5.1
Building on the contextual landscape outlined in the previous chapters, this chapter provides an overview of the legislative framework and legal systems which apply to people balancing work and care responsibilities.
5.2
The chapter explains workplace relations laws, the National Employment Standards and available leave entitlements, and details the mechanisms currently available to workers to request flexible work arrangements. Throughout the chapter, some of the evidence provided to the committee to date shows how the workplace relations system is not suited to the circumstances of work and care.
Workplace relations framework
5.3
In an employment context, workers with caring responsibilities have rights set out under the national workplace relations system (Fair Work system), which was established by the Fair Work Act 2009 (Fair Work Act) on 1 July 2009.
5.4
The following section provides an overview of these laws, and their applicability to working carers.
5.5
The Fair Work Act provides protections to employers and employees, and aims to, among other things:
provide workplace relations laws that are fair to working Australians and are flexible for businesses;
ensure a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards (NES); and
assist employees to balance their work and family responsibilities by providing for flexible working arrangements.
National Employment Standards
5.6
The Fair Work Act sets out 11 minimum NES entitlements, which include hours of work and leave entitlements. Together, the national minimum wage and the NES make up the minimum entitlements for employees in Australia and cannot be overridden by the terms of awards, registered agreements, or employment contracts.
5.7
All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies. Casual employees are only eligible for some benefits of the NES, including unpaid carer’s leave. The NES provides for minimum entitlements in the following areas:
requests for flexible working arrangements;
offers and requests to convert from casual to permanent employment;
parental leave and related entitlements;
personal/carer's leave, compassionate leave and unpaid family and domestic violence leave;
notice of termination and redundancy pay; and
Fair Work Information Statement and Casual Employment Information Statement.
National leave entitlements
5.8
Several of the NES entitlements have specific relevance to the time and financial pressures associated with the provision of informal care by those who work. Some of these entitlements are discussed below, including:
the right to request flexible working arrangements;
paid personal/carer leave;
unpaid personal/carer leave;
family and domestic violence leave; and
Personal and carer’s leave
Paid personal/carer’s leave
5.9
Under the NES and section 96 of the Fair Work Act, employees are entitled to 10 days of paid personal/carer’s leave—unless they are employed on a casual basis and have been with the employer less than 12 months (in other words, new casual employees are not able to access paid personal leave).
5.10
Additionally, section 102 of the Fair Work Act provides casual and permanent employees with two days of unpaid carer’s leave per year. This entitlement:
… accrues progressively during a year of service (other than periods of employment as a casual employee of the employer) according to the employee’s ordinary hours of work, and accumulates from year to year.
5.11
An employee may take paid personal/carer’s leave:
when the employee is unfit for work due to personal illness or injury; or
to provide care or support to a member of the employee’s immediate family or household who is affected by illness, injury or unexpected emergency.
5.12
The Fair Work Ombudsman (FWO) explains that personal/carer’s leave—also known as sick and carer’s leave or personal leave—allows an employee to ‘take time off to help them deal with personal illness, caring responsibilities and family emergencies’. The FWO continues that:
An employee may have to take time off to care for an immediate family or household member who is sick or injured or help during a family emergency. This is known as carer's leave but it comes out of the employee's personal leave balance.
5.13
Importantly, a ‘household member’ is defined as any person who lives with the employee, while ‘immediate family’ is defined as a:
spouse or former spouse, or de facto partner or former de facto partner;
child, parent, grandparent, grandchild or sibling of the employee's spouse or de facto partner (or former spouse or de facto partner).
5.14
Carers NSW pointed to some concerns with these definitions, noting that there is a contradiction with the Carers Recognition Act 2010 (Carers Act), which:
… provides a clear definition of a carer, which is generally applied in the development of carer policy and programs. However, the NES contradicts this definition with respect to existing carer leave entitlements, restricting care to that only of an immediate family or household member due to injury, illness or emergency.
5.15
Under the Fair Work Act, an employee is required to provide evidence verifying the reason for leave if requested to do so by the employer. An example of acceptable evidence may include a medical certificate confirming the nature of an employee’s illness or injury, and details of evidence requirements are primarily set out in award or agreement provisions.
Accessing paid leave
5.16
The Department of Employment and Workplace Relations (DEWR) pointed to the findings of the Household Income and Labour Dynamics in Australia (HILDA) survey, which shows that the use of paid personal/carer’s leave has been stable since 2016, as shown in the table below:
Table 5.1: Average days of paid leave taken in last 12 months, by leave type
|
|
|
|
|
|
|
|
Sick leave
|
3.2
|
3.3
|
3.3
|
3.2
|
3.3
|
|
Maternity, paternity, bereavement, family and carer’s leave
|
3.2
|
3.5
|
3.1
|
2.8
|
3.0
|
Source: Department of Employment and Workplace Relations, answers to questions taken on notice, No IQ22‑000056, 16 September 2022 (answers received 29 September 2022).
5.17
The 2020 National Carer Survey found that 44 per cent of carers had taken paid personal/carer’s leave in their current employment.
Unpaid carer’s leave
5.18
The Fair Work Act also provides for two days of unpaid personal/carer’s leave for each occasion when a member of the employee’s immediate family or household, requires care or support because of personal illness or injury, or due to an unexpected emergency.
5.19
However, section 103(3) of the Fair Work Act states that an employee cannot take unpaid carer’s leave during a particular period if the employee could instead take paid personal/carer’s leave.
5.20
Further, full-time and part-time employees can only access unpaid carer’s leave if they don’t have any paid sick or carer’s leave left. An employer cannot take negative action against an employee for taking unpaid carer’s leave, as it is a protected right.
5.21
As highlighted by Carers NSW and other stakeholders, there are currently no provisions in the NES for an employee to take extended unpaid leave for the purpose of caring responsibilities.
5.22
Going some way to address this, Recommendation 43 of the Royal Commission into Aged Care Quality and Safety stated that ‘the Australian Government should examine the potential impact of amending the [NES] under Part 2-2 of the Fair Work Act to provide for an additional entitlement to unpaid carer’s leave’.
5.23
Subsequently, on 23 February 2022, the Productivity Commission was called on to conduct an inquiry into carer’s leave and the adequacy of the NES in practice, in accordance with the Royal Commission recommendation. At the time of writing, the Productivity Commission inquiry is ongoing, with a draft report due for release in January 2023, and a final report in May 2023.
Family and domestic violence leave
5.24
The Fair Work Amendment (Family and Domestic Violence Leave) Act 2018 came into effect on 12 December 2018, entitling employees to unpaid family and domestic violence leave.
5.25
Employees are now able to access five days of unpaid family and domestic violence leave in a 12-month period. An employer may also agree to an employee taking more than five days of unpaid leave, and eligibility was also expanded to include part-time and casual employees.
5.26
The Fair Work Amendment (Paid Family and Domestic Violence Leave) Bill 2022, currently before the Parliament, seeks to amend the Fair Work Act to provide 10 days of paid Family and Domestic Violence leave in a 12-month period, to full‑time, part‑time and casual employees.
Compassionate leave
5.27
Section 104 of the Fair Work Act provides permanent employees with two days of paid leave per year on compassionate grounds. The Act provides that compassionate leave can be taken when a member of an employee’s immediate family or household dies or suffers a life-threatening illness or injury. Immediate family is defined as an employee’s spouse, de facto partner, child, parent, grandparent, grandchild, sibling or de facto partner.
5.28
An employee may take compassionate leave for each occasion as:
a single continuous two day period; or
two separate periods of one day each; or
any separate periods to which the employee and his or her employer agree.
5.29
Casual employees are not entitled to any paid compassionate leave. However, similarly to personal/carer’s leave, casuals are eligible for unpaid leave.
Inadequacies in personal leave entitlements
5.30
Evidence received thus far by the committee suggests that Australia is lagging well behind comparable nations in terms of its leave entitlements framework, and that people engaging with both work and care do not have appropriate or adequate access to carer’s leave.
5.31
It is particularly concerning that the Fair Work Act does not allow for paid carer’s leave to casuals, who may already be in a precarious financial position due to caring responsibilities.
5.32
Carers Australia explained that there was a particular risk to carers of income insecurity resulting from:
… uneven coverage of paid and unpaid carer leave in different industries and different roles, particularly insecure and precarious employment, and the sometimes unexpected or unpredictable nature of caring.
5.33
There is also a gendered nature to who is taking carer’s leave, which reflects the fact that women are far more likely to be informal carers than men. The Victorian Council of Social Service (VCOSS), for example, noted the findings of Victoria’s Commission for Gender Equality in the Public Sector survey, which found that women made up more than two-thirds—68 per cent—of those accessing carer’s leave in the Victorian public service.
5.34
Similarly, the Law Council noted that—in 2018—more than 70 per cent of primary carers of older people were women; as such, ‘women are likely to be the primary beneficiaries of any new carer’s leave entitlement’.
Paid and unpaid carer’s leave
5.35
Submitters and witnesses voiced their concerns about the operation of paid and unpaid carer’s leave in Australia.
5.36
The Australian Nursing and Midwifery Federation (ANMF) was of the view that the current NES entitlements to paid and unpaid carer’s were:
… inappropriately narrow in scope and inadequate in quantum. The entitlement is not broad enough to capture employees who provide ongoing care to older people or loved ones with chronic illnesses or disabilities. Furthermore, the entitlement affords little flexibility in the way in which it can be used to allow carers to take part days to facilitate medical appointments/ treatments for those in their care.
5.37
The Australia Institute and the Centre for Future Work drew attention to the unique issues faced by casuals trying to access paid and unpaid leave, saying that:
One of the main reasons women with caring responsibilities are located in casual work is because they are worker-carers. The contribution of their unpaid care work to our society and economy are barely recognised in institutional supports. When carers enter the labour market they are further disadvantaged because of their unpaid care work, as they obtain casual and other insecure work with no access to leave that could support them [to] manage work and care.
5.38
Professor Sara Charlesworth also noted that in Australia, there is no paid leave for casuals, apart from provisions around family and domestic violence leave. She called the current system for casuals ‘bizarre’, where Australia has ‘regular’ and ‘irregular’ casuals, or ‘casual casuals’ and ‘permanent casuals’, none of which attract leave. Professor Charlesworth called for better rights to paid leave, both carers and personal.
5.39
The ANMF called for paid and unpaid carer’s leave to cover informal carers, be increased to 20 days per year, be available in a flexible way that allowed caregivers the option of ‘taking half/part-days to facilitate care responsibilities’ and have the superannuation guarantee be applicable to periods of carer’s leave.
5.40
The ANMF asserted that provision in the NES of paid personal and carer’s leave for casual employees would ‘be a significant measure to support casual employees in the long term’.
5.41
The Shop, Distributive and Allied Employees' Association (SDA) likewise called for the introduction of paid carer’s leave for casuals, and also recommended that the law be changed to:
Extend unpaid carers leave with the right to return to work under the NES for workers who need extended leave to care for an older person or someone with a disability or temporary or terminal illness.
5.42
The Australian Services Union (ASU) however, did not support a greater reliance on informal, unpaid care to reduce the need for formal, paid care. The ASU argued that this approach would not solve:
… the aged care and disability sector crisis in Australia, and could undermine efforts to increase quality, professionalism, and sustainability in these sectors as well as gender equality goals.
Creating an extended statutory entitlement to unpaid carers leave in the National Employment Standards distracts from policy measures that can genuinely make a difference. Creating greater expectations on unpaid carers will see more of our members taking time out of the paid care workforce to care for their parents or family members, increase gender inequality, and exacerbate the pay equity and retirement savings gaps. Extending unpaid carers leave would be counterproductive to the broader policy goal of gender equality.
5.43
Ms Alexi Boyd, Chief Executive Officer of the Council of Small Business Organisations Australia, also spoke to the administrative concerns for businesses where people were accessing unpaid carer’s leave. She said that unpaid carer’s leave:
… has its benefits for both the employer and employee. However, any changes to the [leave] system would need to take into consideration that … even on a day-to-day basis, that can affect the small business owner's productivity, having to renavigate rosters et cetera. So if we think about people returning to work on a flexible basis, they may be able to do it for a certain number of days after, say, maternity leave. But each time that person returns to the work there is an element of disruption, either to the roster or to the process of the work environment. … Any changes, again, need to take into consideration what the impact would be not only from an administrative point of view but as a small team and in that workplace environment.
Combining personal and carer’s leave
5.44
Working carers appear to be losing access to leave entitlements when they must utilise their own personal leave to take care of others, due to personal and carer’s leave being offered as a single entitlement.
5.45
Upon examining 14 OECD countries with similar economies, carer population profiles and similar incentives for carer’s leave, Carers Australia found that ‘the majority of these countries had more generous leave entitlements than is the case in Australia’ and importantly, none of the examined countries combined sick leave and carer’s leave into a single entitlement as is the case here.
5.46
Carers Tasmania explained that:
Taking paid personal/carers leave may result in carers exhausting their leave entitlements in order to support the person they care for and leaving themselves with no personal leave to enable rest and recovery when they become unwell. Similarly, if carers use all of their annual leave to support the person they care for, they will not have annual leave to enable them to take a proper break from work.
5.47
These circumstances led to calls from submitters and witnesses to separate carer’s and personal/sick leave into two separate leave entitlements, an issue the committee will continue to examine.
Definitions of ‘carer’ and accessing carer’s leave
5.48
A number of submitters drew attention to issues with the definition of ‘carer’ and the limited scope of the Fair Work Act definitions for personal and carer’s leave, which is applicable only in circumstances involving ‘immediate family’ or ‘household members’.
5.49
Carers NSW, for example, argued that the NES definition of ‘carer’ is more restrictive than the Carers Act definition, and excludes care provided to extended family members or friends, and ‘the provision of routine care such as support with activities of daily living or attending appointments’. Carers NSW detailed the issues with the restrictive NES definition:
While employers may apply the definition more broadly than that stated in the NES, this is at an employer’s discretion and is often reliant on their awareness and understanding of caring. Furthermore, differing definitions of carers and caring between the NES and carer recognition legislation may be confusing for carers themselves and create greater difficulty in understanding their entitlements.
5.50
The SDA likewise argued that the current definitions do not consider those who provide care to others in the community, such as extended family, friends or neighbours. The SDA suggested that:
Access to carers leave should be extended to caring for anyone the worker provides care to, regardless of whether they form part of the persons household or immediate family. Families are not singularly defined. People may have different ‘family’ structures that don’t fall into the traditional definition of immediate family and the provision of care to people they recognise as part of their family or community should also be supported.
5.51
As the inquiry continues, the committee will consider whether nationally consistent and broader definitions around work and care would assist with policy development, and with people understanding and accessing leave entitlements.
Paid parental leave
5.52
The Paid Parental Leave Act 2010 (PPL Act) provides financial support to eligible working parents of newborn or recently adopted children, via paid parental leave (PPL).
5.53
As outlined in the previous chapter, PPL is paid to the child’s primary carer for up to 18 weeks of pay (90 days), based on the rate of the national minimum wage. Working fathers and same-sex partners also able to access two weeks leave paid at the national minimum wage, if eligible.
5.54
The PPL Act is designed to complement the Fair Work Act, by providing up to 12 months of unpaid leave (or 24 months with the employer’s agreement) for employees with a minimum of 12 months continuous service.
5.55
However, an employee is not entitled to parental leave under the NES unless they have 12 months of continuous service or are a ‘long term casual employee’.
5.56
According to DEWR’s Workplace Agreements Database, as of 31 March 2022 18.5 per cent of current workplace agreements, covering 887 227 employees, provided employer‑funded PPL above the minimum standards. The average entitlement was 13.2 weeks leave.
Superannuation Guarantee
5.57
The superannuation guarantee (SG) is a retirement income safety net administered by the Commissioner of Taxation and the Australian Taxation Office. The SG requires employers to pay a minimum percentage of employee's salary into their nominated superannuation fund or retirement savings account. From 1 July 2022, the SG rate rose to 10.5 per cent, with the rate scheduled to progressively increase to 12 per cent by July 2025.
5.58
The Treasury, through DEWR, advised that while employers are required to make SG contributions to their employees on ‘ordinary time earnings’, subsection 6(1) of the Superannuation Guarantee (Administration) Act 1992 (SGAA) defines ordinary time earnings as “earnings in respect of ordinary hours of work”. Treasury explained that:
This includes annual leave, personal/carer’s leave, sick leave and long service leave. The definition does not include overtime and parental leave (paid or unpaid).
Employers are not legally required to make SG contributions on any work not defined as ‘ordinary time earnings’ in the SGAA, unless there are specific provisions set out in an award or enterprise agreement.
Employers can however choose to voluntarily make SG contributions on any leave not defined as ‘ordinary time earnings’ in the SGAA.
Shortcomings of the parental leave system
5.59
Many submitters and witnesses to the inquiry called for improved access to PPL in Australia, particularly an extension of the available leave and more equitable use of that leave between primary and secondary parents.
5.60
The committee has received strong support for increasing the length of time of PPL, and also incorporating a ‘use it or lose it’ component to encourage both partners to take parental leave (where the entitlement is lost if either parent does not utilise the leave available).
5.61
For example, Ms Pauline Vamos of Chief Executive Women made the case for expanding the period of PPL, arguing that the Grattan Institute, the Centre for Policy Development (CPD) and KPMG had all provided ‘strong evidence’ that extending PPL to 26 weeks would be an investment that would pay dividends. Ms Vamos explained that:
While it would cost an extra $600 million a year, the investment boost to GDP would be $900 million a year. It would increase workforce participation by mothers and boost the average mother's lifetime earnings by $30,000. We also feel it is vital that it [PPL] has a 'use it or lose it' component to encourage shared care by men and women. We know that currently 88 per cent of paid parental leave is taken by women. We need men to take it as well. It's good for them, it's good for children and it's good for the economy.
5.62
Similarly, the Business Council of Australia commented that the ‘use it or lose it’ provision incentivises more equal caring responsibilities that prompts behavioural change. It noted that:
… when Canada introduced additional paid parental leave on a use it or lose it basis for the secondary carer it doubled the percentage of partners taking leave in the first year.
5.63
UNICEF summarised the well-established social and economic benefits of an extended PPL scheme, noting that it increases female workforce participation, health benefits for mothers and lowers infant mortality. For fathers, it increases parental satisfaction through time spent with their children, and creates a more equitable division of labour in the household.
5.64
In line with the findings of the Grattan Institute, UNICEF advocated for a PPL structure where 12 weeks would be shared between parents, with a six weeks ‘use it or lose it provision’ which both parents could utilise. Further, ‘to incentivise uptake, an additional two weeks of bonus leave could be taken by either parent if both take at least six weeks’ and ‘single parents would be given the full 26 weeks’.
5.65
The Work + Family Policy Roundtable (Roundtable) argued for slightly longer than 26 weeks, instead suggesting the full period of PPL be extended to at least 32 weeks, ‘including 26 weeks available for parents to share, plus an addition 6 weeks available on a “use it or lose it basis” for partners’, with sole parents having access to 32 weeks.
5.66
The international experience was also discussed in evidence, with clear suggestions that ‘international leaders in paid parental leave provide long periods of government-funded, gender-inclusive parental leave’, which encourages more men to take parental leave—increasing their likelihood of ‘future uptake of flexible working to better share care responsibilities throughout child raising years’.
5.67
The Global Institute for Women’s Leadership summarised some of the leading provisions available internationally, including in:
Finland, where both parents are entitled to the same amount of parental leave;
Germany, where two more months of leave is available to the couple, only if both parents take the parental leave;
Iceland, where 13 non-transferable weeks are reserved for each parent and 13 weeks can be divided flexibly; and
Norway, where 15 non-transferable weeks are reserved for each parent and 19 weeks can be divided flexibly.
Increasing PPL beyond 26 weeks
5.68
Evidence to the committee was supportive of increasing the period of PPL further, beyond 26 weeks. In doing so, submitters highlighted Australia’s comparatively low level of parental leave support by international standards, and the relatively low uptake of the PPL scheme by non-primary parents.
5.69
The CPD, in its ‘Starting Better’ report, suggested that increasing Australia's PPL could bolster women's participation in the workforce, alleviate workforce shortages, and help grow the economy in the long term. The CPD highlighted that a 52-week period would be a logical increase for Australia, bringing our PPL scheme ‘into line with global best practice and the OECD average of 51.5 weeks parental leave’. Further, the CPD noted that a 12-month PPL period per family ‘would create an annual GDP increase of between $3.8 billion and $4.7 billion’, driven by greater workforce participation for women, and greater productivity.
5.70
In making the case for this increase, the CPD noted that:
The first year of life is a critical time for establishing a child’s attachment style and determining later health and wellbeing. More generous paid leave is also linked to better maternal health and reduced poverty for single parents. Incentives for more equal sharing would ensure that parents can balance work and home life together.
5.71
While the Roundtable argued for an immediate increase to PPL to 32 weeks, it also called for the extension of PPL to 52 weeks—and said this should be done as soon as possible. The Roundtable explained that this ‘could include 3 months for the mother, 3 months for the father/partner, and 6 months to share’. Such an approach would ‘maximise the provision of decent paid parental leave for all working parents’.
5.72
The SDA likewise contended that PPL should be increased to 52 weeks, and also called for the entitlement to be paid for all employees at full-wage replacement or the national minimum wage, whichever was the greater.
5.73
A report by the Australian Council of Trade Unions (ACTU), titled ‘Delivering Equity for Women at Work’, called for PPL to be phased up to 52 weeks by 2030, and to replace the categories of ‘primary’ and ‘secondary’ carer with a common ‘parent’ category, as a single, shared entitlement. To support this, the ACTU also called for incentives to be included in PPL, to encourage shared parenting.
Imbalances in parental leave
5.74
By international standards, Australia has a ‘very low’ uptake of parental leave by fathers. As shown by this report and as noted by The Parenthood, Australia’s Parental Leave Pay program provides for up 20 weeks of parental leave, paid at the minimum, compared to an OECD country average of more than 50 weeks.
5.75
Three in five employers currently offer paid parental leave, and ‘primary carer’s leave is becoming increasingly available to both men and women’, however only 12 per cent of those who took primary carer’s leave in 2020-21 were men.
5.76
As was noted by Ms Alannah Batho, the current legislative and policy context for parents as carers is ‘underpinned by the historic arrangement in which a male partner worked outside the home full-time and his female partner worked in the home full-time, including caring for their children’. Ms Batho continued that:
This model has changed significantly over recent decades. The typical arrangement in most cases now is that both parents work outside the home (albeit one person often does so part-time). The systems we have in place supporting parents have not kept pace with this significant change to the way parents work outside the home.
5.77
The Grattan Institute suggested that removing barriers to work of high-cost child care and ‘gender-biased parental leave’ has the potential to ‘significantly boost economic growth and promote gender equality’.
5.78
Ms Lace Wang, Assistant Secretary with the Department of Employment and Workplace Relations (DEWR) advised the committee that the Department was aware that it still is ‘not a norm for men to take leave to perform unpaid care functions’. Ms Wang continued that one of the reasons for this was:
… the lack of flexibility to encourage that shared care and undertaking of work among the employee couples. Currently under consideration is how we improve the flexibility of unpaid parental leave to create more choice for employee couples, to share that leave entitlement and, in a sense, to share the unpaid carer responsibilities at home.
The current paid parental leave requires the leave be taken predominantly as a continuous block—almost as a take it or leave it. So that does provide an incentive for one carer to take all the leave, otherwise they will lose the entitlement. We see it is quite a norm for women, particularly, to take the leave first after having a newborn, and our current settings do not allow them to take a break between leave. They have to take the whole leave, so that could result in quite an extensive period away from work.
We hope that the current considerations will find how to improve flexibility in those provisions and will provide that flexibility. If the mother doesn't need to take all the leave entitlement as one block, that may encourage the other party or partner to take leave in the early days of their child. Hopefully, we will embed that and share the care and responsibility from the early days.
5.79
There are initiatives in place overseas that have successfully addressed this issue. Chief Executive Women explained that:
We know from international experience that the key to men taking parental leave is a ‘use it or lose it’ component. In Denmark this saw a significant increase in men’s uptake of parental leave and men were more likely to continue shared care of their children throughout the early years. Encouraging men to take up parental leave normalises flexible work and shared care responsibilities, unlocking women’s workforce participation and strengthening their financial security.
5.80
Professor Myra Hamilton of the Roundtable made a similar point, advising that:
… in some of the Nordic countries there is evidence that getting fathers involved in child care as the primary provider of child care—not the short periods of secondary carer leave that we tend to focus on here at the moment in Australia—for much longer periods early in the child's life has longstanding impacts on the division of labour.
5.81
Professor Elizabeth Hill followed on from this, and encouraged the committee to ‘consider the aspirations of young Australian men’, as the data is showing ‘an increasing feeling and expectation’ in that cohort of wanting to participate in the unpaid care of their children. Professor Hill indicated that young men:
… are disappointed and shocked by the policy settings that disincentivise that [leave] and make it a much more rational response of their household for that work to be done by the female, the birth partner. So we need to make these changes for young Australian men as much as we need to make them for young Australian women.
Superannuation guarantee
5.82
The fact the SG is not paid on PPL is leading to adverse economic outcomes for women, who are the most likely to access PPL, be out of the workforce and therefore not building their superannuation balance.
5.83
Women in Super noted that for women accessing PPL, these circumstances create:
… serious implications for women at retirement with these missed years of accumulation resulting in an average difference of $113,661 in retirement balances between men and women.
5.84
Ms Alison Preston summarised the issue of PPL and superannuation, and the impact it has on women specifically:
Research … using HILDA data (for 2018) finds that, amongst non-retired adults in Australia, motherhood caries a significant penalty in terms of superannuation savings (Preston and Wright, 2022). Non-retiree women who have or had children have, on average, 16.3% lower superannuation savings than their counterparts who have not had children. No such superannuation savings penalty is observed amongst men. There is also an additional penalty associated with part-time work. Non-retired women who work or previously worked part-time have, on average, 20.6% lower superannuation savings than their counterparts who have not worked part-time. Amongst men the part-time penalty is similarly high at 28.8%.
…
Such penalties contribute to the rigidities in patterns of employment … and they have significant ramifications for women’s economic security in retirement given the large share of women who work part-time. As a minimum paid parental leave schemes should attract superannuation contributions and the latter should, as a minimum, be at the standard ‘Superannuation Guarantee’ (SG) rate (currently 10.5%).
5.85
The Roundtable argued that increasing the rate of PPL, while including the SG in the payment would ‘improve the extent to which the scheme mitigates the negative impact of leave on women’s income and retirement savings’. Chief Executive Women made similar arguments and further suggested that the SG might extend to time spent out of the workforce for caring responsibilities.
5.86
The SDA likewise called for the SG to obligate employers to make superannuation contributions during periods of both paid and unpaid parental leave.
Flexible work arrangements
5.87
The Fair Work Act, at section 65, allows employees to request flexible working arrangements, if any of the following circumstances apply to the employee:
(a)
the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b)
the employee is a carer (within the meaning of the Carer Recognition Act 2010);
(c)
the employee has a disability;
(d)
the employee is 55 or older;
(e)
the employee is experiencing violence from a member of the employee’s family;
(f)
the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
5.88
Further, section 65 of the Fair Work Act stipulates:
An employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child:
(a) is under school age; or
(b) is under 18 and has a disability.
5.89
A request for flexible work arrangements can only be made by an employee after 12 months of continuous employment. Requests from employees must be in writing, explain the changes being requested and the reasons behind them.
5.90
Eligibility for requesting flexibility does not include carers who are employed intermittently, or who are seeking to enter the workforce after a period of absence. For casual employees, eligibility is determined by employment on a ‘regular and systemic basis for 12 months or more’.
5.91
Despite this framework, Ms Wang of DEWR noted that in Australia there was ‘very little evidence about the utilisation of a flexible work arrangement’ but based on the available data, the provisions have not been widely utilised.
5.92
Other jurisdictions have implemented right to flexibility provisions. In the United Kingdom, for example, all employees have the legal right to request flexible working conditions—this right is not limited to just parents and carers.
5.93
Upon receiving a request, an employer must deal with it in a ‘reasonable manner’, and if this is not done, the employee can take the employer to the UK’s employment tribunal.
Refusing a request
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Once a request for flexibility is made, employers must provide a written response to the employee within 21 days and can only refuse a request on ‘reasonable business grounds’. Grounds of refusal, as laid out in the Fair Work Act, may include:
that the new working arrangements requested by the employee would be too costly for the employer;
that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Appeals process
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Whilst the Fair Work Act requires the employer to provide written reasons for rejecting the request, there is no specified appeals process for an employee to access should they be denied flexibility, particularly under the awards system.
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Under subsection 739(2) of the Fair Work Act, the Fair Work Commission (FWC) is prohibited from dealing with a dispute over a refusal to agree to flexible working arrangements unless provided for in:
a contract of employment, enterprise agreement, or other written agreement that allows the FWC to handle the dispute; or
a determination is made under the Public Service Act 1999, authorising the FWC to deal with the matter.
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In other words, a flexible working arrangement request can be denied on reasonable business grounds, and this is excluded from the FWC’s power to arbitrate unless an enterprise agreement specifically allows it.
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DEWR advised on the number of disputes considered by the FWC in relation to a request for flexible working arrangements, as follows:
from 1 July 2012 to 30 June 2015: 128 applications
from 1 July 2015 to 30 June 2018: 125 applications
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In more recent years, the number of applications to the FWC relating to flexible work arrangements have been:
from 1 July 2018 to 30 June 2019: 35 applications
from 1 July 2019 to 30 June 2020: 29 applications
from 1 July 2020 to 30 June 2021: 49 applications
The right to disconnect
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Several international and Australian jurisdictions, and specific enterprise agreements, provide for the ‘right to disconnect’. This is a right which allows workers to not engage with work outside of formal work hours.
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For example, the most recent Victorian Police EBA includes a right to disconnect (Clause 59), which indicates that supervisors and managers must not contact employees outside of their hours of work other than in emergency situations or for genuine welfare matters. Employees are not required to read or respond to emails or phone calls outside their effective working hours.
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Australian Unions, in its Working from Home Charter, explained that work/life balance must be maintained by having a right to disconnect from work, particularly when working from home brings increased risk of ‘working life impinging on non-working life and the encroachment of work into the personal sphere’. The Unions argued that working from home should have legal and reasonable limits on working time.
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The Victorian Branch of the ANMF also called for a common right to disconnect, unless otherwise provided for in industry awards or enterprise agreements.
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In overseas jurisdictions, particularly in Europe, there has been a right to disconnect in place for some time—but as was the case in Australia, failing to disconnect from digital technology outside of core working hours became more common due to the pandemic.
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France was the first European country to introduce right to disconnect legislation, which has been in effect since January 2017. France required employers to negotiate agreement with unions for a right to disconnect from technology after working hours. Countries such as Italy, Spain, Belgium, Ireland and Portugal have since followed suit to varying degrees.
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The committee sought advice from DEWR as to whether the Australian Government was considering legislative reform to provide workers with a protected right to disconnect, and therefore allow them to be effective (or more effective) carers.
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Ms Wang of DEWR advised that while amendments were a matter for government, the Department believed it was a relevant topic and it was being considered in the broader context of flexibility at work.
The lack of flexibility in ‘flexible work arrangements’
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While flexible working arrangements alone do not fully support people balancing work and care, they ‘often play an important role in facilitating this balance’.
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Despite the legislated right for some employees to seek flexible arrangements, evidence to the committee suggests these provisions are either not fit for purpose or are not being properly considered by employers.
Requests for flexibility
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Carers NSW made the important point that the NES protects the right of working carers to request flexible working arrangements—but it ‘does not protect the right of carers to access flexible working arrangements’. Carers NSW further explained that:
There is limited data available that provides insights into the approval and refusal of flexible working requests. Additionally, carers report to Carers NSW that where flexible working requests have been denied, they have been too scared to take action available through the Fair Work Commission against their employer as they are dependent on their ongoing income, or because they have felt disempowered and unlikely to win against a big corporate employer.
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In addition, Carers NSW noted that men are twice as likely to be denied or experience stigma and exclusion when accessing flexible work arrangements, and as a result may change sectors or leave the workforce. Carers NSW contended that:
This dynamic also reinforces the gendered nature of care, incentivising women to reduce their workforce engagement to care as male carers cannot access the same levels of understanding or flexibility.
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The Community and Public Sector Union (CPSU) reported issues in the Australian Public Service, where working from home requests were being denied despite there being clear grounds for approval under section 65 of the Fair Work Act, and because ‘the agency had a preference for office-based work’.
Changing the flexibility framework
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Concerns were raised with the committee about the approach of employers to requests for flexible working arrangements, with suggestions for change.
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Carers Australia argued for a positive duty on employers to grant such requests, and to prohibit unreasonable refusals to accommodate an employee’s carer responsibilities—as is currently the case in Victoria under its Equal Opportunity Act.
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Dementia Australia suggested that improving employer education and understanding about the demands of the informal carer role would help increase employee confidence in seeking leave and/or flexible work arrangements—which could have positive impacts on workforce participation.
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The SDA made the broader point that there should be a legislated right to care, ‘instead of a right to ‘ask’ for flexible working arrangements’.
Scheduling and rostering arrangements
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Directly related to the issue of flexibility is work scheduling and rostering by employers.
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It was put to the committee that the way shifts are scheduled across various industries can have direct, and often detrimental impacts on the ability of working carers to participate in the workforce and to find and use child care services.
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Representatives of the SDA spoke strongly about the issues with rostering practices for people having to balance work and care responsibilities. Mr Gerard Dwyer, National Secretary and Treasurer of the SDA, pointed out that ‘too often, rostering practices ignore availability parameters, extinguish any reasonable predictability of working hours and see part-time employees effectively working as casuals’.
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The SDA commissioned the Social Policy Research Centre of the University of NSW to survey SDA members about managing their work and care. In this survey, members described very poor working time security under current rostering practices, with the research finding that:
Very high proportions of participants work non-standard hours, face challenges relating to unpredictable rosters (and income), and experience lack of consultation over changing work times. While affecting everyone, these factors exacerbate difficulties workers face in providing care.
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Evidence from the survey also found that working hours in retail were highly variable, changed frequently and unexpectedly and often at short notice, making it difficult to plan stable care arrangements. The UNSW survey found that:
Irregular work times increase the work of coordinating care, especially for mothers who tend to carry the responsibility for managing, reassessing and changing care arrangements, day to day and week to week.
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Mr Dwyer called for care rosters to be a workplace right, saying that:
Work and care are two essential human activities, but too many retail workers are forced to choose between one and the other, and this stifles opportunities for their children, reduces their earning opportunities and causes a level of anxiety that, quite frankly, is shocking.
… But it doesn't have to be this way. Australian management must put away yesterday's lazy casualisation models and leverage modern rostering platforms to deliver more predictable work—what we call 'decent work'—and, in short, deliver roster justice. This will help deliver quality of life to retail workers, who have been frontline essential workers during the pandemic yet have little or no work-life balance as they juggle the immense pressures of both working and caring.
It should be noted that retail, warehouse and fast-food workers do not have the option of working from home, because they're face-to-face industries. Retail is dynamic and provides enormous opportunities, but not when a 'Hunger Games' model of rostering is used to keep employees on tenterhooks. Rather than having regular shifts, adequate hours and the right to care for children or disabled or elderly relatives, Australia's predominantly female retail workforce is at the whim of haphazard rostering and insufficient hours and is beset with deep guilt over both work and caring roles.
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The Australian Services Union (ASU) likewise pointed to the issue of unpredictability of rosters for shift workers, saying, for example, ‘how do you get your kid into child care when you have unpredictable rosters that change all the time?’
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Ms Emeline Gaske, Assistant National Secretary of the ASU, continued that the current system ‘doesn’t support new models of work that we’ve seen emerge in the last 20 years’, and that ‘where there are shiftworking arrangements, it’s almost impossible to use formal care arrangements‘.
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Ms Wendy Phillips, an ASU member, made the important point that:
People with control of rosters are quite powerful people. They can absolutely control your income. I don't think they think enough about it, because if they thought enough about it they would employ people permanently. They would then have a stable workforce.
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The issue of uncertainty in rostering was also discussed by Dr Peter Davidson, Principal Adviser with the Australian Council of Social Service (ACOSS). Dr Davidson said that ‘light-touch industrial regulation of working time and rostering and shifts’, has resulted in:
… too many people, particularly in entry-level jobs, [who] don't know from one week to the next how much work they'll get, and they'll get very little notice when they're being called into a shift—often one day's notice. Clearly if you're caring for young children or a family member with a disability, that's quite impossible to manage.
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Ms Diana McMurtry, a Lived Experience Carer with Carers Australia, provided an example of carers being asked to access leave entitlements, while subject to rostering arrangements meant to enhance their employment flexibility. Ms McMurtry said that:
… a few carers who are working in rostered work [are] reaching out to me and advising me that they are being required to request leave prior to a shift actually being rostered … Rather than them requesting to not be rostered on that time, that's actually been requested to be booked as leave, which undermines the reason why they're going into that flexible work in the first place.
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Conversely, some witnesses asserted that their industries understood the need for flexibility in rostering.
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Representatives from the Aged and Community Care Providers Association (ACCPA), for example, spoke to their positive experience of rostering arrangements in the aged care sector compared to others. Mrs Claire Bailey, Manager of Employment Relations, explained that there was a ‘very strong driver of availability of rosters [in aged care] built around when the individuals can work and what they can offer the organisation’. Mrs Bailey continued that the rostering was:
… more set in place for part-timers and even for casuals as to when exactly they can work and when they can't. It's not quite as random as in some industries that I've come across over my time working in employment relations. It's a lot more focused on the needs of the employee in that particular way. It can be a juggling act for our members to be able to create rosters in those particular situations, but that's part of what they do.
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Mr Tim Hicks, General Manager of Policy and Advocacy at the ACCPA drew attention to the fact that because of its predominantly female workforce, aged care was an industry ‘built around a culture of recognising that people can have caring responsibilities and needing to adapt to them’.
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Some suggestions for improvements in this area were put forward. Dr Davidson, for example, suggested that ‘in addition to minimum shifts and the removal of split shifts, provisions around decent notice and negotiation of shifts should be standard in industrial awards’.
Insecure and precarious employment
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The impact of caring responsibilities can have adverse and ongoing consequences on the job security of workers, and can impact on labour market participation, especially if a person is engaged in a long-term caring role.
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For example, Carers Australia reported that:
Carers who have contributed the most hours and years of care are least likely to be able to transition with any ease to the job market when their full-time caring role changes, as they often have a severely attenuated and interrupted work history and no current referees. In many cases their previous qualifications or experience no longer meets current standards or expectations.
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The SDA argued that insecure work was ‘more than just casual work’. It pointed out that over the past decade there has been an increased ‘casualisation’ of the permanent part-time workforce where employees are offered contracts of six to ten hours a week, ‘with fluctuating rosters and offers of additional hours’.
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The SDA detailed the major issues with this approach by employers:
This model of rostering places workers under pressure to have to accept all shifts, regardless of the late notice and unpredictability; comply with all managers requests; and not ask for any support so that they don’t lose the opportunity of being offered more shifts, because it's incredibly challenging to have to survive on 10 hours a week.
Our members experience very poor working time security with many members working nonstandard hours, with unstable and unpredictable work times (and incomes) and a lack of control or consultation over their work times. While this affects everyone, these issues are exacerbated for workers who need to provide care.
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The issue of insecure and precarious work was also discussed in relation to the NES and workplace relations framework. Evidence to the committee suggested that the NES are lacking and not providing adequate support to insecure workers, with submitters highlighting concerns with the NES and suggesting areas for improvement.
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For example, the National Foundation for Australian Women (NFAW) observed that the NES establishes maximum standard hours for full time work, but minimum hours were left to be settled on an industry-by-industry basis, through the award system. The Foundation further noted that there was ‘little data to be had on the operation of flexible hours provisions’ in workplace laws.
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Carers Australia said the NES must be ‘accompanied by comprehensive guidance on flexible work arrangements for workers with carer responsibilities’, detailing the rights and responsibilities of both employers and employees. Similarly, the Centre for Future Work at the Australia Institute called for the NES to include rights to family-friendly working time arrangements and stable work, as part of the minimum standards for all employees.
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It was put to the committee that the legislative framework has shifted to provide for increased employer flexibility, at the expense of employees, especially in entry-level jobs where employees are engaged on an as-needed basis rather than for the long‑term. Dr Davidson with ACOSS spoke about the ‘churn factor’ in retail, hospitality, tourism and care services, and how this ‘is destructive of people’s careers, job security and the quality of services’ while also costing employers more in recruitment and training.
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Dr Davidson called for workplace relations legislation to focus more on the regularity, security and flexibility of employment.
Changes to workplace relations law
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The Government recently announced amendments to workplace relations laws. The Minister for Employment and Workplace Relations, the Hon Tony Burke MP, advised that:
… the Government will legislate to ensure workers and businesses have flexible options for reaching agreements – including removing unnecessary limitations on access to single and multi-employer agreements.
This will open up agreement-making to workers who currently cannot access the benefits of agreements such as small business, women in the care and community services sectors, and First Nations people.
This change will help us close the gender pay gap and address disadvantage.
The Government will also legislate changes to the Better Off Overall Test so it is simple, flexible and fair.
The BOOT should act as an incentive to boost wages and conditions – not as red tape that prevents agreements altogether.
The Government will also amend the Fair Work Act to give the Fair Work Commission the capacity to proactively help workers and businesses reach agreements, particularly new entrants and SMEs.
Our changes will also close loopholes in the Fair Work Act that drive wages down.
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The Australia Institute and Centre for Future Work commented that while the proposed changes aim to address insecure work and could provide better access to bargaining, ‘it is not clear if these changes will fully address the insecurity of working time arrangements where jobs do not provide adequate hours, predictable schedules or reasonable control over working time’.
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Ms Wang of DEWR also advised the committee that amendments were being progressed to make gender equity and a secure job new objects of the Fair Work Act, alongside the introduction of statutory Equal Remuneration Principles to help guide the FWC in its consideration of pay equity cases.
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Further, expert panels on both pay equity and the care and community sector would be established in the FWC. The committee looks forward to hearing more about these panels and how they will work to enact positive change in the care sector and for female wages.
Protection from discrimination
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The Sex Discrimination Act 1984 and the Disability Discrimination Act 1992 prescribe that all employees have the right to maintain family responsibilities, with caring responsibilities falling within the scope of these protections.
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The Sex Discrimination Act 1984 makes it unlawful to discriminate on the grounds of sex, marital status, and pregnancy in certain areas of public life, including employment. Notably, the Act makes it unlawful to discriminate against a person on the grounds of providing care for family members by dismissing them from employment. Protections under the Act are for immediate family members, including spouses, de facto partners, children, parents, grandparents and grandchildren.
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The Disability Discrimination Act also provides protection for carers of people with disability, defined as ‘associates’ under subsection 7(1). The Act makes it unlawful for an employer to discriminate against a person who is:
a spouse of the person who is the care recipient;
another person who is living with the care recipient on a genuine domestic basis;
a relative of the care recipient;
a carer of the care recipient; and
another person who is in a business or recreational relationship (e.g., sporting) with the care recipient.
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Alongside these national discrimination laws, states and territories have enacted various legislative frameworks which prohibit discrimination on the grounds of parental status, family and carer responsibilities.
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For example, there are specific provisions in the Carers Recognition Act 2010, concerning the status of carers in the workplace and their right to participate in economic life. This is articulated in principle nine of the Statement for Australia’s Carers in that Act, which says carers:
… should be supported to achieve greater economic wellbeing and sustainability and, where appropriate, should have opportunities to participate in employment and education.
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Despite the various legislative provisions aimed at protecting from discrimination, Carers Australia advised the committee that:
The Australian Human Rights Commission National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability in 2016, found that employment discrimination and barriers were experienced by carers.
The Inquiry heard of many experiences where people felt they had been discriminated against or had received unfair treatment from an employer due to their responsibility as a carer. A common theme was the denial of flexible working arrangements to accommodate caring responsibilities.
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The Law Council of Australia also drew attention to issues with discrimination law, advising that:
… currently different Commonwealth, state and territory legislation, including that which provides for carer’s leave and that which provides recourse for unlawful discrimination for carers, characterises ‘carers’ differently, which may be problematic.
Victorian legislation
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While there are broad legislative frameworks in place across Australia aimed at preventing employee discrimination on various grounds, at the time of writing Victoria clearly provides for carer status as a protected attribute in term of workplace discrimination.
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Section 19 of Victoria’s Equal Opportunity Act 2010 provides that:
An employer must not, in relation to the work arrangements of an employee, unreasonably refuse to accommodate the responsibilities that the employee has as a parent or carer.
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In addition, under that Act the definition of ‘carer’ is broader than that in national workplace relations law, and is defined as:
… a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis.
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It was put to the committee that the Victorian legislation could be instructive for an approach at the national level. For example, JobWatch argued that if similar obligations were implemented in the Fair Work Act:
… it would assist all employees, regardless of their status, by allowing them to request unpaid carer’s leave and to ask for flexible working arrangements, right from day one of their employment.
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The committee will continue to examine this issue and will consider the suitability of similar legislation at a national level.