A growing legislative onus to accommodate staff with caring responsibilities won’t always mesh with your business as it stands. You need to prepare now for the changes that are coming.
On TV recently, a woman was getting a classic 1950s pin-up style image of a housewife tattooed on her arm, with the words “I should be in the kitchen” under it.
As laden with irony as it was, it was a reminder about how things really have changed.
Community expectations that business will accommodate employees in their family life and responsibilities have changed markedly, and continue to do so at pace. The law, often criticised for delay, is catching up to – some might even say running past – community expectation.
Here are some recent and pending family friendly changes to the law about which all employers need to be acutely aware if they are to minimise the risk of costly and time consuming litigation.
Many employers are well accommodated with knowledge of the various state and federal anti-discrimination statutes and the case law that has developed under them.
At the risk of being glib, there is an acknowledged area of risk in failing to accommodate an employee who needs to vary work arrangements to care for young children or ill family members. From the quite general measures of those statutes, more and more specifics are being legislated.
In Victoria, the Equal Opportunity Act was amended from September 2008 to prohibit employers from “unreasonably refusing” to accommodate working arrangements for an employee with responsibility as a parent or carer.
At a federal level, the focus of legislative change has been on the Rudd Government’s Fair Work bill. Aside from the more publicised aspects of the bill dealing with unfair dismissal and the role of unions, there are new provisions directly affecting employers’ obligations to accommodate workplace flexibility.
Assuming the legislation is passed, these changes will come into effect on 1 January 2010. The bill includes provisions that will enable employees to request an extension to unpaid parental leave of up to 12 months, in addition to the initial 12 month leave period.
The bill also contains provisions that would enable parents to request flexible work arrangements until a child in their care is of school age. An employer must have reasonable business grounds for refusing the request, and must put those reasons in writing within 21 days of the employee’s request.
The contents of the employer’s reasons will need to be carefully considered, as they might result in evidence of other discriminatory or unlawful conduct by the employer.
While it was not the Government’s stated policy that the employer’s reasons be subject to any review or appeal, it seems clear that the law is likely to go further than was originally intended. The Senate committee inquiring into the bill handed down its report on Friday 27 February, and recommended that the flexibility be extended to employees with responsibility for caring for disabled children or adults, effectively mirroring the Victorian legislation.
Furthermore, the committee recommended that the employer’s reasons for refusing a request should be subject to review by Fair Work Australia, the body that will replace the Australian Industrial Relations Commission.
There may also be scope for employees to argue that a refusal to grant a request for flexible working arrangements constitutes a breach of the prohibition of “adverse actions” against employees under new provisions of the Fair Work bill that have no equivalent under the current law.
The Federal Government has recently announced a “fresh ideas for work and family” grant program, which encourages employers to apply for grants of up to $15,000 to assist it to implement family friendly work practices.
Beyond working arrangements, there remains the question of paid parental leave. The Productivity Commission has just released its final report to the Government, and the final details are not yet publicly available. A draft report issued by the Productivity Commission in September suggests that employers will have to bear at least some of the costs of funding a national scheme.
The draft report, which outlined a Government-funded scheme allowing 18 weeks paid parental leave, included a recommendation that employers be required to fund superannuation contributions in relation to parental leave payments.
Employers would also have to administer the payment to employees. Given the dramatic changes in the economic landscape since the draft report, there are plenty of voices calling for restraint and it now seems that the Government may consider a less generous scheme as part of the upcoming federal budget.
The lessons for employers:
- There is an increasing onus on employers to accommodate staff with caring responsibilities, and this won’t always suit your business.
- Your legal obligations are changing at a rapid pace, and you have to live with it – make sure decisions affecting employees in this group are well informed and well considered rather than immediately negative.
- Get advice now on how the changes might affect your business and start working on some strategies that will better enable you to accommodate flexible working arrangements across your business.
- Make plans to meet the costs of a paid parental leave scheme.
Peter Vitale is the principal of CCI Victoria Legal