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On 26 March 2018 the Fair Work Commission handed down its decision on the ACTU’s application to seek to have Modern Awards varied to include an entitlement to part time work or reduced hours for employees with caring or parenting responsibilities. The claim was essentially to provide that if an employee requested a flexible arrangement to accommodate caring or parental responsibilities, the employer must grant the request.

The ACTU gave detailed evidence from a range of expert and lay witnesses. Broadly, the ACTU experts provided analysis of workplace data and research that shows:

• Women’s workforce participation is lower than men’s
• Women’s lifetime earnings are lower than men’s
• Women make up nearly 70% of workers in part-time work
• In order to access part-time work people, most commonly women, are required to accept lower skilled work
• The current right to request a flexible work arrangement under the NES is limited and less effective than it should be because an employer’s refusal to grant a flexible arrangement cannot be the subject of a dispute at the Commission.

The employer groups’ evidence sought to show that if the ACTU’s claim was granted it would be unfair on employers, disruptive to business, reduce productivity and create an unreasonable limitation on employers’ ability to decide when work would be done.

Both sides relied on lay witnesses. The ACTU submitted 10 witness statements of whom five were cross examined. IEU is proud that two of those witnesses were members- one from Victoria and the other from South Australia. The Commission described the lay witnesses evidence as ‘putting a human face to the data’. Both IEU witnesses were quoted extensively in the decision and accepted as providing valuable evidence in support of the ACTU case.

Evidence provided by a Victorian teacher, was referred to as demonstrating the negative attitude employers show towards requests for flexible work and also as highlighting the impact that limited access to child care has in the equation. Her experience confirmed the research that where an employer is not prepared to accommodate flexible work the result is resigning and looking for less highly skilled and lower paid work elsewhere.

A teacher in South Australia provided compelling evidence about the toll taken on her life and that of her family following a refusal to grant part-time work on her return from parental leave.  She stated that the year she worked full time on return from parental leave as one of the most difficult of her life. She found the demands of having a young family and a full time teaching role had a significant detrimental impact on her family life and health. She was also candid in saying she did not believe in that time that her teaching was as good as it could be.

The Commission accepted that there was substantial merits in both sides of the argument. It pointed in particular to the lack of ability to review a refusal as a weakness in the current Act. However, in the end, the Commission accepted the employer argument that amending the Modern Awards to create an enforceable right to flexible work was too onerous and not necessary.

The Commission did, however, use its power in relation to 4 year reviews under the Act, to make a provisional decision that Modern Awards should be varied. The Commission’s proposal is that Awards be varied to strengthen the ability to request a flexible arrangement by

• Extending the right to request to casual employees with at least six months service
• Requiring the employer to confer with the employee and to genuinely try to reach agreement on a change in working arrangements
• If the request is refused, the employer must provide a detailed written response which contains a comprehensive explanation of the reasons for refusal and provide alternatives if possible
• Provide a limited right to issue a dispute, to the extent that a proper procedure under the clause has not been followed

While the decision falls short of the right sought by the ACTU and supported by IEU, it is a significant improvement to move the right to request and the procedures around requests into Awards. The decision will lend strong support for our claim to have the right to request flexible work included in enterprise agreements.

Congratulations and thanks to both witnesses for making a really significant contribution in this important case.

By Kristen Wischer, IEU Vic/Tas Industrial Officer