Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(HREOC)

to the

AUSTRALIAN GOVERNMENT DEPARTMENT OF EDUCATION, EMPLOYMENT
AND WORKPLACE RELATIONS

ON THE DISCUSSION PAPER, NATIONAL EMPLOYMENT STANDARDS
EXPOSURE DRAFT (2008)

Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

4 April 2008

• Download PDF

---

Introduction

1. The Human Rights and Equal Opportunity Commission (HREOC) makes this
   submission to the Australian Government Department of Education, Employment and
   Workplace Relations in response to the Australian Government’s invitation
   to make comment on the National Employment Standards Exposure Draft Discussion
   Paper.

2. HREOC is Australia’s national human rights
   institution.^[1]

3. HREOC’s submission draws on recent work undertaken by HREOC in
   relation to paid maternity, paternity and parental leave, carer’s leave
   and the right to request flexible work arrangements in the workplace,
   particularly the findings and recommendations contained in: It’s About
   Time: Women, Men, Work and Family Final Paper 2007 (It’s About Time
   2007),^[2] WORKability II:
   Solutions – People with Disability in the Open
   Workplace,^[3] HREOC’s
   submission to the Work and Family Test Case and other research.

4. In addition, HREOC’s submission draws upon its previous
   recommendations regarding enactment of Commonwealth legislation which removes
   discrimination against same-sex couples and their children in areas such as
   leave and other related entitlements, set out in Same Sex: Same Entitlements, the report of the National Inquiry into Discrimination against People in
   Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits
   (2007 Same-Sex: Same Entitlements Report).^[4]
   

Summary

5. HREOC supports the intention of the Australian Government to legislate a set
   of National Employment Standards (NES) to cover key minimum workplace
   entitlements for all Australian employees.

6. HREOC welcomes the Australian Government’s commitment to encourage
   greater workforce participation, especially amongst groups that have
   historically experienced barriers to participation in the paid workforce
   including parents, carers, employees with disability and Indigenous Australians.

7. HREOC is pleased to see that the right to request flexible working
   arrangements is being considered by the Government as a core workplace
   entitlement.

8. However, the proposed NES do not go as far as previous recommendations put
   forward by HREOC in relation to parental leave and carer’s rights and
   responsibilities in employment and the right to request Flexible Working
   Arrangements, particularly for employees with a disability.

9. HREOC supports the enactment of legislation dealing with a right to request
   Flexible working arrangements and urges the Government to consider broadening
   this right by not limiting this right to parents of children under school age
   only and making it available to:

   • employees with all forms of family and caring responsibilities; and

   • employees with disability who may need flexibility as part of reasonable
     accommodation in the workplace.

10. Giving the above employees the legal right to request Flexible working
    arrangements is a fundamental step in enabling people with diverse needs and
    responsibilities to participate in the workforce, importantly providing an
    opportunity to maximise productivity and encouraging more employees to remain in
    the workforce. Such an approach will foster economic and social benefits for the
    nation.

11. Extending the right to request Flexible working arrangements to employees
    with disability would also support the aims of the Governments National Mental
    Health and Disability Employment Strategy.

12. HREOC makes thirteen recommendations in relation to issues raised in the NES
    Exposure Draft Discussion Paper:

Recommendations

13. HREOC’s recommendations are as follows:

    1. Recommendation One: That the definition of the term ‘employee with
       a responsibility for the care of a child’ under the Flexible Working
       Arrangements NES remain inclusive of same-sex couples with children, and
       therefore not be restricted to those with ‘legal’ responsibility for
       a child.

    2. Recommendation Two: That the proposed right to request Flexible Working
       Arrangements NES apply to all forms of family and caring responsibilities and to
       employees with a disability.

    3. Recommendation Three: That the proposed right to request Flexible Working
       Arrangements NES explicitly set out a list of non-exhaustive factors to be taken
       into consideration by the employer when considering each request and determining
       what constitutes ‘reasonable business grounds’.

    4. Recommendation Four: That the right to request Flexible Working
       Arrangements NES contain a dispute settlement mechanism allowing an employee to
       refer unresolved disputes around the Flexible Working Arrangements NES to Fair
       Work Australia or some other form of conciliatory body for procedural review.

    5. Recommendation Five: That the introduction of the right to request
       Flexible Working Arrangements NES be accompanied by a comprehensive education
       campaign to assist in alleviating employer concerns and to inform men and women
       of all ages about this new right. This should include development of practical
       ‘guidelines’ setting out respective rights and responsibilities
       under the NES and education of employers on what constitutes ‘reasonable
       business grounds’ for refusing a request for specific working arrangements
       under the NES. This education campaign should also have a specific small
       business focus.

    6. Recommendation Six: That the Government consider future expansion of the
       Flexible Working Arrangements NES to include the introduction of a minimum
       period of notice for any intended changes to rostering arrangements. This should
       also be accompanied by a legislated right to refuse such employer requests where
       the employee has reasonable grounds for refusal.

    7. Recommendation Seven: That the definition of ‘de facto
       spouse’ under the Parental Leave (and related entitlements) NES be
       replaced with a new definition of ‘de facto partner’ that is
       inclusive of same-sex couples as outlined in the 2007 Same-Sex:
       Same-Entitlements Report.

    8. Recommendation Eight: That the Productivity Commission consider the need
       to amend the Parental Leave (and related entitlements) NES as part of its
       inquiry into Improved Support for Parents with Newborn Children.

    9. Recommendation Nine: That the Parental Leave (and related entitlements)
       NES explicitly set out a non-exhaustive list of factors to consider when
       determining ‘reasonable business grounds’ in relation to the
       additional parental leave entitlement under the NES.

    10. Recommendation Ten: That the Parental Leave (and related entitlements)
        NES contain a dispute settlement mechanism allowing an employee to refer
        unresolved disputes around the request for additional Parental Leave under the
        NES to Fair Work Australia or some other form of conciliatory body for
        procedural review.

    11. Recommendation Eleven: That the definition of ‘de facto
        spouse’ under the Personal/Carers’ and Compassionate Leave NES be
        replaced with a new definition of ‘de facto partner’ that is
        inclusive of same-sex couples as outlined in the 2007 Same-Sex: Same
        Entitlements Report.

    12. Recommendation Twelve: That the definition of ‘child’ under
        the Personal/Carers’ and Compassionate Leave NES be amended to recognise
        the children of a birth mother, birth father, lesbian co-mother or gay
        co-father, as outlined in the Same-Sex: Same Entitlements Report 2007.

    13. Recommendation Thirteen: That the Personal/Carer’s and
        Compassionate Leave NES be increased and expanded in line with Recommendation 15
        of HREOC’s It’s About Time Final Paper 2007 by providing
        employees with 12 months continuous service with access to 20 days paid
        personal/carer’s per annum with 10 days to be non-accumulative. HREOC
        further recommends that the Government expand the NES to include 12 months
        unpaid Carer’s leave to be made available to employees who need to attend
        to the care of a seriously or terminally ill dependent. This additional unpaid
        leave should be job protected and available to employees who have 12 months
        continuous service.
        

HREOC’s
recommendation – Right to request Flexible Working Arrangements NES

Discussion Paper question 6. Should the proposed Flexible Working
Arrangements NES include additional provisions to define the term
‘employee with responsibility for the care of a child? If so, what
additional rules should be included?

14. HREOC believes that there is a need to extend the proposed Flexible Working
    Arrangements NES to men and women of all ages and to encompass all forms of family and carer
    responsibilities^[5] such as
    disability and elder care^[6].

15. HREOC also believes that there is a need to extend the Flexible Working
    Arrangements NES to employees with a disability.

Extending the right to
request flexible working arrangements to employees with all forms of caring
responsibilities

16. HREOC welcomes the proposal to include, as part of the NES, a right to
    request flexible working arrangements. HREOC considers that its inclusion
    represents a long overdue step in legislating to balance paid work and
    “family and carer responsibilities” in the Australian workplace
    relations system.

17. HREOC believes that flexible working arrangements applying to those who have
    ‘responsibility for the care of a child under school age’ should
    apply equally to people in same-sex relationships. HREOC supports the current
    definition under the proposed Flexible Working Arrangements NES as inclusive of
    same-sex couples with children. However, HREOC would be concerned if this term
    were altered to require ‘legal’ responsibility for the care of a
    child. The Same-Sex: Same Entitlements Report outlines a number of
    difficulties faced by same sex couples seeking legal recognition as
    parents.^[7] Thus, HREOC
    recommends that the definition should not be more specifically defined.
    [Recommendation no. 1].

18. In limiting the Flexible Working Arrangements NES to employees who are
    either parents of children under school age or who have responsibility for the
    care of a child under school age, the NES fails to take account of
    Australia’s changing demographic and the fact that a significant
    proportion of the working population have family and carer responsibilities that
    are not confined to the care of young school children. In this regard, the
    recent Report of the Carer Payment (child) Review Taskforce (the
    Taskforce) notes that, for carers of children with a disability, the role is
    unremitting in nature and does not decrease as the child gets older. Carers of
    children with disability or severe medical conditions remain permanently
    “on call” even when the child becomes school aged and attends an
    educational facility. As one submission to the Taskforce explained (in relation
    to their carer responsibilities for a child with a disability),

    [y]ou are constantly on duty 24 hours a day, seven days a week.
    This role will continue until the child dies, or if I predecease my daughter.
    Most intensive parenting duties decline as the child grows and matures [but]
    this is not the case for a child with a severe disability. I will have to be on
    call 24/7 until the day I die.^[8]

19. As the Taskforce Report notes, “the ability of carers to provide care
    is an integral component of the broader care system. Their contribution is
    central to sustaining the current system of community-based, person-centred
    care”.^[9] Despite the important
    role played by carers in society, the evidence available to the Taskforce
    established that carers experience particular challenges including severely
    reduced employment opportunities. Many carers who provided submissions to the
    Taskforce expressed a desire to enter or re-enter the paid workforce when care
    requirements would allow. However, they reported numerous additional barriers to
    workforce participation.

20. Current research into Australia’s demography shows that
    Australia’s population is ageing
    rapidly.^[10] At the same time,
    older people are a significant source of informal care for older spouses,
    relatives (including adult children), or household members with disability or
    poor health. There is a strong public policy emphasis on encouraging older
    workers to remain in the paid workforce but this requires provision of flexible
    working arrangements to meet caring needs as they arise, such as flexibility
    around start and finishing times, occasional change of working hours and
    occasional working from home.

21. The need to make provision for flexible working arrangements for carers was
    addressed in Recommendation 4 of the Taskforce Report. The Report recommended
    that the government support participation in the workforce by carers of children
    with a severe disability by examining ways to assist employers to develop
    consistent and flexible policies and practices for carers. HREOC supports this
    recommendation but, as noted previously, HREOC is of the view that the right to
    request flexible working arrangements should be extended to defined carer
    responsibilities.

22. HREOC considered this issue in its It’s About Time 2007. HREOC
    recommended the establishment of a Family Responsibilities and Carers’
    Rights Act which would apply to men and women workers of all ages and would
    encompass all forms of carer responsibilities. The Act would include a right for
    workers with family and carer responsibilities to request flexible work
    arrangements with a corresponding duty on employers to reasonably consider these
    requests.^[11]

23. During the public consultations for the It’s About Time 2007,
    HREOC received support for its proposal for a Family Responsibilities and
    Carers’ Rights Act and, in particular, support for legislation which
    was broad in scope and not limited to accommodating family responsibilities
    involving young children. The Disability Council of NSW made a submission
    recommending that the proposed right to request be extended to include
    disability-related flexibility needs, based upon the model in the United
    Kingdom. The United Kingdom’ ‘right to request’ model is set
    out in section 80 of the Employment Rights Act 1996 (UK) and essentially
    encapsulates all forms of carer responsibilities. It provides a right to request
    flexible working conditions to:

    • parents with children under the age of six;

    • parents of disabled children under eighteen; and

    • since April 2007, carers of adults.
      

Extending the right
to request flexible working arrangements to employees with
disability

24. The kind of flexibility which assists workers with family care
    responsibilities is often the same as, or very similar to, the kind of
    flexibility which may be required by people with disability in the workplace.
    This is also a theme which has been highlighted in HREOC’s National
    Inquiry into Employment and Disability (the Inquiry).

25. In December 2005, HREOC produced WORKability II: Solutions - People with
    Disability in the Open Workplace (WORKability II), the final report the
    Inquiry. The Report built upon HREOC’s interim report – WORKability I: Barriers, which found that, while people with disability
    represent 16.6% of Australia’s working age population (15-64 years of
    age),^[12] they are less likely to be
    employed than people without disability and they will earn less if they do get a
    job.

26. People with disability have a comparatively lower labour force participation
    rate (53.2% compared to 80.1%) and a higher unemployment rate (8.6% compared to
    5%) than those without a
    disability.^[13]

27. In terms of gender disaggregated data, women with disability are less likely
    to be in the workforce than men with
    disability.^[14] For men with
    disability, the decrease in full time employment accounts for most of the
    decrease in labour force participation. For women, disability has negative
    affects on both full time and part-time
    employment.^[15]

28. People with disability have a right to work on an equal basis with others.
    This right is stated clearly in the UN Convention on the Rights of Persons
    with Disabilities which the Australian Government signed on the day it
    opened for signature.^[16]

29. HREOC’s Final Report, WORKability II, made a series of
    recommendations on how to address barriers to participation and to ensure
    equality of opportunity for people with disability. Central to these
    recommendations was the need for flexibility in the workplace.

30. There is a range of situations in which flexibility is desirable for an
    employee with disability. For instance, people with certain disabilities may not
    be in a position to work at particular times of the day (for example due to the
    effects of medication or pain levels) or due to personal care or transport
    arrangements. Other people with disability may require reduced working hours, or
    the option to work from home.

31. The opportunity to work from home due to a ‘flaring’ in a
    particular condition or illness, may also be needed on an ad hoc basis
    for unpredictable recurrences (much in the same way that parents may face caring
    needs on an unpredictable basis).

32. Flexibility may also be required to allow people with disabilities to attend
    medical appointments.

33. A significant number of submissions to the Inquiry suggested that flexible
    working conditions are a key to a successful employment experience and
    retention, and consequently career advancement, for people with disability.

34. HREOC notes, in relation to the above, that extending the Flexible Working
    Arrangements NES to employees with a disability would not involve the
    establishment of any additional requirements or duties upon an employer
    in relation to the treatment of a employee with a disability that do not
    presently exist under the Disability Discrimination Act 1992 (Cth)
    (DDA). The DDA already imposes a prohibition on an employer
    discriminating against a person in employment on the basis of that
    person’s disability. The DDA requires that an employer make
    reasonable accommodation of an employee with disability, to the extent that
    would not involve unjustifiable hardship. Enshrining the right to request
    flexible working arrangements in the NES will serve to highlight this important
    aspect by articulating it as a right of employees to ask for flexibility as part
    of the ‘reasonable accommodation’ of their disability.

35. The Government has also recently identified, as a key priority, the need for
    a workforce which promotes the inclusion of people with disability and mental
    illness as set out in its recent announcement of a National Mental Health and
    Disability Employment Strategy.

36. That Strategy will identify national solutions to address the barriers faced
    by people with disability and mental illness. As stated above, it is
    HREOC’s view that increased flexibility in the workplace will be a
    component of the necessary suite of solutions.

37. HREOC believes the National Employment Standards and National
    Mental Health and Disability Employment Strategy must complement one
    another.

38. HREOC recommends that the proposed Flexible Working Arrangements NES
    apply to all forms of family and caring responsibilities as well as to employees
    with a disability [Recommendation no. 2].

Definition
of ‘reasonable business grounds’

39. Question 7 of the Discussion Paper to the NES Exposure Draft asks whether
    the Flexible Working Arrangements NES should expressly define what constitutes
    reasonable business grounds.

40. HREOC is of the view that the proposed Flexible Working Arrangements NES
    should give employees a legislated right to have their request for flexibility
    reasonably considered by employers but not impose obligations on an employer who
    is unable to meet a request due to genuine operational reasons.

41. An employer should be required to clearly demonstrate that they have
    properly investigated the employee’s request and only refuse the request
    if they have ‘reasonable business grounds’ for doing so.

42. HREOC believes that the NES should provide employers with guidance on what
    constitutes ‘reasonable business grounds’ for refusing to
    accommodate an employee’s request for flexible working arrangements.

43. It is recognised that there is no “one-size fits all” approach
    to workplace flexibility and that reasonableness in each case will depend upon
    the size and nature of the employer’s business or undertaking and the
    individual circumstances. Therefore, HREOC considers that the flexible work
    arrangements NES should set out a non-exhaustive list of factors to be taken
    into account when determining what constitutes ‘reasonable business
    grounds’ for refusal.

44. HREOC recommends an approach similar to that employed by the United Kingdom
    legislation dealing with right to request and the Victorian right to request
    model which forms part of recent amendments to the Equal Opportunity Act
    1995 (Vic).

45. As previously noted in this submission, the United Kingdom’s right to
    request flexible working provisions are set out in section 80 of the Employment Rights Act 1996 (UK) and the procedures for employers and
    employees to follow regarding right to request applications are set out in
    the Flexible Working (Procedural Requirements) Regulations 2002.

46. Under the United Kingdom model, an application can only be refused where the
    employer has a clear business reason for doing so. Clear business grounds are
    set out in the legislation as one or more of the following: the burden of
    additional costs; detrimental effect on ability to meet customer demand;
    inability to reorganise work among existing staff; inability to recruit
    additional staff; detrimental impact on quality; detrimental impact on
    performance; insufficiency of work during periods the employee proposes to work;
    and planned structural changes.

47. In the domestic context, under new laws amending the Equal Opportunity
    Act 1995 (Vic) (EOAV), Victorian employers may not “unreasonably
    refuse” any request by a new or existing employee to make changes to their
    or the business’s work patterns so that they can meet their obligations as
    a parent or carer. An employer cannot “unreasonably refuse”
    to accommodate the parental or carer responsibilities of a person offered
    employment or an employee or a contract worker.

48. The Victorian legislation explicitly sets out a non-exhaustive list of
    factors to be considered when determining whether a refusal to accommodate
    family responsibilities is unreasonable. These factors are set out below for
    convenience:

    • the person’s circumstances, including the nature of their
      responsibilities as a parent or carer; and

    • the nature of the role that is on offer; and

    • the nature of the arrangements required to accommodate those
      responsibilities; and

    • the financial circumstances of the employer; and

    • the size and the nature of the workplace and the employer’s business;
      and

    • the effect on the workplace and the employer’s business of
      accommodating those responsibilities, including-

      • the financial impact of doing so;

      • the number of persons who would benefit from or be disadvantaged
        by doing so;

      • the impact on efficiency and productivity and, if applicable, on
        customer service of doing so, and

      • the consequences for the employer of making such accommodation; and

      • the consequences for the person of not making such accommodation.

49. From the public consultations and submissions HREOC received for its It’s About Time 2007, the National Inquiry into Employment and
    Disability and other research, it is generally accepted that the flexibility
    needs of carers and people with disability are often quite sporadic and vary
    between individuals. For these reasons, it is important that consideration be
    given to the individual or personal circumstances of the
    person making the request for flexible working arrangements and that these
    individual circumstances form part of the non-exhaustive list of factors
    relevant in determining ‘reasonable business grounds’ under the
    Flexible Working Arrangements NES.

50. The list of considerations in the Victorian model has received support
    amongst researchers and
    academics^[17] as this model requires
    consideration of not only the consequences for the employer of accommodating the
    employees’ request, but also the consequence for the employee of not accommodating their request.

51. HREOC considers that the factors set out in the Victorian model under
    the EOAV provide a best practice model for the NES.

52. HREOC recommends that the Flexible Working Arrangements NES
    explicitly set out a list of factors to be taken into consideration when
    determining ‘reasonable business grounds’ under the Flexible Working
    Arrangements NES. The factors should be non-exhaustive, including a general
    provision that enables consideration of “any other factors relevant in
    determining reasonable business grounds”. [Recommendation no.
    3].
    

Discussion Paper question 8. Are there any other matters
that need to be taken into consideration when finalising the Flexible Working
Arrangements NES?

Provision
of a dispute settlement mechanism

53. HREOC considers that it is essential that the Flexible Working Arrangements
    NES contain some form of dispute settlement mechanism or conciliatory procedure
    to deal with situations where an employer appears to be unreasonably refusing an
    employee’s request for flexible working arrangements. Under the proposed
    Flexible Working Arrangements NES, an employee must set out in writing the
    details of any flexible arrangement sought and the reasons for such. The
    employer, in turn, must give the employee a written response to their request
    within 21 days. Whilst the employer can only refuse the request on
    ‘reasonable business grounds’, which the employer must set out in
    writing, the proposed NES makes no provision for third party involvement in
    settling disputes around whether an employer has reasonable business grounds for
    refusal.

54. The Discussion Paper to the Exposure Draft makes reference to the United
    Kingdom experience and notes (at paragraph 61) that

    the United
    Kingdom experience has demonstrated that simply encouraging employers and
    employees to discuss options for flexible arrangements has been very successful
    in promoting arrangements that work for both employers and employees.

55. The success of the United Kingdom’s model of right to request
    legislation is predicated on the existence of a procedural review mechanism as
    well as large investment provided by the United Kingdom government prior to and
    during implementation of the right to request legislation (see paragraphs 74-75
    inclusive of the submission for further discussion of the United Kingdom’s
    public education campaign).

Dispute
settlement mechanism – HREOC’s model

56. Recommendation 6 of HREOC’s It’s About Time 2007 recommended the establishment of a Family Responsibilities and Carers’
    Rights Act which would include a right for workers with family and carer
    responsibilities to request flexible working arrangements with a corresponding
    duty on employers to reasonably consider these requests. HREOC’s proposed
    legislative right, requiring employers to reasonably consider requests made by
    men and women with family and carer’s responsibilities, would mean that
    employers must be able to demonstrate that they have properly investigated
    whether such a request could be accommodated and reached a decision fairly on
    the merits. A refusal to reasonably consider a request for
    flexible working arrangements could then be the subject of a complaint to some
    form of conciliatory body.

57. HREOC’s proposed right to request framework would not impose
    obligations on an employer who was unable to meet a request due to genuine
    operational considerations. Under HREOC’s proposal, the review mechanism
    would not be tantamount to a review on the merits, i.e. the conciliation
    procedure would not extend to questioning an employers’ ultimate business
    decision. Rather, HREOC’s model would involve a review of whether an
    employer has followed due process and considered all relevant factors available
    to them when responding to an employee’s request for flexible working
    arrangements. The review mechanism would not supplant an
    employers’ business judgement.

58. HREOC considers that its right to request model would provide men with much
    improved access to flexible work arrangements to assist them in balancing their
    paid work and care responsibilities.

59. Improving men’s access to, and use of, flexible work arrangements
    would have an important and significant influence on equality between men and
    women both within the workplace and within the home and would serve to reverse
    long standing stereotypes that caring responsibilities are ‘women’s
    work’. As was noted in the It’s About Time 2007, HREOC is of
    the view that this legislative change would be an important and necessary step
    toward creating the expectation that “caring for children, the aged and
    infirm, for friends and relatives in times of need, is the responsibility of men
    and women equally”.^[18]

60. There is potential to use the right to request legislation as a vehicle for
    systematic change. However, HREOC is of the view that the broader social
    benefits associated with creation of the Flexible Working Arrangements NES will
    be reduced if there is no dispute settlement mechanism whereby employees can
    seek to have their requests reasonably considered by employers.

61. HREOC recommends that the Flexible Working Arrangements NES contain a
    dispute settlement mechanism allowing an employee to refer unresolved disputes
    around the Flexible Working Arrangements NES to Fair Work Australia or some
    other form of conciliatory body for procedural review [Recommendation no.
    4].

62. In a situation where a request for flexibility is in dispute and unable to
    be resolved at the workplace level, there are a number of options for the next
    step which could be considered in consultation with employers, employees, unions
    and other stakeholders during the development of the NES. However, HREOC is of
    the view that its right to request model strikes an appropriate balance between
    the legitimate business considerations of employers and the need for greater
    support for those employees with family and carer responsibilities.

63. A scheme along these lines already operates very successfully in the UK with
    more than 80 per cent of requests for flexibility being granted and employers
    expressing a high degree of satisfaction with the
    scheme.^[19]

The
United Kingdom right to request model (procedural review only)

64. The United Kingdom right to request legislation places a duty on employers
    to consider an employees’ request for flexibility seriously. The initial
    onus is on the employee to prepare a carefully thought-out application well in
    advance of when they would like the desired working pattern to take effect. The
    employer then follows a regulated procedure to help ensure a request is
    considered seriously. Importantly, the procedure seeks to facilitate discussion
    and enables both parties to gain a clear understanding of each other’s
    thinking.

65. Employers have a statutory duty to consider employee requests seriously and
    according to a set procedure. They are only able to refuse requests where they
    have a clear business reason. The ‘clear business reason’
    approach accords with the HREOC recommendation that an employer must be able to
    demonstrate that they have properly investigated the request and only refuse on
    the basis of genuine operational considerations.

66. Under the United Kingdom legislation, there are clear application procedures
    which must be complied with and, importantly, complaints about an
    employer’s refusal to reasonably consider a request are only considered on
    procedural grounds, not on the merits.

67. The UK model involves active consultation between employer and employee.
    Once an employee makes a request for flexible working arrangements, the employer
    must hold the meeting to consider the request within 28 days and must write to
    the employee informing them of their decision within 14 days of the meeting.

68. Where a new working pattern has been refused and an employee feels that
    their request has not been considered, they have 14 days to appeal in writing
    after the date of notification of their employer’s decision. If an appeal
    is made, the employer must arrange an appeal meeting. The employer must inform
    the employee of the appeal outcome in writing within 14 days of the meeting. An
    unresolved application can be dealt with through the employer’s grievance
    procedure, third party involvement e.g. a union representative or through making
    a complaint to an Employment
    Tribunal.^[20]

69. It is important to note that, under the UK legislation, an employee can
    make a complaint to the Tribunal where the employer has failed to follow
    procedure properly or where the decision by the employer to reject an
    application was based on incorrect facts. However, an employee has no right to
    make a complaint where they simply disagree with the business grounds and the
    Tribunal binding arbitration has no power to question the employer’s
    business reason.

70. An Employment Tribunal binding arbitration which finds in favour of the
    employee is able to order the employer to reconsider an application by following
    the procedure correctly and/or pay an award to the employee. The maximum level
    of compensation is eight weeks’
    pay.^[21]

Extensive Government
funded public education

71. The right to request legislation in the United Kingdom has been widely
    welcomed. A number of post implementation surveys have shown that, whilst take
    up by people with family and caring responsibilities has been high, there have
    been minimal adverse effects on
    business.^[22]

72. The Department of Trade and Industry’s (DTI) second employee survey,
    which was carried out two years after the changes occurred, showed that fourteen
    per cent of British employees reported that they had requested a change to their
    working arrangements in the last two years. Nineteen per cent of female
    employees requested flexible working in the two years to January 2005, compared
    with 10 per cent of male
    employees.^[23] Almost one-quarter
    (22 per cent) of employees with dependent children under the age of six have
    requested to work flexibly.

73. Take up of the right to request has remained relatively stable with the most
    recent information showing that 17 per cent of employees had made a request to
    change how they regularly worked for a sustained period over the last two
    years.^[24] Eighty-one per cent of
    employee requests were fully or partly accepted by employers, with the refusal
    rate significantly lower than before the new right to request flexible
    working was introduced.^[25] Over
    four-fifths of employees who had requested to change their working pattern said
    they were satisfied or very satisfied with their working
    arrangements.^[26] By 2006, this had
    increased to 87 per cent of
    employees.^[27]

74. The success and high degree of satisfaction with the United Kingdom scheme
    among both employers and employees has been attributed largely to extensive,
    inclusive and widespread consultation carried out both before the scheme was
    introduced and following its introduction.

75. In the United Kingdom, the DTI undertook substantial employer consultation
    and case study analysis on the potential effects of its right to request
    legislation prior to enacting the law. This included case study analysis to
    examine the implementation of the provision of flexible working arrangements by
    employers over a variety of industries. The case studies indicated positive
    outcomes for each of the businesses in their respective industries and further
    DTI studies showed that, while there were some concerns about staff shortages,
    almost three quarters of employers reported that work-life balance policies
    (including flexible working) had a positive impact upon employee relations (71
    per cent), employee commitment and motivation (69 per cent) and labour turnover
    (54 per cent). Nearly half stated that the policies had a positive effect upon
    recruitment (47 per cent), absenteeism (48 per cent) and productivity (49 per
    cent).^[28]

76. Employers in the United Kingdom have demonstrated a willingness to go beyond
    the current scope of the law and to accommodate requests. Since the Act took
    effect, the number of refused requests has declined by around a half. Recent
    evidence shows just eight per cent of requests are now being turned
    down.^[29]

77. The law has also contributed to a greater level of community understanding
    about the need for workplace flexibility. In a 2004 survey, 65 per cent of
    managers believed that it was up to individual employees to balance their work
    which represented a significant decline since 1998, when 84 per cent of managers
    took this view.^[30] A further recent
    survey in the UK found that small as well as larger businesses perceived the
    benefits of flexible working. The majority of small employers providing some
    form of flexible working arrangements – either formally under the
    legislation or informally - felt there had been real benefits to their
    workplace. These identified benefits included ‘a happier workforce’,
    positive impacts on employee retention and a perception that flexible working
    arrangements had led to increased employee commitment and cooperation which, in
    turn, had contributed to the smooth running of the
    business.^[31] More than half of the
    requests for flexibility made to small business were met, either in full or
    part.^[32]

78. A survey carried out for the UK Government 12 months into the operation
    of the new right to request legislation found that, although substantial
    advertising meant awareness of the changes was high among both employers and
    employees, there was an ongoing need for more awareness-raising and
    training for both parents and employers. Fathers, in particular, needed help and
    support in pursuing their rights under the legislation and some employers needed
    a clearer understanding of compliance with the legislation and the business
    reasons for refusal of requests. The survey also found that there should be more
    training for managers in how to manage requests and flexible
    workers^[33].

79. HREOC consulted widely with the business community on its right to request
    proposal during the preparation of the It’s About Time
    2007.^[34] Employer consultations
    commented on the need for any right to request legislation to be accompanied by
    some set of supporting
    guidelines.^[35] There was also
    discussion of a proper implementation strategy to alleviate small business
    concerns about their capacity to meet obligations under the right to request
    legislation.

80. The United Kingdom experience highlights the importance of supporting such
    new legislation with an extensive media and education campaign targeting both
    men and women which informs employees about the new opportunities and increases
    employers support for the scheme.

81. HREOC recommends that the introduction of the Flexible Working
    Arrangements NES be accompanied by a comprehensive education campaign to both
    assist in alleviating employer concerns and to inform men and women of all ages
    about this new right. This should include development of practical
    ‘guidelines’ setting out respective rights and responsibilities
    under the NES and educating employers on what constitutes ‘reasonable
    business grounds’ for refusing a request for specific working arrangements
    under the NES. This education campaign should also have a specific small
    business focus [Recommendation no. 5].

Other necessary
protections: flexibility around working hours and rostering arrangements

82. Research in the United Kingdom has found that while the "right to request"
    legislation has been both popular and successful for many employees with caring
    responsibilities for young children, the legislation has had little or no impact
    on the extent of long hours
    working.^[36] The long hours culture
    may be one of the reasons why men find it harder both to request flexible
    working and to have their requests accepted by employers. Variable and unsocial
    hours present particular problems under the right to request flexible work.

83. The UK research has received support in Australian academic and research
    circles with calls for the right to request framework to be accompanied by
    regulation of weekly and daily hours, overtime and unsocial hours as well as
    regulation that protects employees from unilateral or arbitrary change in
    working time, schedules and rostering or locations of work that are family
    hostile and a ‘right to refuse’ certain arrangements such as
    overtime and long hours.^[37] Such
    regulation provides the minimum necessary to “enable employees to exercise
    a certain degree of choice over their working time arrangements”.

84. In relation to variable hours, evening and weekend work, there are obvious
    difficulties for parents and other carers when both partners or a sole care has
    irregular hours. Likewise, HREOC has heard many stories of the impact that
    arbitrary changes to rostering arrangements without adequate notice have on
    employees with a disability.

85. The Department of Innovation Industry and Regional Development in Victoria
    (2007) undertook a study of the impact of the WorkChoices legislation on 30
    Victorian Workers in minimum wage sectors in relation to changes to rostering
    arrangements. The subsequent report by Dr Sara Charleswoth and Fiona
    Macdonald^[38] highlighted the ways
    in which hours of work could be increased or decreased without negotiation and
    how rostering arrangements could be changed without notice, even for permanent
    workers.

86. For employees with a disability, such arbitrary changes to rostering
    arrangements can pose significant problems in obtaining medication, attendant
    care and transport arrangements, amongst other things. Many employees with
    disability are unable to comply with such requests where little or no notice has
    been given by the employer. Further, the Victorian research suggests that many
    employees would have little if any opportunity to discuss this with their
    employer. An inability to comply could similarly arise for many parents and
    employees with carer obligations.

87. HREOC recommends that the Government consider future expansion of the
    Flexible Working Arrangements NES to include an introduction of a minimum period
    of notice for any intended changes to rostering arrangements. This should also
    be accompanied by a legislated right to refuse such employer requests where the
    employee has reasonable grounds for refusal [Recommendation no. 6].
    

HREOC’s
recommendations - Parental leave (and related entitlements) NES

Discussion Paper Question 14. Are there any other matters that need to be
taken into account when finalising the proposed parental leave NES?

General Issues: Paid
Maternity, Paternity and Parental leave

88. Under the proposed Parental Leave (and related entitlements) NES, each
    parent is entitled to separate periods (up to 12 months) unpaid parental leave.
    If it is the preference of the family that the leave is take by one parent, the
    parent is entitled to request an additional period of parental leave (of up to
    12 months). The employer may refuse the request on reasonable business grounds.
    

89. HREOC notes that under the parental leave NES an employee is entitled to
    parental leave where the leave is associated with the ‘birth of a child to
    the employee or the employee’s spouse’. ‘Spouse’ is
    defined to include a former spouse, de facto spouse and a former de facto
    spouse. However, as de facto spouse is defined under the NES as ‘a person
    of the opposite sex to the employee who lives with the employee as the
    employee’s husband or wife on a genuine domestic basis although not
    legally married to’, a lesbian co-mother, and both members of a gay
    couple, are not guaranteed parental leave under the NES. Only a birth mother in
    a same-sex couple will be guaranteed parental leave. It is also important that
    parental leave be available to adoptive parents.
    

90. HREOC acknowledges that the Exposure Draft states that the ‘proposed
    parental leave NES does not deal with entitlements for same-sex couples. This
    issue is to be addressed as part of a whole of government response in accordance
    with the Government’s election commitments’ (paragraph 122).
    

91. While HREOC appreciates the Government’s intention to amend
    discriminatory laws simultaneously, HREOC is concerned that the newly introduced
    NES, including parental leave provisions will continue to detrimentally impact
    upon same-sex couples until the election commitment is fulfilled. HREOC is
    concerned that the proposed NES will enact new discrimination against same-sex
    couples, when the Government has stated its commitment to addressing
    discrimination in other federal laws that already exist. A simple amendment to
    the definition of ‘de facto spouse’ as outlined in Same-Sex:
    Same-Entitlements (2007), would remove this proposed discrimination.
    

92. HREOC recommends that the definition of ‘de facto spouse’
    under the Parental Leave (and related entitlements) NES be replaced with a new
    definition of ‘de facto partner’ that is inclusive of same-sex
    couples, as outlined in the 2007 Same-Sex: Same-Entitlements Report^[39] [Recommendation No
    7].
    

93. HREOC notes that the Exposure Draft to the proposed NES deals with an
    entitlement to unpaid parental leave and further, that the
    Productivity Commission is currently inquiring into the economic, productivity
    and social costs of providing paid maternity, paternity and parental leave
    through its Inquiry into Improved Support for Parents with Newborn Children.
    HREOC will be making further and more detailed submission to the Productivity
    Commission Inquiry in relation to paid maternity, paternity and
    parental leave. However, HREOC considers that the provision of paid maternity
    leave is a priority for Australian women and has previously made recommendations
    (Recommendations 13 and 14) in relation to paid maternity, paternity and
    parental leave contained in the It’s About Time 2007 and
    HREOC’S ‘A Time to Value: Proposal for a National Paid Maternity
    Leave Scheme’ (2002).
    

94. HREOC supports the Productivity Commission Inquiry process. However, it is
    concerned that the parental leave NES be brought into line with proposals for
    paid maternity, paternity and parental leave arising out of the Inquiry.
    

95. HREOC recommends that the Productivity Commission consider the need
    to amend the Parental Leave (and related entitlements) NES as part of its
    Inquiry into Improved Support for Parents with Newborn Children. [Recommendation no. 8].
    

Refusal on reasonable
business grounds

96. The proposed NES entitlement to request additional parental leave does not
    define the term ‘reasonable business grounds’. HREOC recognises that
    the Government does not wish to inadvertently limit, by legislation, the grounds
    upon which an employer may reasonably refuse to implement the requested work
    arrangements. As HREOC noted earlier in this submission in relation to the
    Flexible Working Arrangements NES, there is no “one size fits all”
    approach when determining ‘reasonableness’. Further, HREOC does not
    intend that the legislation supplant an employers’ business judgement.

97. From the evidence gathered through research, consultations, focus groups and
    public submissions contained HREOC’s It’s About Time 2007,
    HREOC considers that there is a clear need to provide practical guidance to
    employers in implementing the NES. Whilst Fair Work Australia will provide
    general information and assistance to employers as to what may constitute
    ‘reasonable business grounds’, HREOC considers that the legislation
    should also provide guidance.

98. HREOC recommends that the Parental Leave (and related entitlements)
    NES explicitly set out a non-exhaustive list of factors to consider when
    determining ‘reasonable business grounds’ in relation to the
    additional parental leave entitlement under the NES [Recommendation no. 9].

99. The decision whether to grant an additional period of up to 12 months
    parental leave will naturally pose significant issues for both the individual
    making the request and the employer who is accommodating the request.

100. HREOC recommends that the Government consider adopting a broad approach to
     the concept of ‘reasonable business grounds’. As a model of
     ‘best practice’, HREOC believes that the Government should look to
     the model contained in the Victorian family responsibilities legislation which
     forms part of recent amendments to the Equal Opportunity Act 1995 (Vic)
     (as previously outlined in paragraphs 47-48 inclusive) .

101. HREOC also recommends that the Government look to the 2005 Australian
     Industrial Relations Commission (AIRC) Family Provisions Test Case decision
     regarding the right to request an additional 12 months parental leave for
     further guidance on the type of examples of ‘reasonable business
     grounds’ that could be included in the proposed parental leave NES. By
     way of general guidance, the AIRC test case decision pointed to such grounds as
     encompassing: cost, lack of adequate replacement staff, loss of efficiency and
     the impact on customer service.
     

Provision of a
dispute settlement mechanism

102. Notwithstanding HREOC’s recommendations regarding paid leave, HREOC
     welcomes the Federal Government’s commitment to provide an entitlement to
     additional unpaid parental leave. However, for the same reasons as were set out
     in this submission in relation to the Flexible Working Arrangements NES, HREOC
     is of the view that the Parental Leave (and related entitlements) NES should
     contain some form of dispute settlement mechanism or conciliatory procedure to
     deal with situations where an employer appears to be unreasonably refusing an
     employee’s request for an additional period of unpaid parental leave.

103. In situations where a request for additional leave is in dispute and unable
     to be resolved at the workplace level, there are a number of options for the
     next step which could be considered in consultation with employers, employees,
     unions and other stakeholders during the development of the NES.

104. As noted previously in relation to the Flexible Working Arrangements NES,
     HREOC’s proposal does not amount to a review on the merits but rather,
     HREOC’s proposal would involve procedural review to provide employees with
     a formal recognised right to have their requested work arrangements reasonably considered by their employer.

105. HREOC recommends that the Parental Leave (and related entitlements)
     NES contain a dispute settlement mechanism allowing an employee to refer
     unresolved disputes around the request for additional Parental Leave under the
     NES to Fair Work Australia or some other form of conciliatory body for
     procedural review [Recommendation no. 10].
     

HREOC’s submissions -
Personal/Carers and Compassionate Leave NES

Additional Non-
accumulative Personal/carer’s leave and introduction of a 12 months unpaid
carer’s leave NES

106. Under the proposed Personal/Carer’s and Compassionate Leave NES,
     employees (other than casual employees) are entitled to 10 days of paid
     personal/carer’s leave for each year of service, two days of paid
     compassionate leave per occasion and two days of unpaid carer’s leave
     ‘per occasion’ for genuine caring purposes or family emergencies if
     paid carer’s leave is exhausted. Casual employees in turn, are entitled to
     two days of unpaid compassionate leave ‘per occasion’ and two days
     of unpaid carer’s leave ‘per occasion’.

107. HREOC notes that, under the proposed Personal/Carer’s and
     Compassionate Leave NES, personal or carer’s leave may be taken to
     ‘provide care or support to a member of the employee’s immediate
     family, or a member of the employee’s household’.

108. HREOC is concerned that the definition of ‘immediate family’ may
     discriminate against same-sex families. An employee in a same-sex couple is only
     guaranteed leave to care for a partner if he or she is living with that partner.
     An employee in an opposite-sex couple has an automatic right to take leave to
     care for his or her partner. A gay or lesbian employee is not guaranteed leave
     to care for his or her partner’s immediate family. Where a child is not a
     member of the ‘employee’s household’, a gay or lesbian
     co-parent will not be entitled to carer’s or compassionate leave to care
     for that child. Amendments to the definitions of ‘de facto spouse’
     and ‘child’ would remove this discrimination.

109. HREOC recommends that the definition of ‘de facto spouse’
     under the Personal/Carers’ and Compassionate Leave NES be replaced with a
     new definition of ‘de facto partner’ which is inclusive of same-sex
     couples as outlined in the Same-Sex: Same Entitlements Report 2007 [Recommendation no. 11]

110. HREOC recommends that the definition of ‘child’ under the
     Personal/Carers’ and Compassionate Leave NES be amended to recognise the
     children of a birth mother, birth father, lesbian co-mother or gay co-father, as
     outlined in the Same-Sex: Same Entitlements Report
     2007^[40] [Recommendation no.
     12]

111. The submissions and consultations that took place during HREOC’s It’s About Time Project highlighted the need for greater support to
     assist carers in balancing work and carer responsibilities whilst remaining in
     the paid workforce.

112. According to a 2003 survey by the Australian Bureau of Statistics (ABS),
     there are an estimated 2.6 million carers who currently provide some form of
     assistance to those who need help because of disability or
     age.^[41] However, the demand for
     care is expected to increase dramatically as Australia’s population ages.

113. The National Centre for Social and Economic Modelling in 2004 estimated that
     by 2031 the number of people needing care will be over one million while the
     number of available carers will be under
     400,000.^[42]

114. The projected increase in the demands for care has significant implications
     for younger, working age groups, particularly women, who will potentially fall
     into the ‘sandwich generation’, with caring responsibilities for
     both children (including children with disability or severe medical conditions)
     and older parents or relatives. Likewise, older workers will increasingly be
     called upon to undertake unpaid care work, which for many will overlap with
     their longer working lives.

115. With projected care needs set to increase in line with this demographic
     change, government policy will be important in better aligning the supply of
     carers and the demand for care services.

116. HREOC considers that greater and expanded carer's leave provisions are a
     necessary expansion of legal rights and that the ability to take extra unpaid
     carer’s leave is an important workplace flexibility for those whose need
     to provide care is more sporadic and less predictable. For these reasons,
     discussed in more detail below, HREOC supports its previous recommendation in
     the It’s About Time 2007 regarding Personal/Carer’s
     leave.

117. Taking on a caring role has many social and financial consequences for
     carers. The Australian Institute of Health and Welfare (AIHW) in its report Carers in Australia^[43] found
     that, whilst some carers find the role rewarding and satisfying, many carers
     experience financial hardship and reduced employment and education prospects as
     a result.

118. Whilst many carers report positive benefits from participating in
     employment, ABS statistics show that ‘primary carers have a lower labour
     force participation rate (39 per cent) than people who were not carers (68 per
     cent).^[44]

119. The ABS analysed the labour force trends of primary carers in 2005 and found
     that for primary carers not in the labour force, around 90, 500 had been in the
     labour force prior to commencing the caring role and around half
     of those had left work to commence or increase
     caring.^[45]

120. When the ABS undertook earlier research asking primary carers who were
     unemployed or not in the labour force whether they would like to be employed
     while caring, an overwhelming majority (51 per cent) of primary carers of
     children with a several or profound disability reported that they would like to
     work.^[46]

121. Even for carers who are in paid employment, the caring role impacts
     significantly on workforce participation in terms of reduced standard hours and
     additional leave.^[47] For example,
     many people with primary caring responsibilities for older people or people with
     disability are unable to participate in paid work because of difficulty in
     arranging working hours, a loss of skills from being out of the workforce and a
     lack of alternative care arrangements. For many carers, participation in paid
     work may not be an option while for others part time work may be the only
     feasible option.

122. There is a strong case for government based support to assist carers who
     chose to remain, enter or re-enter the workforce.

123. HREOC notes that the recent report of the TaskForce on Care
     Costs^[48] found that federal
     anti-discrimination legislation may not provide sufficient protection for
     employees with caring responsibilities. The Report points to recent initiatives
     in the UK providing employees with a legislated ‘right to request’
     and employers with a duty not to ‘unreasonably refuse’ such a
     request, as best practice models for Australia. Further, Recommendation 4 of
     the Report of the Carer Payment (child) Review Taskforce recommends that the
     government examine ways to assist employers to provide employment opportunities
     for carers including flexible working arrangements and access to carers’
     leave.

124. It is recognised that carers make a significant economic contribution in
     providing informal care. In 2005, Access Economics researched the economic
     value of informal care for people with a disability or chronic illness and the
     frail aged and noted that this unpaid care would cost $30.5 billion to replace
     if it was no longer provided
     informally^[49].

125. In order to support this care, and cognizant of the cost to employers of a
     large scale exit from an ever-diminishing supply of workers, greater and
     expanded carer's leave provisions are a necessary expansion of legal rights. Job
     protection acknowledges both in practical terms and symbolically the importance
     of unpaid care to the community as a whole, including business and government.

126. Submissions and consultations during HREOC’s It’s About Time
     Project noted that the needs of people with carer responsibilities for older
     people and people with disability differ from those with children, pointing to a
     need for greater recognition of this by employers.

127. In addition to general family-friendly provisions such as reduced working
     hours, flex time or working from home, elder carers or carers of people with a
     disability may need access to additional leave, including an ability to take
     extra leave when paid leave runs out. Such measures would encourage acceptance
     of these carer responsibilities within the workforce so that employees do not
     feel pressured to resign.^[50]

128. It is also important that employers and employees share a common
     understanding that, while preferences for combining paid work and care may vary,
     as will an employers' ability to meet them, caring itself is not a "choice".
     Very few individuals have no caring or other unpaid responsibilities across
     their working lives, whether this is a responsibility for raising children,
     caring for older relatives or caring for family members with an illness or
     disability. Paid and unpaid caring work is interdependent and, as one submission
     pointed out, during HREOC’s It’s About Time Project, those
     who do not have care responsibilities depend on the care of others.

129. In response to the question posed by the Exposure Draft to the NES (at
     paragraph 201), in which the Government seeks views on whether the proposed
     personal/carer’s leave NES strikes an appropriate balance, it is
     HREOC’s view that there is clearly widespread support for an expansion of
     legal rights for employees with caring responsibilities beyond those currently
     contained in the proposed NES.

130. An increase in the Personal/Carer's Leave Standard is a necessary support
     for employees with increasing caring responsibilities. Further, a mirroring of
     the 12 month unpaid Parental Leave Standard should be considered to address
     other forms of care that workers provide to other family members or partners
     throughout the life cycle.

131. In light of the ageing of the population and the ageing workforce, HREOC
     recommends that the Australian Government consider introducing a new entitlement
     to meet the emerging need for care in Australia.

132. HREOC recommends that the Personal/Carer’s and Compassionate
     Leave NES be increased and expanded in line with Recommendation 15 of
     HREOC’s It’s About Time 2007 by providing employees with 12
     months continuous service with access to 20 days paid personal/carer’s per
     annum with 10 days to be non-accumulative. HREOC further recommends that the
     Government consider expanding the NES to include 12 months unpaid Carer’s
     leave to be made available to employees who need to attend to the care of a
     seriously or terminally ill dependent. This additional unpaid leave should
     be job protected and available to employees who have 12 months continuous
     service [Recommendation no. 13].

133. The introduction of a non-accumulative personal/ carer’s leave
     entitlement ensures greater support for those employees who need it, without
     greatly increasing costs to business. It also ensures that employees with
     family/carer responsibilities are less likely to end up with no leave
     entitlements for personal illness, which is currently often the case.

134. Parents of young children in particular often complain that currently a
     single bout of illness (particularly common childhood illness such as chicken
     pox) can completely deplete their personal/carer’s leave entitlement
     leaving them with only the option of taking unpaid leave for either any period
     of personal illness or other family care needs. The increase in this
     entitlement should also be considered in light of proposals to shift the costs
     of other existing entitlements such as paid maternity leave, away from
     individual employers.

135. Finally, making provision for an additional 12 month unpaid carer’s
     leave NES will ensure employees have access to longer term leave to care for
     family members with a disability during a period of sickness or during a
     terminal illness. The provision of job protection for a 12 month period is a key
     element of supporting this care and of ensuring that carers do not suffer long
     term disadvantage as a result of their caring role.

---

^[1] HREOC is established by the Human Rights and Equal Opportunity Commission Act 1986 (“HREOC
Act”). Sections 11 and 31 of the HREOC Act set out HREOC’s functions
relating to human rights and equal opportunity in employment respectively. HREOC
also has functions under the Commonwealth Sex Discrimination Act 1984, Racial
Discrimination Act 1975, Disability Discrimination Act 1992 and Age
Discrimination Act 2004.

^[2] Available at
http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.h….

^[3] Available at
http://www.humanrights.gov.au/disability_rights/employment_inquiry/inde….

^[4] Available at
http://www.humanrights.gov.au/human_rights/samesex/report/index.html.

^[5] In this submission the terms "balancing paid work and care", "family and carer
responsibilities" and "family/carer responsibilities" (as an abbreviation) will
be used to encompass the full range of unpaid/informal care responsibilities
that families and workers undertake across the life course. It is clear from
HREOC's consultations with the public that "family responsibilities" are often
assumed to refer exclusively to the care of children. Similarly, the term "carer
responsibilities" is often understood as referring only to the care of older
people or people with disability. For clarity, HREOC has opted to use both terms
together in this paper. Where the paper refers to particular types of
family/care work in the text it will be specified as such (e.g. as "parenting"
or "caring for people with disability"). The term "carer" is used to refer to a
person providing unpaid care to an older family member or someone with an
illness or disability. The term “carer” would need to be defined.

^[6] The term ‘elder
care’ is used in this submission to refer to unpaid informal care of older
people requiring care. The term ‘aged care’ is used to refer to paid
formal care of older people requiring care.

^[7] HREOC, Same-Sex: Same
Entitlements , 2007, Chapter 5: Recognising
Children.

^[8] In March 2007, the
Carer Payment (child) review Taskforce was established to examine eligibility
criteria for child Carer Payments and to consider the effectives of the payment
in providing a safety net for children with a profound disability or severe
medical condition, The Report of the Carer Payment (child) Review Taskforce Carer Payment (child): A New Approach is available on the he Department
of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)
website at www.fahcsia.gov.au/carers.

^[9] Carer Payment (child): A
New Approach, at 3

^[10] The
proportion of all persons aged 45-64 years in employment has risen from 61.5% in
October 1996 to 69.5 percent in October
2006

^[11] For further discussion
of HREOC’s recommendations regarding establishment of a Family
Responsibilities and Carers’ Rights Act, see HREOC, It’s
About Time- Women, men work and Family Final Paper (2007), chapter 4
‘Striking the Balance in the Workplace available at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html

^[12] Australian Bureau of
Statistics, Disability, Ageing and Carers Australia, Catalogue Number
4430.0, 2003.

^[13] Issues Paper
1: Employment and disability: The Statistics. Available at
http://www.humanrights.gov.au/disability_rights/employment_inquiry/pape…

^[14] See HREOC (2005) Issues paper 1. Employment and Disability – the
Statistics. Available at
http://www.humanrights.gov.au/disability_rights/employment_inquiry/pape…

^[15] Wilkins R (2004). The effects of disability on labour force status in Australia. The Australian Economic Review, 37 (4), 359-382.

^[16] See Article 27, Work and
employment.

^[17] See
Charlesworth S & Campbell I, Right to Request Regulation: A Panacea for
Work/Family Imbalance?(2007).

^[18] Australian Capital
Territory Human Rights Office, Northern Territory Anti-Discrimination
Commission, Anti-Discrimination Commission Queensland, Equal Opportunity
Commission Western Australia, and Equal Opportunity Commission of South
Australia, Submission 117, p
21.

^[19] Department of Trade and
Industry Results of the second flexible working employee survey Employment Relations Research Series No 39, April 2005, p 9 available at http://www.berr.gov.uk/files/file11441.pdf

^[20] Alternatively, complaints
can also be made through the Acas arbitration scheme, a quicker and less formal
alternative to an Employment Tribunal hearing. In the Australian context, in a
situation where a request for flexibility is in dispute and unable to be
resolved at the workplace level, there are a number of options for the next step
which could be considered in consultation with employers, employees, unions and
other stakeholders during the development of the legislation. It may be that
such disputes are referred for conciliation by HREOC, prior to a formal
complaint being lodged. Alternatively such disputes could be referred for
mediation by the AIRC or some other alternative tribunal type body, yet to be
established. If a request is unable to be agreed following conciliation,
individuals could make a complaint of discrimination in employment on the
grounds of family or carer responsibilities.

^[21] The weeks’ pay is
limited to the maximum provided under s 227 of the Employment Rights Act
1996, a maximum which is reviewed
annually.

^[22] Chartered
Institute of Personnel and Development, 2003; Working Families, 2004; Chartered
Institute of Personnel and Development Flexible Working: Impact and
Implementation An Employer Survey February 2005.

^[23] Department of Trade and
Industry Results of the second flexible working employee survey Employment Relations Research Series No 39, April 2005, p 12.

^[24] Hülya Hooker, Fiona
Neathey, Jo Casebourne and Miranda Munro The Third Work-Life Balance Employee
Survey Employment Relations Research Series No. 58 Department Of Trade and
Industry Institute For Employment Studies March 2007 Executive Summary p 8.

^[25] Department of Trade and
Industry Results of the second flexible working employee survey Employment Relations Research Series No 39, April
2005.

^[26] Department of Trade
and Industry Results of the second flexible working employee survey Employment Relations Research Series No 39, April 2005.

^[27] Hülya Hooker, Fiona
Neathey, Jo Casebourne and Miranda Munro The Third Work-Life Balance Employee
Survey Employment Relations Research Series No. 58 Department Of Trade and
Industry Institute For Employment Studies March 2007 Executive Summary p 2.

^[28] Woodland et al The
second work-life balance study Results from employer survey –
Executive Summary Employment Relations Research Series No 22 London DTI 2003, pp
10-11.

^[29] DTI Work and
Families: Choice and Flexibility A Consultation Document February 2005, p
69.

^[30] Barbara Kersley, Carmen
Alpin, John Forth, Alex Bryson, Helen Bewley, Gill Dix, and Sarah Oxenbridge Inside the Workplace First Findings from the 2004 Workplace Employment
Relations Survey (WERS 2004) UK Economic and Social Research
Council/Advisory, Concilation and Arbitration Service/Policy Studies Institute
July 2005 p32

^[31] Lynette Harris
and Carley Foster ‘Small, flexible and family friendly’ –
work practices in service sector businesses Employment Relations Research
Series No.47 DTI October 2005 p
31

^[32] Lynette Harris and Carley
Foster ‘Small, flexible and family friendly’ – work
practices in service sector businesses Employment Relations Research Series
No.47 DTI October 2005 p 30

^[33] Christine Campon on behalf of Working Families Right to Request Flexible
Working Review of impact in first year of legislation Report for the UK
Department of Trade and Industry London, March
2004.

^[34] For further discussion
see generally, Chapter 3 ‘Legal Protection for Workers with Family and
Carer Responsibilities in the HREOC, It’s About Time- Women, men
work and Family Final Paper (2007).

^[35] Employer Consultation,
Adelaide, 12 July 2006; Employer Consultation, Hobart, 10 August 2005; Employer
Consultation, Melbourne, 12 July 2005.

^[36] Colette Fagan, Ariane
Hegewisch and Jane Pillinger Out of time: Why Britain needs a new approach to
working-time flexibility Trades Union Congress 2006. See 3.4, 4.7 and 4.8
for further discussion of the "right to request" flexible
work.

^[37] See See Charlesworth S
& Campbell I, Right to Request Regulation: A Panacea for Work/Family
Imbalance?(2007).

^[38] Charlesworth, S & Macdonald F, Going too far: Workchoices and the
Experience of 30 Victorian Workers in Minimum Wage Sectors’ (2007).

^[39] HREOC, Same-Sex:
Same-Entitlements, 2007, Chapter
18.

^[40] HREOC, Same-Sex:
Same-Entitlements, Report of the National Inquiry into Discrimination
against People in Same-Sex Relationships: financial and Work-Related
Entitlements and Benefits, 2007, Chapter
18.

^[41] Australian Bureau of
Statistics 2004, Disability, Ageing and Carers: Summary of Findings, cat. No.
443o.o.

^[42] National Centre
for Social and Economic Modelling 2004, Who’s going to care? Informal
care and an ageing population.

^[43] Australian Institute of
Heath and Welfare 2004, Carers in Australia.

^[44] Australian Bureau of
Statistics 2004, Disability, Ageing and Carers: Summary of Findings, cat.
No. 4430.0.

^[45] Australian
Bureau of Statistics 2005, Australian Social Trends 2005, cat. no.
4102.0.

^[46] FaCSIA analysis of
2003 Survey of Disability, Ageing and Carers Confidentialised Unit Record File
cited in Carer Payment (child): A New Approach, Report of the Carer
Payment (child) Review Taskforce, Chapter 4.

^[47] Australian Bureau of
Statistics 2005, Australian Social Trends 2005, cat.no. 4102.0.

^[48] Taskforce on Care Costs
2007, the Hidden Face of Care: Combining work and caring responsibilities for
the aged and people with a disability.

^[49] Access Economics Pty Ltd
2005, The Economic Value of Informal Care.

^[50] See HREOC Striking the
Balance discussion paper pp 72-74 for a discussion of workforce
participation in an ageing society. See also Organisation for Economic
Co-operation and Development Live Longer, Work Longer Ageing and
Employment Policies OECD Publishing, 2006.