Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Workers with Family Responsibilities Convention, 1981 (No. 156) - Australia (Ratification: 1990)

Other comments on C156

Observation

Direct Request

2023
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The Committee notes the observations by the Australian Council of Trade Unions (ACTU) received with the Government’s report.

Article 3 of the Convention. National policy. Non-discrimination. The Committee notes the information provided by the Government, in its report, on the measures and programmes implemented to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination. The Committee notes, in particular, the JobTrainer Fund which allows job seekers to have access to free or low fee training places in areas of skills in need, and in which “job seekers” is defined broadly to include those looking to re-enter the work force, who are not registered with the employment services system or receiving income support payments. The Government indicates that data provided by states and territories as of 30 September 2021, shows the majority of JobTrainer participants so far have been women, with over 149,000 (around 55 per cent) enrolments out of a total of 271,000 enrolments. The Committee also takes note of the Mid-Career Checkpoint Programme, which aims to assist people who have taken time out of their career to care for their family and are now looking to return to the paid workforce or advance their career. The Programme provides free skills and employment assessment services, tailored career advice and coaching sessions to eligible carers who are returning – or have recently returned – to paid employment. Participants in the Programme can also access up to AUD3,000 dollars in support to undertake recommended accredited training.

The Committee notes the ACTU’s observation that the Government does not address its previous concerns, namely that sections 65 (flexible work arrangements) and 76 (extending period of unpaid parental leave) of the Fair Work Act 2009 (FWA 2009) do not place an obligation on employers to reasonably accommodate a request for flexible working arrangements and that there is no right of appeal for refusals unless as part of a workplace agreement. The ACTU further observes that the absence of an effective external dispute resolution process with jurisdiction over the substantive requirements remains a weakness in these provisions. In this regard, the Committee notes with interest the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which amends the FWA 2009. In its new section 65A, employers are required to provide “reasonable business grounds” for any denial of a request for flexible working arrangements. Section 65B, as amended, also outlines a new dispute resolution process, in which after trying to resolve a dispute regarding flexible working arrangements at the workplace level first, either party can refer the matter to the Fair Work Commission who will deal with the dispute and issue a mandatory and binding arbitration. The Committee further notes that the ACTU reiterates its concerns that the Sex Discrimination Act 1984 and the FWA 2009, do not fully protect workers with family responsibilities from discrimination in practice, as an employer is entitled to advance the argument that a worker’s inability to work on certain days or at certain times is a valid reason for not hiring or for dismissal. In this regard, the Committee refers the Government to its 2023 General Survey, achieving gender equality at work, paragraphs 427–429. The Committee requests the Government to provide: (i) information on the application in practice of sections 65A and 65B of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, including the number of cases regarding flexible working arrangements which have been dealt with by the Fair Work Commission, as well as their outcomes; and (ii) summaries of judicial or administrative decisions relating to dismissal or refusal to hire for reasons of family or care responsibilities, and to indicate whether in light of the outcome of the cases it is considering a policy or legislative response to the ACTU’s observations.

Western Australia. The Committee takes note with interest of the adoption of the Industrial Relations Legislation Amendment Act 2021 (IRLA Act), amending the Industrial Relations Act 1979 (IR Act) and the Minimum Conditions of Employment Act 1993 (WA) (MCE Act). Among these changes, the Committee notes the amendment to the definition of “employee” in the IR Act and the MCE Act to remove exclusions of persons engaged in domestic service in a private home (including carers employed directly by the householder), people paid wholly by commission, percentage reward or piece rates, people with disabilities employed in a supported employment service, and people appointed as wardens by the National Trust. These changes extend coverage of the IR Act and the MCE Act to such workers and provide employment entitlements including the minimum wages and leave entitlements in the MCE Act.

Article 4. Paid leave and working arrangements. The Committee notes that several legislative amendments have been made to extend the right to paid leave and other working arrangements for workers with family responsibility, including a paid family and domestic violence leave introduced in July 2022 and an unpaid parental leave for parents of stillborn babies introduced in 2020. The Committee also notes the adoption of the Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Act 2023, amending the Paid Parental Leave Act 2010 to make the parental leave scheme more accessible, more flexible and gender-neutral. The Amendment Act extends the paid parental leave from 18 to 20 weeks, with 2 weeks reserved, in most cases, on a “use it or lose it” basis for each parent and single parents being able to use the full 20 weeks. The new paid parental leave scheme now comprises flexible days, to be used within 2 years of birth or adoption, and removes the requirement to be off work to be eligible. The Committee notes that, in August 2021, 35.5 per cent of the total workforce were entitled to paid parental leave, with 57.7 per cent of those being women. In August 2021, 0.9 per cent of workers took maternity, paternity or parental leave from work during the last week of the survey, with 82.5 per cent of them being women. The Government indicates that more women took maternity, or parental leave from work than men: 1.6 per cent of female workers benefited from such leave, compared with 0.3 per cent of male workers. In August 2021, 38.1 per cent of part-time workers had an agreement to work flexible hours, with 68.3 per cent of them being female. The Committee requests the Government to provide information on the application in practice of the Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Amendment Act 2023, including the percentage of men and women who requested paid parental leave and whether the new scheme has encouraged parents to share care responsibilities. It also asks the Government to provide information on any measures taken to encourage more men to use their right to parental leave.

New South Wales. The Committee notes with interest that, since July 2021, the Government implemented gender neutral “primary carer” and “secondary carer” terminology in the Government Sector Employment Act 2013, to ensure that paid parental leave provisions, for employees in the public sector, are gender neutral. The Government indicates that this amendment recognizes the diversity of family structures and removes prescriptive gender-informed provisions thereby empowering employees to choose leaves and care arrangements that suits their individual needs. Paid parental leave provisions also extend to employees adopting a child, with provisions referencing ‘time of birth or placement of the child’.

Victoria. The Committee takes note of the various measures in place to provide paid leave and other work arrangements for workers with family responsibilities. Among these changes, the Committee notes the new Long Service Leave Act 2018, in which absences from work, including unpaid parental leave, will generally not break continuous employment and will now count towards accrual of long service leave. The Committee also notes the Government’s indication that it supports the inclusion of paid parental leave provisions in enterprise agreements, and that a model parental leave clause, written in gender neutral terms, is provided in the Victorian Government Public Sector Industrial Relations Policies includes a minimum of eight weeks of paid parental leave that must be provided in all enterprise agreements. The Committee asks the Government to provide information on the results achieved since the introduction of these measures, including on the number of men and women who benefitted from flexible working arrangements or paid parental leave.

Article 5. Childcare services. The Committee recalls the ACTU’s previous observations that, despite the Government’s efforts, access to affordable early education and childcare still remains a significant problem. It notes the Government’s indication that, in 2021-22, it invested a record funding of AUD10.3 billion dollars in early childhood education and care system, supporting more than one million Australian families to balance work and family responsibilities. In 2022-23, this investment is forecast to increase to AUD11 billion dollars, of which AUD10.7 billion dollars will be delivered through the Child Care Subsidy (CCS) alone. The Committee notes that the CCS was implemented in July 2018 and provides targeted financial support to families to reduce the out-of-pocket cost of childcare and replaces the previous dual system of the Child Care Benefit and Child Care Rebate. The CCS supports families by helping to cover a portion of the cost of childcare and is paid to childcare providers who pass it on to families as a reduction in their childcare fees. Families pay the difference between the provider’s fee and the CCS amount. The Government also indicates that, through its Plan for Cheaper Child Care, it has committed, starting in July 2023, to increase the maximum CCS rate to 90 per cent for families earning up to AUD80,000 dollars and increase the CCS rate for every family earning less than AUD530,000 dollars. The Government will also retain the increased Higher CCS rates for families with two or more children, aged 5 and under, in care. The Committee further notes other measures in place to assist workers with family responsibilities to have access to childcare, such as the subsidized care for low-income families, the childcare safety net, the additional childcare subsidy and the community childcare fund. The Committee also notes the Government’s intention to invest in preschooling, with the aim of allowing every child to have access to preschool for 15 hours a week the year before school. Finally, the Committee notes the recommendations of the final report of the Senate Select Committee on Work and Care. The Committee requests the Government to pursue its efforts and to continue to provide information on any new measures to develop or promote community services, public or private, such as childcare and family services and facilities, not only for working parents but for all workers with family responsibilities. It also requests the Government to provide information on if, and how, it will implement the recommendations formulated by the Senate Select Committee on Work and Care. The Committee once again asks the Government to provide information on how the various measures implemented has affected low- and middle-income families in terms of balancing work and family responsibilities.

Article 6. Information and education. The Committee takes notes of the Government’s repeated indication that the Fair Work Ombudsman provides information and resources that assist employees and employers to understand the application of parental leave entitlements, and that information is published on its website, including an employer parental leave checklist, employee parental leave checklist, a parental leave best practice guide and parental leave and related entitlements fact sheet. While taking note of this information, the Committee recalls that, under Article 6 of the Convention, appropriate measures shall be taken to promote information and education which engender broader public understanding of the principle of equality of opportunity and treatment for men and women workers and of the problems of workers with family responsibilities, as well as a climate of opinion conducive to overcoming these problems. The Committee therefore encourages the Government to take more proactive measures, at the federal, state and territorial levels, to educate employers and supervisors, particularly in small and medium-sized businesses, with the aim of promoting the rights and benefits relating to reconciling work and family responsibilities and reducing organizational obstacles and biases against accommodating workers with family and care responsibilities.