New law fails young families
Mark Davis Political Correspondent, smh
December 27, 2008
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THE Rudd Government's much-vaunted new right for working parents to seek flexible employment arrangements to help with their family responsibilities will turn out to be a "Clayton's right" because it cannot be legally enforced, according to labour law experts.
The Government's Fair Work Bill - due to replace the Howard government's Work Choices next year - gives employees with preschool children a legislated right to request family-friendly work patterns such as different starting and finishing times or part-time employment.
But while the bill says employers may refuse such requests only on "reasonable business grounds", the fine print confirms that where working parents believe their employer has breached this obligation, they will have no means to enforce their right.
A clause in the bill provides that where an employer contravenes the flexible working arrangement requirement, the courts will not be able to impose penalties or issue any other orders enforcing the employee's right. This contrasts with wide powers the bill gives courts to penalise employers who breach any of the other nine of the 10 national employment standards the Government plans to introduce in the legislation.
The framing of the bill comes as a report has found that pregnant women frequently lose their jobs, despite having had legal protection from discrimination for 30 years. The report, by the Women's Employment Rights Project, found the old Work Choices laws had expanded employers' dismissal powers and provided broad operational reasons for making employees redundant.
The bill also bars employers, employees and unions from agreeing to allow the industrial tribunal, Fair Work Australia, to settle individual grievances over refusals of flexible work requests.
Campaigners for women's workplace rights have criticised the Government for watering down the requirement that employers must not unreasonably refuse requests for flexible working arrangements for parents of young children.
The director of the University of South Australia's Centre for Work and Life, Barbara Pocock, said legal rights were meaningful only if they were backed up by sanctions for non-compliance.
"The concern is what happens in workplaces where the employer is intransigent or where the internal culture is hostile towards workers with family responsibilities," Professor Pocock said.
"It really runs the risk of being a Clayton's right, one the Government can say it has provided but where the reality is a long way short of such a right.
"If the employee knows that where they get a knock-back from the employer there will be no avenue of appeal or review, the right becomes very weak or in practical terms, non-existent."
The president of the ACTU, Sharan Burrow, said she was extremely disappointed "the Government had buckled to employer pressure by backing down on what it promised".
"To be meaningful, there must be an external review process available to employees when their boss refuses to consider their request for more flexible hours," Ms Burrow said.
"Under the proposed legislation, employers will have no obligation to consider other ways to accommodate workers with family responsibilities."
The Minister for Workplace Relations, Julia Gillard, said the national standards on flexible work and a similar one allowing employees to ask for an extra 12 months' maternity leave were designed to promote discussion between employers and employees.
"They are not intended to be prescriptive as this is likely to act as a disincentive to genuine discussion," she said.
"The bill does not identify what may, or may not, comprise reasonable business grounds. The Government believes such matters are appropriately assessed at the workplace level."