Demande directe (CEACR) - adoptée 2000, publiée 89ème session CIT (2001)

The Committee notes the information contained in the Government’s detailed report, including the supplementary documentation relevant to the application of the Convention in Australia. It notes that the report contains information regarding the application of the Convention by the Commonwealth as well as by the state and territory governments, with the exception of South Australia and Victoria. It further notes from the report that the Victorian Government transferred its industrial relations powers to the Commonwealth effective 1 January 1997.

1.  Article 1 of the Convention. The Committee notes with interest that the Australian Industrial Relations Commission (AIRC) has, in the context of a test case addressing award simplification, endorsed a framework model clause for use in workplace agreements which defines the term "immediate family" broadly to include: spouse (including a former spouse, a de facto spouse and a former de facto spouse), child or adult child (including an adopted child, stepchild or an ex-nuptial child), parent, grandparent, grandchild or sibling of the employee or of the employee’s spouse. The Committee further notes with interest the broad definitions of "family" or "family responsibilities" adopted in various jurisdictions, including New South Wales, Queensland, Tasmania, Western Australia and the Northern Territory and takes particular note of the fact that these broad definitions cover the various family formation characteristics of Aboriginal and ethnic cultures and, in addition, extends coverage to same-sex spouses.

2.  Article 3 of the Convention.  Referring to its previous request for information on the application of sections 93A and 170K of the Industrial Relations Act, as amended, the Committee notes the enactment of the Workplace Relations Act, 1996 (WRA) (formerly the Industrial Relations Act, 1988). It notes with interest that section 3 of the WRA, which gives primary responsibility for workplace relations and negotiation of agreements to employers and employees, establishes that the WRA’s principal objective is to provide a framework for cooperative workplace relations by, inter alia, "assisting employees to balance their work and family responsibilities effectively through the development of mutually beneficial work practices with employers" and "respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of ... family responsibilities" (WRA, section 3(i) and (j)). The Committee notes with interest that the protection afforded to workers with family responsibilities through awards is reflected in the WRA through the inclusion of a range of relevant allowable award matters, including hours of work, personal/carer’s leave and parental leave, as well as in provisions encouraging the inclusion of part-time work in awards and removing restrictions on part-time employment. The Committee would be grateful if the Government would continue to provide information in future reports on the practical application of the WRA.

3.  The Committee notes the legislation enacted in the various jurisdictions during the reporting period. In Queensland, it notes with interest the adoption of the Workplace Relations Act, 1997, which states that the purpose of the parental leave portion of the Act is to give effect to the Convention, and the Industrial Relations Act, 1999, which prohibits discrimination on the basis of family responsibilities. The Committee also notes the Northern Territory’s Anti-Discrimination Act, which prohibits discrimination on the basis of, inter alia, pregnancy, parenthood or breastfeeding. 

4.  Referring to its previous request for information on the manner in which workplace agreements are being used to assist workers in balancing work and family life, the Committee notes the information contained in Work and Family: State of Play Report 1998, which indicates that Australian employers are increasingly providing family-friendly provisions in certified agreements (CAs) and Australian Workplace Agreements (AWAs) within the legislative framework established by the WRA. The Committee notes from the report Work and Family: State of Play 1998 that, in 1997 and 1998, 67 per cent of certified industrial agreements (CAs) contained one or more family-friendly provisions, whereas 79 per cent of Australian Workplace Agreements (AWAs) contained at least one such provision. Flexible hours provisions were the most common type of family-friendly provision in CAs, whereas provisions on family/carer’s leave and flexible hours were the most common such provisions in AWAs. The Committee notes with interest the indication in the report that provisions assisting workers in balancing their work and family responsibilities are increasingly forming part of the bargaining agenda in negotiating workplace agreements. Given the Government’s statement that large enterprises and public sector employers are more likely to include family-friendly provisions in workplace agreements, the Committee asks the Government to indicate the measures taken or envisaged to encourage small and medium-sized enterprises to adopt family-friendly policies and to include family-friendly provisions more frequently in CAs and AWAs. The Committee also notes from the Working Out Time Handbook, NSW Working Women’s Centre 1997, that approximately 20 per cent of all workers have no award. Accordingly, the Government is requested to indicate the measures taken or envisaged to promote application of the provisions of the Convention in respect of workers who are not employed under an award.

5.  Article 4.  In its previous comments, the Committee noted the decision of the Australian Industrial Relations Commission (AIRC) in the special family leave test case, lodged by the Australian Council of Trade Unions (ACTU), which  introduced a package of measures to help workers balance their work and family responsibilities. In November 1994, the AIRC issued the first stage of its decision, which permitted workers to access their sick leave entitlements to care for sick family members. It also allowed employers and employees to agree to more flexible access to up to one week of annual leave to be taken in single days, make-up time arrangements and unpaid leave. The Committee notes from the report that the second stage of the decision, issued in November 1995, permitted the aggregation of sick leave and bereavement leave periods, allowing workers to access the aggregated leave period for family leave purposes, subject to a five-day maximum. The second stage of the decision also included additional provisions relating to part-time work and rostered days off in order to give workers increased flexibility to assist them in reconciling their work and family responsibilities.

6.  Article 5.  With regard to the availability of childcare services, the Government indicates that, as of June 1999, the supply of such services for preschool-age children exceeded demand by 11 per cent; however, areas of need were still present at the local level, due to an uneven distribution of places. The Committee notes that, in respect of school-age children, the demand for childcare services exceeded the number of available places by 76 per cent. The Committee requests the Government to provide information on measures taken to meet the need for childcare services at the local level, as well as for school-age children.

7.  Article 6.  Further to its previous comments requesting information on the activities of the Work and Family Unit of the Department of Employment, Workplace Relations and Small Business in implementing the Government’s 1993 National Families Strategy, the Committee notes with interest the many and varied promotional activities undertaken by the Unit, including the dissemination of information relevant to application of the Convention through seminars and conferences, public acknowledgement of best practice companies through the Corporate Work and Family Award Programme and the launching of a public internet site. The Committee further notes the information supplied in the report on projects assisted by the Work and Family Grants Programme from 1994 to 1997. According to the Government, some projects focused on the diversity of employees with family responsibilities, including Aboriginal and Torres Strait Islanders, and addressed a range of specific work and family issues. The Committee would appreciate continuing to receive information in future reports on  projects undertaken by the Government relevant to the application of the Convention.

8.  The Committee notes the establishment in December 1996 of a joint federal and state/territory government department of the Labour Advisory Committee Working Party on Work and Family. According to the report, the Working Party has undertaken a number of activities, including developing a survey instrument designed to compile comprehensive data on work and family initiatives in public and private sector organizations. Noting that the survey has been tested in Western Australia and is expected to be used in other areas, the Committee requests the Government to supply information in its next report on the results of the survey.

9.  Referring to its previous request for information on the establishment and activities of the Working Women’s Centres, as well as an indication of the likelihood of extending those activities to other states and territories, the Committee notes from the report that, during 1994-95, working women’s centres were established in New South Wales, Queensland, Tasmania and the Northern Territory. Additional funding was also provided to the already existing centre in South Australia for an Aboriginal liaison officer. The Committee notes that the centres provide free information, assistance and advocacy services to women on a range of workplace issues, including employment discrimination. The report indicates that a nationwide information campaign was conducted in 1995 to encourage women to avail themselves of the centres’ services. The Committee would appreciate receiving information on the activities of the centres relevant to the Convention, including those activities designed to assist working mothers in entering and remaining in the labour force.

10.  Article 7.  The Committee notes the information supplied in the report concerning the establishment and activities of the Australian National Training Authority (ANTA). The Committee further notes the activities undertaken by the Jobs, Education and Training (JET) Programme, which assists persons in gaining access to education, training and employment, and childcare services. It also notes that the New South Wales Department of Education and Training has implemented part-time traineeships and arrangements with more flexible training delivery, to assist workers with family responsibilities to have access to more flexible training options. It notes with interest the initiatives undertaken by the NSW Department of Education and Training, including the development of information technology courses on the internet to facilitate study for participants with family responsibilities, the gender equity project and the family-friendly schedule of courses offered for women in tertiary and further education (TAFE). The Committee would be grateful if the Government would continue to provide information on developments relevant to the application of Article 7 of the Convention.

11.  Article 8.  The Committee notes with interest that section 170CK(2) of the WRA provides that an employer may not terminate an employee’s employment on the grounds of, inter alia, family responsibilities and absence from work due to maternity leave and parental leave (170CK(2)(f) and (h)). It recalls that section 14(3A) of the Human Rights and Equal Opportunity Legislation Amendment Act (No. 2), 1992, also prohibits employers from terminating workers due to their family responsibilities. In this respect, the Committee notes the decision of the Equal Opportunity and Human Rights Commission in Hickie v. Hunt and Hunt, EOC 92-910 (1998), holding that, while employees are protected from dismissal on the grounds of family responsibilities under section 14(3A) of Act No. 2 of 1992, partners are not protected from dismissal due to their family responsibilities under section 17(2) of the same Act. The Committee requests the Government to indicate whether it contemplates taking measures to extend this protection to partners in light of the Hickie decision. The Committee would be grateful if the Government would continue to provide information on judicial and administrative decisions relevant to the Convention in future reports.