ࡱ> WYX!` <5bjbj\\ .B>><-PPPPPPPZ"Z"Z"Z" f"$ *""""""""*******$~+h-*7*P#""##7*PP""L*$$$#P"P"*$#*$$PP$"" 0̄Z"#:$*b*0*$.9$d.$$*.P)@"0""$"#"""7*7*$ """*####  dT6PPPPPP Dear Commissioner Innes I enjoyed meeting you after the Public Forum on 26 September and thank you for inviting me to provide you with a submission in relation to discriminatory provisions in the (post-Work Choices) Workplace Relations Act 1996 (Cth) (WR Act). I hope the issues I set out below assist HREOC in its "Same-Sex: Same Entitlements" inquiry. [Details removed] Australian Fair Pay and Conditions Standard Part 7 of the WR Act sets out the new key minimum entitlements of employment in relation to wages, hours of work, annual leave, personal leave and parental leave. Those minimum entitlements constitute the Australian Fair Pay and Conditions Standard (AFPCS) and cannot be excluded from an individually or collectively negotiated workplace agreement. The AFPCS therefore provides an important safety net for employees (albeit a somewhat threadbare one!). However, in practice it also represents a ceiling, to the extent that there is little incentive (and certainly no obligation) for employers to offer anything above that which is contained in the AFPCS. It is therefore crucial that the AFPCS is free of provisions that are in substance or effect discriminatory in relation to employees in same-sex relationships. It is highly likely that most new workplace agreements are going to contain provisions which are identical to those set out in the AFPCS. This is problematic because the AFPCS discriminates against employees in same-sex relationships. Parental Leave Section 282 of the WR Act limits the "Guarantee of paternity leave" to male employees after his spouse gives birth. HREOC's discussion paper identified that "this would seem to exclude female partners of women giving birth to children". It most certainly does. If a lesbian couple has a child (which many lesbian couples do) the birth mother will be entitled to maternity leave, but the non-birth mother will not be entitled to "paternity" leave. Another consequence of this provision is the denial of paternity leave to a male partner of a gay male who fathers a child, even where the gay male couple are the primary care givers of the child. These constitute direct forms of discrimination and are at odds with one of the stated principal objectives of the WR Act, which is to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of sexual preference (and other grounds) (s3). Such discrimination could be very easily rectified by amending section 282 (and the provisions following it) to provide a "Guarantee of partner leave". Several progressive employers already have policies which contain inclusive parental leave entitlements, which could be referred to when drafting a new non-discriminatory AFPCS provision of this kind. For an example, see the publicly available University of Melbourne Personnel Policy and Procedures Manual (which can be accessed online). Personal Leave The entitlement to "personal leave" contained in the AFPCS covers sick leave, paid/unpaid carer's leave, and compassionate leave. Put simply, employees are entitled to carer's leave and compassionate leave in order to care for/spend time with members of their "immediate family" or "household" who are sick or suffering from a life threatening illness or injury, respectively. Employees are also entitled to compassionate leave after the death of a member of their immediate family or household. (See Division 5 of Part 7 of the WR Act) In section 240 of the WR Act, "immediate family" is relevantly defined to include an employee's "spouse", as well as the family members of an employee's spouse. A "spouse" is defined to include a former spouse, a de facto spouse, and a former de facto spouse. "De facto spouse" is defined to mean a person of the opposite sex to the employee who lives with the employee as the employee's husband or wife on a genuine domestic basis although not legally married to the employee. This definition of "de facto spouse" is unnecessarily exclusive. Although employees in same-sex relationships would still be entitled to personal leave in relation to the sickness or death of a partner (as a partner would most probably be a member of the employee's "household"), being excluded from the definition of "immediate family" is extremely insulting and hurtful. A same sex life partner is more than a housemate. Same-sex de facto relationships should be afforded the same respect and status as heterosexual de facto relationships and not relegated to the non-descript "household" category. Further, exclusion from the definition of "de facto spouse" means that personal leave does not apply to an employee in relation to the sickness or death of a former same-sex partner (whereas it does apply to an employee in relation to the sickness or death of a former heterosexual partner). Nor would it apply in relation to the sickness or death of an employee's same-sex partner's family member (whereas it does apply to an employee in relation to the sickness or death or an employee's heterosexual partner's family member). Imagine being denied compassionate leave when your partner's parent has just died. Many employers may exercise discretion to grant leave in such circumstances; however, an entitlement like this is too important to leave to discretion. And not all employers exercise discretion in positive ways. In order to remedy such discrimination and insult, the definition of "de facto spouse" should be amended to include a same-sex partner who lives with the employee on a genuine domestic basis. Alternatively, "de facto spouse" could be replaced altogether with a gender neutral term such as "domestic partner". Industrial Awards made by the Australian Industrial Relations Commission (AIRC) Part 10 of the WR Act sets out what can and cannot be included in Awards. Within this Part, section 517 stipulates that Awards may not include terms involving discrimination in breach of the "freedom of association" provisions of the WR Act (ie, prohibiting discrimination on the ground of non-union membership etc.) However, the Part does not prohibit the inclusion of terms involving discrimination on the ground of sexual preference (or any other ground for that matter). This is a significant omission and is a post-Work Choices development. Sub-paragraph 143(IC)(f) of the pre-Work Choices WR Act did contain a prohibition on Awards containing provisions that discriminate against employees because of, or for reasons including, sexual preference (and various other grounds). I cannot see any equivalent provision in the post-Work Choices WR Act. Section 104(b) of the new WR Act does provide that, in the performance of its functions, the AIRC must take into account the need to prevent and eliminate discrimination because of, or for reasons including, sexual preference (and various other grounds). However, this does not amount to a prohibition on Awards containing discriminatory provisions. A specific prohibition of the same kind as contained in the old s143(IC)(f) needs to be inserted into the new WR Act. The absence of a prohibition on discriminatory provisions poses a very real risk of discriminatory provisions in existing Awards being permitted to continue to operate. This is because section 527 of the WR Act provides that certain "preserved Award terms" may continue to operate, despite those terms being otherwise non-allowable. The list of such terms include those dealing with parental leave and personal/carer's leave. Many, if not all, existing Awards contain discriminatory/exclusive provisions relating to parental leave and personal/carer's leave (in the same ways as outlined above with respect to the corresponding provisions in the AFPCS). These Awards were made by the AIRC despite s143(IC)(f) being in operation at the time those Awards were made. The inclusion of such provisions was largely attributable to the corresponding model clauses in the "Award template" on the AIRC website being discriminatory and/or exclusive in substance. This is of great concern. The AIRC clearly did not view these provisions as discriminatory. And, notwithstanding the discriminatory terms of the provisions, neither employers nor unions appear to have had sufficient reason to depart from them, as they were, after all, the "model clauses". Failing to remedy such discrimination will serve to perpetuate it and indeed continue to legitimise it. Discriminatory provisions could be carved out of the list of "preserved Award terms" and replaced with non-discriminatory AFPCS provisions (see above) plus any more favourable or extra entitlements that the original discriminatory provisions contained. For example, a provision in an Award containing an entitlement to paid paternity leave should be replaced with a basic AFPCS provision for "partner leave" (or similar) but with pay. Alternatively, discriminatory provisions could continue to be "preserved Award terms" but only to the extent that they contain more favourable terms than the AFPCS provision. Any wording that is discriminatory should be replaced by the corresponding wording in the (new) AFPCS provision. This may be the way to go in relation to discriminatory personal leave provisions, which really only require definitional amendments. Workplace Agreements made under the WR Act Part 8 of the WR Act sets out what can and cannot be included in Workplace Agreements. Workplace Agreements include individual Australian workplace agreements; collective agreements; greenfields agreements; and multiple-business agreements. Workplace Agreements are intended to form the foundation of employment relationships. Part 8 provides that employers must not lodge Workplace Agreements which contain "prohibited content", and that Workplace Agreements are void to the extent that they contain any prohibited content. Regulation 8.6 of the Workplace Relations Regulations 2006 (Cth) stipulates that a term of a Workplace Agreement is prohibited content to the extent that it discriminates against an employee, who is bound by the agreement, because of, or for reasons including, sexual preference (and various other grounds). Notwithstanding this clear prohibition on discriminatory terms, it is highly likely that most, if not all, new Workplace Agreements are going to contain discriminatory parental leave and personal leave provisions, if the provisions contained in the AFPCS are not amended to be non-discriminatory. This is because, as explained above, the AFPCS constitute the new key minimum entitlements of employment and cannot be excluded from Workplace Agreements (unless the Workplace Agreement provides more favourable terms). It is therefore crucial that the terms of the AFPCS be amended to be non-discriminatory. The Employment Advocate must then be directed to vary any existing Workplace Agreement that contains discriminatory (and therefore prohibited) content. Alternatively, the WR Act could be amended to provide that where a Workplace Agreement contains a discriminatory parental leave or personal leave provision, the corresponding (new) non-discriminatory AFPCS provision must be substituted in its place (save for any more favourable terms contained in the original provision). Once again, I thank you for giving me the opportunity to raise these issues. Please feel free to contact me if you have any queries. Regards Catherine Roberts (Industrial Relations and Employment Lawyer) [Contact details removed]   j { ~ $O"b !!""'"."/#:###,,,,. /33444556595:5;5<5 hah}jhahhUhahh0Jhahh5\hahh6>*]hahh5>*\ha hhhhahh6] hahhB h j | ~ h j RTgi,.gdh<5(*`b " "##%%''(gdh((1)3)**,,,,--. ...00 22h2j233I4K44444gdh44557595;5<5gdh,1h. 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