements. Access to part-time work should be increased and facilitative provisions should not require majority agreement.

[338] The Commonwealth supported the proposed model carer’s leave clause upon which the parties agreed in conciliation. It noted that the changes included in the clause will increase flexibility in accessing the current leave entitlements while imposing little or no additional costs or other adverse effects on business.

[339] The disputed ACTU claims are all opposed by the Commonwealth, which submitted that the claims:

[340] While the Commonwealth supported claims by employers for increased flexibility in provisions relating to long service leave, payment of leave loadings, time off in lieu, make up time, rostered days off and hours of work, its policy priority remains the achievement of higher wages and conditions through workplace agreements.

7.2 The States and Territories

[341] The States and Territories supported the ACTU claims but proposed a different model for the balancing of an employee’s work and family responsibilities. The model was advanced on the basis that families mattered and that it was important to enable parents to manage the work/family balance. It was also advocated on the premise that it was good for business to enable parents to be able to do so as it maintained women’s attachment to the labour market and encouraged men to access such provisions.

[342] The proposed model was “the employee right to request/employer obligation to consider and not unreasonably refuse” model (the right to request model). The model provided for an employee to have the right to request, for example, part-time work on return from parental leave. The right to request was conditioned by an obligation on the part of the employer to consider the request. The employer was then required to “not unreasonably refuse” the request. In determining the request, the employer was to balance the needs of the business with the needs of the employee, taking into account a number of factors. These included both employer-centred factors, for example, the cost of accommodating the request and employee-centred factors such as the particular circumstances of the employee. It was submitted that these factors permit a fair balance to be arrived at between the employee’s needs and the business’ needs.

[343] The States and Territories proposed that the right to request model apply with respect to the claims for:

[344] It was submitted that the right to request model balances the needs of the business against the caring/family needs of the employee. The model also provides the capacity for each case to be considered on its merits at the workplace level, but within the same framework of consideration. It was emphasised that the right to request model was not to be used to advance lifestyle choices but was concerned with the caring responsibilities of employees.

[345] The States and Territories submitted that the proposed model provides a firm basis for employees who would not otherwise have the capacity to make such a request. In addition, it was argued that, if the entitlements were contained in an award, it was more likely that a request would not be refused arbitrarily or capriciously. It was contended that, where a matter was to be agreed between an employee and employer, there was the capacity for the employer to refuse the request on any ground. The proposed model, however, contains an explicit right to request and provides a clear structure within which requests could be made and considered.

[346] It was submitted that the test proposed by the States and Territories provides certainty, in that there is a defined right to request, conditioned by the requirement to not unreasonably refuse. As well, guidance is provided as to what was “reasonable” by reference to a number of factors which are relevant both to the employee and their caring needs and to the employer’s needs and business imperatives. The States and Territories argued that the terms “reasonable” and “unreasonable” are notions which are very familiar in the industrial relations arena, the meaning of which is well understood.

[347] Further, it was highlighted that the right to request model provides for the dispute settling procedure in the relevant award to be the mechanism by which a refusal by an employer could be resolved. Such procedures require that the employee and the employer attempt to resolve the matter themselves, in the first instance. However, if the issue remains unresolved, there are additional steps to be followed, with recourse to the Commission, if required.

[348] In support of the right to request model, the States and Territories drew on the Working Hours Case decision.  199 This decision was said to provide a foundation for the following aspects of the right to request model:

[349] The States and Territories submitted that working arrangements for balancing work and family must be determined through the award framework. In responding to the employers’ and Commonwealth’s contentions that award entitlements are not the appropriate vehicle for addressing the work/family balance, it was argued that:

[350] It was argued by the States and Territories that there are a number of long-term benefits to business which would flow from the implementation of family friendly policies. These include a reduction in staff turnover, improved commitment, morale and productivity and a reduction in absenteeism. The findings from a number of reports were cited in support of this contention.  200

[351] As well, it was submitted that the employers’ argument that the ACTU claim would be too costly for business is not supported by any macro-economic analysis of their own. It was pointed out by the States and Territories that their proposed award variations, except for the right to four weeks’ simultaneous parental leave, are constructed in such a manner that, if a particular business could truly not afford to implement them, they would not be implemented. Therefore, in relation to the variations supported by the States and Territories, the dire predictions of the employers regarding cost do not hold true.

[352] Further, the Commission was urged to prefer a macro-economic costing framework, rather than a micro-economic costing perspective when considering the claims before it. The States and Territories submitted that the former approach was consistent with s.88B(2)(b) and s.90(1)(b) of the Act.

[353] Support for the right to request model was also drawn from the results of the introduction of this model in the UK in April 2003. It was contended that early survey results from research by Lovell for the Chartered Institute of Personnel Development on the impact of the legislation six months after it commenced, suggested that the new provisions were working effectively for employees and employers.

[354] The States and Territories responded to criticism by ACCI/NFF that they were advocating obligations on business which they did not “impose on themselves”. They submitted that these governments already provide a range of family friendly work practices through certified agreements and public service standards, even though they are not uniform. In addition, it was contended that although the current practices were not identical to the award variations sought, the variations were not inconsistent with current public policies.

[355] The States and Territories also supported employee entitlements with respect to:

[356] The States and Territories suggested a number of modifications in the drafting of the claims made by the ACTU, some of which we have referred to above. In our view, however, the most important aspect of their submissions concerned the explanation and treatment of the right to request model as a means of assisting employees to reconcile their work and family responsibilities. We shall return to that matter in our overall conclusion.

7.3 Human Rights and Equal Opportunity Commission

[357] The Human Rights and Equal Opportunity Commission (HREOC) supported the introduction of award provisions which, at the initiative of the employee, would assist working parents and carers to balance their paid work with their family and caring responsibilities. HREOC did not support award provisions which reduced existing employment conditions or resulted in a diminution of employment conditions for employees with family and caring responsibilities, as compared with other employees.

[358] The introduction of family friendly award provisions would, HREOC submitted, assist in overcoming the constraints and limitations of discrimination law and would provide certainty and clarity for employers and employees about their rights and responsibilities.

[359] It was argued that discrimination law had a limited capacity to achieve systemic or structural change in the workplace. HREOC contended that this was due to the individual complaints based nature of the law and the limited coverage provided for men discriminated against on the basis of family responsibilities. To this end, the Commission was provided with updated statistics for 2003–04 regarding complaints received by HREOC.

[360] HREOC submitted that the introduction of further family friendly award provisions would be consistent with Australia’s international obligations because it would create equality of opportunity between male and female employees with family responsibilities, as well as between men and women with and without those responsibilities. In addition, such award provisions would assist in the prevention and elimination of discrimination against employees with family and caring responsibilities.

[361] HREOC provided updated material regarding the impact of the recently introduced right to request model in the UK. The material was a survey of employees, rather than of employers, conducted by the Department of Trade and Industry after the legislation had been in place for a year.  201 The results of the survey included:

[362] In response to the argument from the employers that, if granted, the award variations would act as a deterrent to employers employing women of child-bearing age or with family responsibilities, HREOC submitted that this argument was being recycled in the present matter. The Commission was reminded that this particular argument had first been put in 1926 in a liquor trades case. It was submitted that the employers were engaged in speculation and in the hypothetical and that their fears might not come to fruition. HREOC supported the submissions of the ACTU and the States and Territories that the deterrent argument was not a proper basis for refusing the applications.

[363] We have taken HREOC’s submissions into account in reaching our conclusions.

7.4 Australian Catholic Commission for Employment Relations

[364] The Australian Catholic Commission for Employment Relations (ACCER) supported, in principle, the award variations sought by the ACTU, which would assist employees balance work and family responsibilities, in accordance with Catholic Social Teaching. It was argued that the proposed award variations would provide an important foundation for future improvements in work/family balance.

[365] It was contended that variations to awards are the most appropriate means by which to set minimum standards. ACCER argued that enterprise bargaining is not an effective means of assisting employees balance their work and family responsibilities. This was said to be because enterprise bargaining does not necessarily guarantee fair and just minimum standards as its outcomes depend on the effectiveness of the negotiating parties and their willingness to consider flexible working arrangements.

[366] ACCER submitted that the award system operates as a benchmark for parties and that it has a wider influence than just the parties bound by the award. It is therefore necessary to ensure that the terms of awards do not fall behind accepted community standards, particularly as they cover employees who might be unwilling or unable to negotiate directly with their employer.

[367] ACCER supported the ACTU claim for eight weeks’ simultaneous unpaid parental leave and preferred it to the States and Territories proposal and the Commonwealth’s position. The greater quantum of the ACTU claim over that of the States and Territories was seen as preferable. This was on the basis that the birth of a child was a stressful time for families and that additional leave would assist in dealing with the increased strain. The Commonwealth’s contention that the existing safety net provides an appropriate minimum and that agreement-making is the appropriate avenue for extending simultaneous parental leave was rejected.

[368] An award variation which entitles an employee to work part-time after the birth of a child was supported by ACCER. It proposed an award variation which provides for an employee, who is unable to obtain part-time work from their employer following parental leave, to take leave of absence and work part-time elsewhere. It was contended that such an award variation would be beneficial to employees with caring responsibilities who, for financial reasons, cannot utilise unpaid leave.

[369] The right of an employee to request up to six weeks’ unpaid leave or up to six weeks’ purchased leave, with pay averaged, was commended as assisting employees to better balance work and family responsibilities.

[370] ACCER supported a provision for variation in the hours and times of work to enable an employee to provide care and support for a family member. It was submitted by ACCER that there are a number of factors which are important in determining whether the entitlements could be agreed to and implemented in the workplace. ACCER stated that it is also necessary to recognise those issues which would impact on an employer’s ability to grant a request. Essentially, it was argued that it is necessary to treat each request on an individual basis and to balance the needs of both the employee and employer and the impact on third parties in determining whether to grant a request.

[371] A dispute settling process was proposed by ACCER which contained the following elements:

[372] ACCER supported an award variation requiring consultation during parental leave. The claim that this may require small business to establish tracking systems to ensure compliance with the award was disputed. It was ACCER’s view that all that is required is a meeting or telephone discussion between the employer and employee.

[373] With respect to the employer applications for award variations, ACCER contended that the variations either utilised existing entitlements in a more flexible manner or would erode existing award entitlements such as shift penalties and leave loading. On the other hand, ACCER held the view that the ACTU claim did not detract from existing award entitlements. Subject to the variations proposed by itself, ACCER preferred the ACTU claims to the variations sought by the employers.

[374] We have taken these submissions into account. We note that ACCER also supported a right to request model.

7.5 Women’s Electoral Lobby

[375] The Women’s Electoral Lobby (WEL) supported the ACTU applications. WEL stated that the proposed variations would provide increased opportunities for employees and employers to negotiate mutually beneficial working arrangements by specifying standards and procedures, but without mandating usage. It was hoped that the proposed variations would provide an impetus for workplace cultural change so that, in the future, employees would not have to struggle for equal opportunities and work/family balance. WEL also argued that the proposed provisions would assist in redressing the historical gender and structural inequalities in the Australian employment system.

[376] It was submitted that the current system does not meet the needs of employees with family responsibilities. WEL argued that it is through the award system that the spread of family provisions throughout the workforce can be improved. It was contended that awards establish the standards for certified agreements, thereby influencing the workplace as a whole. In addition, the Commission was reminded that awards benefit a substantial number of employees who do not have access to agreement-making.

[377] It was submitted by WEL that there is a great deal of evidence that family friendly work arrangements are spread unevenly both across and within workplaces.  202

[378] In rebuttal of the Commonwealth’s contentions that agreement-making provides the appropriate avenue to introduce workplace flexibilities, WEL submitted that, because of the limitations in the data relied on, the Commonwealth could not legitimately claim that there is clear evidence of a positive impact through agreement-making, on access to and use of, family friendly provisions.

[379] With respect to the deterrence argument put forward by ACCI/NFF and the Commonwealth, WEL noted that:

[380] WEL submitted that, where employers had actually quantified the costs and benefits of family friendly policies, it had been found that such policies had saved money.  203 With respect to the ACTU claim for the right to return to work part-time, WEL argued that it is not a panacea but that it would help break down the segregation between full-time and part-time work. Also, the quality and security of part-time work would be improved.

[381] WEL contended that access to flexible work arrangements is vitally important for working parents, particularly women. Women are constrained to take work that fits in with their family responsibilities and, if men had more access to flexible work arrangements, they would be in a better position to share the domestic workload.

[382] Support was expressed for the ACTU claim to extend parental leave to two years. This was on the basis that it expanded the choices open to women who were combining work and family. It would also provide job protection and cover a period when childcare costs might outweigh the immediate benefits of returning to work.

[383] WEL also supported the ACTU claim for eight weeks’ simultaneous leave for both parents. Measures that facilitate fathers’ involvement in the family at such an important time are to be welcomed. As well, the burden on women would be relieved somewhat, with positive flow-on benefits for children.

[384] The experience of the UK regarding the “duty to consider” provisions was referred to and supported as providing a framework which would counterbalance women’s disadvantaged bargaining position.

7.6 Australian Council for Adoption

[385] The Australian Council for Adoption (ACA) sought that the Commission, in considering parental leave entitlements, recognise the needs of adoptive parents. It was indicated that babies adopted locally in Australia rarely become members of adoptive families as newly-born babies but rather after many months of foster care. Local adoptions also included special needs children or children with disabilities. In these circumstances, the children required extra time and care from their adoptive parents.

[386] ACA further stated that inter-country adoptions often involve older children who have to make cultural and language adjustments. Such changes require extra time and care from their adoptive parents.

[387] In concluding, ACA submitted that encouragement for adoptive parents should include equal consideration for parental leave on the arrival of their child. This was said to be not only fair and just, but in Australia’s best interests.

8. CONCLUSION

[388] This case has involved many days of conciliation, evidence, hearings and submissions over a long period of time. It is common ground that award provisions should encourage a working environment in which employees are able to adequately discharge their family responsibilities. While the differences between the parties are relatively few, they are important. There seems little room for doubt that all parties accept that there should be greater flexibility in the regulation of working arrangements to assist employees to reconcile their work and family responsibilities. Where the parties differ is in the kind of flexibility which should be provided. Leaving aside matters of detail (on which there are many contested issues) each party’s case can be summarised by reference to the mechanism they propose for the resolution of conflicts between work and family responsibilities.

[389] The ACTU submitted that greater flexibility should be provided mainly through the creation of new award rights for employees. Some of its claims involve the creation of new minimum entitlements—an extension of unpaid parental leave from 12 months to 24 months is one such claim. Other claims seek the creation of a new right for employees to request an alteration in working hours or other working arrangements. Such a request could only be refused by an employer on the ground of necessity. The employer parties opposed these approaches to the provision of flexibility. They submitted that employers and employees should be free to agree on changes to their current award obligations, to a greater or lesser degree, in order to assist employees to discharge their family responsibilities more effectively. According to the employers, awards should give the employer an unqualified discretion to grant or refuse an employee’s request for an alteration in arrangements on account of family responsibilities.

[390] The Commonwealth submitted that the Commission should minimise award level regulation. It placed emphasis on the desirability of facilitating agreement at the enterprise level. While it supported the employers’ submission that awards should permit employers and employees to agree on terms not specifically provided for in the relevant award, it did not support a right to contract out of award provisions by individual agreement. The States and Territories adopted an intermediate position. They submitted that employees wishing to alter their working arrangements to assist them to reconcile work and family responsibilities should have a right to request a change in that regard. The obligation would then fall upon the employer not to unreasonably refuse the request.

[391] The claims traversed a large number of areas: days, times and hours of work and leave of various kinds including: unpaid leave, parental, carer’s, annual and long service leave. Various proposals were advanced concerning the method of taking established forms of leave and for additional unpaid leave. Most of the proposals for additional unpaid leave involved cushioning the impact of the lost pay on the employee’s income by deducting the income foregone for the period of unpaid leave from ordinary pay in smaller amounts over a longer period, including the period of leave. We have classified the claims into two groups. The first group of claims deals with parental leave. Under that heading are claims for an increase in the amount of simultaneous unpaid leave for both parents, an increase in unpaid parental leave from 12 months to two years and a claim for a new right for mothers to return to work after parental leave on a part-time basis until the child reaches school age. The second group of claims includes the arrangement of hours and days of work and additional leave to assist employees to reconcile their work and family responsibilities. Included in this group are claims to change an employee’s hours, days or times of work, including meal breaks and meal times, the time of taking leave and the granting of unpaid leave.

[392] The cases put by the parties and the evidence of numerous witnesses, taken together, reflect the need to maintain the sometimes delicate balance between the pursuit by employees of their family responsibilities and the need for employers to be free to pursue their business objectives efficiently. In looking at the areas of dispute and the positions of the parties we have reached three critical conclusions.

[393] The first conclusion is that we should take a positive step by way of award provision to assist employees to reconcile work and family responsibilities. We think it likely that most employers are sensitive to the family responsibilities of their employees and do their best to accommodate those needs by adopting a flexible approach to working hours, leave and other arrangements whenever they can. There are some employers, however, who are unlikely to accommodate the family responsibilities of their employees, even where it is practicable to do so. It is with those employers particularly in mind that we have concluded that the awards should contain provisions which provide employees with a better opportunity than they now have to obtain their employer’s agreement to a change in working arrangements.

[394] The second conclusion is that it is important that our decision should be a cautious one and that we should not attempt to deal with all of the situations in which employees may seek additional flexibility. It is evident that the range of different conditions of employment potentially affected by the applications before us is very broad. It would be complex and potentially unfair to employers to introduce changes covering such a broad range of conditions. Furthermore we are reluctant to do so without trialling the new approach. For these reasons we have decided to confine the new award provision to one area, namely parental leave. We have decided to award a new provision in response to the parental leave claims. The provision will deal with situations in which an employee wishes to increase the period of simultaneous unpaid parental leave, to extend unpaid parental leave from 12 months to 24 months or to return from unpaid parental leave on a part-time basis. We shall also include some matters which have been agreed to by the parties and an outstanding issue relating to consultation during parental leave.

[395] Our third conclusion concerns the manner in which flexibility should be introduced. Neither the ACTU model, nor the model supported by the employers should be wholly accepted. The ACTU claim that these conditions should constitute an employee entitlement is not one we are prepared to grant. We agree with the employers that an unconditional right to additional parental leave benefits is inappropriate. It would have the potential to increase costs, reduce efficiency and create disharmony in the workplace. The employers’ proposal, one which is based purely on agreement, has some merit. To take an example, an award might provide that an employer and an employee may agree that an employee could return from parental leave on a part-time basis until the child commences school. Such a provision might have some value in that it would recognise and encourage agreement about that matter. On the other hand it is equally true that there is nothing to stop the employer and the employee reaching such an agreement now. Despite that fact, and consistent with our earlier conclusion that some positive step is required, we think it is necessary to go beyond simply providing for agreement between the parties. The provision we have decided to adopt is based to a large extent on the proposals of the States and Territories. Those proposals, as we have already noted, draw on the approach contained in ss.80F and 80G of the Employment Rights Act 1996 (UK). That approach creates an employee right to request a change in working conditions and imposes a duty upon the employer not to unreasonably refuse the employee’s request. We have adopted the employee right to request in the form suggested by the States and Territories but modified the employer’s obligation so that the employer may only refuse the request on reasonable grounds.

[396] The provision we have decided upon is as follows:

[397] The introduction of a right to seek additional leave related to the birth or adoption of a child builds on the parental leave entitlements introduced as a general standard in 1990. International material relating to the period of parental leave indicates that the current standard compares well with most developed economies. Concern at declining birth rates has led a number of European countries to adopt flexible employment policies to assist working women who wish to have families to do so. These policies include paid and unpaid maternity and parental leave, extended unpaid parental leave and provision for part-time work. It is argued that these policies encourage child-rearing by lessening the tension between family responsibilities, particularly during early childhood, and employment demands.

[398] There are many factors other than employment policies which might influence the employment rates of women with children. These factors might include the availability of part-time work, household income levels and social and cultural considerations. Nevertheless employment policies can be an important factor and what we propose is a measured response to the evidence and submissions, bearing in mind our obligation under s.93A of the Act to take account of the principles embodied in the Family Responsibilities Convention 1981, in particular those relating to helping workers reconcile their employment and family responsibilities.  204

[399] We intend that the new provision should be allowed to operate for a reasonable period and then be subject to review. During that period there will be an opportunity to test the efficacy of the new provision in meeting the needs of employees and to assess any adverse effects on the ability of employers to manage their businesses efficiently. On application we shall review the operation of the provision and consider, in light of the parties’ submissions, whether the provision should be retained, modified or set aside. We encourage the parties to build on the consensus so far achieved and to develop a joint approach to the assessment of the new provision. In that context we think it proper to indicate that the review process would be enhanced by the results of a professional, bipartisan survey.

[400] While we have adopted a particular procedure designed to improve employee access to parental leave and part-time work in certain circumstances, it would be premature to consider applying that procedure more broadly until the parties have had further discussions. Issues relating to the reconciliation of work and family responsibilities generally should be further considered in conciliation. We think it appropriate to observe that many of the proposals are excessively detailed and in aggregate would add unnecessary verbiage to awards. A simpler approach is needed. For instance, all of the working conditions which might be subject to change could be described in a more general way. Without wishing to limit the matters which the parties might confer about, we suggest that all of the claims, ACTU and employer, could be dealt with in one provision which picks up all of the areas in which flexibility might be important in reconciling work and family responsibilities. The following generally worded clause is illustrative of that approach:

[401] The parties should also try to reach agreement on a method for implementing the required flexibility in light of our conclusion in relation to the parental leave matters and, perhaps also, in light of experience with the operation of that provision. We shall refer the applications generally to Senior Deputy President Marsh.

9. COSTS

[402] The employers and the Commonwealth submitted that the cost to the economy of granting the ACTU claims would be substantial. They stressed, among other things, the cost effect on small business and the impact on employment in the small business sector, the effect on industries that employ a large proportion of women and the negative employment effects generally. In particular, the Commonwealth submitted that granting the claims would impede employment growth in industries with a large proportion of women in their workforce and harm women’s employment prospects in the longer term.

[403] The ACTU produced estimates of the costs of each of its claims. It is only necessary that we deal with two of these—the claim for an extension of unpaid parental leave to 104 weeks and the claim to return to work part-time after parental leave. The ACTU and the Commonwealth disagreed on the quantification of the cost of the ACTU claim for an extension of unpaid parental leave to 104 weeks. The ACTU relied upon the evidence of Professor Mitchell to support an estimate of $143.9 million total annual cost. The Commonwealth argued that Professor Mitchell had underestimated the take-up rate of the additional leave and that the more realistic total annual cost would be $193.1 million.

[404] The ACTU and the Commonwealth also disagreed on the quantification of the cost of the ACTU claim for employees to have the right to return to part-time work following parental leave. The ACTU relied on estimates made by Professor Mitchell which were based on various take-up rates. The estimates ranged from $22.89 million per year to $68.68 million per year. The Commonwealth, on the other hand, estimated the cost at $187.4 million per year.

[405] ACCI/NFF criticised Professor Mitchell’s estimates but did not put forward its own estimates. Its preferred position was that the Commission should look primarily to the cost of the claims upon the employers directly affected by them. On the basis of the witness evidence ACCI/NFF submitted that we should take into account the costs, among others, of recruiting, training and paying replacement and other staff. We of course accept that costs are important for the enterprises directly concerned. Equally it is necessary to have regard to the potential impact on the economy overall. In that respect we agree with the ACCI/NFF alternative submission that potential productivity and employment effects are also important.

[406] It is clear that the submissions made by the parties are based on the two claims as formulated and advanced by the ACTU. The award variation we have adopted differs in a number of important respects from the claims. In particular, we have decided not to introduce a right to additional unpaid parental leave or a right to return from parental leave on a part-time basis. Employers may refuse requests for such arrangements if they have reasonable grounds for doing so. It follows that all of the cost estimates are likely to be over-estimates. While no doubt there will be some costs for some employers in meeting employee requests, it is unlikely that the costs will be too great since excessive cost would be likely to provide an employer with reasonable grounds to refuse the employee’s request.

[407] In our assessment the cost of the provision is not likely to be great in the economy overall and the provision is unlikely to operate as a disincentive to female employment, even in areas of industry in which female employment predominates. Cost is an issue, however, which we would expect to loom large in the review which we contemplate. If it turns out that our assessment is incorrect then that might constitute a ground for altering or rescinding the provision.

10. ADDITIONAL MATTERS

[408] As indicated earlier the parties reached agreement in settlement of the ACTU claim relating to emergency leave. The agreement between the parties was tendered in the proceedings. The agreement is reproduced as Appendix 2 to this decision.   205

[409] The agreement notes that it also resolves a number of other claims by the ACTU, ACCI/NFF and AiG in relation to paid carer’s leave. The agreement includes two new model clauses to replace the existing model clause dealing with sick leave and bereavement leave. The two clauses will deal with personal leave for personal injury and illness and bereavement leave respectively. We have no doubt that the variations are appropriate safety net provisions and we shall vary the standard provision accordingly.

[410] As noted earlier, the parties have agreed on the substance of a new provision for communication during parental leave. There is an outstanding issue, however. It concerns whether the provision should include a requirement upon the employer to provide to an employee on parental leave the opportunity for discussion concerning the impact of significant and relevant changes at the workplace. The provision is set out earlier in this decision.

[411] ACCI/NFF argued that while the clause they proposed could be considered incidental to the return to work provisions, the additional subclause proposed by the ACTU relates to consultation with employees in relation to organisational change likely to affect their employment. A clause of that kind, it was submitted, was deemed not to be allowable pursuant to s.89A of the Act in the Award Simplification Decision.  206 The Commonwealth argued that the ACTU proposed parental leave consultation clause as a whole is neither allowable nor a provision of the kind described in s.89A(6) of the Act.207 Like ACCI/NFF, the Commonwealth also relied on the Award Simplification Decision.

[412] The argument founded on the Award Simplification Decision is based on an analogy between the nature and effect of the clause in that case and the nature and effect of the clause here. In that case the Commission decided that an award obligation upon an employer to consult employees in relation to organisational change likely to effect their employment was not an allowable award matter. That conclusion was based on the construction of s.89A(2)(n). The effect of that section is to make “notice of termination” an allowable award matter. The Full Bench found that an award obligation to consult in relation to organisational change likely to effect employment could not be brought within the meaning of the expression “notice of termination”. In this case the relevant allowable award matter is “parental leave”, found in s.89A(2)(h). The claim in this case is for an obligation on an employer to provide an opportunity to an employee on parental leave to discuss any significant effect of organisational change on the status or responsibility level of the position the employee held before commencing parental leave. Would a provision imposing such an obligation come within the meaning of the term “parental leave”? We have concluded that it would. An essential element of parental leave is the employee’s right to return to work, subject to certain time limits with respect to notice and the duration of the leave, and to an appropriate job. The effects of organisational change upon the job the employee had before going on leave are bound up with the process of returning to work. Discussions with the employee while the employee is on leave about such effects come within the subject of parental leave. On balance we think the better view is that the ACTU claim is allowable.

[413] Furthermore we think that a requirement for discussion of the kind sought by the ACTU is a reasonable one. An employee on parental leave should be consulted if the employee’s job is likely to be significantly affected, since the information might have a direct bearing on the return to work issue. The provision we have decided upon is set out in Appendix 3.

[414] There are a number of jurisdictional issues in connection with various claims. These include issues as to whether particular claims are allowable award matters within s.89A(2) or are s.89A(6) provisions. They also include issues as to whether all of the claims in each of the awards before us is within the ambit of an industrial dispute.

[415] We have no doubt that the clause we have decided upon, dealing with parental leave, including return from parental leave on a part-time basis, is an allowable award matter pursuant to ss.89A(2)(h) and (r). It is unnecessary in the circumstances to deal with the submissions that the claims concerning purchased leave and variations to hours of work are not allowable award matters.

[416] In relation to the question of ambit, it was contended that the claim to extend parental leave to 24 months was beyond the ambit of any relevant industrial dispute for the purposes of the Pharmaceutical General: CSL Award 1998  208 and the Rubber, Plastic and Cable Making Industry—General—Award 1998.209 It was pointed out that the parental leave claims in the relevant logs each specify a maximum period of less than two years leave. We agree there is insufficient ambit in the relevant industrial disputes for the extension of parental leave beyond 12 months. Accordingly paragraph (a) of the provision we have decided upon should not be included in the variation to those two awards.

[417] Issues of ambit also arose in relation to the ACTU claim for return to work on a part-time basis. We consider that the clause we have decided on is reasonably incidental to any dispute in relation to part-time employment. There may be some awards for which the original dispute does not include a claim for part-time work. In any such award there would be no ambit for the provision.

11. SUMMARY

[418] In this section we summarise the main points of our decision on the ACTU and employer proposals.

[419] We have introduced a provision which gives an employee a right to request his or her employer to:

[420] The request may only be refused if the employer has reasonable grounds. Apart from this provision, we have rejected the remainder of the ACTU claims.

[421] We have arbitrated an outstanding issue in the parties’ otherwise agreed provision for communication between employers and employees during parental leave. We have also approved the parties’ agreement on a new provision for emergency leave and two new model clauses to replace the existing model clause dealing with sick leave and bereavement leave.

[422] In relation to the ACCI/NFF claims, we have granted in part claims relating to the carrying forward of annual leave and an increase in the number of single days of annual leave. We have rejected the other claims, indicating in relation to some that further discussion would be desirable. We have also rejected the AiG claims.

[423] In rejecting most of the claims before us, we are conscious of the desire of both the ACTU and the employers to provide greater flexibility in conditions of work to assist employees to reconcile their work and family responsibilities but of their inability to agree on the manner in which such flexibility should be provided. The claims are referred to Senior Deputy President Marsh for further conciliation, in light of this decision. Of course the timing of such conciliation is a matter for the parties.

[424] The orders necessary to give effect to our decision in the awards before us should be drawn by the ACTU and filed and served within 28 days. The orders will be settled by Commissioner Cribb with recourse to the Full Bench.

BY THE COMMISSION:

PRESIDENT

 
 
 

APPENDIX 1 - PARENTAL LEAVE TEST CASE STANDARD

P. PARENTAL LEAVE

Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.

The provisions of this clause apply to full-time, part-time and eligible casual employees, but do not apply to other casual employees.

An eligible casual employee means a casual employee:

For the purposes of this clause, continuous service is work for an employer on a regular and systematic basis (including any period of authorised leave or absence).

An employer must not fail to re-engage a casual employee because:

The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.

An eligible casual employee employed by their current employer, on or prior to {1 January 1998 or INSERT DATE AGREED BY PARTIES}, shall be entitled to parental leave under the term of the award as of {4 July 2001 or INSERT DATE AGREED BY PARTIES }.

An eligible casual employee employed on or after {4 July 2001 or INSERT DATE AGREED BY PARTIES } shall be entitled to parental leave under the term of the award as of {4 July 2002 or INSERT DATE AGREED BY PARTIES }.

P.1 Definitions

P.1.1 For the purpose of this clause child means a child of the employee under the age of one year except for adoption of a child where ‘child’ means a person under the age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.

P.1.2 Subject to P.1.3, in this clause, spouse includes a de facto or former spouse.

P.1.3 In relation to P.5, spouse includes a de facto spouse but does not include a former spouse.

P.2 Basic entitlement

P.2.1 After twelve months continuous service, parents are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for males, paternity leave may be taken. Adoption leave may be taken in the case of adoption.

P.2.2 Subject to P.3.6, parental leave is to be available to only one parent at a time, in a single unbroken period, except that both parents may simultaneously take:

P.3 Maternity leave

P.3.1 An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:

P.3.2 When the employee gives notice under P.3.1(a) the employee must also provide a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment.

P.3.3 An employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement occurring earlier than the presumed date.

P.3.4 Subject to P.2.1 and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.

P.3.5 Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.

P.3.6 Special maternity leave

P.3.7 Where leave is granted under P.3.4, during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that time does not exceed four weeks from the recommencement date desired by the employee.

P.4 Paternity leave

P.4.1 An employee will provide to the employer at least ten weeks prior to each proposed period of paternity leave, with:

P.4.2 The employee will not be in breach of P.4.1 if the failure to give the required period of notice is because of the birth occurring earlier than expected, the death of the mother of the child, or other compelling circumstances.

P.5 Adoption leave

P.5.1 The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier.

P.5.2 Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:

P.5.3 An employer may require an employee to provide confirmation from the appropriate government authority of the placement.

P.5.4 Where the placement of child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee’s return to work.

P.5.5 An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a spouse, or other compelling circumstances.

P.5.6 An employee seeking to adopt a child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure. The employee and the employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the employee is entitled to take up to two days unpaid leave. Where paid leave is available to the employee, the employer may require the employee to take such leave instead.

P.6 Variation of period of parental leave

Unless agreed otherwise between the employer and employee, an employee may apply to their employer to change the period of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencement of the changed arrangements.

P.7 Parental leave and other entitlements

An employee may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements which they have accrued subject to the total amount of leave not exceeding 52 weeks.

P.8 Transfer to a safe job

P.8.1 Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.

P.8.2 If the transfer to a safe job is not practicable, the employee may elect, or the employer may require the employee to commence parental leave for such period as is certified necessary by a registered medical practitioner.

P.9 Returning to work after a period of parental leave

P.9.1 An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.

P.9.2 An employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to P.8, the employee will be entitled to return to the position they held immediately before such transfer.

P.9.3 Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position as nearly comparable in status and pay to that of their former position.

P.10 Replacement employees

P.10.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.

P.10.2 Before an employer engages a replacement employee the employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.
 
 
 

APPENDIX 2

27 June 2004

Family Provisions Case

Agreement Arising from Conciliation

This agreement has been reached following an extensive conciliation process before Senior Deputy President Marsh in respect of applications by the ACTU, Ai Group and ACCI to vary various awards.

It seeks to dispose of the applications made by the ACTU, Ai Group and ACCI relating to paid carer’s leave and the ACTU’s application relating to emergency leave.

1. Agreed matters

The following matters relating to award personal leave provisions have been agreed upon:

2. Casual employees

The agreed position set out in 1.9 is not intended to alter the nature of casual employment and is without prejudice to any parties’ arguments about the nature of casual employment.

3. Model award provisions

Model award provisions dealing with personal leave, bereavement leave and casual employment are set out in Attachment A. The rights of all parties are reserved to seek to tailor such provisions to existing award structures and concepts, including to avoid a diminution of access to leave for caring purposes. An example of how the model is applied to the Metal, Engineering and Associated Industries Award 1998 – Part I is set out in Attachment B.
 
 
 

Attachment A - MODEL AWARD PROVISIONS

X. PERSONAL LEAVE

The provisions of this clause apply to full-time and regular part-time employees (on a pro rata basis) but do not apply to casual employees. The entitlements of casual employees are set out in clause (insert clause number).

X.1 Definitions

The term immediate family includes:

X.1.1 spouse (including a former spouse, a de facto spouse and a former de facto spouse) of the employee. A de facto spouse means a person of the opposite sex to the employee who lives with the employee as his or her husband or wife on a bona fide domestic basis; and

X.1.2 child or an adult child (including an adopted child, a step child or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or spouse of the employee.

X.2 Amount of paid personal leave

X.2.1 Paid personal leave is available to an employee, when they are absent:

X.2.2 The amount of personal leave to which a full-time employee is entitled depends on how long they have worked for the employer and accrues as follows: (insert details)

X.3 Personal leave for personal injury or sickness

An employee is entitled to use the full amount of their personal leave entitlement including accrued leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.

X.4 Personal leave to care for an immediate family or household member

X.4.1 An employee is entitled to use up to 10 days personal leave, including accrued leave, each year to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency, subject to the conditions set out in this clause.

X.4.2 By agreement between an employer and an individual employee, the employee may access an additional amount of their accrued personal leave for the purposes set out in X.4.1, beyond the limit set out in X.4.1. In such circumstances, the employer and the employee shall agree upon the additional amount that may be accessed.

X.5 Employee must give notice

(Insert notice requirements)

X.6 Evidence supporting claim

X.6.1 (Insert evidence requirements for leave taken for personal illness or injury)

X.6.2 (Insert evidence requirements for leave taken to care for members of the employee’s immediate family or household who are sick and require care and support)

X.6.3 When taking leave to care for members of their immediate family or household who require care due to an unexpected emergency, the employee must, if required by the employer, establish by production of documentation acceptable to the employer or a statutory declaration, the nature of the emergency and that such emergency resulted in the person concerned requiring care by the employee.

X.7 Unpaid personal leave

Where an employee has exhausted all paid personal leave entitlements, they are entitled to take unpaid personal leave to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. The employer and the employee shall agree on the period. In the absence of agreement, the employee is entitled to take up to two days (up to a maximum of 16 hours) per occasion, provided the requirements of X.5 and X.6 are met.

Y. BEREAVEMENT LEAVE

The provisions of this clause apply to full-time and regular part-time employees (on a pro rata basis) but do not apply to casual employees. The entitlements of casual employees are set out in clause (insert clause number).

Y.1 Paid leave entitlement

An employee is entitled to up to (insert amount) bereavement leave on each occasion of the death in Australia of either a member of the employee’s immediate family or household.

(Insert any provisions relating to notification, evidence, overseas deaths, part-time employees, etc)

Y.2 Unpaid bereavement leave

Z. CASUAL EMPLOYMENT

Z.1 Caring responsibilities

Z.1.1 Subject to the evidentiary and notice requirements in X.5 and X.6, casual employees are entitled to not be available to attend work, or to leave work:

Z.1.2 The employer and the employee shall agree on the period for which the employee will be entitled to not be available to attend work. In the absence of agreement, the employee is entitled to not be available to attend work for up to 48 hours (i.e. two days) per occasion. The casual employee is not entitled to any payment for the period of non-attendance.

Z.1.3 An employer must not fail to re-engage a casual employee because the employee accessed the entitlements provided for in this clause. The rights of an employer to engage or not to engage a casual employee are otherwise not affected.
 
 
 

Attachment B - DRAFT ORDER

METAL, ENGINEERING AND ASSOCIATED INDUSTRIES AWARD 1998—PART I

1. By deleting the wording in clause 7.2 - Personal Leave and replacing it with the following wording:

7.2 Personal Leave

The provisions of this clause apply to full-time and regular part-time employees (on a pro rata basis) but do not apply to casual employees. The entitlements of casual employees are set out in clause 4.

7.2.1 Definitions

The term immediate family includes

7.2.2 Amount of paid personal leave

7.2.3 Accumulation of personal leave

Unused personal leave accumulates from year to year to a maximum of 729.6 hours (or 768 hours if the employee normally works 8 or more hours per day).

7.2.4 The effect of workers’ compensation

If an employee is receiving workers’ compensation payments, they are not entitled to personal leave.

7.2.5 Broken service

If an employee is terminated by their employer and is re-engaged by the same employer within a period of six months then the employee’s unclaimed balance of personal leave shall continue from the date of re-engagement.

7.2.6 Personal leave for personal injury or sickness

Full-time employees may take up to the full amount of their personal leave for the purposes of personal illness or injury, subject to the conditions set out in this clause.

7.2.7 Personal leave to care for an immediate family or household member

7.2.8 Employee must give notice

7.2.9 Evidence supporting claim

7.2.10 Single day absences

An employee who has already had two paid personal leave absences in the year for personal illness or injury, the duration of each absence being of one day only, is not entitled to further paid personal leave for personal illness or injury in that year of a duration of one day only without production to the employer of a certificate of a qualified medical practitioner which states that the employee was unable to attend for duty on account of personal illness or injury.

An employer may agree to accept a Statutory Declaration in lieu of the required medical certificate.

7.2.11 Unpaid personal leave

Where an employee has exhausted all paid personal leave entitlements, they are entitled to take unpaid personal leave to care for members of their immediate family or household who are sick and require care and support or who require care due to an unexpected emergency. The employer and the employee shall agree on the period. In the absence of agreement, the employee is entitled to take up to two days (up to a maximum of 16 hours) of unpaid leave per occasion, provided the requirements of 7.2.8 and 7.2.9 are met.

7.2.12 Casual employees are entitled to not be available to attend work or to leave work in certain circumstances as set out in paragraph 4.2.3(g).

2. By inserting a new Clause 7.3 – Bereavement Leave as follows and renumbering the remaining clauses accordingly:

7.3 Bereavement leave

The provisions of this clause apply to full-time and regular part-time employees (on a pro rata basis) but do not apply to casual employees. The entitlements of casual employees are set out in clause 4.

7.3.1 Paid leave entitlement

7.3.2 Unpaid leave

An employee may take unpaid bereavement leave by agreement with the employer.

3. By inserting a new paragraph 4.2.3(g) as follows:

4. By amending paragraph 2.2.2(a) to add the following item to the list of matters available by individual facilitation:

 
 
 

APPENDIX 3

C. COMMUNICATION DURING PARENTAL LEAVE

C.1 Where an employee is on parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:

C.1.1 make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and

C.1.2 provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.

C.2 The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee’s decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to request to return to work on a part-time basis.

C.3 The employee shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with C.1.
 
 
 
Appearances:

C Bowtell with B Tkalcevic, A Watson and M Bissett for the Australian Council of Trade Unions with T Bryant from the Shop, Distributive and Allied Employees’ Association.

S Taylor, A Donnellan and J Dickinson for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

L Heap for the Australian Municipal, Administrative, Clerical and Services Union.

M Cooper for the CPSU, Community and Public Sector Union.

S Maxwell for the Construction, Forestry, Mining and Energy Union.

L Benfell for the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union.

A Parkes for the National Union of Workers.

S Barklamb with C Harris, P Johnson and P Anderson for the Australian Chamber of Commerce and Industry, with J Hargrave for the Printing Industries Association of Australia, with D Gregory for the Victorian Chamber of Commerce and Industry, with C Harnath for the Master Plumbers’ and Mechanical Services Association of Australia and with G Boyce for the National Electrical Contractors’ Association.

L Stewart, with S Davis , B Perry, J Watling and S Smith for the Australian Industry Group and the Engineering Employers Association of South Australia.

J Clarke for CSL Limited.

D Wawn for the National Farmers’ Federation.

R Calver for the Master Builders’ Association.

ER Cole with L McDonough, S Williamson and J Jones for the Minister for Employment and Workplace Relations.

R Doyle of counsel with J McCabe, R Bancroft and J Burton for the States of Victoria, New South Wales, Queensland, Western Australia, South Australia and Tasmania and for the Northern Territory and the Australian Capital Territory.

S Wood for the Equal Opportunity for Women in the Workplace Agency.

G Marchetti for the Women’s Electoral Lobby.

M Young with K Ellinson and J O’Brien for the Human Rights and Equal Opportunity Commission.

N Green with D Siemensma for the Australian Catholic Commission for Employment Relations.
 
 
Hearing details:

2003.
Melbourne:
July 23;
September 26;
November 27;
December 18.

2004.
Melbourne:
February 27;
July 15;
September 1–3, 6–8, 29;
December 13–17.
Sydney:
September 9, 10, 30.



  1    C2003/4199.

  2    Print J3596; (1989-1991) 36 IR 1.

  3    Exhibit S&T 5.

  4    See s.143(1C)(f) in relation to awards, s.170LU(5) for agreements, and s.170VG(1) for AWAs.

  5    Print D9576; (1979) 218 CAR 120.

  6    Print F9852; (1985) 298 CAR 321.

  7    Print J3596; (1989–1991) 36 IR 1.

  8    Print L6900; (1994) 57 IR 121.

  9    Print M6700; (1995) 62 IR 48.

  10    Print Q5596, 15 September 1998.

  11    PR904631; (2001) 107 IR 71.

  12    PR072002; (2002) 114 IR 390.

  13    Print J3596; (1989–1991) 36 IR 1 at 15.

  14    ibid. at 16.

  15    PR904631; (2001) 107 IR 71 at 76.

  16    See s.501 and Schedule 14 of the Act.

  17    Schedule 1A does not apply in relation to an employee during any period in which the employee is subject to a certified agreement or AWA, and an award of the Commission prevails to the extent of any inconsistency with Schedule 1A.

  18    PR072002; (2002) 114 IR 390 at para 278.

  19    ibid. at para 243.

  20    Glezer, H, & Wolcott, I, 1999, ‘Work and Family Life Reciprocal Effects’, Family Matters, Australian Institute of Family Studies, No. 52, at p. 69.

  21    Bittman, M, 2004, ‘Parenting and Employment: What time-use surveys show’ in Folbre, N, & Bittman, M, (eds) Family Time: The social organization of care, Routledge, New York, cited in Campbell, I & Charlesworth, S, 2004, Background Report Key Work and Family Trends in Australia.

  22    Exhibit ACTU 7 at p. 347.

  23    Transcript at paras 2874–6.

  24    Commonwealth of Australia, Australia’s Background Report to the OECD.

  25    ibid. at p. 24. Also, Her Majesty’s Treasury and Department of Trade and Industry report, 2003, ‘Balancing Work and Family Life: Enhancing Choice and Support for Parents’, shows that mothers assume a disproportionate level of caring responsibilities compared to fathers, even when both are in full-time employment. For example, on average full-time working mothers still spend around twice as much time in unpaid work as fathers.

  26    Russell, G, & Bowman, L, 2000, ‘Work and Family Current Thinking, Research and Practice’ at pp. 15–7. See further, Craig, L, 2003, ‘How Do They Find the Time? A Time-Diary Analysis of How Working Parents Preserve Their Time With Children’, Australian Social Policy Conference, Social Inclusion.

  27    Campbell & Charlesworth, op. cit. at para 139 and see more generally paras 139–42.

  28    Her Majesty’s Treasury and Department of Trade and Industry report, op. cit. at paras 3.16–18.

  29    See ABS, Cat No. 6342.0.

  30    Exhibit S&T 2, Tab 1 at p. 43.

  31    ABS, Career Experience, 2002, Cat. No. 6254.0; Gray, M, Qu L, de Vaus, D & Millward, C, May 2002, ‘Determinants of Australian Mothers’ Employment: An Analysis of Lone and Couple Mothers’, Research Paper No. 26, Australian Institute of Family Studies; Exhibit Commonwealth 2 at para 7.24 and see further Bittman, M, Hoffmann, S, & Thompson, D, 2004, ‘Men’s Uptake of Family-Friendly Employment Provisions’ Tables 18–20 at pp. 41–2.

  32    Thornwaite, L, 2002, ‘Work-Family Balance: International Research on Employee Preferences’, ACIRRT, Working Paper No. 79 at pp. 27–30; Hand, K, & Lewis, V, 2002, ‘Father’s Views on Family Life and Paid Work’, Australian Institute of Family Studies, Family Matters No. 61, at p. 27; Bittman, Hoffmann & Thompson, op. cit. at pp. 1, 4.

  33    Russell & Bowman op. cit. at para 3.3.5. See also Weston, R, Qu, L, & Soraino, G, 2002, ‘Implications of Men’s Extended Work Hours for Their Personal and Marital Happiness’, Australian Institute of Family Studies, Family Matters No. 61 at pp. 21–2, Exhibit ACTU 17 at pp. 64–5.

  34    Bittman, Hoffmann & Thompson, op. cit. at pp. 53–6 and Table 27 at p. 57.

  35    Thornwaite, op. cit.

  36    ibid.

  37    Glezer, H, & Wolcott, I, 1997, ‘Work and Family Values, Preferences and Practice’, Australian Family Briefing No. 4, Australian Institute of Family Studies at p. 3, cited in Thornwaite, op. cit. at p. 17. Data is from the Australian Family Life Course Survey of 2000 respondents aged 25–50 years, conducted by the Australian Institute of Family Studies.

  38    Exhibit Commonwealth 6 at para 2.2.

  39    Exhibit ACTU 3 at para 2.1.

  40    Exhibit Commonwealth 6 at para 3.1.

  41    ABS, Labour Force, Cat. No. 6202.0.55.001.

  42    Austen, S, & Giles, M, 2003, ‘The Likely Effects of Ageing on Women’s Involvement in the Paid Workforce’, Australian Bulletin of Labour, Vol. 29, No. 3 at pp. 253–73; Gruen, D, & Garbutt, M, 2004, ‘The Long Term Fiscal Implications of Raising Australian Labour Force Participation or Productivity Growth’.

  43    ABS, Labour Force, 2004, detailed data release, Cat. No. 6291.0.55.001 Data Cube LM8.

  44    ABS, Labour Force, Cat. No. 6202.0.55.001.

  45    See Campbell & Charlesworth, op. cit. at pp. 4–5.

  46    ibid. at pp. 14–5.

  47    See Campbell & Charlesworth, op. cit. at pp. 26–32; Bittman, Hoffmann & Thompson, op. cit. at pp. 35–57; Austen & Giles, op. cit.; Lewis, V, Tudball, J, & Hand, K, 2001, ‘Family and Work: The Family’s Perspective’; DEWR, 1998, ‘Working Fathers and Working Mothers—Do Their Needs Differ?’; Thornthwaite, op. cit. at p. 27.

  48    Glezer, H, & Wolcott, I, 2000, ‘Conflicting Commitments: Working Mothers and Fathers in Australia’ in Haas, L, Hwang, P, & Russell, G, (eds) Organizational change and gender equity: international perspectives on fathers and mothers at the workplace, Thousand Oaks: Sage Publications, at p. 45.

  49    Gray, E, & McDonald, P, 2002, ‘The Relationship Between Personal, Family, Resource and Work Factors and Maternal Employment in Australia’ OECD Labour Market and Social Policy Occasional Papers, No. 62.

  50    Exhibit ACTU 3 at para 6.11.

  51    Campbell & Charlesworth, op. cit. at para 54.

  52    OECD, Employment Outlook 2001, Table 4.1 at p. 134.

  53    Transcript at para 1368.

  54    Gray & McDonald, op. cit.

  55    McDonald, P, 2001, ‘Work-Family Policies are the Right Approach to the Prevention of Very Low Fertility’, People and Place, Vol. 9, No. 3.

  56    ibid. at p. 32.

  57    Gray & McDonald, op. cit. at Annexure 3; Transcript at paras 2689–94, 2702–25.

  58    Transcript at paras 2545–61, 2746–9.

  59    ABS, Labour Force, SuperTABLE E04, 2004, Cat. No. 6291.0.55.001.

  60    ABS, Labour Force, SuperTABLE FM2, April 2004, Cat. No. 6291.0.55.001.

  61    ABS, Employee Earnings, Benefits and Trade Union Membership, Cat. No. 6310.0.

  62    ABS, Forms of Employment Survey, November 2001, Cat. No. 6359.0.

  63    Exhibit Commonwealth 6 at para 2.4.

  64    Exhibit S&T 1 at p. 29; Exhibit ACTU 12 at para 641.

  65    Whitehouse, G, 2001, ‘Industrial Agreements and Work/Family Provisions: Trends and Prospects Under “Enterprise Bargaining”’, Labour and Industry, Vol. 12, No. 1, August 2001 at pp. 109–26.

  66    May 2002, ‘Examination of Work and Family Measures in Queensland & Federal Enterprise Agreements: the Current State of Play’.

  67    OECD, 2002, Babies and Bosses: Reconciling Work and Family Life, Vol. 1 at p. 282.

  68    PR002004; (2004) 129 IR 389 at para 325.

  69    See evidence of Ms Jacqueline Luttick, Exhibit ACTU 7, Tab 22 at paras 15–9 and Mr Graeme Pearce, Exhibit ACTU 7 at Tab 28.

  70    See generally Exhibit ACTU 3 at paras 2.2–17; Exhibit ACCI 1 at paras 1.4–6, 1.10–11; Exhibit ACCI 3 at para 17.4; Exhibit AiG 3 at paras 17–26; Exhibit AiG 7 at paras 45–47, 55; Exhibit Commonwealth 2 at paras 3.1–3; Exhibit S&T 5 at paras 16–17.

  71    Total fertility rate is the sum of the age-specific fertility rates (live births at each age of mother per 1000 female population at that age). It represents the number of children a woman would bear over her lifetime if she experienced current age-specific fertility rates at each age of her reproductive life.

  72    Replacement level is the average number of babies born to a woman throughout her reproductive life sufficient to replace herself and her partner.

  73    ABS, Births, Australia, 2002, Cat. No. 3301.0; Exhibit Commonwealth 2.

  74    Campbell & Charlesworth, op. cit.

  75    ABS, Births, Australia, 2002, Cat. No. 3301.0, p. 6.

  76    ibid.

  77    McDonald, op. cit. at p. 22.

  78    ABS, Births, op. cit. at pp. 12–3.

  79    ibid. at p. 9.

  80    McDonald, op. cit. at p. 35; Transcript at para 2620.

  81    Exhibit Commonwealth 2 at para 3.33

  82    Exhibit ACTU 9 at para 1.

  83    ibid. at para 2.

  84    Exhibit ACTU 3 at para 6.8.

  85    ibid. at para 6.9.

  86    Castles, FG, 2003, ‘The World Turned Upside Down: Below Replacement Fertility, Changing Preferences and Family Friendly Public Policy in 21 OECD Countries’, Vol. 13, No. 3, Journal of European Social Policy, pp. 209–27. Access Economics, January 2001, Population Ageing and the Economy at p. 25.

  87    Castles, op. cit.

  88    Castles, FG, 2002, ‘Three Facts About Fertility, Cross-National Lessons for the Current Debate’ Family Matters, No. 63, Spring/Summer 2002 at p. 27.

  89    McDonald, op. cit.

  90    ibid. at p. 18.

  91    Transcript at para 2610.

  92    ibid. at para 2635.

  93    OECD, 2001, Society at a Glance, underlying data at p. 8.

  94    Access Economics, January 2001, Population Ageing and the Economy at p. 25.

  95    Australian Government, 2004, Australia’s Demographic Challenges at p. 1.

  96    OECD, Babies and Bosses, op. cit. Vol. 1 at p. 192.

  97    Exhibit S&T 1 at para 49.

  98    PSM, 1999, ‘The Ageing Workforce: Trends and Issues in the Western Australian Public Sector’, Ageing Workforce Discussion Paper Series, cited in Austen & Giles, op. cit. at p. 268

  99    Campbell & Charlesworth, op. cit. at para 150.

  100    See Campbell & Charlesworth, op. cit. at pp. 18–32; Australian Institute of Health and Welfare (AIHW), 2003, ‘Australia’s Welfare’; ABS, 2001, ‘Caring in the Community’, Australian Social Trends, Cat No. 4102.0.

  101    ABS, Marriages and Divorces, Australia, 2002, Cat. No. 3310.0; see also Campbell & Charlesworth, op. cit. at pp. 14–8.

  102    ABS, Marriages and Divorces, Australia 2002, Cat No. 3310.0.

  103    ABS Changing Families, op. cit. at pp. 35–6.

  104    See ABS, 2003, ‘Changing Families’, Australian Social Trends, Cat. No. 4102.0 at pp. 35–6; Hugo, G, 2001, ‘Demographic Perspectives on Social Policy and Intergenerational Inequity’ at pp. 23–7; Campbell & Charlesworth, op. cit. at pp. 22–5; Russell & Bowman op. cit. at pp. 14–5.

  105    ABS, Marriages and Divorces, op. cit.

  106    See Campbell & Charlesworth, op. cit. at pp. 18–21, 26–32; AIHW, op. cit. pp. 105–16.

  107    Russell & Bowman, op. cit. at p. 14.

  108    Transcript at paras 1033–4; Exhibit ACCI 1 at para 1.4; Exhibit AiG 3 at para 21.

  109    ABS, Australian Social Trends 2003 at p. 41.

  110    ibid.

  111    ABS, Family Characteristics, Cat. No. 4442.0, June 2003, Table 9 at p. 25.

  112    McDonald (op. cit. at pp. 18–9) and Campbell & Charlesworth (op. cit. at para 37) have noted this in their evidence.

  113    Wolcott, I, & Glezer, H, 1995, ‘Work and Family Life: Achieving Integration’ Australian Institute of Family Studies.

  114    Exhibit S&T 5 at paras 211–53.

  115    http://www.workplace.gov.au/workplace/Category/SchemesInitiatives/WorkFamily/

  116    Exhibit ACCI 7 at para 11.11.

  117    Exhibit AiG 10 at para 31.

  118    Exhibit AiG 5, Tab 11 at para 14. Also see evidence of Ms Cheryl Woollard, Transcript at paras 4930–42; Ms Jo Fallshaw-Bishop, Exhibit AiG 5, Tab 4 at para 14.

  119    Managing Work/Life Balance International, 2004, ‘Work/Life Initiatives: The Way Ahead Report on the Year 2004 Survey’.

  120    See Dex, S, & Schebel, F, 1999, ‘Business Performance and Family-Friendly Policies’, Journal of General Management, Vol. 24, No. 4.

  121    Exhibit AiG 5, Tab 3 at para 25.

  122    Exhibit AiG 5, Tab 13 at para 19.

  123    Exhibit ACCI 7 at para 3.43.

  124    For example see the evidence of Ms Toni Riley, Transcript at para 3807; Mr Neil Shankly, Transcript at paras 3687–757; Mr Ben Fels, Exhibit AiG 5 at Tab 19; Ms Diane Taylor, Exhibit AiG 5 at Tab 2 and Mr Graham Vidler, Exhibit AiG 5 at Tab 6.

  125    See www.workplace.gov.au/NR/rdonlyres/960AC8A2-29F5-486F-98A0-C89E3D5FE2E0/0/WFAWinning
Workplaces2004.pdf.

  126    For example, see the evidence of Ms Jacqueline Luttick, Exhibit ACTU 7, Tab 22 at paras 15–9 and Mr Graeme Pearce, Exhibit ACTU 7 at Tab 28.

  127    Sections 80F–I.

  128    Lovells, Chartered Institute of Personnel and Development, October 2003, ‘A Parent’s Right to Ask, a Review of Flexible Working Arrangements’, Survey Report.

  129    PR072002.

  130    Exhibit Commonwealth 2 at para 8.6.

  131    Print J3596.

  132    Campbell & Charlesworth, op. cit. at p. A2-8.

  133    Exhibit ACCI 4 at Tab 1.

  134    Exhibit ACTU 12 at para 357.

  135    ibid. at para 374.

  136    Exhibit ACTU 12 at para 591.

  137    ibid. at para 461.

  138    Exhibit ACCI 7 at para 9.8.

  139    Exhibit ACCI 8 at para 5.32.

  140    ibid. at para 5.37.

  141    Transcript at paras 7408–14.

  142    AW802463 Print Q2550.

  143    Print R2700; (1999) 90 IR 123 at para 270.

  144    Transcript at paras 7515–6.

  145    Transcript at para 7419.

  146    Print P9677, 27 March 1998.

  147    Exhibit ACTU 8 at para 10.6.

  148    ibid. at para 10.14.

  149    Transcript at para 9152.

  150    Exhibit ACCI 8 at para 5.150.

  151    Print N0343; (1996) 66 IR 138 at 168–9.

  152    Exhibit ACTU 8 at paras 19.1–2.

  153    ibid. at para 19.4.

  154    Exhibit ACCI 8 at para 5.145.

  155    ibid. at para 5.184.

  156    ibid. at para 5.226.

  157    Print M6700; (1995–1996) 62 IR 48 at 67.

  158    Print N0343.

  159    Exhibit ACTU 8 at para 18.2.

  160    ibid. at para 18.4.

  161    Exhibit ACCI 8 at para 5.304.

  162    Print M6700; (1995–1996) 62 IR 48 at 81.

  163    Exhibit ACCI 8 at para 5.315.

  164    ibid. at para 5.312.

  165    Exhibit ACTU 8 at para 17.1.

  166    Exhibit ACCI 8 at para 5.356.

  167    ibid. at para 5.355.

  168    ibid. at paras 5.360–1.

  169    Exhibit ACTU 8 at para 17.8.

  170    Exhibit ACCI 8 at para 10.3.

  171    Exhibit ACTU 8 at para 20.1.

  172    Exhibit ACCI 8 at para 10.21.

  173    Print M6700.

  174    Exhibit ACCI 8 at para 10.7.

  175    Exhibit ACCI 1 at para 13.11.

  176    Exhibit ACCI 8 at para 10.14.

  177    Exhibit ACTU 8 at paras 20.21–3.

  178    Exhibit ACCI 8 at para 11.211.

  179    ibid. at para 12.1.

  180    ibid. at para 13.10.

  181    Transcript at paras 8551–2.

  182    Exhibit ACCI 8 at para 14.3.

  183    Exhibit ACTU 8 at para 15.4.

  184    Transcript at para 8556.

  185    AW827785 PR937368.

  186    AW789529CRV Print Q0444.

  187    Exhibit ACCI 8 at para 15.3; see Appendix E to the Graphic Arts—General—Award 2000 [AW782505CR Print S1716].

  188    Exhibit ACTU 8 at para 13.1.

  189    Exhibit ACCI 8 at paras 15.1–3.

  190    ibid. at paras 15.9–11.

  191    Evidence of Ms Carol Ellison, Transcript at para 5884; Mr Gerald Richardson, Exhibit AiG 5, Tab 7 at paras 8–19, Transcript at paras 6935, 6965; Ms Dianne Taylor, Exhibit AiG 5, Tab 2 at paras 13–5, Transcript at para 3572; Ms Lea Formigoni, Exhibit ACTU 7, Tab 12 at para 4, Transcript at para 8847; and Mr Paul Kelly, Exhibit AiG 5, Tab 11 at paras 20–1.

  192    Exhibit ACTU 7, Tab 36 at para 13.

  193    Exhibit AiG 5, Tab 3, Tab 16 at para 11.

  194    Moore Business Systems Australia Limited Enterprise Bargaining Agreement 2002 [AG818319 PR922470] and Canon Australia Pty Ltd (Technical Consultants) Certified Agreement 2002 [AG817125 PR920212].

  195    Workplace Agreements Database.

  196    Industrial Relations Victoria, 2003, ‘Long Service Leave in Australia Towards a National Minimum Standard’.

  197    Exhibit AiG 10 at para 320.

  198    Exhibit Commonwealth 6 at p. vi.

  199    PR072002.

  200    See for example, Gray, M, & Tudball, J, 2002, Family-Friendly Work Practices—Differences Within and Between Workplaces, Australian Institute of Family Studies, Research Report No. 7; and Managing Work/Life Balance International, op. cit.

  201    Palmer, T, April 2004, ‘Results of the First Flexible Working Employee Survey’, Employment Relations Occasional Papers, Department of Trade and Industry.

  202    See O’Neill, S, 2004, Work and Family Policies as Industrial and Employment Entitlements, Research Paper No. 2 2004–2005, Department of Parliamentary Services, Canberra.

  203    See report of Palermo, J, November 2004, ‘Breaking the Cultural Mould: The Key to Women’s Career Success’, Hudson Global Resources and Human Capital Solutions.

  204    See Schedule 12 of the Act.

  205    Exhibit ACTU 8 at Tab 1.

  206    Exhibit ACCI 8 at paras 8.9–10; see also Print P7500; (1997) 75 IR 272 at p. 281.

  207    Section 89A(6) permits the Commission to include in an award a matter which is not itself allowable but which is incidental to an allowable award matter and necessary for the effective operation of the award in question.

  208    AW792955 Print Q6855.

  209    AW794720CRV Print R4420.



Printed by authority of the Commonwealth Government Printer

Price Code O