I am reading the Fair Work Bill that has new National Employment Standards,. But a standard that is not enforceable is not a right. Here is the family friendly fraud.
The DPM’s response to the work/family collision is a NES ‘entitlement’. Employees with at least twelve months’ service can request ‘a change in working arrangements’ to assist them in caring for pre-school age children. This gives employees no more than a right to request the leave! (which can happen now) The law says so long as an employer actually provides a written response to an employee’s request, there is to be no challenge to any refusal. No court order can be made against the employer for an alleged failure to specify reasonable grounds nor can any dispute resolution process in an award, enterprise agreement or contract authorise the Fair Work authority to arbitrate.
An employee can ask for employment arrangements to suit the family, but that the employer can refuse on ‘reasonable business grounds’, a provision very wide, such as costs to the employer, the employer’s ability to reorganise and indeed anything that a corporate lawyer could design for avoidance etc. This is an employer right to refuse a request.
Even the DPM had difficulty rationalising this saying she wants the employee to be able to have a conversation about family issues! The issue of work/life collision has been one of the key agendas from working families, from unions, in academic research and books, in ALP policy,,,but we get this deliberate ‘family friendly 1984 spin. This is not a minimalist reform but a fraud. The SMH front page Mark Davis correctly says: ‘New law fails families’ 27/12/2008.
Contact your Senators about this. Even if the Senate corrects this loophole, the drafting has to be clear for enforcement with orders to be made and penalties.
The NES Discussion Paper claimed it ‘has demonstrated that simply encouraging employers and employees to discuss options for flexible working arrangements has been very successful in promoting arrangements that work for both employers and employees’. But this is not really the UK union experience except minimally and with good employers. The UK does provide for aggrieved employees to be able to lodge a complaint challenging an employer’s response. And at least FWA should be able to review an employer’s decision, such as on no adequate response, or it was based on incorrect facts. There could be conciliation conferences. If the employee grievance was valid, then FWA could order the employer to reconsider the decision, and/or compensate the employee.
Even with this minimalist change, I fear in practice in a recession and this global financial crisis there may not be significant widespread family friendly reforms.
Fair Work Bill
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