Rachel Siewert (WA, Australian Greens) Share this | Hansard source

by leave—I move:

(1)    Clause 65, page 76 (lines 5 to 8), omit subclause (1), substitute:

        (1)    An employee may request the employer for a change in working arrangements to assist the employee to care for someone who is:

             (a)    a child of the employee, or a child the employee has responsibility for the care of, if the child:

                   (i)    is under school age; or

                  (ii)    is under 18 and has a disability; or

             (b)    a person in need of care who is:

                   (i)    the spouse or de facto partner of the employee; or

                  (ii)    a member of the employee’s immediate family; or

                 (iii)    a member of the employee’s household.

(2)   Clause 65, page 76 (lines 27 to 29), omit subclause (4), substitute:

        (4)    If an employee makes a request in accordance with subsection (3):

             (a)    the employer must, within 28 days of receiving the written request, meet with the employee to discuss the request; and

             (b)    the employer must give the employee a written response to the request within 14 days of the meeting, stating whether the employer grants or refuses the request.

(3)   Clause 65, page 77 (after line 2), at the end of the clause, add:

FWA can review refusal of request

        (7)    If the employer refuses the request, the employee may apply to FWA to review the employer’s decision on the following grounds:

             (a)    because there has been a contravention of a requirement of this section; or

             (b)    because there has been a misunderstanding or misapplication of a fact relating to the application.

        (8)    The application must be made within 7 days after the employer gives the employee a written response under subsection (4), unless FWA is satisfied there are circumstances which justify a late application.

        (9)    FWA may make:

             (a)    an order for reconsideration of the request; and

             (b)    an award of compensation to be paid by the employer to the employee.

      (10)    The amount of compensation must be an amount, not exceeding 26 weeks’ pay for the employee, as FWA considers fair in all the circumstances.

These Greens amendments relate to the right to request flexible working arrangements and the right to request extended parental leave. These amendments address two important initiatives in the National Employment Standards which have been designed to assist parents in balancing their work and family lives. In relation to items 1 to 3, we think the right to request flexible working hours is a good idea that is badly needed. This legislation is providing a right to request flexible working hours, but it cannot actually be enforced. A lot of issues have been raised about this during the committee inquiry and to the Greens separately. While there is an appreciation of the fact that the legislation includes the right to request, there is a lot of concern that a request cannot in fact be enforced. Therefore, we are very concerned that the right is not really a right. The way the legislation is drafted means that, effectively, employers can just say no without giving any reasons. We understand that the government’s provisions in the bill are based on similar provisions in the UK. However, there are important differences. There is the 26-week qualification period, there are more procedural requirements and, importantly, there is a review process.

The provisions in the National Employment Standards require an employee to be employed 52 weeks before the right becomes available, and in the UK it is 26 weeks or six months. We think that this is more appropriate. Although we have not moved an amendment to this effect as we wanted to concentrate on the more substantial problems with these provisions, we believe that six months is a much more appropriate time. We believe that 12 months is far too long a period before you can get this so-called ‘right’—and I am saying ‘so-called right’ because of my previous comments about it not being able to be enforced.

The Greens’ amendments pick out and deal with what we see as the key elements in the UK scheme that we believe should be a very minimum for the National Employment Standards—that is, the requirement for an employer to meet with their employee to discuss the request, and the ability for the employer’s decision to be reviewed by FWA on essential procedural grounds. We think this puts a lot more fairness into these arrangements and, to tell you the truth, I am a little bit confused as to why the government did not look at these and did not feel that it was important to provide these mechanisms in the first place, given that it is simply a process of procedural fairness, it seems to me. You would think that you would be able to ask to have the employer’s decision reviewed and also have the right to request to meet with your employer and just ask them about the issues.

Our amendments are taken from the UK legislation, and my understanding is that the UK legislation is working well and that the requirement to discuss the request is an important part of assisting to change the workplace culture around these issues. While there may be employers who will, as a matter of course, take this step anyway—and of course we expect fair employers to be doing that—we believe it can assist to make the provisions more effective if employees and employers sit down at least to hear each other out. Unfortunately, there will be some employers who do not take the time or the trouble to meet with employees to discuss this issue. We believe that there needs to be legislative backing for that.

There were a lot of submissions to the committee on this issue and there were calls in many submissions to merely delete clause 442, which prevents courts making an order about an employer’s decision to refuse such a request. Wishing to introduce these measures carefully, which is why we have not proposed that amendment at this stage, we suggest instead a limited review process by FWA. We think, in fact, that we are being fair. Our amendment is intended to allow FWA to review the process for making the decision and decide whether a decision is based on incorrect facts. Again, it follows the UK model, which we know works.

The other amendment we have moved to these provisions is to expand their eligibility. At present they are available to parents or other employees who have responsibility for the care of children under school age. The UK provisions extend to parents of children under 18 with a disability and to other carers. The position of carers in our community is well known and in fact has been discussed in this place on many occasions. The key problem for many carers is staying in touch with the workforce, and this is exactly the kind of measure that they need to assist in keeping them in the workforce while undertaking their care responsibilities. We particularly think that is a key amendment and we think it would be of great assistance to parents of children with disabilities. Again, it came up at the inquiry on many occasions. In fact Senator Abetz was following that issue extensively during the committee inquiry.

Foreseeing a little bit that the government may not be persuaded by the fairness of these arguments, we have also asked the government to review—and they have agreed—the operation of these provisions. As I said earlier, the reason we are moving these amendments is that we do not think they are going to operate effectively without the procedural amendments that we are moving—in other words, being able to meet with your employer to discuss the issue but also being able to ask Fair Work Australia to review the case. We think that they are not going to operate as effectively as the UK model does, or operate in a way that the government, presumably, is hoping that they will work. We believe that at least a review of the operation of the procedures is a good move.

We ask the Senate to support these amendments, believing that they will help to improve the work-life balance much more effectively than the government’s amendments do at present. They are a step in the right direction. They are not going as far as they should as compared with the UK model on which these are based. We urge the government and the opposition and our fellow crossbenchers to consider these issues very carefully.