Submission 167 Australian Council of Trade Unions Workplace Relations Framework Public inquiry

A right of appeal is necessary

The FW Act stipulates that employees have no right to appeal an employer’s unreasonable refusal of a request, unless the parties have agreed to allow such appeals in their workplace agreement.

Women, employees with a non-English speaking background and young workers generally enjoy less bargaining power, are less likely to be unionised or have workplace agreements and are more likely to be dependent on minimum award terms and conditions.

Employees with caring responsibilities have further restricted bargaining power because they are limited by the working arrangements that they can work, particularly in areas where childcare services are inaccessible or unaffordable.

However, it is these groups of workers who are likely to need the right to request flexible working arrangements and yet because of their weak bargaining power, are mostly likely to be locked out of workplace bargaining or have inferior workplace agreements with no right to appeal an unreasonable refusal.

Our introductory discussion concerning “first principles” should compel a conclusion that, once the policy decision was taken that a right of appeal will be available to some workers, the beneficiaries of that right ought have been those most in need rather than those most capable of demanding it (who have had the right to so demand for decades). Whilst doing the reverse might have been seen as “incentivising” worker organisation and bargaining, the reality is that those incentives have clearly been longstanding and insufficient to bring about empowerment.

Overseas experience indicates that there is no reason to believe allowing for either an obligation to seriously consider a request or a right to appeal a refusal will result in an increase in disputation.

Recently published data from the FW Commission indicates that there was a modest 50 applications for FWA to deal with disputes in relation to a refusal by an employer for flexible work arrangements for 2013-14.³²⁶

A better model

The ACTU believes it is wholly inappropriate to regulate a matter as important as balancing work and caring commitments without any framework to provide guidance on the obligations of the employer in considering the request or the natural justice of being able to appeal an unreasonable request.

We advocate for:

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  Amendments to s. 65(5) and 76(4) to require employers to reasonably accommodate employees’ requests for flexible work arrangements or to extend a period of parental leave;
  
• 
  Inclusion of balanced considerations an employer must give when determining if it can reasonably accommodate a request; and
  
• 
  Removal of the restrictions imposed by s.739 to ensure all employees have a right to appeal an employer’s unreasonable refusal to the FW Commission.
  

The FW Act right to request provisions should be amended to include an obligation on employers to reasonably accommodate a request with clear guidance to both employees and employers as to what that should entail, minimising the need for refusals to go to formal dispute resolution.

The ACTU advocates the adoption of a provision along the lines of that contained in section 17 of the Equal Opportunity Act 2010 (VIC) which outlines the obligations of employers in considering a request, including weighing up the importance of the request on the employee’s capacity to balance work with family and caring responsibilities against any potential effects the granting of such a request would have on the organisation.³²⁷ S. 17 of the Act provides:

(2) In determining whether an employer unreasonably refuses to accommodate the responsibilities that a person has as a parent or carer, all relevant facts and circumstances must be considered, including—

(a)    the person's circumstances, including the nature of his or her responsibilities as a parent or carer; and

(b)    the nature of the role that is being offered; and

(c)    the nature of the arrangements required to accommodate those responsibilities; and

(d)    the financial circumstances of the employer; and

(e)    the size and nature of the workplace and the employer's business; and

(f)     the effect on the workplace and the employer's business of accommodating those responsibilities, including—

(i)     the financial impact of doing so;

(ii)     the number of persons who would benefit from or be disadvantaged by doing so;

(iii)     the impact on efficiency and productivity and, if applicable, on customer service of doing so; and

(g)     the consequences for the employer of making such accommodation; and

(h)     the consequences for the person of not making such accommodation.

The restrictions on the FW Commission being able to deal with a dispute relating to sections 65 and 76 stipulated by s.739 should be removed and an additional dispute resolution function should be conferred on the FW Commission to deal with appeals against an employer’s reasonableness of refusal.

The dispute function would allow the FW Commission to deal with disputes regarding unreasonable refusals similar to Right of Entry provision in s.505 of the FWA.

We are firmly of the view that without these amendments to ss. 65 and 76, the cultural attitudes towards employees with family or caring responsibilities will not change.

Long Service Leave

The missing element in the comprehensive suite of minimum standards set out in the NES is long service leave (“LSL”).

LSL is a uniquely Australian innovation, whose history can be traced back to colonial times as a form of leave that would long enough to enable public servants to travel to Britain maintain contact with the “mother country”. Whilst the original rationale for LSL is by now a quaint anachronism, there is little doubt that today LSL performs an important function as part of the framework of worker entitlements that helps to maintain a healthy balance between work and private life.³²⁸ In this respect, there are three main purposes identified with LSL:

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  As an incentive to reduce labour turnover;
  
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  As a reward for long and faithful service; and
  

• 
  As a means to enable employees halfway through their working life to recover their energies and return to work renewed, refreshed, and reinvigorated.³²⁹
  

The FW Act proceeds on the basis that LSL is part of the NES and that in due course an appropriate NES standard will be formulated and implemented. The Explanatory Memorandum accompanying the Fair Work Bill 2008 explains the intent as follows:

This Division sets out the entitlement to long service leave for national system employees.

This entitlement is a transitional entitlement, pending development of a uniform, national long service leave standard with the States and Territories.

This Division preserves long service leave entitlements in pre-modernised awards (referred to as applicable award-derived long service leave terms).

If an employee does not have applicable award-derived long service leave terms, any entitlement to long service leave will be derived from State or Territory long service leave legislation (subject to its modification or exclusion by certain industrial instruments). ³³⁰

The transitional position adopted in respect of the NES, no doubt reflects the complexities associated with the regulation of LSL throughout Australia. Variously, LSL entitlements are (or have been) contained in State and Territory legislation, State and Commonwealth industrial awards and Commonwealth legislation. In addition, there is a significant degree of variance in the minimum level of entitlement to LSL under the different schemes in existence, as Table below summarising the entitlements contained in the statute based schemes demonstrates.
Table : Features of Long Service Leave Schemes

JURISDICTION	KEY LEGISLATION	ENTITLEMENT
NSW	Long Service Leave Act 1955	2 months after 10 years’ service. Then 1 month leave for each subsequent 5 years’ service.
NSW	Long Service Leave (Metalliferous Mining Industry) Act 1963 No 48	3 months after each 10 years’ service.
VIC	Long Service Leave Act 1992	8.67 weeks after 10 years’ service. Then 4.33 weeks after each additional 5 years’ service.
QLD	Industrial Relations Act 1999	8.67 weeks after 10 years’ service. Then further leave after each additional 5 years’ service.
SA	Long Service Leave Act 1987	13 weeks leave after 10 years’ service. Then 1.3 weeks leave for each subsequent year.
WA	Long Service Leave Act 1958	8.67 weeks leave after 10 years’ service. Then 4.33 weeks leave after additional 5 years’ service.
TAS	Long Service Leave Act 1976	8.67 weeks leave after 10 years’ service. Then 4.33 weeks leave for each additional 5 years employment.
NT	Long Service Leave Act 1981	13 weeks leave after 10 years’ service. Then 6.5 weeks after each additional 5 years’ service.
ACT	Long Service Leave Act 1976	0.2 months leave for each year of service, with leave available to be taken after 7 years’ service.
Commonwealth	Long Service Leave (Commonwealth Employees) Act 1976	3 months after 10 years service, pro-rata for part-time employees.

A further layer of complexity is added by the operation of the portable LSL schemes applying to the building and construction, coal mining, security³³¹ and contract cleaner³³² industries. These schemes operate on an entirely different basis to the traditional statutory LSL schemes, in that they recognise service with (potentially) multiple employers allowing employees to accrue an entitlement based on service in an industry or sector. Clearly, the portable schemes have been established to meet a certain need or set of circumstances that any NES based standard should be careful not compromise or undermine. Indeed, as we discuss below, there is a serious question as to whether a national portable LSL scheme is the logical next step in the evolution of LSL, given the growth of casual, part-time and intermittent employment arrangements in the Australian economy³³³ and the high level of employee mobility in particular industries.³³⁴

Table : Portable, industry-based Long Service Leave Schemes

STATE	PLSL SCHEME	ENTITLEMENT
NSW	Building and Construction	8.67 weeks for each 10 years’ service; 4.33 weeks for each subsequent 5 years’ service.
	Contract Cleaning	Cleaning – 8.67 weeks after 10 years’ service (3650 days); 4.33 weeks for each 5 years’ service thereafter (1825 days)
ACT	Building and Construction	13 weeks after 10 years’ service
	Contract Cleaning	6.067 weeks after 7 years’ service
	Community Services	4.333 weeks after 5 years’ service
	Security	8.667 weeks leave after 7 years’ service
QLD	Building and Construction	8.67 weeks after 10 years’ service (2,200 days); pro rata entitlement after 7 years’ service
	Contract Cleaning	8.67 weeks after 10 years’ service; pro rata after 7 years’ service
VIC	Building and Construction	42.4 days after each 7 years’ service
SA	Building and Construction	13 weeks after 2600 days (260 days p.a.)
WA	Building and Construction	8.67 weeks after 10 years’ service (2200 working days); 4.33 weeks after 5 years’ service thereafter (1100 days)
TAS	Building and Construction	13 weeks after 10 years’ service (2200 working days); 4.33 weeks after each 5 years’ service thereafter (1100 days)
NT	Building and Construction	65 days after 10 years’ service (2600 days) (i.e. 13 weeks), 32.5 days for each 5 years’ service thereafter
Commonwealth	Coal Mining	13 weeks for each 8 years’ service