ࡱ> U@ bjbj 4( 4 lllhԇT r4pl$fhhhhhh$RM> ٢֍"٢٢B p٢^  f٢f.  l7FF@0}   \ H\D9*Dn$  DIHT$3(  HT THE EQUAL OPPORTUNITY COMMISSION VICTORIAS RESPONSE TO THE FEDERAL HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSIONS STRIKING THE BALANCE: WOMEN, MEN, WORK AND FAMILY DISCUSSION PAPER 2005 CONTENTS Introduction 1.1 An era of change 1.2 Themes Barriers to balancing paid work and the rest of life Do informal workplace policies work well? What does anti discrimination law at a state and federal level provide as a response to work/life balance? The law at a Federal level The Sex Discrimination Act 1984 (Cth) Kelly v TPG Internet Pty Ltd Should the Sex Discrimination Act be amended? Why do men with family responsibilities not make more use of the family responsibilities provisions of the Sex Discrimination Act? The law in Victoria The Equal Opportunity Act 1995 (Vic) Abandoning the proportionality test in the Equal Opportunity Act Reversing the onus of proof in the reasonableness test What does the current industrial relations regime provide regarding work/life balance? Family Provisions Test Case Right to request models The UK Germany Are amendments to the workplace relations system needed? Federal right to request Proposed Federal industrial relations reform Non legislative responses Can an individual complaints mechanism adequately deal with discrimination on the basis of family responsibilities? How can workplace cultures be encouraged to promote a better balance between paid work and family responsibilities? Broadening the debate What else does the HREOC need to know in its consideration of work/life issues? Conclusion 1. Introduction 1.1 An era of change Australia is in an era of enormous change and transition. Australians are living longer and therefore more likely to have a significant disability as they age. Communities, families and gender roles are changing. Womens increased workforce participation means a greater proportion of people are employed. People work many more hours than previously would have been the norm. Work commitments are increasingly invasive in the lives of Australian men and women. The land of the long weekend is a myth. Australians work an average 212 hours or 5 weeks a year more than the developed world average. These changes mean that many employees are forced to grapple with the challenge of integrating paid work with their personal lives. The Equal Opportunity Commission Victoria (EOCV) welcomes the Striking the Balance: Women, Men Work and Family Discussion Paper, recently produced by the Federal Sex Discrimination Commissioner, Pru Goward. It provides timely scrutiny of the increasingly pressing question about how to balance our work and private lives. The EOCV is taking the opportunity to offer its own insights in response to the paper. 1.2 Themes This paper seeks to address five themes. The first theme discusses the cultural barriers that restrict peoples ability to integrate work with their private lives and how family friendly workplace policies are limited in their capacity to assist employees to balance their work and family responsibilities. The second theme addressed is the question of what anti discrimination law provides as a response to work/life balance at a State and Federal level. The third theme that the paper explores is the current industrial relations regimes response to work/life balance. The Family Provisions Test decision recently handed down by the Australian Industrial Relations Commission represents positive gains that could be reversed by proposed Federal industrial relations reforms. Several overseas jurisdictions provide examples of how other countries have attempted to address balancing work and private life through industrial reform, with promising outcomes. These developments may provide guidance concerning how Australia may address the issue at a Federal level in the future. The next theme addresses the need for non legislative responses, as the current construct of complaint handling processes and anti-discrimination systems may not be well equipped to assist men and women better balance their paid work and personal needs. These issues may be systemic in nature and thus not amenable to individual redress. A final theme addressed is broadening the debate about how to balance work and private life to include workers balancing their employment with personal needs in addition to those with parenting and caring obligations. 2. Barriers to balancing paid work and the rest of life Current anti-discrimination laws and ad-hoc workplace flexibility policies have not fundamentally changed workplace cultures, practices, organisational structures or assumptions about how a competent or committed employee may be defined. The definition of commitment in workplaces is often centred on an ideal worker for whom time to spend at work is limitless and personal or family needs are secondary. This does not support a reality of women and men requiring a balance between work and personal life. Without these ideas being challenged within our workplaces, integrating paid work and the rest of life will remain unachievable for many employees. 2.1 Do informal workplace policies work well to assist employees to balance their paid work with their family responsibilities? Family Friendly policies designed to enhance the capacity of employees to balance work with their parental or carer responsibilities are increasingly being promoted by employers. Family friendly measures include flexible work hours, parental leave to care for sick children, telecommuting, part time work and job sharing. Parents and carers can sometimes access these measures in the public sector and some larger companies. Implementing flexibility to accommodate the needs of employees lowers absenteeism and employee turnover and increases workers physical and mental health. Workplace policies alone, however, assist a minority of employees to balance their paid work and private lives and few Australian workplaces implement such practices. The EOC applauds individual businesses that undertake measures to achieve flexible work practices. In spite of the laudable provisions made by individual businesses to facilitate flexible work, however, these steps do not represent a social shift towards embracing a balance between work and personal needs. The highly publicised flexible measures that have been adopted by a minority of workplaces often conceal unfriendly changes that many work places implement; longer hours of work, increased insecurity, increased casualisation of work and corresponding deprivation of basic employment rights. Casual employees are often denied access to family friendly measures and frequently miss out on basic entitlements like paid sick leave or annual leave. Given that 31.9 percent of casual employees are women, many of whom have family or carer responsibilities, this suggests that workplaces need to reassess the eligibility of casual employees to utilise family friendly measures. Family friendly measures can be restrictive in scope and fail to accommodate the needs of those with caring responsibilities outside of the traditional nuclear family, for example, the needs of older employees and employees with disabilities. Focussing on implementing quick fix policies can gloss over the need for a deeper assessment of entrenched assumptions and practices that impede a sustainable balance of paid work and personal life.  Work-life policies that are ill-informed (that are not based on genuine needs of workers with personal needs), can neglect systemic societal, economic and cultural constraints affecting peoples choices. In addition, due to our culture of long work hours, uptake of the measures is also limited. People may be deterred from requesting flexibility in the context of workplace norms and expectations valuing paid work above other indicators of success or productivity. Fundamental change through comprehensive educative initiatives directed at all levels of employment, is required in order to challenge cultural assumptions of what constitutes an ideal worker. Recommendation 1 The EOCV recognises that fundamental change through comprehensive educative initiatives directed at all levels of employment, are required in order to challenge cultural assumptions of what constitutes an ideal worker. What does anti discrimination law at a state and federal level provide as a response to work/life balance? 3.1 The law at a Federal level 3.1.1 The Sex Discrimination Act 1984 (Cth) In relation to a work/life balance, the law at a Federal level provides protection from discrimination on the basis of family responsibilities, pregnancy and sex. These attributes are contained in the Sex Discrimination Act 1984 (Cth) (SDA). The family responsibilities provisions do not protect people from indirect discrimination, whereas the pregnancy and sex discrimination provisions make direct and indirect discrimination unlawful. Under Section 7A of the SDA, an employer discriminates against an employee on the ground of the employee's family responsibilities if: the employer treats the employee less favourably than the employer treats, or would treat, a person without family responsibilities in circumstances that are the same or not materially different; and (b) the less favourable treatment is by reason of: (i) the family responsibilities of the employee; or (ii) a characteristic that appertains generally to persons with family responsibilities; or (iii) a characteristic that is generally imputed to persons with family responsibilities. Under Section 14(3A), it is unlawful for an employer to discriminate against an employee on the ground of the employee's family responsibilities by dismissing the employee. The pregnancy and sex discrimination provisions are far broader than the family responsibilities provision of the SDA. Section 7 of the SDA protects people from direct or indirect discrimination on the ground of pregnancy or potential pregnancy. Under Section 7(1), a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if, because of: (a) the aggrieved woman's pregnancy or potential pregnancy; or (b) a characteristic that appertains generally to women who are pregnant or potentially pregnant; or (c) a characteristic that is generally imputed to women who are pregnant or potentially pregnant; the discriminator treats the aggrieved woman less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat someone who is not pregnant or potentially pregnant. (2) For the purposes of this Act, a person (the discriminator) discriminates against a woman (the aggrieved woman) on the ground of the aggrieved woman's pregnancy or potential pregnancy if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging women who are also pregnant or potentially pregnant. Section 5(1) of the SDA prohibits direct or indirect sex discrimination, where a person discriminates against another person on the ground of the sex of the aggrieved person if, by reason of: (a)the sex of the aggrieved person; (b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or (c) a characteristic that is generally imputed to persons of the sex of the aggrieved person. (2) For the purposes of this Act, a person discriminates against another person on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person. A recent case has highlighted some limitations of the family responsibilities provisions of SDA in addressing discrimination, compared with the pregnancy and sex discrimination provisions. 3.1.2 Kelly v TPG Internet Pty Ltd Facts On 15 December 2003, the Federal Magistrates Court of Australia passed judgement in the matter of Kelly v TPG Internet Pty Ltd [2003]. The complainant, a Corporate Billing Supervisor, was offered a permanent promotion to a managerial position and later notified her manager that she was pregnant. The manager amended the offer to an acting role. The complainant went on maternity leave. When she sought to return to work, the complainant requested a part time role and for her salary to remain at the same level that it was when she performed her acting role. The employer stated that it could only offer non full time roles at the pay rate of her former role as Supervisor. The court upheld the complaint of pregnancy discrimination and rejected the complaint of discrimination on the basis of family responsibilities. The Federal Magistrates Courts judgement The complainant abandoned her claim to the managerial position because the position was a full time role. The employers failure to facilitate part time work also did not constitute constructive dismissal because her employer did not treat her employment as being at an end. Instead, her employer simply refused to vary the contract to permit part time work. The SDA makes it unlawful for employers to impose a condition on employees that is discriminatory, but the condition being imposed has to relate to an existing situation between the parties. As the existing situation was one of full time employment, without part time options available, refusal to amend the contract was not discriminatory. Instead, the employers refusal to provide part time work amounted to a denial of a benefit. The EOCVs view This case demonstrates that the SDA only permits courts to consider dismissal (including constructive dismissal), due to family responsibilities rather than extending to other forms of direct or indirect discrimination. Only an existing condition being imposed on an employee with family responsibilities by an employer can be challenged under the SDA. In addition, the SDA does not make any reference to future or proposed discrimination. As a consequence, proposed discrimination may not be rendered unlawful by the SDA. In contrast, the pregnancy and sex discrimination provisions operate far more expansively, as outlined above. 3.1.3 Should the Sex Discrimination Act be amended to give greater assistance to men and women to address any workplace disadvantage that they may face on the basis of their family responsibilities? The Commission would favour reforming the SDA to give greater assistance to women and men to address discrimination they may face within their employment, noting that any change to the SDA could only occur to the extent possible under the Commonwealth Constitution and relevant heads of power. It may not be feasible to make significant amendments to the SDAs family responsibilities provisions because the Federal government is constrained by the Commonwealth Constitution regarding the areas that it is empowered to make laws about. As the Striking the Balance discussion paper notes, the family responsibilities provisions were inserted into the SDA to give effect to provisions of an International Labour Organisation Convention that Australia has ratified.  The Convention Concerning Equal Opportunities and Equal Treatment for Men and Women Worker: Workers with Family Responsibilities (ILO 156) seeks to ensure that family responsibilities shall not constitute a valid reason for termination of employment. As the Convention does not expressly address other forms of direct discrimination, indirect discrimination in employment or future discrimination it may not be possible to extend the family responsibilities provisions to cover such areas. These changes may be beyond the Federal governments external affairs power set out in section 51(xxix) of the Commonwealth Constitution. The EOCV would support amendment of the SDAs family responsibilities provisions to cover instances of direct or indirect discrimination and proposed discrimination, provided it is constitutionally possible to do so. Recommendation 2 The EOCV recommends that SDAs family responsibilities provision be amended to cover instances of direct or indirect discrimination and future discrimination, to the extent possible under the Commonwealth Constitution. 3.1.4 Why do men with family responsibilities not make more use of the family responsibilities provisions of the Sex Discrimination Act? The EOCV notes that the Striking the Balance discussion paper raises the issue of men being restricted from accessing the family responsibilities provisions in the SDA. Men are limited in their ability to lodge complaints of discrimination on the basis of family responsibilities as they are not able to argue as women have that as a sex they are more likely to bear caring or parenting obligations. The EOCV agrees that this may entrench the practice of delegating domestic duties to women rather than enhancing equality of opportunity. The EOCV would, therefore, support reform of the SDA, in order to allow men to have equal access to its family responsibilities provisions. It, may, however, be difficult to implement such a change within the SDA because the Commonwealth may not constitutionally be able to do so. The objects section, Section 3A of  HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/" the SDA indicates that the SDA has been implemented in order: (a) to give effect to certain provisions of the Convention on the Elimination of All Forms of Discrimination Against Women. (CEDAW) Given that CEDAW specifically requires governments to address eliminating discrimination against women, it may not be constitutional for the government to exercise its external affairs power to amend the law to grant men equal access to the family responsibilities provisions. Men are only covered by the SDA to the extent that other Federal heads of power contained in Section 51 of the Commonwealth Constitution permit it. If the SDA could validly be amended to reflect that both men and women with caring or parenting obligations have equal access to the family responsibilities provisions, the EOCV would support this. Recommendation 3 The EOCV recommends that the SDA should also reflect that both men and women with caring or parenting obligations have equal access to the family responsibilities provisions, to the extent possible under the Commonwealth Constitution. It is due to the possible constitutional problems associated with amending the SDA, the Federal government could instead consider implementing a flexible work scheme, accessible to both men and women, through industrial relations legislation. A right to request an employer to accommodate the need for parents to have flexible conditions of work has been implemented in other jurisdictions overseas. A Federal right to request is addressed in detail in Part 4. 3.2 The law in Victoria 3.2.1 The Equal Opportunity Act 1995 (Vic) In the context of the issue of work/life balance, the Equal Opportunity Act 1995 (Vic) (EOA) prohibits discrimination on the basis of parental or carer status, pregnancy or breastfeeding in employment. Accordingly, a person alleging discrimination in employment would have to demonstrate that they have been subjected either to direct or indirect discrimination on the basis of their attribute. Most complaints of discrimination on the basis of parental or carer status, pregnancy or breastfeeding relate to instances of indirect discrimination. Under s.9 of the EOA: (1) Indirect  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "discrimination" discrimination occurs if a  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "person" person imposes, or proposes to impose, a requirement, condition or practice- (a) that someone with an  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "attribute" attribute does not or cannot comply with; and (b) that a higher proportion of people without that  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "attribute" attribute, or with a different  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "attribute" attribute, do or can comply with; and (c) that is not reasonable. (2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including- the consequences of failing to comply with the requirement, condition or practice; (b) the cost of alternative requirements, conditions or practices; (c) the financial circumstances of the  HYPERLINK "http://www.austlii.edu.au/au/legis/vic/consol_act/eoa1995250/s4.html" \l "person" person imposing, or proposing to impose, the requirement, condition or practice. A recent case, State of Victoria v Deborah Schou, has highlighted that the EOA imposes a significant burden on a complainant alleging indirect discrimination to prove that a condition, requirement or practice being imposed by an employer is not reasonable. A commentary of the Schou series of decisions appears at the end of this document. The EOCVs view In contrast to other jurisdictions, complainants in Victoria must meet a very challenging burden of proving that a condition being imposed by an employer is not reasonable. The outcome of the Schou series of decisions reflects that, in the context of complex organisational structures, the idea that a complainant must demonstrate that a condition is unreasonable, is unfeasible for most complainants. __________ The EOA also requires a complainant alleging indirect discrimination to demonstrate that they cannot comply with a condition of work due to their attribute, (such as parental status) and that a higher proportion of people who do not share the attribute, for example, those who are not parents, could comply. A complainant is therefore required to apply a proportionality test. 3.2.2 Abandoning the proportionality test in the EOA The proportionality test has been criticised as placing an onerous burden on complainants. The test is also criticised as being a complex, time consuming and expensive exercise. Anti discrimination legislation in Tasmania, the Australian Capital Territory and Northern Territory do not include a proportionality test. They rely on the idea of disadvantage. Under s.8 of the Discrimination Act 1991 (ACT), a person indirectly discriminates if she or he imposes or proposes to impose a conditionthat has or is likely to have the effect of disadvantaging persons because they have an attribute. Federally, the SDA, in s.5(2) states that indirect discrimination is a condition that has or is likely to have the effect of disadvantaging persons of the same sex as the aggrieved person. In responding to the Victorian Attorney Generals May 2004 Justice Statement commitment to find more proactive and creative measures to address systemic discrimination, the EOCV is pursuing legislative reform of the EOA. The EOCV is advocating for the proportionality test in Section 9 of the EOA being abandoned. 3.2.3 Reversing the onus of proof in the reasonableness test The EOC also supports reversing the onus of proof in relation to Section 9 of the EOA. The onus of proof should be reversed so that respondent employers would have to prove that the condition that they are seeking to impose is reasonable. Some situations may require assessment regarding whether there is a sufficient reason for a requirement to exist or to operate in a specific way. Such enquiry may not be possible when a complainant has the burden of proving that a condition is reasonable. Imposing the burden of proof on the complainant may be unjust because complainants often lack access to information, in order to assess whether a condition is reasonable. In contrast, respondents usually possess the resources and information necessary to make such an assessment. Arguably, respondent employers are better equipped than complainants to justify the imposition of a requirement in the workplace. Employers are more likely than employees to understand the needs and demands on businesses. Reversing the onus of proof would not be a radical step, considering that the SDA and Age Discrimination Act 2004 (Cth) presently impose the burden of proof on respondents. The EOCV supports the onus of proof in indirect discrimination cases being reversed. What does the current industrial relations regime provide regarding work/life balance? 4.1 Family Provisions Test Case The EOCV notes that the decision of the Australian Industrial Relations Commission (AIRC) has introduced welcome reforms as part of a federal award provision in the Family Provisions Test Case on 8 August 2005. Employees under certain federal awards will have a right to request part-time work upon return from parental leave until the child reaches school age. The AIRC has ruled that parents will have a right to request an extension of unpaid parental leave from 12 months to two years. Employees have also been granted the right to request increased simultaneous unpaid parental leave of up to eight weeks. The provision is modelled upon the UK's Employment Act 1996 which creates a right to request a change in working conditions but imposes a duty upon employers not to unreasonably refuse any such request. Employers may only refuse a parental leave request on reasonable grounds, such as the effect on the workplace or the employer's business, costs, lack of adequate replacement staff, loss of efficiency and impact upon customer service. This may be objectively tested if employers have to consider certain criteria when assessing the needs of their employees and deciding whether to accept or refuse a request. Other changes that the AIRC accepted include new communication obligations for employers and employees during parental leave as well as emergency carers and bereavement leave for casual workers of up to 48 hours. While the decision specifically applies to the awards named in the case, unions will be able to rely on this test case to apply for the introduction of the new provisions in other Federal awards. The EOCV welcomes this decision as a step forward and applauds moves to enhance the capacity of parents and carers to have access to flexible work practices. It notes that the decision is a cautious one as the AIRC has rejected the majority of the other claims brought before it. These claims included allowing workers to change their hours, days of work and meal breaks to suit their parenting or caring needs and buy a six extra weeks of unpaid leave in a year through a lower salary. Additionally, the initiatives protect only employees covered by federal awards. An estimated 350,000 Victorians are covered by Federal awards. The EOCV would favour an expansion of this limited right to all employees. The capacity of a larger proportion of working parents and carers to access flexible conditions of work may be possible through Federal enactment of a right to request. Several overseas jurisdictions provide positive examples of attempts to address balancing work and private life through legislative enactment of a right to request. These developments may provide guidance concerning an appropriate model that the Federal government could enact in the future. 4.2 Right to request models 4.2.1 The UK The United Kingdom has amended its Employment Act 2002 (EA) as a means of allowing parents, including natural parents, adoptive parents, guardians and foster parents to have access to flexible work conditions. Employees have had a statutory right to apply to their employer for a change in the terms and conditions of employment, to enable them to care for their children since April 2003. Employees are encouraged to consider a range of options to facilitate juggling parental and employment obligations including temporary reductions in working hours, flexitime and compressing the working week. Employers have a legal duty to consider such applications. Employers have a wide range of grounds to refuse an application. Specifically, employers may claim that there is a burden of additional costs, a detrimental effect on the ability to meet customer demand, inability to re-organise work amongst existing staff, a detrimental impact on quality or performance or insufficiency of work during the period the employee proposes to work and planned structural changes. The EA also sets out how an employee may appeal to their employers in the case of a request being rejected. The Act also provides that an employee may complain to the relevant tribunal if an employers decision to reject the application was based on incorrect facts. It does not provide alternative grounds for appeal of a decision to reject an application, for example, that the requirement being imposed is unreasonable. The decision of an employer is not subject to review. A failing of the UK model is that it places an obligation on employees to assess the feasibility of a mooted variation of the employment contract. A grant of variation is often reliant on a workers capacity to negotiate cost effective proposals. A statutory right to apply is presently limited to parents of children without disabilities aged under six and parents of disabled children, aged less than 18, although the right may later be extended to include carers of sick and disabled relatives and parents of older children. Access to a right to apply for flexible work is also limited to employees who have been working for at least 26 weeks with an employer and are still employed. Despite the UK models limitations, since its introduction many employees have utilised the process. In report entitled Individual Working Time Rights in Germany and the UK; How a Little Law Can Go a Long Way, Ariane Hegewisch states that in its first year, about 900,000 employees with children under 6 years of age made a request for flexible work arrangements. Nearly 800,000 requests within this group were either fully or partially accepted. Further, in spite of the narrow group initially eligible to possess a statutory right, other employees outside the group targeted by the legislation have also successfully made informal requests for flexible work. This may be indicative of a generally improving capacity for dialogue between workers and employers in the UK and a very low unemployment rate. The UK law was also reformed with the approval and involvement of industry, demonstrating that such law reform within Australia will have a greater chance of success if employment groups such as unions, volunteer groups and peak employment organisations are encouraged to participate. The UKs right to request reveals that, even a limited statutory right to apply for flexible conditions of work can yield dramatic results.  4.2.2 Germany The EOCV notes that in 2001, the German government also introduced a statutory right to request a reduction in hours of employment. Germanys government introduced a Part-time and Fixed Term Employment Law that provides workers in businesses hiring more than 15 employees a right to request a reduction in their contracted hours of work. This right applies broadly to all employees with a minimum of six months of service. Those seeking to work reduced hours do not need to provide a reason. Employers must permit reduced hours unless they can demonstrate that they are refusing to implement the change due to business or organisational reasons that substantially influence the organisation of work or imposing disproportionate costs. The law does not define the types of reasons that could apply or when costs are disproportionate. Collective agreements between employers and trade unions are encouraged to be more specific. In addition, parents (men and women) have a right to request a temporary reduction to hours of work to between 15 30 hours each week, to last for up to three years (the extent of statutory parental leave).  Surveys revealed that, although the initial uptake of the new policy was less than in the UK, its introduction has been successful. In the first year after the law was effective, 84,000 applications to reduce working hours were made, of which 78% were made by women. Only 5% were rejected and 80,000 resulted in reductions to work hours.  The implementation of a statutory right in Germany and the UK demonstrates that a right to request can be highly successful, particularly when considering the number of positive outcomes of requests in the UK. 4.3 Are amendments to the workplace relations system needed to give greater assistance to men and women to address any workplace disadvantage that they may face on the basis of their family responsibilities? 4.3.1 A Federal Right to Request As noted above, significant gains have been made in the Family Provisions Test Case. The EOCV supports further amendments to the industrial relations system in order to give greater assistance to employees to address disadvantage they may face at work due to their family responsibilities. Strengthening the capacity of parents and carers to access flexible conditions of work through Federal enactment of a right to request may achieve this. Establishing a Federal Right to Request Model in line with the AIRCs ruling in the Family Provisions Test Case would provide employees with a limited capacity to apply for variation of workplace arrangements. It could also encourage employers to allow flexible work practices. As a positive right, rather than an avenue of redress, a right to request would have the advantage of avoiding stigma associated with a complaints process. Further, the EOCV would favour eligibility criteria extending beyond parents and carers to those with personal needs, including employees with impairments. It recognises, however, that such expansive reform would require an ample leadin period, extensive education campaigns and consultation with employer groups, as occurred in the UK. 4.3.2 Proposed federal industrial relations reforms At this stage, it is important to acknowledge the uncertainty of any impact that the proposed reforms to be introduced by the Federal Government may have on employees ability to balance work with their personal needs. While it would be premature to speculate about the scope of any impacts the industrial relations changes may have, it is possible to reflect upon some possible effects of the known proposals. In spite of the encouraging outcome of the Family Provisions Test Case, the industrial relations changes proposed by the Federal Government may derail the initiatives. If employees, as a result of reduced bargaining power, enter into individual contracts, they may lack the capacity to retain or bargain for flexible work practices in their contracts.  In addition, the Federal Government may be unwilling to guarantee that parents will have the right to be able to access such flexible work practices in the new minimum employment conditions due to become law later this year. The known content of the proposed changes include elimination of unfair dismissal provisions for enterprises with less than 100 employees, the end of the no disadvantage test for collective and individual agreements, eroding federal awards through reducing the number allowable matters they govern and promotion of individual contracts. Awards have long provided regulation of labour in Australia, a product of joint decision making by employees, employers, employer associations, unions, governments and tribunals including the AIRC. The Industrial Relations Reform Act 1993 (Cth) has subsequently made enterprise bargaining the dominant process for determining conditions of work. Since the Workplace Relations Act 1996 (Cth) was implemented to enable individual bargaining through Australian Workplace Agreements ("AWAs), the Howard government has sought to implement a new regime based on involving employers consulting and negotiating conditions of employment with staff, without the influence of unions. AWAs can prevail over awards and EBAs and reduce conditions contained through those collectively bargained agreements. This has been subject to a no disadvantage test whereby the individually negotiated agreement could not disadvantage an employee compared with the relevant award.  The new proposals seek to remove this no disadvantage protection. In 1996, federal awards were permitted to address only 20 allowable matters in relation to conditions of work. The proposed changes envisage the number of such matters being reduced. Maternity leave may be removed. If this occurs, it will undermine the capacity of employees to negotiate access to maternity leave through collective bargaining. A survey of 500 AWAs in 2004 revealed that only 11% made any reference to either paid or unpaid maternity leave. It is unlikely that many employees will gain access to either maternity or paternity leave through an increased reliance on individual bargaining. To date, unfair dismissal laws have enabled employees to claim a review of the procedural and substantive fairness of their dismissal and seek remedies. Overturning this will remove a fetter on employers capacity to summarily dismiss employees although unlawful dismissal provisions protecting employees from dismissal on account of family responsibilities and other attributes are to be retained. The Federal government has expressed its support of achieving a work/life balance in much of its publicity surrounding the upcoming industrial relations reforms. The governments press releases regarding industrial relations indicate that it supports the introduction and implementation of family friendly policies and practices to address the needs of employees in balancing their work and family responsibilities. The Federal government could utilise the gains of the Family Provisions Test Case by making a right to request a critical part of its new industrial relations system. The EOCV would support Federal enactment of a right to request, to initially cover access to flexible work conditions for parents and carers, with the potential to be extended to employees with impairments or other personal needs in the future. Recommendation 4 The EOCV would recommend future Federal enactment of a right to request, to initially cover access to flexible work conditions for parents and carers, with the potential to be extended to employees with impairments or other personal needs. 5. Non legislative responses 5.1 Can an individual complaints mechanism adequately deal with discrimination on the basis of family responsibilities? An individual complaint handling mechanism provides important opportunities for workers to seek individual redress. It is, however, the EOCVs experience that an individual complaint mechanism may be limited in its capacity to address the issue of discrimination in employment, particularly where it is indirect or systemic in nature. When employees with parenting and caring responsibilities or other personal needs are subjected to indirect discrimination by having a condition of work imposed on them that they cannot comply with due to their parental status, they may seek to resolve their issue by lodging a complaint at the EOCV or the HREOC. Employees have the capacity under the EOA to lodge complaints at the EOCV if they believe that they have been subjected to direct or indirect discrimination in employment. Under the EOA, parental status and carer status are among 16 protected attributes. Although individuals have the capacity to lodge complaints about discrimination, most are understandably afraid of damaging their employment relationship by lodging a complaint. Existing provisions in the EOA protect complainants from victimisation arising from lodging complaints. Nevertheless, there is a significant stigma associated with doing so. It may be inappropriate to place responsibility for instigating change upon complainants who have been affected by discrimination. Further, only a small proportion of people subjected to discrimination lodge complaints. Many complainants are also unwilling to face exposure to the formality and costs associated with pursuing a complaint through legal proceedings, should conciliation be unsuccessful. An individual complaint handling process often fails to address systemic discrimination. It is not designed to achieve large-scale change or prevent repeated instances of discrimination of the same type or by the same respondent. Other approaches, both legislative and non-legislative are needed to address systemic practices that have the effect of being discriminatory. 5.2 How can workplace cultures be encouraged to promote a better balance between paid work and family responsibilities? Anti-discrimination legislation may not be able to achieve significant change in isolation. In addition, if the progress made under the Test Case is lost, broad non legislative strategies pushing employers and employees to revisit ideas about how to achieve a flexible workplace and the business case for doing so, may be crucial in redressing the balance. Commissioner Goward suggests that two forms of change may enable employees to achieve an enduring balance, attitudinal change and cultural change. Commissioner Goward notes that attitudinal change is achievable through education, through school curricula and structured community education programs. Government funding would also facilitate programs designed to enhance the capacity of both men and women to manage their lives, including their domestic duties. The EOCV supports the use of public campaigns, educating the community and employer groups about how to balance work with the rest of life. The EOCV considers that programs focussing on changing peoples attitudes alone may not achieve the goal of changing peoples behaviour. Cultural change through influencing peoples behaviour is also required. Educational programs providing practical measures directed at changing behaviour may enable workplaces to be more responsive to the need for flexibility. All educational workshops that the EOCV undertakes targeting workplaces emphasise practical methods that can be used to create flexible work environments. It is our experience that training targeting specific roles, for example, managers, is more effective than training targeting men or women in isolation from one another. EOCV training at workplaces is streamed according to executives, senior managers, contact officers and general staff. It is the EOCVs experience that training programs pitched at businesses raising the benefits of flexible work while encouraging flexibility to be implemented in a pragmatic way can be successfully received. In providing training, sessions need to be tailored to the individual workplace and the capacity of the business to accommodate flexibility. Developing an awareness of a need for a balance between work and the rest of life within workplaces through educational programs will be enhanced if it occurs in tandem with legislative change. The EOCV recommends the Federal government to extend funding to facilitate programs designed to achieve cultural and attitudinal change, enhancing the capacity of both men and women to balance their work and personal needs and enabling workplaces to be more responsive to the need for flexibility. In addition, the EOCV recommends Federal funding for programs to educate peak employer groups and individual organisations about how to balance maintaining productivity and accommodating the personal needs of their employees. In the context of educational campaigns and tailored workplace training, it is important to promote the business case for implementing flexibility in the workplace. The skilled labour shortage presently confronting the workforce is an issue that may influence employers to embrace flexibility. Recommendation 5 The EOCV recommends the Federal government extend funding to facilitate programs designed to achieve cultural and attitudinal change, enhancing the capacity of both men and women to balance their work and personal needs and enabling workplaces to be more responsive to the need for flexibility. Recommendation 6 The EOCV recommends Federal funding to programs to educate peak employer groups and individual organisations about how to balance maintaining productivity and accommodating the personal needs of their employees. 6. Broadening the debate 6.1 What else does the HREOC need to know in its consideration of work/life issues? Recent discussion about work/life balance has focussed on the difficulties facing parents and carers juggling family obligations with work. The EOCV recognises that the Sex Discrimination Commissioner operates under the SDA in producing the Striking the Balance discussion paper raising concerns about family and gender. There may, however, be merit in viewing the issue more broadly. The discussion paper is a timely document, as the challenge of balancing work and family commitments affects many parents and carers. This is reflected in a growing number of complaints and enquiries about discrimination on the basis of parental or carer status in employment that the EOCV has received since 1997. Enquiries regarding discrimination on the basis of parental or carer status in employment have more than doubled between 1997 and 30 June 2004. Actual complaints lodged increased by over 100% in this same period. Achieving a balance between work and private life is a task however, that faces a variety of groups with personal needs. The EOCV considers that groups in addition to parents and carers share a human right to have their needs reasonably accommodated and access to flexible work to be generally accessible. Similarly to working parents or carers, employees with impairments often need to access flexible conditions of work. Temporary or long term impairments significantly affect the working population. In 1998, 19 percent of the population or 3.6 million people had an impairment restricting their day to day activity. The Federal Governments push to encourage single parents and people with disabilities into the workplace through an increased emphasis on welfare to work, also calls for a corresponding willingness on the part of employers to generate more responsive work environments. This could involve implementing flexible work practices including part time work, being mindful of the need to modify work areas to accommodate impairments and providing technology to assist workers, where required. There is a growing recognition of the rights of disabled people and the need to integrate people with impairments in the community. This is accompanied by an increased proportion of people with disabilities living in households, supported by individuals and families who provide care. In 1998, 2.3 million people provided assistance to disabled people. Caring responsibilities can be very unpredictable because the period and level of care may change and demands on carers time can fluctuate. Our society faces the challenge of assisting employees to integrate their carer responsibilities with paid work. As the Striking the Balance discussion paper notes, many grandparents care for their grandchildren, giving parents increased flexibility to participate in paid work. Grandparents often have to balance caring for grandchildren with paid or voluntary work commitments.  The population in Australia is rapidly aging. Older people experience increasing rates of illness and disability, requiring their relatives to balance their working lives with caring for them. Older employees, increasingly retiring later, also face the challenge of balancing caring for themselves or their ill partners with paid work. This requires recognition of a need to continue paid work over a longer life span and flexibility to accommodate impairments that older employees may have. Discrimination on the basis of impairment constitutes the largest ground of complaint to the EOCV, (752 out of 3145 complaints in 2003-04). 555 complaints of discrimination on the basis of impairment in employment were lodged in this period. The EOCV therefore supports measures designed to promote access to flexible employment conditions and practices to cater for the varying needs of people in the community, including employees living with disabilities. In order to value and respect Australias diversity, we need to avoid viewing the challenge to balance work and private life as being an issue confined to traditional nuclear family or gender roles. For example, for some employees, Family includes a partner of the same sex, or a community that they owe an obligation to provide voluntary work or the performance of cultural or religious duties. The issue of achieving a balance between work and the rest of life confronts many groups in addition to parents and carers. The debate regarding balancing work and private life would be more meaningful if it was broadened to include workers balancing employment with personal needs in addition to those with parenting or caring obligations. Recommendation 7 The EOCV recommends that the scope of the debate about balancing work and private life be broadened to include workers balancing employment with personal needs in addition to those with parenting or caring obligations. 7. Conclusion The EOCV commends the federal Sex Discrimination Commissioner for raising the publics awareness that a balance between work and personal life is a critical issue that must be addressed by individuals, employers, advocacy groups and governments. Anti-discrimination laws and workplace flexibility policies have not fundamentally changed workplace cultures, practices, organisational structures or assumptions about how a competent or committed employee may be defined. Without cultural change, the goal of balancing paid work and the rest of life will be unachievable for many people. The EOCV strongly supports non legislative, attitudinal change in order to facilitate a balance between work and private life. ANNEXURE State of Victoria v Deborah Schou [2004] VSCA 71 Facts A sub-editor at the Department of Parliamentary Debates lodged complaints at the EOCV in October 1997. One of the complaints related to being refused the capacity to work from home two days per week and use of an off-site modem at home, while the Victorian Parliament was sitting. The complainant could not comply with the condition that she attend work on those days, due to needing to care for her child who suffered recurrent chest infections and asthma. The complainants employer had initially agreed to allow her to use a modem but later refused to do so. The complainant resigned from her job as a result. The complaint was referred to the Victorian Civil & Administrative Tribunal (VCAT). VCATs findings The VCAT upheld the complaint that the Department indirectly discriminated against the complainant on the basis of parental status. The VCAT held that requiring the complainant to attend work at Parliament House during sitting days was discriminatory because she could not comply with this condition, on account of needing to care for her ill child. The VCAT held that imposing the condition was unreasonable because an alternative to on-site attendance existed, (installing a modem at the complainants home). Victorian Supreme Courts decision The State of Victoria lodged an appeal to the Supreme Court. The Supreme Court held that the VCAT had failed to give proper consideration to the question of whether the requirement to attend Parliament full-time was reasonable, focussing instead on whether it was reasonable for the employer to provide a modem. The Court referred the matter to the VCAT for re-hearing. The VCAT reheard the complaint in September 2002 and again upheld the complaint. The State of Victoria appealed to the Victorian Court of Appeal. Victorian Court of Appeals findings The majority of the Victorian Court of Appeal confirmed that a complainant alleging indirect discrimination must prove that a condition being imposed by an employer is not reasonable. The majority of the Court of Appeal held that: The modem proposal might have made insistence by the employer on the requirement for on-site attendance unnecessary or avoidable. Despite this, the existence of the modem proposal did not affect the reasonableness of the requirement to attend Parliament full-time. The Court held that the modem proposal was not equally suited to the requirements of the job as on-site attendance. The existence of an alternative proposal seeking a degree of flexibility will only be relevant in assessing whether a condition being imposed is reasonable if it is equally suitable to achieving an outcome that the condition is designed to achieve. The test to consider is whether a requirement or condition or practice being insisted upon is reasonable. The reasonableness of the condition must be looked at in the context of all people to whom it may apply. Due to the highly skilled and pressured nature of the work being performed at Parliament, the requirement to attend work on-site full-time, was reasonable. In contrast, Callaway J.A, in the minority, considered that the majority took too narrow a view of the words, requirement, condition or practice. His Honour stated instead that it is necessary to consider whether performance or completion of a task might reasonably have been achieved without imposing so discriminatory a requirement or condition. PAGE  PAGE 2 PAGE 8  Lewis & Gambles, Reflections on the integration of paid work and the rest of life, Vol 8/18 Journal of Managerial Psychology 2003 p834-836, 839  The Australia Institute, Take the Rest of the Year Off Day ( HYPERLINK "http://www.tai.org.au/WhatsNew_Files/WhatsNew/Overwork%20day%2020th%20November.pdf" http://www.tai.org.au/WhatsNew_Files/WhatsNew/Overwork%20day%2020th%20November.pdf), p1 Average work hours have increased by 3.1 hours each week between 1982 and 2001. A quarter of the workforce works for more than 45 hours per week. Extended hours of work often constitute unpaid overtime.  Reflections on the integration of paid work and the rest of life, p829  Ibid, p832  Barbara Pocock, The Work/Life Collision, Federation Press, Sydney, 2003, p9  Background Report: Key Work & Family Trends in Australia p45  Work/Life Collision, pp9,10  Work/Life Collision, p167: Only 13% of full time jobs have no paid leave entitlements wheras 67% of part time roles lack basic leave conditions.  Background Report: Key Work & Family Trends in Australia p45/6  Reflections on the integration of paid work and the rest of life, pp330-831  Reflections on the integration of paid work and the rest of life, p833 Article Three of the ILO Family Responsibilities Convention 156 also states: with a view to creating equality of opportunity and treatment for men and women workers, each member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment, to do so without being subject to discrimination and to the extent possible, without conflict between their employment and family responsibilities.  Section 4A, Sex Discrimination Act 1984 (Cth) Meaning of family responsibilities (1) In this Act, family responsibilities, in relation to an employee, means responsibilities of the employee to care for or support: (a) a dependent child of the employee; or (b) any other immediate family  HYPERLINK "http://www.austlii.edu.au/au/legis/cth/consol_act/sda1984209/s41a.html" \l "member" member who is in need of care and support. (2) In this section: "child" includes an adopted child, a step-child or an ex-nuptial child. "dependent child" means a child who is wholly or substantially dependent on the employee. "immediate family member" includes: (a) a spouse of the employee; and (b) an adult child, parent, grandparent, grandchild or sibling of the employee or of a spouse of the employee. "spouse" includes a former spouse, a de facto spouse and a former de facto spouse.  [2003] FMCA 584 (15 December 2003)  Section 51(i) (xxxix) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to (xxix) External Affairs  HREOC Sex Discrimination Unit, Striking the Balance: Women, Men, Work and Family Discussion Paper, (Sydney) 2005, p82  HREOC Sex Discrimination Unit, Striking the Balance: Women, Men, Work and Family pp83-86  [2004] VSCA 71  Productivity Commission Inquiry Report Vol 1; Chapter 30, 30 April 2004. Review of the DDA 1992, p314, referring to Raphael FMs judgement in Minns v State of NSW [2002] FMCA 60 at para 253.  Ibid, p314  Ibid, p317,318  The changing face of Victorian IR: an HR heads-up, 27 September 2005,  HYPERLINK "http://www.humanresourcesmagazine.com.au/articles/77/0C01CC77.asp?Type=60&Category=871" http://www.humanresourcesmagazine.com.au/articles/77/0C01CC77.asp?Type=60&Category=871  Employment Act 2002 (UK), s.80F  Employment Act 2002 (UK), s.80G (1)(b)  According to s.80G (2), if the request is rejected, an employee may appeal in writing against the decision. Parties meet to discuss the appeal.  Ariane Hegewisch, Individual Working Time Rights in Germany and the UK; How a Little Law Can Go a Long Way, ( HYPERLINK "http://www.wcl.american.edu/gender/worklifelaw/publications/Hegewisch%20How%20a%20little%20law%20can%20go%20a%20long%20way.pdf" http://www.wcl.american.edu/gender/worklifelaw/publications/Hegewisch%20How%20a%20little%20law%20can%20go%20a%20long%20way.pdf), p3 s.80H: If an employer fails to abide by an agreement to vary the employment contract, an employee may complain to the relevant employment tribunal, seeking compensation.  Individual Working Time Rights in Germany and the UK, p3  Ibid, p4  Ibid, pp4,5 - A survey of 3525 employees between September 2003 and February 2004 revealed that about 13% of employees have requested flexible work practices. They requested part time work, temporarily reduced working hours, flexitime, compressed working weeks and home based work. 86% of requests were either fully or partially accepted.  Ibid, p10  Ibid, p3  Ibid, p7  Ibid, p21,22  Mark Bray & Dr Peter Waring, The Rise of the Managerial Prerogative under the Howard Government, ( HYPERLINK "http://www.econ.usyd.edu.au//download.php/paper7-Bray%26Waring.pdf?id=4305" http://www.econ.usyd.edu.au//download.php/paper7-Bray%26Waring.pdf?id=4305), p1 Prof Mark Bray and Dr Peter Waring contend that individual bargaining can result in employees having little power and employers alone, making decisions. Many employees with personal needs may be forced to accept employment rules dictated by employers or give up their jobs.  Australian Industrial Relations Commission Family Provisions Decision, 8 August 2005, paragraph 336: In its submissions to the AIRC in the Work and Family Test Case, the Commonwealth government stated that achieving a better balance between work and family is fundamental to Australias national interest. Despite this, the Commonwealth opposed all the claims made by the ACTU including those accepted by the AIRC.  The Rise of the Managerial Prerogative under the Howard Government, p2: Under the Keating government, the role of awards changed to becoming safety nets rather than determining employment conditions and have since provided a fall back position when enterprise bargaining has been unsuccessful. According to the Butterworths Concise Australian Law Dictionary, (2nd Edition) page 153, enterprise bargaining is a process of negotiation between employers, employees and unions leading to an agreement regulating the terms and conditions of employment within a particular industry or workplace.  The Rise of the Managerial Prerogative under the Howard Government, p1, 2  The Rise of the Managerial Prerogative under the Howard Government, p8  The Rise of the Managerial Prerogative under the Howard Government, p11 An addition, at an Australian Human Resources Institute (AHRI) VIC Industrial Relations Luncheon, held on 19 September 2005, Kevin Andrews, Federal Minister for Employment stated that the Federal government proposes to reduce reliance on awards by disconnecting the award system from the agreement making system. The government considers that awards are inflexible as they rely on the 20 Allowable Matters that are imbedded in agreements. Awards are to remain available to those who wish to remain governed by them. For agreements to be valid, however, the government proposes not to rely on the 20 allowable matters but on a Fair Pay Conditions Standard containing a very limited list of matters to those drafting agreements to consider: personal or carers leave, wages, 4 weeks annual leave and a 38 hour week.  Government Policy, Women and the New Workplace Regime: A Contradiction in Terms and Policies, ( HYPERLINK "http://www.econ.usyd.edu.au//download.php/paper10-Baird%26Todd.pdf?id=4298" http://www.econ.usyd.edu.au//download.php/paper10-Baird%26Todd.pdf?id=4298) Marian Baird & Patricia Todd, p3  The Rise of the Managerial Prerogative under the Howard Government, p10, 11  Media Release of the Federal Minister for Employment & Workplace Relations, Kevin Andrews (2005.09.28) http://mediacentre.dewr.gov.au/mediacentre/ministerandrews/releases/finalistsannouncedforthe2005nationalworkandfamilyawards.htm  s.4 Equal Opportunity Act 1995 (Vic) (Definitions) A carer is defined as a person on whom another person is wholly or substantially dependent for ongoing care and attention, (other than care provided on a commercial basis). Parental Status means the status of being a parent and this includes step parents, adoptive parents, foster parents and guardians. [Refer to footnote 50 for list of protected attributes],  New Directions for the Victorian Justice System 2004-2014: Attorney-Generals Justice Statement (Melbourne) May 2004, para 4.2.2  Systemic discrimination can be understood as patterns of behaviour, practices or attitudes that disproportionately affect a group of people by limiting their access to equality of opportunity.  HREOC, Striking the Balance Discussion Paper, p130  Complaints of discrimination on the basis of carer status and parental status in employment lodged under the Equal Opportunity Act 1995(Vic) at the EOCV between 1996 and 2004 (Per EOCV Annual Reports) [f: females / m: males] YearParental StatusCarer Status1996-199725: f 22 m 301997-199846: f 35 m 1139: f 27 m 121998-199951: f 41 m 1023: f 18 m 51999-2000101: f 84 m 1731: f 22 m 92000-200195: f 71 m 2438: f 18 m 202001-200297: f 90 m 729: f 292002-2003157: f 141 m 1655: f 42 m 132003-2004129: f 110 m 1950: f 31 m 19  Iain Campbell & Sarah Charlesworth, Background Report: Key Work & Family Trends in Australia, RMIT University (2004), p19  Background Report: Key Work & Family Trends in Australia pp20,21  Ibid p28  Ibid, p30  Joy Goodfellow and Judy Laverty Grandparents Supporting Working Families: Satisfaction and choice in the provision of child care (2003) 66 Family Matters, pp 14-19 at p 16, citing ABS Child Care 2003 Cat No 4402.0.  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