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Inquiry into the Fair Work Bill 2008 (2009)

Legal Legal
Friday 14 December, 2012

Inquiry into the Fair Work Bill 2008

Australian Human Rights Commission

Submission to the Senate Education, Employment and Workplace Relations
Committee

23 January 2009



Table of
Contents


Introduction

  1. The Australian Human Rights Commission (the Commission) makes this
    submission to the Senate Education, Employment and Workplace Relations Committee
    in its Inquiry into the Fair Work Bill 2008.

  2. The Commission is Australia’s national human rights institution.

  3. The Commission welcomes many of the changes to the law proposed by the Fair
    Work Bill including:

    • the restoration of unfair dismissal rights to many employees, and in
      particular the removal of the exemption for employers with 100 or fewer
      employees;

    • the facilitated bargaining framework for the low paid;

    • the extended protections against discrimination (and the inclusion of
      carer’s responsibilities as a prohibited ground of discrimination);
      and

    • the extension of parental leave entitlements to same sex
      couples.

  4. The Commission is nevertheless concerned that certain parts of the Bill are
    deficient and should be amended to fully implement Australia’s
    international human rights obligations. These include:

    • the right to request flexible working arrangements;

    • unpaid parental leave;

    • the prohibition against adverse action on discriminatory grounds; and

    • unfair dismissal.

  5. This submission focuses on those areas that are of principal concern to the
    Commission, rather than providing a complete review of the Bill.

  6. The Commission understands that submissions have been made to the Committee
    alleging that the Fair Work Bill breaches International Labour Organisation
    standards in relation to freedom of association and collective bargaining
    rights. The Commission has not dealt with these issues in its submission, due to
    the limited time available to prepare a submission. The Commission would be
    pleased to consider these issues if it would assist the Committee.

The
National Employment Standards (Part 2.2)

Requests for flexible
working arrangements

  1. The Commission welcomes the introduction of a right to request flexible
    working arrangements as part of the National Employment Standards. However, as
    presently framed, the right to request is insufficient to address the needs of
    workers with family responsibilities in a number of respects.

  2. First, the right to request flexible working arrangements does not apply to
    employees unless they have at least 12 months continuous service and also, in
    the case of casual employees, a reasonable expectation of continuing
    employment.[1] These qualification
    requirements disproportionately impact on employment categories dominated by
    women with family responsibilities.[2] As Sara Charlesworth and Iain Campbell observe:

    This qualification
    requirement will exclude many of the working parents of pre school age children
    who are most likely to make requests. In 2006 for example, 21 percent of working
    women of child bearing age (25-44 years) and 44 percent of women employed on a
    casual basis had less than 12 months service with their current
    employer.[3]

Recommendation 1: The Commission recommends that the qualification
requirements that restrict the categories of employees who can make a request
for flexible working arrangements be removed.

  1. Second, the right to request flexible work arrangements is confined to
    employees with the care of children under school
    age.[4] This restriction fails to take
    account of the fact that a significant proportion of the working population have
    family and carer responsibilities that are not confined to the care of pre
    school age children. For carers of children with a disability in particular the
    role may not decrease as the child gets older and attends an educational
    facility.[5] Additionally, older
    people are a significant source of informal care for older spouses and relatives
    (including adult children).[6]

  2. That family and carer responsibilities extend beyond the care of children
    under school age has been recognised in a number of countries. Since 2003, in
    the United Kingdom, the Employment Rights Act 1996 (UK) has provided a
    right to request changes to working arrangements for employees:

    • with children under school age,
    • with disabled children up to 18 years, and
    • since 2007, for employees with dependent adults.

Similarly in
New Zealand, recent amendments to the Employment Relations Act 2000 (NZ)
have provided employees with the right to request flexible working arrangements
if they have the ‘care of any person’ and have been employed by
their employer for six months prior to making the
request.[7]

Recommendation 2: The Commission recommends that the right to request
flexible working arrangements be extended to all forms of family and caring
responsibilities.

  1. Third, the flexibility in working arrangements which assists workers with
    family and carer responsibilities is often the same as, or similar to, the
    flexibility which may be required by people with a disability in the workplace.
    There is a range of situations in which flexibility is desirable for an employee
    with a disability. For example, employees with certain disabilities may not be
    able to work at particular times of the day due to personal care or transport
    arrangements. Other people with a disability may be assisted by reduced working
    hours, or the option to work from
    home.[8]

  2. Extending the right to request flexible working arrangements to employees
    with a disability would not involve a substantial change to the duties on an
    employer that exist under the Disability Discrimination Act 1992 (Cth).
    The practical effect of the prohibition against indirect discrimination
    translates into a prohibition against the unreasonable failure to accommodate
    the needs of an employee with a disability. Moreover, the amendments to the Disability Discrimination Act proposed in the Disability Discrimination
    and other Human Rights Legislation Amendment Bill 2008 (Cth) include making
    explicit the positive duty on employers to make reasonable adjustments for a
    person with a disability.[9]

  3. Including the right to request flexible working arrangements for employees
    with a disability in the National Employment Standards would further the
    implementation of Australia’s international human rights obligations,
    including the obligation to ensure that reasonable accommodation is provided to
    persons with disabilities in the
    workplace.[10]

Recommendation 3: The Commission recommends that the right
to request flexible working arrangements be extended to employees with a
disability.

 

  1. Fourth, the right to request flexible working arrangements contains no
    enforcement mechanism and there is no grievance procedure or process to provide
    redress where requests are unreasonably refused. The Commission is concerned
    that without a grievance process, this National Employment Standard will be
    nothing more than a guideline. As the Victorian Government stated:

    To be effective, a right must be capable of vindication in a manner
    appropriate to its nature, otherwise it is not a right at all but a
    guideline...A minimum is nothing if an employer may depart from it where
    convenient.[11]

  2. Including a process to provide redress where requests are unreasonably
    refused would supplement the duties on employers that currently exist under
    the Sex Discrimination Act 1984 (Cth) (and, as noted above, the Disability Discrimination Act). Under the Sex Discrimination Act, women may have a cause of action where their requests for flexible work
    arrangements are unreasonably refused. This is because the practical effect of
    the prohibition against indirect sex discrimination translates into a
    prohibition against the unreasonable imposition of barriers that disadvantage
    women, who overwhelmingly carry the burden of family
    responsibilities.[12]

  3. Regrettably, reliance on the indirect sex provisions of the Sex
    Discrimination Act
    will not assist men with family responsibilities. This is
    because indirect discrimination on the basis of family responsibilities is not
    presently unlawful and the authorities clearly establish that women bear the
    dominant burden of family
    responsibilities.[13]

  4. Australia’s international human rights obligations extend to both men
    and women workers with family
    responsibilities.[14] Accordingly,
    including a process to provide redress for both men and women workers who have
    requests unreasonably refused as part of the National Employment Standards would
    ensure compliance with Australia’s international human rights obligations.

Recommendation 4: The Commission recommends that the same
rights of redress applicable to the other nine National Employment Standards be
extended to the unreasonable refusal of a request for flexible work
arrangements.

 

  1. The Commission submits that the introduction of the right to request should
    be accompanied by an extensive public education campaign. This education
    campaign should provide clear information that employees may have access to the
    provisions of the Sex Discrimination Act (and the Disability
    Discrimination Act
    [15]) where
    flexible arrangements are denied. The success and high degree of satisfaction
    with the United Kingdom right to request legislation has been attributed largely
    to widespread consultation carried out both before the scheme was introduced and
    following its introduction.[16] Commentators have noted:

    While it was ‘soft touch’ legislation it was accompanied by clear
    warnings that employees may have the capacity to access provisions of the Sex
    Discrimination Act 1984
    where flexible arrangements were
    denied.[17]

Recommendation
5:
The Commission recommends that the introduction of the right to request
be accompanied by an education campaign that includes clear information that
employees may have access to the provisions of the Sex Discrimination Act
1984
(Cth) Act (and the Disability Discrimination Act) where
flexible arrangements are denied.

Parental leave

  1. The Commission welcomes the extended unpaid parental leave entitlements
    within the National Employment
    Standards.[18] That is, the right
    for both parents to separate periods of up to 12 months unpaid parental leave.
    Alternatively, if only one parent is taking leave, the right for that employee
    to request an additional 12 months leave which employers will only be able to
    refuse on reasonable business grounds. The Commission also welcomes the
    extension of parental leave entitlements to same sex couples.

  2. However, the Commission is concerned that the unpaid parental leave
    entitlements are deficient in two respects.

  3. First, the parental leave entitlements do not apply to employees unless they
    have at least 12 months continuous service with the employer and also, in the
    case of casual employees, a reasonable expectation of continuing
    employment.[19] For the reasons set
    out in paragraph 8 above, the Commission considers that the qualification
    requirement as presently drafted will exclude many of the working women who are
    most likely to require parental leave.

  4. The Commission considers that requiring women to have undertaken a certain
    period of employment in order to be eligible for unpaid parental leave is
    reasonable. However, the qualification requirement should recognise the concept
    of portability between employers and also permit short breaks in women’s
    employment history. The qualification requirement should reflect the reality of
    women’s employment, including those in intermittent or casual working
    relationships, contract workers and the self-employed.

Recommendation 6: The Commission recommends that in order to
be eligible for unpaid parental leave an employee must have been in paid work
for 40 weeks of the past 52 weeks with any number of employers and/or in any
number of positions. Employment should include part time, casual employment,
contract work and self-employment.

 

  1. This recommendation is consistent with the Commission’s recommendations
    in relation to the eligibility requirement for paid maternity
    leave.[20]

  2. Second, the right to request an additional 12 months parental leave contains
    no enforcement mechanism and there is no grievance procedure or process to
    provide redress where requests are unreasonably refused. As set out above, the
    Commission is concerned that without a grievance process, this National
    Employment Standard will be nothing more than a guideline.

Recommendation 7: The Commission recommends that the same rights of
redress applicable to the other nine National Employment Standards be extended
to the unreasonable refusal of a request for extended parental leave.

 

  1. The Commission notes that the National Employment Standards deal with
    entitlements to unpaid parental leave. The Commission understands that the
    Productivity Commission is conducting an inquiry into paid maternity, paternity
    and parental leave. The Commission has made a submission to the Productivity
    Commission inquiry calling for the immediate introduction of a paid leave
    scheme.[21] The Commission supports
    the Productivity Commission inquiry process (which is due to report on 28
    February 2009), and submits that the parental leave National Employment Standard
    should be brought into line with the proposals for paid parental leave arising
    out of that inquiry.

General Protections
(Part 3.1): Discrimination

  1. The Commission welcomes the introduction of clause 351 of the Fair Work Bill
    that provides as follows:

    (1) An employer must not take adverse
    action against a person who is an employee, or prospective employee, of the
    employer because of the person’s race, colour, sex, sexual preference,
    age, physical or mental disability, marital status, family or carer’s
    responsibilities, pregnancy, religion, political opinion, national extraction or
    social origin.

  2. Adverse action includes, amongst other things, injuring the employee in his
    or her employment, altering the position of the employee to the employee’s
    prejudice, or discriminating between the employee and other employees of the
    employer.[22]

  3. For ease of reference, the prohibition against adverse action on
    discriminatory grounds at clause 351 of the Bill will be referred to in this
    submission as the prohibition against discrimination.

  4. The Commission submits that the prohibition against discrimination should be
    extended in the following respects to fully implement Australia’s
    international human rights obligations and to promote social inclusion in the
    employment context.

  5. First, the prohibition against discrimination should be extended to apply to
    every employee in Australia. The discrimination protections at clause 351 of the
    Bill give effect, or further effect, to ILO Convention (No. 111) Concerning
    Discrimination in respect of Employment and Occupation
    (ILO
    111).[23] To fully implement
    Australia’s international obligations, the protections should apply to
    every employee in Australia, rather than being subject to the limited
    application provisions at clauses 337 - 339 of the Bill. The Commission notes
    that certain protections in the Bill have been extended to all employees in
    Australia in reliance on ILO 111, including unlawful termination and unpaid
    parental leave.

Recommendation 8: The Commission recommends that the
prohibition against discrimination at clause 351 of the Bill should be extended
to apply to every employee in Australia (rather than being subject to the
limited application provisions at clauses 337 - 339 of the Bill).

 

  1. Second, the grounds on which adverse action is prohibited should be extended
    to include criminal record. Criminal record has been identified as a factor that
    increases the risk of social exclusion, but does not necessarily reduce an
    individual’s capacity to
    participate.[24]

  2. Criminal record is a prohibited ground of discrimination under the Human
    Rights and Equal Opportunity Commission Act 1986
    (Cth) (HREOC
    Act).[25] In recent years there have
    been a significant number of complaints to the Commission from people alleging
    discrimination in employment because of criminal record. These complaints
    indicate that there is a great deal of misunderstanding by employers and people
    with criminal records about discrimination on the basis of criminal
    record.[26] The Commission is
    empowered to make recommendations, including for payment of compensation, where
    it makes a finding of criminal record
    discrimination.[27] These
    recommendations are not, however, enforceable. Moreover, at a State and
    territory level, only Tasmania and the Northern Territory have laws that
    specifically prohibit discrimination on the basis of criminal
    record.[28]

  3. In furthering the goal of social inclusion, the Committee may wish to give
    consideration to not only including criminal record as a protected ground but
    also including any ‘other status’. The International Covenant on
    Civil and Political Rights
    provides at Article
    26(1):[29]

    ...the law shall prohibit any discrimination and guarantee to all persons
    equal and effective protection against discrimination on any ground such as
    race, colour, sex, language, religion, political or other opinion, national or
    social origin, property, birth or other status.

  4. Including ‘other status’ provides protection against
    discrimination whenever a difference in treatment amongst groups or categories
    of individuals does not correspond to objective
    criteria.[30] Including ‘other
    status’ would ensure compliance with Australia’s international human
    rights obligations.

Recommendation 9: The Commission recommends that the grounds
on which adverse action is prohibited at clause 351 of the Bill should be
extended to include criminal record.

 

  1. Third, ‘marital status’ as a prohibited ground should be replaced
    with ‘marital or relationship status’, which includes being the same
    sex partner of another person. The purpose of this recommendation is to provide
    protection to same-sex couples from discrimination on the basis of their
    relationship status. The Commission notes that the Senate Legal and
    Constitutional Affairs Committee has made this recommendation in its report on
    the Inquiry into the Effectiveness of the Sex Discrimination Act 1984 (Cth)
    in Eliminating Discrimination and Promoting Gender
    Equity
    .[31]

Recommendation 10: The Commission recommends that ‘marital
status’ at clause 351 of the Bill should be replaced with ‘marital
or relationship status’, which includes being the same sex partner of
another person.

  1. Fourth, the definition of adverse action should be amended to make clear that
    it includes both direct and indirect discrimination, and these terms should be
    defined. There are a number of definitions of direct and indirect discrimination
    across the federal and State anti-discrimination laws. The Commission has made
    submissions in support of a simplified or best practice test of direct and
    indirect discrimination in the context of its submissions to recent Senate
    Committee inquiries into the Sex Discrimination Act 1984 (Cth)[32] and the changes proposed
    to the Disability Discrimination Act 1992 (Cth).[33]

  2. Consistently with these submissions, the Commission recommends that direct
    and indirect discrimination should be defined as follows:

  3. Direct discrimination: unfavourable treatment because of a protected
    attribute.[34]

  4. Indirect discrimination: a term, condition or requirement that has the
    effect of disadvantaging persons with a protected attribute, unless the term,
    condition or requirement is reasonable. The onus of proving that the term,
    condition or requirement is reasonable should be placed on the
    respondent.[35]

Recommendation 11: The
Commission recommends that the definition of adverse action should be amended to
make clear that it includes both direct and indirect discrimination, and these
terms should be defined as follows:

  • Direct discrimination: unfavourable treatment because of a protected
    attribute.

  • Indirect discrimination: a term, condition or requirement that has the
    effect of disadvantaging persons with a protected attribute, unless the term,
    condition or requirement is reasonable. The onus of proving that the term,
    condition or requirement is reasonable should be placed on the respondent.

 

  1. Fifth, the Bill only prohibits discrimination on the basis of personally
    having an attribute, but not on the basis of an association or relationship with
    another person having a protected attribute. For example, a parent is refused a
    job because the employer assumes he or she will need time off work to look after
    a child with a disability, or an employee is treated less favourably because he
    or she advocated for a co-worker with a disability. Protections from
    discrimination on the basis of an association or relationship with another
    person having a protected attribute are included in both the Disability
    Discrimination Act
    [36] and the Racial Discrimination Act 1975 (Cth).[37]

Recommendation 12: The Commission recommends discrimination
be defined to include disadvantage suffered as a result of an association with a
person with a protected attribute.

 

  1. Sixth, the Commission notes that the Bill exempts from the prohibitions on
    discrimination, certain acts of religious
    institutions:[38]

    ...if the action is taken against a staff member of an institution conducted
    in accordance with the doctrines, tenets, beliefs or teachings of a particular
    religion or creed – taken:

    (i) in good faith; and

    (ii) to avoid injury to the religious susceptibilities of adherents of that
    religion or creed.

  2. This exemption exists at the intersection of two fundamental human rights,
    namely the right to practice a religion and belief and the right to non
    discrimination.

  3. Similar exemptions exist in the Sex Discrimination Act and the Age
    Discrimination Act 2004
    (Cth).[39] However, the above
    exemption does not accord with the scope of the exemptions under the Sex
    Discrimination Act
    (at s 37) and the Age Discrimination Act (s 35).
    In particular, the above provision does not require that the discriminatory act
    be ‘necessary’ to avoid injury to the religious susceptibilities of
    adherents of the religion or creed. The requirement that the act be
    ‘necessary’ is an important qualification to ensure that the
    exemption is at the least no broader than these exemptions under the Sex
    Discrimination Act
    (s 37) and the Age Discrimination Act (s
    35).[40]

  4. Past inquiries into federal discrimination laws have recommended that
    certain exemptions regarding religious bodies should be removed or narrowed,
    particularly as they relate to religious educational
    institutions.[41] The Commission has
    now recommended that exemptions for religious institutions under the Sex
    Discrimination Act
    be made subject to a three year sunset clause. A review
    to determine whether the religious exemptions should be removed, or replaced
    with a more narrowly tailored exemption on strictly human rights grounds should
    be completed within the three year
    period.[42]

Recommendation 13: The Commission recommends inserting
‘necessary’ in clause 351(2)(c)(ii) of the Bill. Further, any
amendments to the religious institutions exemption in other federal
discrimination laws should be reflected in the Fair Work Bill, in order to
ensure the harmonisation of federal anti discrimination legislation.

 

  1. Seventh, the Commission submits that the time limit for bringing an
    application to the Federal Court or Federal Magistrates Court for a
    contravention of Part 3.1[43] that
    resulted in dismissal should be extended.

  2. In cases where an employee has been dismissed in contravention of Part 3.1,
    the dispute will be dealt with at first instance in a conference conducted by
    Fair Work Australia.[44] An
    application to Fair Work Australia must be made within 60 days after the
    dismissal, or within such further time as Fair Work Australia
    allows.[45]

  3. If the dispute remains unresolved after the conference, Fair Work Australia
    issues a certificate and the dismissed employee can proceed to
    court.[46] A court application must
    be made within 14 days after the certificate is
    issued.[47]

  4. The Commission submits that the time limit for bringing a court application
    should be extended from 14 days to 60 days. This is because applicants will
    require time to seek legal advice, and to make arrangements for the preparation
    of their case. This is particularly the case for employees in rural or remote
    areas, and for many employees who may be distressed following dismissal and the
    unsuccessful resolution of their case at Fair Work Australia.

  5. A 60 day time limit is consistent with the recommendation of the Senate
    Legal and Constitutional Affairs Committee in its report on the Effectiveness
    of the Sex Discrimination Act 1984 (Cth) in Eliminating Discrimination and
    Promoting Gender Equity
    .[48] The
    Committee recommended the HREOC Act be amended to increase the time limit for
    lodging an application with the Federal Court or Federal Magistrates Court from
    28 days after termination of the complaint by the Commission to 60 days.

Recommendation 14: The Commission recommends that the 14 day
time limit for bringing general protections court applications (clause 371(2) of
the Bill) be extended to 60 days.

 

  1. Finally, the Commission notes that it has previously recommended an inquiry
    be undertaken into the merits of replacing the federal discrimination Acts with
    a single, comprehensive Equality Act for
    Australia.[49] The Standing
    Committee on Legal and Constitutional Affairs accepted this recommendation in
    its report on the Effectiveness of the Sex Discrimination Act 1984 (Cth) in
    Eliminating Discrimination and Promoting Gender
    Equity.
    [50] Further, the
    Commonwealth has signalled its intention to consider this issue of an Equality
    Act as part of the National Human Rights
    Consultation.[51]

Recommendation 15: The Commission recommends that the new
discrimination protections at clause 351 of the Bill be included as part of any
inquiry into the merits of a single Equality Act for Australia.

Unfair dismissal (Part
3.2)

  1. The Commission considers the restoration of unfair dismissal protections to
    many national system employees to be a positive development. The Commission is,
    however, concerned with three aspects of the unfair dismissal protections.

  2. First, the Bill restores unfair dismissal protections to national system
    employees provided they have completed the minimum employment period. The
    minimum employment period is one year for employees of a small
    business[52] and six months for all
    other employees.[53] The Explanatory
    Memorandum states:

    A requirement that an employee serve a minimum
    period before having access to an unfair dismissal remedy enables an employer to
    have a period of time to assess the capacity and conduct of a new employee
    without being subject to an unfair dismissal claim if they dismiss the employee
    during this period.[54]

  3. The Commission submits that the minimum employment periods are too long and
    will leave many employees without a remedy for unfair dismissal. This is
    particularly the case for employees of small businesses. The Commission submits
    that the minimum employment period should be reduced to three months for all
    employees.[55] The Commission
    considers that an employer should be able to assess the capacity and conduct of
    an employee within three months.

Recommendation 16: The Commission recommends that the
minimum employment period to access unfair dismissal protections be reduced to
three months for all employees.

 

  1. Second, the Bill requires unfair dismissal applications to be lodged with
    Fair Work Australia within seven days after the dismissal took effect, or within
    such further period as Fair Work Australia
    allows.[56] Fair Work Australia may
    allow a further period for the application if it is satisfied there are
    exceptional circumstances, taking into
    account:[57]

    • the reason for the delay;

    • whether the person first became aware of the dismissal after it had taken
      effect;

    • any action taken by the person to dispute the dismissal;

    • prejudice to the employer (including prejudice caused by the delay);

    • the merits of the application; and

    • fairness as between the person and other persons in a similar
      position.

  2. The Commission acknowledges the intention of these new provisions is to
    ‘provide a quick, flexible and informal process for the resolution of
    unfair dismissal claims.’[58]

  3. However, the Commission submits that the seven day timeframe is too short.
    Many employees will be unable to seek advice about whether they should make a
    claim within this time frame. This is particularly the case for employees in
    rural or remote areas, and for many employees who may be distressed following
    dismissal. The Commission is concerned that the seven day time limit may result
    in employees being unfairly left without a remedy for unfair dismissal.

  4. The Commission is also concerned that Fair Work Australia is only provided
    with power to extend the seven day time limit in ‘exceptional
    circumstances’.

  5. The factors set out at clauses 394(3)(a)-(f) of the Bill are consistent with
    the decision of the Industrial Relations Court of Australia in Brodie-Hanns v
    MTV Publishing Ltd
    (1995) 67 IR 298. It would be appropriate to retain these
    factors but instead provide that Fair Work Australia needs only to be satisfied
    that it is appropriate to allow for a further period in all the circumstances of
    the case.

Recommendation 17: The Commission recommends:

  • the seven day time limit for unfair dismissal claims at clause 394(2)(a) be
    extended to 21 days;
  • the discretion provided to Fair Work Australia to extend the time limit be
    widened by providing that Fair Work Australia needs only to be satisfied that it
    is appropriate to allow for a further period in all the circumstances of the
    case.

 

  1. Third, the Commission submits that all employees should be entitled to
    protection against unfair dismissal, regardless of the size of the business at
    which they work. Clause 388(1) of the Bill enables the Minister to declare a
    Small Business Fair Dismissal Code by legislative instrument. If a
    person’s dismissal is consistent with the Code and the person’s
    employer was a small business
    employer,[59] then the dismissal
    will be considered fair.[60]

  2. The Commission submits that the proposed Small Business Fair Dismissal Code
    does not ensure that employees in small businesses are treated fairly. The
    Commission recommends that the Small Business Code be removed from the Bill and
    employees of small businesses be entitled to the same protections from unfair
    dismissal as all other employees.

  1. If the Committee does not accept the Commission’s recommendation, the
    Commission recommends in the alternative that the provisions of the Small
    Business Fair Dismissal Code should be strengthened. In particular, the Code
    should be amended to provide additional procedural fairness protections for
    employees of small businesses.

  2. Examples of procedural fairness protections that should be included in the
    Code are set out below. Whilst the amendments recommended below would improve
    the Code, the Code would still fall short of providing employees of small
    businesses with procedural fairness. To access procedural fairness, employees of
    small businesses should be entitled to the same protections from unfair
    dismissal as all other employees (see Recommendation 18).

  3. The proposed Code sets out the circumstances in which summary dismissal is
    warranted. That is, where the employer believes on ‘reasonable
    grounds’ that the employee was:

    • stealing money or goods;

    • threatening or carrying out violence in the workplace;

    • defrauding the business; or

    • committing a serious breach of occupational health and safety procedures.

  4. The Commission recommends that the Code be amended to include a requirement
    that the employer must:

    • clearly particularise the allegation of serious misconduct against the
      employee; and

    • provide the employee with the opportunity to respond to the allegation.

The employee’s response should then be provided to
Fair Work Australia to assist in its assessment of whether the employer’s
view of the employees conduct was held on ‘reasonable grounds’.

  1. The proposed Code also deals with dismissal because of unsatisfactory
    conduct, performance or capacity to do the job. The Code contains a requirement
    that the employer warn the employee if the employee is not doing the job
    properly and must improve his or her performance, or otherwise be dismissed. The
    Code states that the warning should be either verbal or, preferably, in writing.
    The Commission recommends that the Code be amended to provide that the warning
    must be in writing. This is because the warning is of significant importance in
    terms of the employer’s compliance with the Code, and consequently the
    employee’s ability to access the unfair dismissal protections of the Bill.
    A verbal warning is insufficient and is more likely to be misunderstood.

  2. The proposed Code also provides that before an employee is dismissed, the
    employer must tell the employee the reason for the dismissal and give the
    employee an opportunity to respond. The Commission recommends that the
    employee’s response should then be provided to Fair Work Australia to
    assist in its assessment of the employer’s compliance with the Code.

Recommendation 18: The Commission recommends that the Small Business
Code be removed from the Bill and employees of small businesses be entitled to
the same protections from unfair dismissal as all other
employees.

In the alternative, the Commission recommends that the
provisions of the Small Business Fair Dismissal Code be strengthened and include
procedural fairness protections for employees. For example, the Code should be
amended to provide that:

  • The employer must clearly particularise allegations of serious
    misconduct.

  • The employer must provide the employee with an opportunity to respond to
    allegations of serious misconduct. The employee’s response should then be
    provided to Fair Work Australia to assist in its assessment of whether the
    employer’s view of the employee’s conduct was held on
    ‘reasonable grounds’.

  • The employer’s warning to the employee in relation to unsatisfactory
    performance or conduct must be in writing.

  • The employer must provide the employee with an opportunity to respond to the
    reason for the dismissal. The employee’s response should be provided to
    Fair Work Australia to assist in its assessment of the employer’s
    compliance with the Code.

 

 


Appendix – List of
Recommendations

  1. The Commission recommends that the qualification requirements that restrict
    the categories of employees who can make a request for flexible working
    arrangements be removed.

  2. The Commission recommends that the right to request flexible working
    arrangements be extended to all forms of family and caring responsibilities.

  3. The Commission recommends that the right to request flexible working
    arrangements be extended to employees with a disability.

  4. The Commission recommends that the same rights of redress applicable to the
    other nine National Employment Standards be extended to the unreasonable refusal
    of a request for flexible work arrangements.

  5. The Commission recommends that the introduction of the right to request be
    accompanied by an education campaign that includes clear information that
    employees may have access to the provisions of the Sex Discrimination Act
    1984
    (Cth) (and the Disability Discrimination Act) where flexible
    arrangements are denied.

  6. The Commission recommends that in order to be eligible for unpaid parental
    leave an employee must have been in paid work for 40 weeks of the past 52 weeks
    with any number of employers and/or in any number of positions. Employment
    should include part time, casual employment, contract work and self-employment.

  7. The Commission recommends that the same rights of redress applicable to the
    other nine National Employment Standards be extended to the unreasonable refusal
    of a request for extended parental leave.

  8. The Commission recommends that the prohibition against discrimination at
    clause 351 of the Bill should be extended to apply to every employee in
    Australia (rather than being subject to the limited application provisions at
    clauses 337 - 339 of the Bill).

  9. The Commission recommends that the grounds on which adverse action is
    prohibited at clause 351 of the Bill should be extended to include criminal
    record.

  10. The Commission recommends that ‘marital status’ at clause 351 of
    the Bill should be replaced with ‘marital or relationship status’,
    which includes being the same sex partner of another person.

  11. The Commission recommends that the definition of adverse action should be
    amended to make clear that it includes both direct and indirect discrimination,
    and these terms should be defined as follows:

    • Direct discrimination: unfavourable treatment because of a protected
      attribute.

    • Indirect discrimination: a term, condition or requirement that has the
      effect of disadvantaging persons with a protected attribute, unless the term,
      condition or requirement is reasonable. The onus of proving that the term,
      condition or requirement is reasonable should be placed on the
      respondent.

  12. The Commission recommends discrimination be defined to include disadvantage
    suffered as a result of an association with a person with a protected
    attribute.

  13. The Commission recommends inserting ‘necessary’ in clause
    351(2)(c)(ii) of the Bill. Further, any amendments to the religious institutions
    exemption in other federal discrimination laws should be reflected in the Fair
    Work Bill, in order to ensure the harmonisation of federal anti discrimination
    legislation.

  14. The Commission recommends that the 14 day time limit for bringing general
    protections court applications (clause 371(2) of the Bill) be extended to 60
    days.

  15. The Commission recommends that the new discrimination protections at clause
    351 of the Bill be included as part of any inquiry into the merits of a single
    Equality Act for Australia.

  16. The Commission recommends that the minimum employment period to access
    unfair dismissal protections be reduced to three months for all employees.

  17. The Commission recommends:

    • the seven day time limit for unfair dismissal claims at clause 394(2)(a) be
      extended to 21 days;

    • the discretion provided to Fair Work Australia to extend the time limit be
      widened by providing that Fair Work Australia needs only to be satisfied that it
      is appropriate to allow for a further period in all the circumstances of the
      case.

  18. The Commission recommends that the Small Business Code be removed from the
    Bill and employees of small businesses be entitled to the same protections from
    unfair dismissal as all other employees.

In the alternative, the
Commission recommends that the provisions of the Small Business Fair Dismissal
Code be strengthened and include procedural fairness protections for employees.
For example, the Code should be amended to provide that:

  • The employer must clearly particularise allegations of serious
    misconduct.
  • The employer must provide the employee with an opportunity to respond to
    allegations of serious misconduct. The employee’s response should then be
    provided to Fair Work Australia to assist in its assessment of whether the
    employer’s view of the employee’s conduct was held on
    ‘reasonable grounds’.
  • The employer’s warning to the employee in relation to unsatisfactory
    performance or conduct must be in writing.
  • The employer must provide the employee with an opportunity to respond to the
    reason for the dismissal. The employee’s response should be provided to
    Fair Work Australia to assist in its assessment of the employer’s
    compliance with the Code.

[1] Fair Work Bill 2008 (Cth), cl
65(2).

[2] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), p 105.

[3] Sara Charlesworth and Iain
Campbell, ‘Right to request regulation: Two new Australian models’
(2008) 21(2) Australian Journal of Labour Law 116, p 5.

[4] Fair Work Bill (Cth), cl
65(1).

[5] Commonwealth of Australia, Carer payment (child): A new approach, Report of the Carer payment
(child) review taskforce, 30 November 2007, Chapter 4.

[6] See, further, Australian Human
Rights Commission, Submission to the Australian Government Department of
Education, Employment and Workplace Relations on the discussion paper,
‘National Employment Standards Exposure Draft’
(2008) pp 8
– 11.

[7]Employment Relations
(Flexible Working Arrangements) Amendment Act 2007
(NZ).

[8] See, further Australian Human
Rights Commission, WORKability 2: Solutions, Final report of the national
inquiry into employment and disability,
December 2005.

[9] Disability Discrimination and
Other Human Rights Legislation Amendment Bill 2008, Schedule 2, Item 17.

[10]Convention on the Rights
of Persons with Disabilities
, (GA Res 61/106 of 13 December 2006) opened for
signature 30 March 2007, entered into force on 3 May 2008, Article 27(1)(i).

[11] Victorian Government, Victorian Government submission to the Commonwealth of Australia National
Employment Standards – Commonwealth Exposure Draft and Discussion
Paper,
2008, p 9.

[12] See, for example, Hickie
v Hunt & Hunt
[1998] HREOCA 8; Escobar v Rainbow Printing Pty Ltd (No
3)
[2002] FMC 122; Mayer v ANSTO [2003] FMCA 209.

[13]Hickie v Hunt & Hunt [1998] HREOCA 8; Escobar v Rainbow Printing Pty Ltd (No 3) [2002] FMC
122; Mayer v ANSTO [2003] FMCA 209. See also Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), pp 104 – 109. The Commission recommended the introduction
of a positive obligation on employers to reasonably accommodate the needs of
workers in relation to their family and carer responsibilities. Failure to meet
this obligation would be an actionable form of discrimination.

[14]ILO Convention (No 156)
concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
Workers with Family Responsibilities,
Opened for signature 23 June 1981,
entered into force 11 August 1983, 1991 ATS 7.

[15] If the Committee accepts the
Commission’s Recommendation No 3: that the right to request flexible
working arrangements be extended to employees with a disability.

[16] Australian Human Rights
Commission, Submission to the Australian Government Department of Education,
Employment and Workplace Relations on the discussion paper, ‘National
Employment Standards Exposure Draft’
(2008) pp 22 – 26.

[17] D. Whelan,
‘Introducing the right to request flexible working arrangements:
Differences and similarities between Australia and the UK’, Paper
presented at the Australian Labour Law Association Fourth Biennial Conference,
14 and 15 November 2008.

[18] Fair Work Bill 2008 (Cth),
Part 2.2, Division 5.

[19] Fair Work Bill 2008 (Cth),
cl 67(1), 67(2).

[20] Australian Human Rights
Commission, Submission to the Productivity Commission Inquiry into Paid
Maternity, Paternity and Parental Leave,
(2 June 2008). See, further,
Australian Human Rights Commission, It’s About Time, (2007).

[21] Australian Human Rights
Commission, Submission to the Productivity Commission Inquiry into Paid
Maternity, Paternity and Parental Leave,
(2 June 2008).

[22] Fair Work Bill 2008 (Cth),
cl 342.

[23] Adopted in Geneva 25 June
1958, entered into force 15 June 1960, 1974 ATS 12.

[24]ACT Community Inclusion
Board Report 2004-2008
, p 33.

[25] Criminal record has been
declared a ground of discrimination for the purposes of the HREOC Act: Human
Rights and Equal Opportunity Commission Regulations 1989
.

[26] Australian Human Rights
Commission, On the Record: Guidelines for the prevention of discrimination in
employment on the basis of criminal record,
November 2005.

[27] HREOC Act, s 35(2).

[28]Anti-Discrimination Act
1992
(NT), s 19(q); Anti-Discrimination Act 1998 (Tas), s 16(q).

[29] Opened for signature 16
December 1966, 999 UNTS 171 (entered into force 23 March 1976).

[30] The Human Rights Committee
has found the following, amongst others, to constitute ‘other
statuses’: age (Schmitz-de-Jong v Netherlands (855/99)); a
difference between employed and unemployed persons (Cavalcanti Araujo-Jongens
v Netherlands
(418/90)); a difference between people performing their
compulsory service in a military or in a non military capacity (Jarvinen v
Finland
(295/88)).

[31] Standing Committee on Legal
and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984
(Cth) in eliminating discrimination and promoting gender equity,
12 December
2008, p xiii, Recommendation 4.

[32] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), p 62.

[33] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the Disability Discrimination and other Human
Rights Legislation Amendment Bill 2008
, (15 January 2009), pp 7 - 11.

[34] This simplified definition
is used in the Discrimination Act 1991 (ACT) s 8(1)(a).

[35] This definition is used in
the Sex Discrimination Act 1984 (Cth), s 5(2).

[36] Sections 15-29.

[37] Sections 11-14.

[38] Fair Work Bill 2008 (Cth),
cl 351(2)(c).

[39] See Sex Discrimination
Act 1984
(Cth), ss 37, 38; Age Discrimination Act 2004 (Cth), s 35.

[40] The exemption at s 38 of the Sex Discrimination Act in relation to educational institutions
established for religious purposes does not include the requirement that the
discriminatory act be ‘necessary’.

[41] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), p 169-173.

[42] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), p 173.

[43] Clause 351 falls within Part
3.1 of the Fair Work Bill 2008 (Cth).

[44] Fair Work Bill 2008 (Cth),
cl 365, 368.

[45] Fair Work Bill 2008 (Cth),
cl 366.

[46] Fair Work Bill 2008 (Cth),
cl 369, 371(1).

[47] Fair Work Bill 2008 (Cth),
cl 371(2).

[48] Standing Committee on Legal
and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984
(Cth) in eliminating discrimination and promoting gender equity,
12 December
2008, p xv, Recommendation 21.

[49] Australian Human Rights
Commission, Submission to the Senate Legal and Constitutional Affairs
Committee on the Inquiry into the effectiveness of the Sex Discrimination Act
1984 (Cth) in eliminating discrimination and promoting gender equity
(1
September 2008), p 259.

[50] Standing Committee on Legal
and Constitutional Affairs, Effectiveness of the Sex Discrimination Act 1984
(Cth) in eliminating discrimination and promoting gender equity,
12 December
2008, p xviii, Recommendation 43.

[51] Commonwealth of Australia, National Human Rights Consultation, Background paper, 2008, p12.

[52] A small business employer
employs fewer than 15 employees: cl 23(1).

[53] Fair Work Bill 2008 (Cth),
cl 383.

[54] Explanatory Memorandum, Fair
Work Bill 2008 (Cth), p 240.

[55] This is consistent with
certain State unfair dismissal regimes: Industrial Relations Act 1996 (NSW), s 83; Industrial Relations Act 1999 (Qld), s 74; Industrial
Relations Act 1979
(WA), s 23A.

[56] Clause 394(2).

[57] Clause 394(3).

[58] Explanatory Memorandum, Fair
Work Bill 2008 (Cth), p 240.

[59] A small business employer
employs fewer than 15 employees: cl 23(1).

[60] Fair Work Bill 2008 (Cth),
cl 385.