Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations by the Australian Council of Trade Unions (ACTU) of 31 August 2016.

Article 3 of the Convention. National policy. Non-discrimination. The Committee notes from the information provided by the ACTU that balancing work and family is an issue of high priority for both men and women and the most important driver of job satisfaction. It also notes the findings of widespread discrimination in practice, in particular related to pregnancy and parental leave, set out in the 2014 national review undertaken by the Sex Discrimination Commissioner on behalf of the Australian Human Rights Commission. The Committee notes from the Government’s report that a number of legislative amendments have been made to the Fair Work Act 2009 (FWA) and Fair Work Regulations 2009 between 2013 and 2015 to support women and men in balancing work and caring responsibilities in the home and that they respond in part to the recommendations contained in the final reports on Supporting Working Parents: Pregnancy and Return to Work National Review (2014) by the Australian Human Rights Commission. These changes include broadening the application of the right to request flexible working arrangements, requiring employers to consult the requesting employee about roster changes and decisions relating to requests for extension of unpaid parental leave, increasing the period of concurrent unpaid parental leave taken by both parents, and ensuring that all women have the right to transfer to a safe job while pregnant and that they do not lose unpaid parental leave when taking special maternity leave due to pregnancy-related illness. While welcoming these amendments, the Committee notes that according to the ACTU the current regulatory framework has been ineffective in driving the change in attitudes and practice that is required in order to address discrimination experienced by workers with family responsibilities. Specifically, the ACTU observes that the provisions (sections 65 and 76 of the FWA) do not place an obligation on employers to reasonably accommodate a request for flexible working arrangements, that the reasonable business grounds basis for refusal of a request as permitted by the FWA is very broad, and that there is no right of appeal for refusals unless made part of a workplace agreement. Drawing attention to the importance of ensuring that the needs of workers with family responsibilities in their terms and conditions of work are taken into account, the Committee asks the Government to provide information on the steps taken to ensure effective equality of opportunity and treatment of workers with family responsibilities through ensuring the existence of an adequate legal framework and improving the application in practice of the relevant provisions in the FWA 2009 and the Fair Work Regulations 2009, as amended, and the Sex Discrimination Act 1984, and the Workplace Gender Equality Act 2012 in accordance with the Convention. The Committee also asks the Government to continue to provide summaries of judicial or administrative decisions addressing discrimination for reason of family or care responsibilities.

Article 4. Paid leave and working arrangements. The Committee notes with interest that the Paid Parental Leave Act 2010 was amended in 2012 to extend the scheme of parental leave to eligible working fathers and partners, including adopting fathers and parents in same sex couples and that since its commencement on 1 January 2013 and 30 June 2015, 173,140 persons have received “Dad or Partner Pay”. The Committee notes the concerns of the ACTU over the intention of the Government announced in April 2016 to pursue cuts to the existing Paid Parental Leave Scheme established under the Paid Parental Leave Act 2010. The Committee asks the Government to provide information on any changes made to the provisions and implementation of the Paid Parental Leave Act 2010. It also asks the Government to continue to provide statistical information on the practical application of sections 65 and 76 of the FWA, disaggregated by sex, including the number of requests granted and denied for changes in working arrangements and parental leave.

Article 5. Childcare services. The Committee notes from the Government’s report that the number of early childhood education and care services has expanded substantially over the reporting period and that workforce participation rates of mothers with a child under 15 years has grown from 57 to 67 per cent over the past two decades. It notes the Government funded childcare assistance provided through the Child Care Benefit and Child Care Rebate and the National Partnership to support states’ and territories’ pre-school programmes. It also notes the observation of the ACTU that notwithstanding this expansion, access to affordable early education and childcare still remains a significant problem. It refers to the Productivity Commission Inquiry Report on Childcare and Early Childhood Learning, 2014 which estimates that there are approximately 165,000 parents who would like to work, or increase their hours but are unable to do so because of difficulties in accessing childcare. In response to recommendations of the Productivity Commission’s review, the Government has announced the Jobs for Families Care Package designed to create a simpler, more flexible, affordable and sustainable childcare system targeted to those who need it most. The Committee notes that the ACTU is concerned about a number of the elements in the Package as well as its funding. Noting the Productivity Commission’s Report, the Government’s response to it and the concerns of the ACTU, the Committee requests the Government to provide information on the Jobs for Families Care Package, in particular on how it has affected low- and middle-income families in terms of balancing work and family responsibilities.

Article 6. Information and education. The Committee notes from the Government’s report that over the past few years the Australian Human Rights Commission and the Fair Work Ombudsman have released a number of best practice resources, including guides and websites, for employers and employees on combining work and family responsibilities. It also notes the issuance of guidelines on flexible workplaces issued by the South Australia Commissioner for Public Sector Employment and the publications on creating flexible work arrangements issued under the Public Service Commission of Queensland. The Committee hopes that the federal government institutions as well as those of the states and territories will undertake more affirmative public education outreach programmes targeted at employers and supervisors, particularly in small and medium-sized businesses, with the aim of promoting the rights and benefits relating to reconciling work and family responsibilities and reducing organizational obstacles and biases against accommodating workers with family and care responsibilities.