Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Workers with Family Responsibilities Convention, 1981 (No. 156) - Australia (Ratification: 1990)

The Committee notes the Government’s detailed report, which includes information on the application of the Convention from the Commonwealth, states and territories, and notes the Government’s indication that it will forward the report from Tasmania as soon as it has been received.

1. Legislative developments. The Committee notes the legislative reforms that came into force on 27 March 2006 through the Workplace Relations Amendment (Work Choices) Act 2006, modifying the Workplace Relations Act 1996 (WR Act) and introducing carer leave provisions for the first time into the Act. It notes that the effect of the Work Choices reforms is to move towards a national workplace relations system covering an estimated 85 per cent of Australian employees and introducing greater flexibility into the negotiation of employment contracts between workers and employers – including the negotiation of provisions dealing with work and family responsibilities. The Committee notes that the amended WR Act also establishes a safety net of guaranteed wages and employment conditions in federal legislation as set out in the Australian Fair Pay and Conditions Standard (the Standard). These guarantees cover, among other things, maximum ordinary work hours per week, personal leave, sick and carer’s leave, compassionate leave, and unpaid parental leave (maternity, paternity and adoption). The Government states that employees and employers may negotiate family friendly working arrangements that are more favourable than the minimum guarantees provided by the Standard but that workplace agreements or employment contracts may not fall below these entitlements. The Committee asks the Government to monitor the practical impact of these reforms on the ability of workers to balance their work and family responsibilities.

2. In the context of these reforms, the Committee notes the decision of the Australian Industrial Relations Commission (AIRC) in the Family Provisions Test Case delivered on 8 August 2005. It notes in particular the new model provisions for parental leave in the AIRC’s decision, which include the following:

–      a right to request an extension of unpaid parental leave by 12 months (to a maximum of 24 months);

–      a right to request an extension of simultaneous unpaid parental leave to eight weeks;

–      a right to request part-time return to work after parental leave until a child reaches school age;

–      a doubling of the cap on carer’s leave to be taken from personal leave from five to ten days;

–      two days’ unpaid leave for employees who have exhausted their paid personal leave, or who are casual, to provide care for a member of their immediate family or household in an unexpected emergency;

–      up to ten days of annual leave to be taken in single days; and

–      carrying forward of annual leave for up to two years.

The Committee notes that while some states have incorporated these model provisions to bring their legislation on parental leave into line with the test case decision, these provisions were not included in the amendments to the Commonwealth WR Act. Furthermore, according to section 552 of the Act, the AIRC will not be able to adjust awards to reflect these test case provisions – although workers entering workplace agreements can continue to negotiate parental leave and other provisions that are more favourable than the Standard. The Committee notes, however, from the conclusions of the AIRC that “many employees lack sufficient bargaining power to insist upon agreements which enshrine family friendly policies” (paragraph 123). This is particularly the case for low-paid, part-time or casual workers (predominantly women) and is likely to result in some employees benefiting from more favourable work–life provisions than others – increasing the differences between workers, and their respective abilities to balance work and family responsibilities. The Committee asks the Government to provide information in its next report on the existence and extent of family friendly provisions in workplace agreements from different sectors and occupations and to indicate how it ensures that workers in low-paid, part-time or casual jobs are not unfairly disadvantaged compared with other workers with respect to work–family entitlements. It also asks the Government whether it is considering extending the entitlements under the Fair Pay and Conditions Standard to include the parental leave clause from the AIRC’s Family Provisions Test Case decision.

3. Referring to the communication from the Australian Council of Trade Unions (ACTU) dated 1 September 2005 in the context of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Committee notes the ACTU’s allegation that Australian Workplace Agreements (AWAs) contain worse general conditions including longer working hours that affect workers’ capacity to balance employment and family responsibilities. The ACTU further alleges that there is evidence that AWAs are less likely to contain family-friendly provisions, pointing to a 2001 study which found that only 12 per cent of all AWAs and 7 per cent of private sector AWAs contained work–family provisions compared to 14 per cent of collective agreements (fewer than 8 per cent of AWAs provided paid maternity leave and only 5 per cent provided paid paternity leave). In contrast, figures provided by the Government indicate that according to the latest report on agreement making for 2002–03, over 70 per cent of AWAs contained at least one provision relating to either family-friendly leave or flexible work arrangements. In addition, the Government reports that at the end of June 2006, 88 per cent of federal collective agreements had at least one family-friendly or flexible working hour provision and that under the new Work Choices legislation, all workers and employers will be even better placed to negotiate family-friendly arrangements that correspond to each party’s respective needs. The Committee asks the Government to account for the discrepancy between its figures and those presented by the ACTU with respect to work–family provisions in AWAs and collective agreements. Please also continue to provide detailed information on the number and nature of family–friendly provisions negotiated under the six different types of workplace agreements identified in its report namely AWAs, employee collective agreements, union collective agreements, employer greenfields agreements, union greenfields agreements and multiple business agreements.

4. Article 1 of the Convention. Definitions. The Committee notes that with the adoption of the amendments under the Work Choices Act, section 240 of the WR Act, now defines “child” to include an adopted child, stepchild, ex-nuptial child as well as an adult child in the context of personal leave. The same section further defines the term “immediate family” to include a spouse, child, parent, grandparent, grandchild or sibling of the employee; or a child, parent, grandparent, grandchild or sibling of a spouse of the employee – where the term “spouse” includes a former spouse, a de facto spouse and a former de facto spouse.

5. Article 3. Discrimination. The Committee notes with interest that in 2000, the Government of New South Wales introduced a specific prohibition into its Anti-Discrimination Act 1977 against discrimination in employment on the ground of a carer’s responsibilities. The Committee similarly notes with interest that in 2002 the Government of Queensland amended its Anti-Discrimination Act 1991 to include “family responsibilities” as a prohibited ground of work‑related discrimination. The Committee welcomes these developments and also thanks the Government for the information on cases concerning discrimination in employment and occupation on the basis of family responsibilities. The Committee asks the Government to continue to provide information in subsequent reports on legislative developments and judicial or administrative decisions in this regard.

6. Article 5. Childcare. The Committee notes the funding projected by the Government over the next four years as part of its Child Care Benefit (CCB) and childcare tax rebate initiatives to help parents offset the costs of childcare services. The Government further indicates that since the CCB was introduced in 2000, there has been a 25 per cent increase in the number of children accessing childcare services. The Government adds that in order to improve childcare planning, it is committed to developing a national childcare management system to provide parents with up to date information on childcare supply, availability and utilization. As of July 2006, it has also made available a childcare access hotline to provide parents with childcare availability information, which will not only give greater flexibility to parents when it comes to making childcare choices, but will also provide the Government with a better understanding of childcare demand. The Committee asks the Government to indicate in its next report progress made in the development of the national childcare management system and to provide specific information on the demand for childcare services in comparison with availability. Also, noting the Government’s financial assistance to encourage the establishment of childcare services in areas of need including rural and remote areas, the Government is asked to provide information on the development of childcare services in these under-serviced regions.

7. Article 6. Information and education. The Committee notes with interest the various projects, studies and publications described by the Government in its report addressing the issue of workers with family responsibilities. It notes the staff working paper prepared for the Australian Productivity Commission entitled “Workforce participation rates – How does Australia compare?”, which considered that the low participation rate of women of childbearing age in Australia relative to other OECD countries may reflect, in part, differences in the availability of paid maternity leave. It also notes the Human Rights and Equal Opportunities Commission’s (HREOC) project entitled “Striking the balance” launched in 2005 during which 37 consultations and focus groups were organized across the country and 181 submissions received in response to a discussion paper examining family responsibilities and paid work in Australia. The Committee notes that the final report, “It’s about time: Women, men, work and family” was published in March 2007, setting out a series of recommendations including introducing a federal Family Responsibilities and Carers’ Rights Act. The Committee further notes with interest the projects undertaken by the Governments of Victoria (Work and family balance in regional Victoria pilot project) and Queensland (Work and family project – Pilot program; and Parental leave research) assessing the current situation of workers with family responsibilities and the practical and policy obstacles that hinder the ability of employees to balance their obligations at work and at home. The Committee looks forward to receiving information in the Government’s next report on the outcomes of the projects in Victoria and Queensland along with an assessment of their impact on state policy and practice when it comes to helping individuals reconcile their work and family responsibilities. In addition, the Committee asks the Government to indicate what follow-up measures it has taken or is considering in response to the recommendations in the HREOC’s final report, and to provide information on the impact of these measures.

8. Article 7. The Committee notes with interest that the Victorian Government introduced a “Parents returning to work program” in 2003 to assist parents prepare for re-entry into the workforce. Under this programme, parents may apply for a grant of up to 1,000 Australian dollars to assist with training and related expenses. It also notes with interest the initiative undertaken by the Government of Queensland entitled “Back to work: Parents and carers program” which is scheduled to operate from January 2005 through June 2007. The programme provides customized employment assistance and accredited training and includes contributions to child care and carer costs to enable participation in the programme and job interview attendance. The Committee asks the Government to provide information on the number of individuals taking part in these programmes including information on the rate of successful job placement among participants. Please also continue to provide information on other similar initiatives that enable workers with family responsibilities to re-enter the labour market after a period of leave.

9. Part V of the report form. Statistics. The Committee welcomes the statistics provided by the Government of Queensland comparing data from the Workplace Research Centre in 2002 and 2006 on the incidence and types of family friendly provisions adopted in Queensland, certified agreements and federally registered enterprise agreements operating in the state. It notes that between 2002 and 2006, the number of Queensland agreements sampled that contained family friendly provisions rose from 10.1 per cent to 38 per cent. In comparison only 23 per cent of federal agreements surveyed in 2006 contained similar provisions, slightly down from 24.3 per cent in 2002. Noting that the Queensland statistics show data prior to the coming into force of the Work Choices legislation, the Committee would like to receive comparable data along with the Government’s next report. Please also, where possible, include similar information from the other states and territories showing the incidence and type of family friendly provisions in workplace agreements.