ࡱ> q` G^bjbjqPqP ::QSZZZdH4:hJ<::<.DZZZ5559999999$J<h>9Y#55Y#Y#9ZZ9u&u&u&Y#ZZ9u&Y#9u&u&r1T2Z" @ _/$1!9l90: 2z:?$N:?22X:?4D5u&w l v55599 &j555:Y#Y#Y#Y#:::::::::  Submission To Human Rights and Equal Opportunity Commission STRIKING THE BALANCE Women, Men, Work and Family EMBED PBrush \s \* mergeformat OCTOBER 2005 Victorian Automobile Chamber of Commerce VACC house 464 St Kilda Road 3004 Introduction VACC is an employer organisation representing the interests of some 5,000 retail motor industry members across Victoria and Tasmania. The retail motor industry consists of new and used vehicle dealerships, service stations, body repairers and towing services, farm machinery sales and repair, tyre establishments, specialist repairers (eg windscreens, electrical, radiator) and manufactures (eg component and parts) and motor cycle establishments. In the main, members are small business. The level of participation of women is 1 to every 5 males. The participation rate of females appears lower, because many of the small businesses consist of a partnership between a husband and a wife. The husband often working in a technical or managerial capacity, whist the wife is often behind the scenes providing financial and administrative support. The industry does suffer from skill shortage and has considerable issues in labour resources and tight profit margins. Consequently, potential change to workplace legislation relating to work and family balance warrant our consideration and comment. Amendment to workplace laws Amongst other suggested measures, the discussion paper advocates legislative and cultural change in the workplace as options for practical reform. Amendment to workplace legislation to enforce family flexibility is certain to be problematic. There are no doubt occasions where employees will not have the capacity or flexibility to adjust their lives to meet the priorities of employers, similarly many employers will not be capable of job variation to completely satisfy an employees family needs. Priorities of both business and individuals vary. Different sized employers have varying capabilities in being able to implement legitimate family friendly provisions whilst meeting the operational requirements of their business. One set of family friendly provisions could not apply across all Australian industries and businesses. The VACC oppose any attempt to universally apply family friendly priorities. To extrapolate further the one size can not fit all assertion, one can draw upon the experience of the vehicle industry. Data derived from a national survey of members, on behalf of the Motor Trades Organisations in December 2004 shows that 54.2% of Retail Motor Industry business have less than five employees. A further 26.4% employ between five and nine staff, with the remaining 19.6% employing ten or more. The Discussion Paper proposes that legislation be considered to include the right to, or the right to request, part time work. Given that some 80% of the industry employs less than 10 employees, it is a difficult proposition for these businesses to effectively and genuinely accommodate all requests for part time employment. The industry suffers from severe skill and labour shortages, tight profit margins and prolific technological change, consequently to allow employees immediate and unquestioned access to part time employment in most cases would place undue stress upon smaller vehicle repair service operations. The Discussion Paper asserts that workplace cultural change should also be an objective of individual companies and of policy makers, the Paper states: Some possibilities for workplace cultural change are: Canvassing and promoting different ideas for creating family friendly employment arrangements, such as staggered hours compressed working hours, shift swapping, part time work and working from home While this notion is desirable theoretically; it provides no recognition or understanding of the practical pressures that small and medium size service industry businesses face. This again illustrates the problems of legislating across all industries. It is difficult to see how a small vehicle repair and service shop could accommodate work from home provisions, or compressed working hours. The real economy does not allow for these liberties to be taken. Commercial not theoretical judgments dictate business success, and drive customer satisfaction or rejection. Discrimination law already requires employers to carefully consider an employee's request for part-time work. Under anti-discrimination legislation, employers refusing to allow employees access to part-time work in connection with pregnancy, return from maternity leave or carers' responsibilities, may be found to be unlawfully discriminating. Recent case law suggests that there is a reasonable balance on this issue already in place. The more consistent view has followed the reasoning of the 2003 case of Mayer v ANSTO where an employer refused an employee's request for part-time work upon her return from maternity leave. The employer decided that business needs dictated that the employee continue full-time work in accordance with her contract. The Federal Magistrate in this case found that this refusal constituted indirect discrimination and resulted in the constructive dismissal of Ms Mayer. Current interpretation of discrimination law requires employers to consider requests from employees to move to part-time. An ill considered request that a business cannot accommodate part-time work is at the moment unlikely to be sufficient; however where there is an impact to the business viability or operation this should be sufficient not to provide for part time employment. Ultimately, a system where employers weigh the needs of their business and the costs in determining if they can accommodate an employees request would be the fairest. Discrimination law principles adequately accommodate the needs of business against employee rights. VACC does not support a further move to enshrine this entitlement in awards or other legislation. Family Provisions Test case The Discussion Paper does not raise any new issues in the area of work and family balance that have not been raised in the Family Provisions Test Case. The Family Provisions Test Casehas been argued before the Australian Industrial Relations Commission (AIRC)regarding the varying of existing award provisionswhich affectthe ability of employees to manage their work and family responsibilities. In the case, the ACTU sought to insert new rights for parents and carers in federal awards. The main aspects of the ACTU claimwere for a right to extended unpaid parental leave of up to 2 years, part-time employment on return from parental leave until the child reaches school age and a right to request changes in hours of work. Most ACTU claims were rejected. Following the ACTUs application, a number of claims were lodged by employer groups including the Australian Chamber for Commerce and Industry (ACCI), the Australian Industry Group (AiG), the Master Builders Association (MBA) and the National Farmers' Federation (NFF). The claims put forward by the employer groupssought greater flexibility relating to the use of existing leave entitlements and the removal of restrictions on casual and part-time employment in awards. The AIRC recently handed down its decision. The decision incorporates some of the suggested measures raised in the Discussion Paper, it grants federal awards a new employee right to request additional employment conditions relating to parental leave on the birth or adoption a child. Specifically the decision allows a right to request: Return to work on a part time basis after parental leave; Additional unpaid parental leave of absence between 12 months and 24 months; and (where both mother and father are employed by the same employer) simultaneous unpaid leave for both parents of up to 8 weeks. The new right to request is subject to an employers right to refuse the request on reasonable grounds that concern business efficiency or cost. Also granted by the AIRC is the use by full time and part time employees of up 10 days existing personal (sick leave) for family caring purposes, and for up to 2 days unpaid absence for casuals for family caring purposes. VACC does not oppose employees right to request, in fact this is a sensible measure, provided that small business are not prosecuted or victimised for legitimately not being able to meet such requests. The AIRC decision in the Family Provisions Case goes far enough in ensuring there is an equal balance between an employees entitlement to balance work and family arrangements, there is not a need for further measures or entitlements to be introduced into workplace legislation. Paid Parental Leave Another legislative reform proposed in the Discussion Paper is the familiar concept of paid maternity and paternity leave. The funding for population growth is a societal issue, not a responsibility for business. Balancing work and family life is a challenge many families face. This is exacerbated by the lack of adequate and affordable child-care services. If Government provided more for child care funding and adequate facilities, more women would consider returning to the labour market as child care would not be such a financial issue. Governments should recognise that improved access of child care facilities would have a direct and identifiable impact on work and family balance. With full time child care fees, equating to a second mortgage, it is not financially viable for some women to work, particularly those in the middle income bracket or those in positions maintaining relevant skill. With adequate child-care assistance, a percentage of paid maternity leave would have little impact on womens choice to have children. VACC has previously researched and provided a submission on this issue to the Senate Employment, Workplace Relations and Education Legislation Committee. To only provide an overview of VACC perspective on this issue will not do the argument complete justice, this submission should be read in conjunction with VACCs entire submission on this matter. To summarise the VACC perspective: Our view is that fertility rates are of a major concern, this needs to be addressed as a social issue more urgently than the issue of paid parental leave. Our concern is that the assumption that paid maternity leave is essential, will not in any way address declining fertility rates. Fertility rates are in decline, reflecting similar trends in other developed countries. Even though in recent years Australia has started to address the slide, (Australian Bureau of Statistics ABS population figures from December 2004 show a rise of 2.9 percent) regardless the overall picture remains bleak, with projections that the population will continue to age due to fertility staying below the 2 percent replacement rate at about 1.75 per cent. In addition the ABS figures show that deaths increased marginally, Australias population had a growth rate in the past year of only 1.2 per cent. An obvious side effect is a shrinking youth market and an aging population. Rather than concentrate on the issue of paid maternity leave, the debate should concentrate on programs that will assist women with the decision to have children or additional children and more importantly, support those combining motherhood and paid work. Any proposal that considers paid parental leave must be sensible, be affordable and cater for the needs of different families that are likely to consider children. Any scheme must take into account potential affects on business, particularly small business. Arrangements provided by individual employers are their choice and should not be expected to flow through to industry. VACC supports the rights of an employer and its employees in individual workplaces to enter in negotiations on work and family issues such as paid parental leave. This should be done through mutually beneficial workplace agreements, so long as any agreement is confined to that business and its staff. What are the real benefits to business? The Discussion Paper asserts that it makes good business sense to adopt flexible work arrangements that permit employees to integrate their personal lives with their work lives as this has numerous benefits for both employer and employee. Amongst other advantages the Paper identifies the business benefits for implementing such provisions as: attraction and retention of best staff, improved productivity and innovation, and better management styles. Accommodating employees on family issues will, in some circumstances be beneficial to a business, through retention of a skilled workforce. However this may also come at a cost to employers. An employer can experience additional costs through a reduction of productivity, increased administrative costs, and in the case of employees moving to part time; a reduced flexibility in production and additional costs to find replacement staff. Conversely the purported business benefits contain a number of intangibles. It is very difficult to attach a monetary value to increased morale, improved corporate image, and improved quality of job applicants. Small businesses in the vehicle industry would feel the strain of implementing some of the suggested family flexibilities, while it is hard to substantiate that these businesses would achieve real benefit from their implementation. There should be acknowledgment of the difficulties small business has in even being able to assess the costs and benefits of particular work and family measures; as indicated in Dex and Scheibl: All of these approaches rest on being able to collect the necessary performance indicator data. This, in itself, will be difficult for the smaller organisation.  Many of the argued business benefits of these provisions have been somewhat exaggerated. There is very little substantial evidence provided by the Paper that employers as a whole benefit from making workplace adjustments for the family responsibility activities of their employees. This is not to say that we should not attempt to achieve family flexibility, rather the issue should be looked at from a pragmatic perspective. The challenge is to achieve within the operational reality of small business a balance that allows those people who wish to combine work with parenting to do so, without affecting the viability of business. Enterprise Bargaining Workplaces need to have an opportunity to choose their arrangements. Therefore the key to achieving better work and family balance lies in building and capitalising on existing agreement making options at the workplace level. Many workplaces have already provided for a high level of innovation, and implemented family friendly provisions though agreement making options. These include access to permanent part-time work, job sharing, career breaks, flexible hours via employee choice, and additional paid leave options. Collective bargaining agreements have, from their inception delivered these flexibilities, even in the year 2000 there were 2,739 sperate certified collective agreements that contained one or more work/family provisions (such as part-time work, job sharing, career breaks). Australian Workplace Agreements (AWAs) have been an effective instrument utilised by small business to achieve agreed flexibilities in small business operations. Take, for example, Brisbane-based removals company MiniMovers which has provided their employees the flexibility to choose the days of week in which they would prefer to work and the number of hours. Or Juicy Isle, a Tasmanian fruit juice manufacturer, which provides its staff with a rostered day off, every week, in return for working extended shifts. Traditional, rigid employment categories, such as full time, part time and casual, are less common in AWAs and collective enterprise agreements as they can be removed through bargaining. This gives both employers and employees the opportunity to create working arrangements that suit both the requirement of the business and the family needs of employees. The diversity of clauses and arrangements which have been successfully implemented into enterprise agreements makes them an effective option for implementation of family flexibility provisions. Employers in this industry generally face labour and skill shortages, when one considers this along with the cost of employment, it is evident that businesses are interested in harnessing productive employment relationships with employees, businesses that seek retention of valued staff will enter into family friendly arrangements via bargaining. Given the Federal Governments current industrial relations agenda, awards are more likely to be simplified to allow for only minimum conditions of employment. This is another reason why enterprise bargaining should be embraced by those who seek change and wish to increase the availability of family flexibility in the workplace. While there is a legitimate role for the award safety net, such as, providing minimum standards for parental leave and carers leave. The award system should not be misused to substitute the role of bargaining. Enshrining family measures in the award system would not be effective. There are too many variables and diversitys within business that need to be recognised. Any consideration of family friendly flexibility should not come at additional cost to the employer. The International Comparison In a recent submission to the British Governments Work and Family: Choice and Flexibility consultation exercise, the UK Trade Union Congress (TUC) concentrated on long working hours as the biggest problem for UK families. Similar to the Discussion Paper, TUC asserted that the Government should aim to allow workers the right to work flexibly in order to achieve a better work/ family balance. While International comparisons are useful they must be viewed with caution. To provide a comprehensive overview would require comparison of tax structure, child care spending, along with fertility rates and womens labour participation. However, current UK legislation allows employees the right to request work flexibility, this is restricted to parents of children under the age of six or parents of disabled children under the age of eighteen; the TUC argue that this right should now be extended to all parents and carers with children under the age of eighteen. The UK legislation has been progressive in addressing the needs of employees to balance life/work issues. Likewise the recent AIRC test case decision proposes very similar entitlements to Australian employees in relation to the right to request part-time work to care for children until they reach school age; the decision to increase parental leave for up to 24 months, and access to 10 days carers leave per year. These are all advancements that are yet to be achieved by many comparable international labour markets. Conclusions VACC supports the Discussion Papers notion that it is important to explore the ways in which men and women balance their family responsibilities and their paid work. However, VACC consider that the primary objective for implementing policy concerning family and work balance should be to encourage enterprise agreements at the workplace level. VACC supports the rights of an employer and its employees in individual workplaces to enter in negotiations on suitable flexible work and family issues. This should be done through mutually beneficial workplace agreements. VACC opposes one size fits all obligations on all employers. In relation to some of the Discussion Papers suggested measures for workplace and legislative change, VACC argue that most of these are unnecessary and not practical. Discrimination legislation already provides that employers must consider employee requests for work and family considerations, and the recent AIRC full bench decision will further entrench this right. This VACC also cautions HREOC on introducing additional legal obligations, which only add to confusion and at times inconsistency with related legal obligations on employers, such as industrial relations, OHS and anti-discrimination laws. It is important that as a society we continue to strive for a harmonious balance between work and family obligations; however it is not the obligation of business to fund or to drive this initiative.  AC Nielsen National Wage Case Survey 2003/2004  Discussion Paper Striking the Balance Women, me, work and family HREOC 2005 p129  Discussion Paper Striking the Balance Women, me, work and family HREOC 2005 p 130  Flexible work practices and part-time return to work obligations www.freehills.com.au/publications/publications_1418.asp  For a copy of the submission follow this link: www.aph.gov.au/senate/committee/eet_ctte/completed_inquiries/2002-04.htm  The Australian Newspaper Thursday December 9 2004  ibid  VACC submission on paid maternity leave to The senate employment, workplace relations and education legislation committee p. 3  Discussion Paper Striking the Balance Women, me, work and family HREOC 2005 p 98  Dex, S. an Scheibl, F (1999) Business performance and family-friendly policies Journal of General Management p 24  AWAs and Work/Family Provisions Gillian Whitehouse (School of Political Science and International Studies) 2001 p. 4  ibid  http://www.oea.gov.au/graphics.asp?showdoc=/news_room/news_releases2005.asp  Ibid  Fairness and Flexibility A UK Trade Union Submission www.tuc.org.uk/worklife/tuc1001-fo.cfm  Fairness and Flexibility A UK Trade Union Submission www.tuc.org.uk/worklife/tuc1001-fo.cfm     EMPLOYER GUIDE RESTAURANT & CATERING FRAMEWORK  PAGE - 2 - '(>stuv 㿰ngc_NA< h=5h~5CJ$\^JaJ$ h~h~CJOJQJ^JaJh'h hMh~ hMh~CJOJQJ^JaJh~CJ$OJQJ^JaJ$jXh~Ujh~UVmHnHuh~jh~UhUMWhCJ,OJQJaJ,h~CJ,OJQJaJ,hUMWh~>*CJ,OJQJaJ,h~CJ,aJ,hUMWh~CJ,OJQJaJ,h~5CJ,OJQJaJ, (@AWtur*$d %d &d 'd N O P Q gd~0$dd$d %d &d 'd N O P Q [$\$a$gd~0$dd$d %d &d 'd N O P Q [$\$a$gd~ Y]F^  U V Q R n o LMdhgd3R Ldh^Lgd<4 Ldh^Lgd3Rgd~&$d %d &d 'd N O P Q gd~  - K L M N O ) P Q R m n o $Ca #'3JRST^{|}KLMPUy}ÿÿÛÛhqhPhIzhkh_Wh =Ch 6h hhVhh =ChgRh hC5h h2K5 h=hhBhB5hBh*sh= hKv5;67@{=!"#-:>Nefg_l#UZ~׹Ϲӭh"h?xCJaJhMOBh h?xhu,hG,h'!hhhKhi>{3<0JUh^<h chj+jh1i0JUh1ihIzhjU hjUhjUhM+h=c1MlYv !v"zLdhdd[$\$^Lgd3R Ldhx^Lgd3RLdhdd-DM [$\$^Lgd~  Ldh^Lgd3R & Fdhdd[$\$gd3RLdhdd[$\$^L`gd3R Ldh^Lgd3R #8IRTYZ[  :;˺qmdh =Ch =C^Jh\&h\&B*^JnH phtH hh|EH5^JnH tH h3>h&5^JnH tH h5^JnH tH h^JnH tH h|EH^JnH tH h+^JnH tH hR^JnH tH h&^JnH tH hhs^JnH tH hW.6^JnH tH h*=4^JnH tH h^JnH tH h_^JnH tH jh.0JU^JnH tH h.^JnH tH +.5/80818Y8<\>>}AADFDJKfMMLdhdd[$\$^Lgd3R TLdhdd[$\$^Lgd3R Ldh^Lgd3RLdhd-DM [$\$^Lgd3R Ldhd-DM [$\$^Lgd3Ri8H9I9K9L9f9j9y9}9999999::: :!:":#:.:O::::::::::; ;Q;U;i;;;얌xnxdnh*_^JnH tH h*^JnH tH h87^JnH tH hMOB^JnH tH h)^JnH tH h^JnH tH h&^JnH tH h1V<^JnH tH hLq^JnH tH ';;;;;;;;;; <<#<$<%<<<<<=+=?=K=|======9>K>Z>\>>>غذΰzi hzahzaCJ^JaJnH tH hzahza6^JnH tH hza^JnH tH h^JnH tH hVq^JnH tH h^JnH tH h8^JnH tH hUEJ^JnH tH h#^JnH tH h}d^JnH tH h^^JnH tH h87^JnH tH h1V<^JnH tH h*_^JnH tH ">>>?&?:?D?M?X?Y?`?{????@@g@h@@@{A|A}AAAAvBxB CzC{CCCCCCCCCCCCDD DLD}D~DD͹ņłł~~~h7bh/\h&jhxyT0JU^JnH tH h~hxyThlhQh[hm h~1h~1h~1h~15h4h,WrhBh`hHhIzh.Sh2hi2hi2^JnH tH jhza0JU^JnH tH 1DDDDYEE FF!FwFFFFFF)G*GVGxGyGGlH}HƷƱkOk=#hB*CJOJQJ^JaJph6jhIh0JB*CJOJQJU^JaJph)hIhB*CJOJQJ^JaJph)hIh7bB*CJOJQJ^JaJph)hIh~B*CJOJQJ^JaJph hIh~ h&^JjhIh7b0JU^JhIh~^J hI^J h7b^Jh/{h~^Jhi2h7b^JnH tH h7bjhI0JU}HHHHHHHHI+IJI\IhI{IIIIIIJ2JAJCJDJEJbJjJJJKKKK۷oooookgcgcg_gRh?xh2R^JnH tH hOthQph2Rh~1#h{B*CJOJQJ^JaJph#hyHB*CJOJQJ^JaJph#hWPtB*CJOJQJ^JaJph#h-EB*CJOJQJ^JaJph#hBB*CJOJQJ^JaJph#h2qB*CJOJQJ^JaJph#hB*CJOJQJ^JaJph#h B*CJOJQJ^JaJph KKKK LLLMMM9MBMDMPMdMeMfMMMMM4NSNTNUN`NNOOYPZPQ7QKQLQQQQQκΰ}mmcch^JnH tH jh0JU^JnH tH hVh6^JnH tH hh^JnH tH hS4,h5^JnH tH h^JnH tH hm^JnH tH htZ^JnH tH h*^JnH tH h0xD^JnH tH h-^JnH tH hWPt^JnH tH hy^JnH tH huJ^JnH tH &MPYSfSTTU>XY8YYY&Z^ZZ [[[[a\\\-]5]gdgdKdhgd3R Ldh^Lgd3RLdhdd[$\$^Lgd3RQ2RIRMRRRRXSYSeSfSSSSSTTTUUVVVgVrVTW=XYYY8Y9YYYYYYǹysieieieieh'jh'0JU h^Jhthz^JhWPt^JnH tH hz^JnH tH hzhz^JnH tH hzCJ^JaJnH tH hhWPthh<5^JnH tH hh5^JnH tH h<h^JnH tH h^JnH tH h^JnH tH h^JnH tH $Y%Z&Z]Z^Z_ZZZZZ [ [[[[[[[a\b\\\\\\-].]5]6]l]]]]]]]]]]]]]]]^^^׹ױױ׭xh'0J5B*CJaJph3fhh'0J6>**3'06>**3 <:Uh <:hahh'>* h7bh'h&h'^JnH tH jh'0JUh'h =Ch'KH$\^Jh'6KH$\^Jh =Ch'6KH$\^J.5]]]]]]]]]]]]^^1^@^A^B^C^D^E^F^G^Ldhdd[$\$^Lgd3Rgd <:$ 91$a$gd <:  91$gd <:gd^1^2^8^9^>?ٰҰְ<h^JnH tH h <: h/Nh'h' hh'5B*CJaJph3f)h'0J5B*CJaJmHnHph3fu-jhh'0J5B*CJUaJph3f$hh'0J5B*CJaJph3f@ x........  00900P8$:p <:BP. 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