Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

The Committee notes the comments by the Australian Council of Trade Unions (ACTU) of 31 August 2011.

Legislative developments. The Committee notes with interest the adoption of the Fair Work Act (FWA), 2009, one of the stated objectives of which is assisting employees to balance their work and family responsibilities and protecting against unfair treatment and discrimination (section 3). It notes that as of 1 January 2010, all the States, with the exception of Western Australia, have referred their industrial relations powers to the Commonwealth. Thus the FWA now applies to all employers and employees in Victoria, the Northern Territory and the Australian Capital Territory; to private sector employers in New South Wales, Queensland, South Australia and Tasmania; local government employers in Tasmania; and to national system employers and employees in Western Australia. The Committee also notes with interest the adoption of the Paid Parental Leave Act, 2010, which came into force in January 2011, providing Australia’s first statutory paid parental leave scheme. The Committee also welcomes the recent enactment of the Sex and Age Discrimination Legislation Amendment Act 2011, as a result of which the Sex Discrimination Act now makes specific reference to Convention No. 156. The Committee also notes the adoption of the New South Wales Industrial Relations (Public Sector Conditions of Employment) Regulation 2011, which includes unpaid and paid parental leave in the guaranteed minimum conditions of employment for the public sector. The Committee welcomes the legislative developments, and asks the Government to continue to provide such information, including with respect to all the States.

Article 1 of the Convention. Definitions. The Committee notes that section 17 of the FWA now defines “child” to include an adopted child or step child; section 12 of the FWA defines “immediate family” to mean “a spouse, de facto partner, child, parent, grandparent, grandchild or sibling” of the employee or of a spouse or de facto partner of the employee.

Article 3. Non-discrimination. The Committee notes that the FWA provides a general prohibition of an employer taking any “adverse action” against an employee or prospective employee on various grounds including family or carer’s responsibilities (section 351(1)). It also provides that “modern awards” (legal instruments setting minimum terms and conditions for national system employees in particular industries and occupations) and enterprise agreements must not include terms that discriminate against an employee, including based on family or carer’s responsibilities (sections 153(1), 195(1)). The Committee also notes that the recent amendments to the Sex Discrimination Act extend protection against direct discrimination on the ground of family responsibilities to both women and men in all areas of employment. The Government indicates that draft amendments to the Sex Discrimination Act concerning indirect discrimination were not adopted, and that the Government will consider the issue of indirect discrimination on the ground of family responsibilities in the context of its consolidation of Australia’s anti-discrimination laws. The Committee further notes the Government’s indication that there is little case law to date with regard to discrimination on the basis of family responsibilities. The Committee asks the Government to provide information on the application in practice of the FWA and the Sex Discrimination Act, as well as any relevant State legislation, and to provide summaries of judicial or administrative decisions addressing discrimination for the reason of family or carer’s responsibilities, and any exceptions permitted. The Committee also asks the Government to provide information on the status of the consolidation of the anti-discrimination legislation project as it relates to the Convention, including any progress in addressing indirect discrimination on the ground of family responsibilities.

Article 4. Parental leave. The Committee notes section 70 of the FWA, which provides both eligible parents with separate periods of up to 12 months of unpaid parental leave, with a right to request an extension of up to an additional 12 months unpaid leave. The Government indicates that the FWA introduced one concept of unpaid parental leave, instead of maternity, paternity and adoption leave, and that under the Paid Parental Leave Act, the Paid Parental Scheme (PPL) provides from January 2011 that a primary claim may be made by the mother of the newborn child or the parent of the adopted child with payments at the rate of the national minimum wage for a maximum of 18 weeks; secondary claims, and in exceptional circumstances, tertiary claims may also be made (section 54). The Government also indicates that it has announced the introduction of paid paternity leave from January 2013 providing eligible fathers or parents caring for a child born or adopted with two weeks’ pay at the national minimum wage. In this connection, the Committee notes the concerns raised by the ACTU in the context of the Equal Remuneration Convention, 1951 (No.100), that the PPL scheme does not require employers to top-up the minimum wage payment to full income replacement level, and that the right to request an extension to unpaid parental leave pursuant to section 76 of the FWA lacks a right of appeal against an employer’s unreasonable refusal. The Committee asks the Government to provide information on the leave entitlements in practice, including statistical information disaggregated by sex, on the number of beneficiaries of leave entitlements, as well as the number of requests that have been refused by employers concerning the extension of unpaid leave. Please also provide information on the progress concerning the introduction of paid paternity leave.

Carer’s leave. The Committee notes that section 96 of the FWA entitles an employee (other than a casual employee) to ten days paid personal/carer’s leave for each year of service, in order to care for a member of the employee’s immediate family or household who requires care or support due to personal illness, injury or unexpected emergency, or if the employee is not fit for work because of a personal illness or injury; section 102 of the FWA entitles an employee to two days unpaid carer’s leave for each occasion when a member of the employee’s immediate family or household requires care or support due to personal illness, injury or unexpected emergency. In this connection, the Committee notes the comments by the ACTU that carer’s leave provisions should be extended in terms of length, scope of coverage and eligible persons. The Committee asks the Government to provide information on the practical application of sections 96 and 102 of the FWA, including the number of beneficiaries of paid or unpaid carer’s leave, disaggregated by sex. Please also provide information on whether consideration is being given to extending the length, scope of coverage and eligible persons of carer’s leave.

Working arrangements. The Committee notes that section 65 of the FWA provides a right for eligible employees to request flexible working arrangements, such as changes in hours of work, patterns of work and location of work. It also notes the Government’s indication that it established the Fresh Ideas for Work and Family Grants Program to support Australian small businesses to implement practices that help employees balance their work and family obligations, such as work from home arrangements, as well as to improve employee retention and productivity. In this connection, the Committee notes the concerns raised by the ACTU that the right to request a change to working arrangements is limited to employees with caring responsibilities for pre-school children or children with a disability under the age of 18, and there is no right to appeal against an employer’s refusal. The ACTU indicates that women continue to bear the greatest share of childcare, and that one of the most significant barriers to carer’s maintaining a connection to the paid workforce is lack of flexible working hours. The Committee asks the Government to provide information on the practical application of section 65 of the FWA, including the statistical information disaggregated by sex, on the number of beneficiaries of various working arrangements and measures to assess the effectiveness of the legislation. It also asks the Government to indicate how it is ensured that such working arrangements assist workers with family responsibilities to enter, re-enter and remain in the workforce, including in small and medium-sized businesses.

Article 5. Childcare and family services and facilities. The Committee notes the Government’s indication that the Child Care Management System was introduced during the 2008–09 financial year, which enables the Government to gather more information from the childcare sector about usage and affordability of childcare facilities. The Government also indicates that from July 2008 it increased the childcare rebate from 30 per cent to 50 per cent of out of pocket childcare costs, and increased the maximum payment per child per year. It further indicates that substantial ongoing support to childcare services is being provided in areas of need, including rural and remote areas. For example, it has been agreed that 38 child and family centres, which will address the needs of indigenous families and their young children, will be established. The Committee asks the Government to provide specific information on the demand for childcare services in comparison with availability, in order to allow the Committee to assess the progress made over time in ensuring sufficient coverage. It also asks the Government to clarify whether the childcare services in areas of need including rural and remote areas are aiming at providing childcare facilities and services for workers with family responsibilities. The Committee also requests the Government to provide information on the number and nature of services and facilities that exist to assist workers with family responsibilities regarding other dependent members of their family.

Article 6. Information and education. The Committee notes the Government’s indication that Fair Work Australia and the Office of the Fair Work Ombudsman were established; the Fair Work Ombudsman appoints Fair Work Inspectors, and promotes compliance with legislation, including through education, information and assistance. The Fair Work Ombudsman has developed a number of Best Practice Guides to assist small to medium-sized businesses in implementing best practice initiatives, including best practices on work and family and parental leave. The Government also indicates that the Australian Human Rights Commission, which replaces the Human Rights and Equal Opportunity Commission, is responsible for conducting activities which covers barriers to equality, and has been given 6.6 million Australian dollars over four years (2010–14) to expand its information and community education role.

The Committee also notes the Government’s indication that one of the striking findings of the “Work and Family Balance in Regional Victoria Pilot Project” was a lack of legislative awareness, particularly by employees and managers, in respect of relevant employment regulations; and that the project outcomes provide a much-improved knowledge base for policy making and programme development to support, as well as to monitor, good work and family balance. With regard to Queensland, the Government indicates that as part of the Work and Family Project, the “Better Work Life Balance Questionnaire” has been developed as an online e-survey, which can be used by any organization to help evaluate and improve work-life balance policies and practices. The Committee asks the Government to provide specific information on the awareness raising activities conducted by the Fair Work Ombudsman and the Australian Human Rights Commission, for workers and employers concerning measures to reconcile work and family responsibilities, including leave entitlements, and working time arrangements in the relevant employment regulations. It also asks the Government to provide information on the impact of projects in Victoria and Queensland on State policy and practice in terms of helping individuals reconcile their work and family responsibilities as well as information on any similar projects and programmes in other states.

Article 7. Vocational guidance and training. With regard to the “Parents returning to work program”, which was initiated by Victoria, the Committee notes the Government’s indication that to date over 10,500 individual grants have been made available to parents, and that the last projects will be completed in December 2011. The Committee also notes the Government’s indication that from January 2005 to June 2007 the “Back to work: parents and carers program” of Queensland provided 1,889 people with assistance including job search help, job placement, a contribution to childcare or carer costs, and training, etc. and 787 people found jobs. The Government adds that other initiatives such as the “Community Jobs Plan” aim to provide opportunities for work on a range of public works, with an emphasis on participants gaining training, competencies and work skills in activities which will lead to employment opportunities relevant to local labour market demands. The Committee asks the Government to continue to provide information on initiatives that enable workers with family responsibilities to re-enter the labour market after a period of leave.

Part V of the report form. Statistics. The Committee notes section 61 of the FWA, which provides that the National Employment Standards (NES) are minimum standards which apply to the employment of employees, and that they cannot be excluded by enterprise agreements; the NES includes requests for flexible working arrangements, parental leave and related entitlements, and carer’s leave. It also notes the Government’s indication that the Workplace Agreements Database shows that of 9,352 agreements approved under the FWA until December 2010, covering an estimated 1.3 million employees, 86.9 per cent of the agreements, covering 96.6 per cent of the employees, contain one or more family friendly or flexible work provisions, including leave entitlements and working time arrangements; 25.5 per cent of the agreements, covering 67.5 per cent of the employees, contain one or more parental or child caring provisions that are additional to those provided in the NES; 83.8 per cent of the agreements, covering 93.9 per cent of the employees, contain one or more flexible working hours, flexible access to leave or flexible working arrangements provisions that are additional to those provided in the NES; and 94.6 per cent of the agreements covering 98.3 per cent of the employees, provide for job-sharing, part-time or casual engagement. The Committee asks the Government to continue to provide information on the incidence and types of family friendly provisions in enterprise agreements. The Committee also asks the Government to indicate how it is ensured that workers in low-paid, part-time or casual jobs, who are predominantly women, are not unfairly disadvantaged compared with other workers with respect to work family entitlements in the context of enterprise agreements.