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Response to:

Striking the Balance: Women, men, work and family Discussion Paper 2005

 

By Louisa Dickinson

September 2005

 

Job Watch Inc

Level 10, 21 Victoria Street, Melbourne 3000

Ph: 9662 9458

Fax: (03) 9663 2024

www.job-watch.org.au

 

Response to the Human Rights and Equal Opportunity Commission Striking the Balance Discussion Paper 2005.

 

JOB WATCH

Job Watch Inc is an employment rights legal centre which, since 1980, has operated as the only service of its type in Victoria. The centre is funded primarily by the Victorian State Government (the Department of Innovation, Industry and Regional Development – Industrial Relations Victoria) and also receives funding from the Commonwealth Office of the Employment Advocate.

Job Watch’s core activities are:

  • the provision of advice, information and referral to Victorian workers via a free and confidential telephone advisory service1.
  • A community education program that includes publications, information via the internet, and talks aimed at workers, students and other organisations.
  • A legal casework service for disadvantaged workers and workers experiencing human rights abuses.
  • Research and policy advice on employment and industrial law issues.
  • Advocacy on behalf of those workers in greatest need and disadvantage.

Job Watch has a state-wide focus and services a broad range of Victorian workers, who number in excess of 20,000 annually. We maintain a database record of our callers, which assists us to identify key characteristics of our clients and trends in workplace relations.

Our records indicate that our callers have the following characteristics:

  • the majority are women2;
  • they are mainly from the 25 to 34 year old age group, followed by 35 to 44 age group;
  • the majority are not union members;
  • a large proportion are employed in businesses with less than 20 employees;
  • a significant number are engaged in precarious employment arrangements such as casual and part-time employment or independent contracting;
  • many are in disadvantaged bargaining positions because of their youth, sex, racial or ethnic origin, pregnancy status, socio-economic status, or because of the potential for exploitation due to the nature of the employment arrangement, for example apprenticeships and traineeships;
  • many are job seekers attempting to return to the labour market after long or intermittent periods of unemployment; and
  • over one third of their enquiries relate to unfair dismissal issues.

As the above indicates, we have a particular interest and expertise in the conditions of disadvantaged workers and, due to our client profile, we are uniquely placed to comment on the effects of legislation on the conditions of a broad range of Victorian employees.

Moreover, Job Watch has extensive experience dealing with discrimination matters. In each of the financial years 2002/03, 2003/04 and 2004/05 we received in excess of 1000 discrimination-related calls.

In addition, Job Watch’s legal practice made 21 appearances in 2004/05

in discrimination-related matters at the Equal Opportunity Commission of Victoria, the federal Human Rights and Equal Opportunity Commission and the Victorian Civil and Administrative Tribunal. We had made 53 such appearances on behalf of clients during 2003/04.

Job Watch welcomes the opportunity to respond to HREOC on the significant issue of family responsibilities.

Our submission will be based on the legislative protections available to Victorian workers and will focus on the legal aspects of the discussion paper.

Q23: Can anti-discrimination systems assist men and women better balance their paid work and family responsibilities? Why or why not?

The reconciliation of work and family responsibilities is clearly an extremely complex issue and is not easily achieved by any one approach or mechanism. Anti-discrimination systems however, are one important tool in assisting both men and women to better balance their work and family responsibilities.

For the purpose of this submission our discussion of the “anti-discrimination systems” will focus on the key legal protections available to Victorian workers, that is the Sex Discrimination Act 1984 (Cth) (“the SDA”), and the Equal Opportunity Act 1995 (Vic) (“the EOA”). These systems can and do assist men and women to better balance their paid work and family responsibilities in a number of ways – on the individual level, the workplace level and more broadly, on a systemic basis by influencing employment practices and cultures.

The SDA and EOA both prohibit discrimination in the area of employment on the basis of several attributes which relate to family responsibilities. The SDA prohibits discrimination on the grounds of sex, pregnancy, potential pregnancy and family responsibilities,3 while the EOA provides protection for those with the attributes of sex, pregnancy and parental status or status as a carer4.

Individuals can lodge a complaint under either the SDA or the EOA against an employer or individual who discriminates against them on any, or a combination of, these grounds with respectively the Human Rights and Equal Opportunity Commission (“HREOC”) or the Equal Opportunity Commission of Victoria (“EOCV”).

Once a complaint is accepted by the relevant commission, the parties to the complaint will generally participate in a conciliation conference. In our experience conciliation can be a very useful process in assisting individuals to resolve issues relating to work and family. Although these matters are often resolved confidentially in a way that only directly impacts on the individual complainant, for example they receive financial compensation for loss of earnings or pain and suffering arising from the discriminatory conduct, it is submitted that after an employer has been in receipt of a complaint and attended conciliation it is more likely to be sensitive to possible discrimination issues in future. Furthermore, it is not uncommon for employers to complaints to agree, as part of negotiated terms of settlement, to implement a policy change, a change in practice or perhaps implement staff training or development initiatives in an attempt to reduce the potential for future discrimination and educate staff about their responsibilities under anti-discrimination laws5.

Where a matter has not been resolved at conciliation and a complainant elects to pursue their complaint in either the Federal Court of Australia, the Federal Magistrates’ Court (SDA matters) or the Victorian Civil and Administrative Tribunal (EOA matters) it is usual for the parties to be ordered to attend mediation. Many of the observations about conciliation apply equally to mediation.

If after mediation the matter has still not resolved the matter may proceed to a public hearing and a finding will be made by either the Federal or Federal Magistrates’ Courts or the Victorian Civil and Administrative Tribunal. The published decisions of Courts and Tribunals obviously have a significant effect on the parties to the proceedings and to the workplaces involved, but their impact is much wider because of their potential application to all workplaces.

Decisions in anti-discrimination cases inform the advice that lawyers and human resources practitioners provide to employers about their legal obligations to support their employees’ work-family commitments. They are also frequently used as the basis for education and training for employers about their obligations and how to develop best practice. For example, the decisions in cases such as Hickie v Hunt & Hunt6, Bogle v Metropolitan Health Services Board7, Mayer v ANSTO8, and Escobar v Rainbow Printing Pty Ltd (No 2)910, Song v Ainsworth Game Technology Pty Ltd11 have been cited extensively in academic papers, seminars, and best practice guidelines and numerous seminars are conducted on how to best manage family responsibilities issues in the workplace.12

Job Watch and others who advise employees are also keenly alert to any developments which strengthen the rights of employees juggling work and family commitments and rely on them to provide suggestions to employees wishing to access more flexible working arrangements.

Educational work undertaken by HREOC and the EOCV is another important aspect of the anti-discrimination system which assists in fostering greater understanding of work and family responsibilities issues. For example, resources such as HREOC’s Pregnancy Guidelines and the EOCV’s Parents and Carers at Work are very instructive and useful tools for employers and employees seeking guidance on their rights and obligations in relation to work and family issues. Job Watch frequently refers callers with work and family issues to these resources and encourages them to use them in discussions and correspondence with their employers when requesting flexible arrangements.

It should be noted however, that although anti-discrimination laws often assist employees to better balance work and family issues, they do have their limitations where work policies and practices regarding hours of work are inflexible or where other arrangements are explored and rejected. For example, in Kelly v TPG Internet Pty Ltd13 the Federal Magistrates’ Court found that an employer had not indirectly discriminated against a mother by refusing her request to return to work after maternity leave on a part-time basis, as it considered that she was seeking the provision of a benefit which was not generally available to other employees.

Q24: Why do men with family responsibilities not make more use of the family responsibilities provisions of the Sex Discrimination Act?

Without undertaking specific research into this issue, it is not possible to make any definitive assertions as to why men do not make more use of the family responsibilities provisions of the SDA. However, it is likely that the limited scope of the family responsibilities discrimination provisions under the SDA provide some explanation. That is, family responsibilities are not, like sex and pregnancy, a general ground of discrimination under the SDA. Rather, employees can only make a complaint on the ground of family responsibilities where an employer discriminates against an employee on the basis of family responsibilities by dismissing the employee.14 The limited protection provided by this provision is discussed at length in the Striking the Balance Discussion Paper15.

The SDA is to be contrasted with the EOA, which allows people who have been discriminated against in employment (which includes in recruitment, during employment or in the termination of their employment) to make a claim of either direct or indirect discrimination on the basis of their status as a parent or carer.   The definition of carer as “ a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis “16 recognises that caring responsibilities are not dependent on familiar relationships and provides meaningful protection for people performing this essential role of caring for those in need.  

Given the additional coverage of the EOA, Job Watch generally encourages callers to pursue a claim under this legislation, rather than the SDA. The situation faced by “Mario,” a caller to Job Watch, is illustrative of the reasons for this.

Mario was employed as a car assembler for a large manufacturing company for 7 years when he requested part-time work to allow him to care for his infirm wife. Without any explanation Mario’s request was denied. Mario resigned from his employment as his wife required his care and he accordingly felt he had no other alternative available to him.

It would be extremely difficult for Mario to succeed with a complaint under the SDA. Firstly, if Mario were to attempt to rely on the ground of family responsibilities, he would have to establish that his employer had constructively dismissed him because it had failed to accommodate his request, leaving him with no choice but to resign. Once he had established this he would face considerable difficulty in establishing that he had been directly discriminated against in his employment, as the requirement to work full-time would not constitute direct discrimination.

Secondly, it would be virtually impossible for Mario to successfully make an argument of indirect discrimination on the ground of sex because he could not establish that men as a sex are more likely to take on family care obligations and are therefore more likely to be disadvantaged by a requirement to work full-time.

In contrast, Mario would have a strong prima facie case of indirect discrimination on the basis of his status as a carer if he were to lodge a complaint under the Equal Opportunity Act.

Q25: Should the Sex Discrimination Act be amended to give greater assistance to men and women to address any workplace disadvantage they may face on the basis of their family responsibilities? If so, what particular amendments are necessary?

Although Victorian workers already have protection from discrimination on the basis of parental status or status as a carer, it is extremely important that federal anti-discrimination laws also provide at least equally strong protections for employees. The SDA should therefore certainly be amended to better assist men and women to address the workplace disadvantage they face on the basis of their family responsibilities.

Amendment of the SDA may include an extension of the family responsibilities ground of discrimination to cover all types of discrimination, rather than just dismissals which occur because of direct discrimination. This would mean that the imposition of unreasonable requirements that are particularly disadvantageous for workers with family responsibilities could be more effectively challenged, for example requirements to work overtime, full-time, rotating shifts etc.

Indirect discrimination claims on the ground of sex are not, in practice, necessarily helpful for men with family responsibilities and in fact, further entrench gender stereotypes. Therefore the proposed amendment would be likely to benefit men who wish to more actively assume family responsibilities and assist to facilitate a greater sharing of responsibility between the sexes.

The body of law relating to workplace responsibilities is not easy for employers and employees to navigate. We accordingly submit that consideration should be given to amending the SDA to empower the Attorney-General to make Family Responsibilities Standards which specify rights and responsibilities about equal access and opportunity for people with family responsibilities, in more detail and with more certainty than the SDA itself provides. The amendment could be based on section 31 of the Disability Discrimination Act 1992(Cth), which allows the Attorney-General to make Standards in relation to a number of disability issues, including the employment of people with disabilities.

We suggest it would be consistent with HREOC’s statutory functions17 for it to have a significant role in assisting the Attorney to formulate “Work and Family Standards.”

Alternatively or additionally, the SDA could be amended to include penalty provisions to apply to employers who do not meet specified requirements, for example accommodating an employee’s reasonable requests to return to work on a part-time basis following a period of parental leave. This would mean that individual employees would not be required to initiate complaints against their employers but rather HREOC would take action against them.

For such provisions to be worthwhile, it would be essential that HREOC be sufficiently resourced to enforce the obligations imposed by the SDA.

Q26: Can an individual complaints mechanism adequately deal with discrimination on the basis of family responsibilities? If not what other changes may be necessary?

While an individual complaints mechanism is in many ways an effective mechanism for dealing with discrimination on the basis of family responsibilities it cannot and does not comprehensively address this issue.

There are a number of identifiable weaknesses of the current individual complaints process, including:

  • It cannot deliver measurable systemic change - unless a matter proceeds to hearing, a confidential settlement is unlikely to have much impact beyond the parties to the complaint, or the workplace in which the circumstances giving rise to the complaint arose.
  • The widespread practice of resolving complaints by way of financial settlement without admission of liability means that the underlying discriminatory conduct is not addressed.
  • The cost for all parties can be prohibitive, especially as there is no legal aid available in Victoria for employment-related matters.
  • The disadvantage unrepresented complainants face in formulating a complaint against an employer which is legally represented - w hile HREOC assists people who are “disadvantaged” to formulate a complaint, we understand that its staff do not draft complaints for unrepresented complainants as a general rule.18 This contrasts with the EOCV, which is required under section 106 of the EO Act, to assist all complainants to formulate complaints.
  • Pursuing a complaint may involve a significant time commitment– from formulating a complaint, attending conciliation and ultimately a hearing. T his may be a real deterrent for c omplainants who are struggling to make time to balance their competing work and family responsibilities.
  • Complaints are often only initiated once an employee has left the employment, so complainants who have faced discrimination never fully get redress.
  • Despite protection from victimisation if a complaint is filed, an ongoing employment relationship is likely to be damaged by the filing of a complaint. Unfortunately, this often results in terms of settlement which include a resignation by the employee, who is then left without a job even if he or she has received some financial compensation.

The recent experience of one of Job Watch’s clients “Melissa” highlights some of the limitations of the complaints process.

Melissa had been employed on a permanent full-time basis in the hospitality industry for 8 years when she became pregnant. Melissa took 1 month of annual leave and 2 months of unpaid maternity leave when she gave birth in 2004. To allow her to continue breast-feeding she initially returned to work on a part-time basis for approximately 3 months and then resumed full-time work. Melissa found that her key responsibilities had been taken from her and re-allocated to a male colleague. She was also excluded from decision-making meetings. In a review meeting her supervisor said that he “bet” she’d be having another baby. Melissa was extremely disappointed about the effect that her family responsibilities had on the way she was perceived by her employer, given her assumption that returning so quickly from maternity leave would have been taken as an indication of her commitment to her job.

Melissa lodged a complaint against her employer alleging discrimination on the grounds of sex, pregnancy and status as parent and sought to have her former duties reinstated. After Melissa lodged the complaint her employer changed her hours of work and indicated that for the first time she would be required to work a shift finishing at 2.30am. This caused Melissa to feel anxious and fearful that things were being made deliberately difficult for her.

At conciliation Melissa’s employer argued that despite her good performance, comments that she made in support of her complaint meant that they would not feel comfortable in continuing to employ her in the workplace as they suggested she did not have confidence in the organisation’s management. As such, they would prefer for her to resign and they would pay her compensation to do so.

Melissa reluctantly accepted this offer as she felt that life would be made even more difficult for her if she continued her employment following the complaint. However, she expressed bitterness at the situation that she was placed in - by making a discrimination complaint she was left unemployed and was certain that she would find it difficult to get a job in the industry if it was known she had taken action against her employer. Furthermore, she was not confident that her employer had learned anything or that it planned to change its approach following her complaint, especially as it emphatically refused to agree to implement an anti-discrimination policy or to conduct any workplace training on the issue.

Some of the problems with an individual complaints process are unfortunately unavoidable. However, the effectiveness of the complaints process could possibly be enhanced if HREOC were empowered to initiate complaints on the basis of reports it receives, rather than individuals having to initiate complaints. Aside from ensuring greater compliance with the SDA, this could improve the efficiency of the Commission and ensure that there is a greater likelihood that cases with merit are pursued.

As a further alternative to requiring individuals to make a formal complaint a system could be introduced whereby employees write to HREOC setting out their situation and requesting that HREOC write to their employers explaining in general terms their obligations under the SDA, for example considering requests for part-time work. Such a process may alleviate the need for parties to pursue formal complaints and would preserve resources of both HREOC and the parties.

We submit that there are several other measures which could be introduced to improve the protections available to people with family responsibilities. These include the introduction of Family Responsibilities Standards and penalty provisions for employers who do not comply with specified requirements described above.

A greater emphasis on education would supplement the existing complaints process and hopefully, ensure greater compliance with the SDA. We suggest that family responsibilities guidelines (similar to HREOC’s Pregnancy Guidelines) be developed for employers setting out both their minimum legal obligations and also, suggestions for best practice. Smaller organisations, which do not have access to specialised human resources advice would benefit from receiving information about the range of family-friendly and flexible alternatives successfully implemented by other employers. Likewise, employees would be assisted in making requests for flexibility if they had a great understanding of the range of options available to other employees.

Q27: Are amendments to the workplace relations system needed to give greater assistance to men and women to address any workplace disadvantage they may face on the basis of their family responsibilities? If so, what particular amendments are necessary?

While the Workplace Relations Act 1996 (WRA) has a number of laudable objects, which include:

  • providing a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers;19
  • and preventing and eliminating discrimination on a range of grounds, including family responsibilities20

the workplace relations system does need to be amended to better assist people with family responsibilities.

The WRA currently offers basic safety net entitlements, such as unpaid maternity and adoption leave of up to 52 weeks with a right to return to the job held prior to taking maternity leave and up to 1 week’s unpaid paternity leave. 21

We submit that these basic parental leave entitlements should be extended to provide women with at least 14 weeks’ paid maternity leave and men with at least 1 week’s paid paternity leave.

The recent AIRC Full Bench decision in the Family Provisions Test Case22should be incorporated into legislation. That is, employees should be legislatively granted the right to request:

  • Up to 12 months unpaid parental leave in addition to the current 12-month entitlements;
  • Returning to work on a part-time basis after parental leave until a child reaches school age; and
  • Extending simultaneous parental leave to a maximum of eight weeks.

Under the "right to request" provisions, employers would only be able to refuse such a request on reasonable grounds, based on the effect on the workplace or the employer's business. These grounds might include “cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service."

Employers who fail to comply with the requirements set out in this clause should be subject to prosecution23. We submit that there should be an education campaign about these provisions to alert more employers to their existence. Furthermore, the Department of Employment and Workplace Relations should be adequately resourced to prosecute breaches of the WRA and award and agreement breaches involving the failure to observe the maternity leave requirements.

On 26 May 2005, the Prime Minister and the Minister for Employment and Workplace Relations announced plans to make significant changes to the WRA, the essence of which “ is to further promote and facilitate the making of agreements at the workplace level.24

The specific details of the changes have not yet been released, although the federal government has announced some major changes including the abolition of the No Disadvantage Test (“the NDT”) which certified agreements and Australian Workplace Agreements must currently satisfy to be approved and its replacement with the Australian Fair Pay and Condition Standard.

The Australian Fair Pay and Condition Standard will include the following five conditions: annual leave, personal/carer’s leave, parental leave (including maternity leave), maximum ordinary hours of work and a minimum rate of pay.

While the scope of the proposed parental leave provision under the Standard is unclear, we submit that at a minimum, it should expressly incorporate the legislative parental leave standards discussed above.

Job Watch is extremely concerned about the effect these changes will have on Victorian workers, especially those in a disadvantaged bargaining position.

While currently most enterprise agreements have some sort of family-friendly provisions such as carers’ leave and part-time work,25 we expect that the abolition of the NDT will mean that it will be extremely difficult for disadvantaged workers to attempt to negotiate conditions beyond the five minimum conditions. We consequently submit that the NDT be retained.

To ensure that employees have genuine freedom of choice, we further recommend that employers should be legislatively required to advise employees of their right to retain the safety net conditions provided by the applicable award, rather than to negotiate either a certified agreement or an AWA. The Office of the Employment Advocate (“the OEA”) should be granted the express statutory power and the resources to prosecute any employer which seeks to coerce their employees into accepting an agreement or otherwise subject them to detriment if they fail to do so. Furthermore, the OEA should be required by statute to investigate all such allegations.

Under the proposed changes, responsibility for approving certified agreements will be transferred from the Australian Industrial Relations Commission to the OEA. If this change eventuates, we submit that the WRA should be amended to require the OEA to take account of the International Labour Organisation Workers with Family Responsibilities Convention 156 when considering whether or not to approve an agreement26. More specifically, the OEA would be required to consider whether an agreement prevents discrimination against workers who have family responsibilities and helps workers to reconcile their family responsibilities.

Q29: Do informal workplace policies work well to assist employees to balance their paid work and family responsibilities? Do they assist some employees more than others and if so, is this appropriate?

Informal work policies can operate extremely well where they operate in a high-trust environment and reflect a real willingness on the part of the employer to provide employees with the opportunity to balance work and family responsibilities. It is important however, that the benefits of such policies (even though they are informal) are available to all staff, rather than just those the employer permits to access them.

While informal policies are effective when the employment relationship is going well , an employee who relies on such policies may face difficulties in enforcing them if the employer decides to withdraw them, for example, if there is a change in management or a restructure. If a policy is not written down or is effectively just an informal practice such as allowing employees to work from home during school curriculum days, it will generally not be legally enforceable unless it is expressly incorporated into an employment contract or if the policy is part of a certified agreement or Australian Workplace Agreement.

On this basis, we would usually advise our callers to formalize such arrangements by confirming them in writing and recording when they have had access to such benefits.

In our experience those who benefit from informal policies, such as flexible working arrangements are usually those workers who possess strong personal bargaining power and those who work for progressive employers who seek to be an “employer of choice” by demonstrating a commitment to assisting employees to balance their work and family responsibilities.

Employees who are not highly skilled or who face labour market disadvantage, such as language barriers and intellectual disabilities are less likely to be able to negotiate informal arrangements with their employers. In some circumstances, industrial pressure may be used to persuade an employer to maintain or negotiate such informal policies but this will only benefit union members, and in many industries union membership is not common27.

Anecdotally, it appears that women often benefit from informal work policies more than their male co-workers because of assumptions about the role that they will or should play as primary caregivers. We have received a number of calls from male employees who have unsuccessfully sought access to flexible arrangements to enable them to spend more time caring for their children.

For some workers like Roger, family-friendly hours are not even an option. Roger contacted us after he was terminated from his job as a carpet cleaner because his employer told him that his family responsibilities were interfering with his position and they needed someone available “24/7.” Up until the date of termination Roger had been working up to 60 hours per week for his employer and often worked 12 hours per day.

Q30: Have EEO policies and business case arguments produced a greater acceptance of the need for workplaces to be family-friendly?

Equal Employment Opportunity policies and business case arguments have certainly produced greater awareness of the need for workplaces to be family-friendly.

However, in our experience it is by no means universal and there are wide variations across industries and workplaces. For example, we understand that some law firms seeking to recruit graduates market themselves on the basis of their family friendly credentials such as winning Equal Opportunity in the Workplace Awards. These employers provide conditions which expressly recognise family responsibilities and attempt to accommodate them, for example they provide paid maternity leave, flexible working from home arrangements, part-time work, home computers and modems, breast feeding rooms etc. The beneficiaries of these conditions tend to be highly educated intelligent women with significant bargaining power to negotiate flexible working conditions and above average salaries.

In comparison, many of the callers we assist work in low paid low skill areas and have effectively no bargaining power. For example, our caller Inoja, a single mother from Sri Lanka had to take time off from her job as a process worker to look after her daughter who was very sick. Her employer initially told her that this was fine, however he subsequently contacted her to tell her not to bother returning to work because he was “cutting” staff. Inoja found out that no other staff had been dismissed.

These employers do not appear to be open to business case arguments, as they appear to have neither an interest in facilitating the employment of workers with family responsibilities nor of being an employer of choice.

It will be interesting to monitor whether record low unemployment rates and the much discussed “skills shortage” causes employers such as these to re-think their approach. In the meantime however, the vast gulf between the experiences of different groups of workers suggests that there is a need to move beyond business case arguments and provide for a stronger regulatory regime with targeted support for employees and employers.

Q31: How can Australian workplaces be made more family friendly?

Employers, policy-makers and decision-makers must be creative in ensuring Australian workplaces are made more family friendly, whether the measures are entrenched in awards or legislative requirements as minimum conditions, or come through individual policies and practices.

Parental leave and carer’s leave are important starting points. Australia is one of only a few OECD countries that do not provide legislatively for paid maternity leave. We have previously argued in support of the introduction of a nationally funded system of at least 14 weeks’ paid maternity leave for all low income women and a combination of government funding and employer insurance schemes for women earning more than average weekly earnings28. We continue to support the introduction of such a scheme. We also believe that p aid paternal leave of at least 1 week should be introduced as it is an important aspect of a father-friendly workplace.

Other flexible arrangements for leave are also important. Where possible and with the consent of management, employees could be permitted to elect to have time off to attend to family commitments during ordinary hours and work those hours at a later time, at ordinary rates. Employees could be entitled to “buy” extra annual leave through salary adjustments to cover for school holidays. Alternatively, staff may be permitted to negotiate working 4 years of a 5-year period while being paid at 80% of their full-time salary over the entire period.

Many of these arrangements are cost neutral and unlikely to have an adverse effect on businesses.

Rights to request flexible hours to accommodate school times, regular part-time work with guaranteed hours, on a job-share basis if necessary, and where appropriate, working from home are also extremely important. This is especially so for employees returning from parental leave after working in a full time position.

Where employees returning to work from parental leave request such entitlements, it should be an express ground of discrimination under the SDA for the employer to fail to reasonably accommodate the request. The focus of the inquiry should not be whether the employer had sound business reasons to refuse the request or how reasonable it was to require the employer to meet the condition but rather how reasonable it is to make alternative arrangements (contra: State of Victoria v Schou29). Although business needs are to be considered also, employers must be challenged to be flexible in their thinking about workplace arrangements and be prepared to test any proposal to see whether it is workable.

Another hurdle faced by parents returning to work is the loss of skills or failure to maintain and adapt their skills required for the job. Employers should therefore be encouraged to offer opportunities for re-training after an extended period of leave. The government should also provide assistance for further education.

The federal government also has an important role in encouraging parental participation through setting social security and taxation that better supports families with two part-time incomes. At present, low marginal tax rates and benefits for sole-income families discourage the lower-income partner (predominantly women) from combining carer responsibilities with part-time work and the higher-income partner from switching to a part-time position. To enable parents to fully participate in the workplace, it is imperative that childcare expenses are made fully tax deductible.

The federal government should also take greater responsibility for providing improved assistance to families to access affordable child-care and itself offering formal childcare at affordable prices to allow parents to better balance paid work.

Finally, raising awareness of the rights of employees and obligations of employers is vital to ensuring government policies; legislative requirements and workplace entitlements are complied with. Small business employers without human resources or legal advisors should be particularly advised and guided on these matters.

Q38: How important are workplace cultures, as opposed to workplace structures, as a deterrent to men’s more active engagement with their family responsibilities and more equitable sharing between men and women of unpaid work in the home?

Workplace cultures are an important deterrent to men taking up their entitlements regarding family responsibilities. Research has shown that while working mothers tend to be good at establishing their own networks, working fathers may need some encouragement to start using available policies and to talk about any conflicting demands. Levine and Pittinsky30 found that many fathers were too scared to admit why they wanted some time off work if it was to do with looking after their child. They often feel that it might be too risky to use some of the benefits that are available (for example, reduced hours) and are concerned that their job security, career progression and/or workplace relationships could be jeopardized as a result.31 This was despite the fact that in a number of cases, their fear was ill founded, showing the negative effects of the perceived workplace culture. Other men would automatically expect their partner to look after their child because they thought her boss would be more understanding than his. The combination of management culture and peer culture re-affirms the attitude that work entitlements for family responsibilities are not legitimately a man’s claim.

On a positive note, research also suggests that those workplaces that are family-friendly develop a culture that treats the family responsibilities of employees as legitimate and deserving of respect.32

Q39: How can workplace cultures be encouraged to change to promote a better balance between paid work and family responsibilities?

Changing workplace culture is not as simple as changing structures; and will often take time. Nor is there any blueprint for what constitutes “family-friendly”, as that will clearly vary from workplace to workplace.

Organizations however can start by explaining to all employees that family-friendly policies apply to working fathers and are not ‘for women only’. Active support by senior organisational leaders for father-friendly programs is crucial and senior managers should act as role models by using family-friendly measures themselves. How the workplace culture gets "played out" for the individual employee often depends on the values and attitudes of the direct supervisor. These managers should be encouraged to change their attitudes to work performance and value the output of workers rather than the number of hours they spend at work. While most managers agree with this principle, it is often a challenge to ensure the principle operates in practice.33

Educating and supporting the workplace through seminars and discussion forums of the importance of taking up family responsibilities are also important in changing existing male attitudes of prioritizing work over family.

Cultural change will be effected when work-family issues are brought into the mainstream and are not seen as being only for the benefit of women with young children. Employers and society generally also need to recognise the importance of work-life issues more broadly. That is, that there are other aspects of people’s lives, including volunteer work or community involvement that also place legitimate demands on employee’s time. Recognition of more than just traditional family commitments also reduces the scope for employees without young children to feel resentment that they are the ones who are required to work long hours in the workplace to accommodate the needs of those who have access to part-time work and arrangements such as working from home.

Endnotes

  • [1]* Special thanks to Melbourne University Law student Rohina Curtis for her assistance in the preparation of this submission.

    The Job Watch advice service has 11 incoming phone lines, including a designated 1800 telephone number which prioritises calls from rural and remote areas of Victoria.
  • [2] In 2004/05 56.3% of our calls were from women. This figure is consistent with previous years.
  • [3] Section 14
  • [4] S ections 13, 14 and 15.
  • [5] For examples of settlements reached s ee HREOC’s conciliation register of complaints under the Sex Discrimination Act conciliated and finalised in the period of 1 July 2004 – 31 December 2004 www.humanrights.gov.au
  • [6] (1998) 92-910
  • [7] Equal Opportunity tribunal of Western Australia (2000) EOC 93-069 ( 7 January 2000),
  • [8] [2003] FMCA 209
  • [9] [2002] FMCA 122
  • [10] [2000] FCA 1390 ( 11 October 2000)
  • [11] (2002) FMCA31
  • [12] For example Glenda Beecher, “Post Natal Directions – Women Returning from Maternity Leave” Carter Roth Employment & Industrial Relations Master Class – Melbourne 22 July 2004
  • [13] [2003] FMCA 584 ( 15 December 2003)
  • [14] Sections 7A; 14(1); 14(2)
  • [15] Pages 83-85.
  • [16] Section 4 of the EOA defines a "carer" as a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis.
  • [17] Human Rights and Equal Opportunity Commission Act 1986 (Cth) section 11
  • [18] Telephone enquiry to HREOC Complaint Line 1300 656 419 on 30 August 2005.
  • [19] Section 3(i) WRA
  • [20] Section 3(j) WRA
  • [21] Schedule 1A, Pt 2, Schedule 14.
  • [22] Family Provisions Case - Full Bench of the Australian Industrial Relations Commission - AIRC Print PR082005 (8 August 2005)
  • [23] Despite the frequency with which women are not provided with the same position on return from maternity leave we were unable to find any reports of prosecutions for breaches of the current provisions undertaken by the Department of Employment and Workplace Relations.
  • [24] Parliament of Australia, Prime Ministerial Statement: Workplace Relations – 26 May 2005
  • [25] Thirty-four percent of women under enterprise agreements in 2000-1 had access to about 7 weeks paid maternity leave. - HREOC, Valuing Parenthood: Options for paid maternity leave: Interim paper 2002, HREOC, 2002, at par. 3.3.3.
  • [26] Section 93A of the WRA requires the Australian Industrial Relations Commission to take account of this convention .
  • [27] Union membership in August 2004 was 22.7% overall. Union membership in the private sector was 17.4%: ABS Employee earnings, benefits and trade union membership, Australia, August 2004, 6310.0
  • [28] Job Watch submission to HREOC’s Valuing Parenthood: Options for paid maternity leave: Interim paper 2002
  • [29] [2004] VSCA 71
  • [30] Levine, J., & Pittinsky, T. (1997). Working fathers" New strategies for balancing work and family. Reading, MA: Addison Wesley.
  • [31] See Judiesch, M., & Lyness, K. (1999). Left behind? The impact of leaves of absence on managers' career success. Academy of Management Journal, 42, 641-651.
  • [32] Bond, James et al. (1998) The 1997 National Study of the Changing Workforce. New York: Families and Work Institute. Balancing work and family, July 05,2005, pages 103 to 110 http://www.workandfamilybalance.com/downloads/duxburyreports/taskforcereport/needformore.htm at 15 July 2005
  • [33] Father-friendly workplaces http://www.workplace.gov.au/workplace/Category/SchemesInitiatives/WorkFamily/Fatherfriendlyworkplaces.htm at 15 July 2005