Changes in leave policy and other related developments (including Australian Government proposals currently under discussion)

No changes in leave policy are currently under discussion. The Austra-lian Government has recently introduced a one-off maternity allowance payment, for children born after 30 June 2004. The allowance is currently a lump-sum of A$3000 per child, but rises to A$4000 in July 2006 and A$5000 in July 2008. The allowance is paid irrespective of a mother’s employment status prior to the birth of the child. If spread evenly over a 14 week period, the current allowance of A$3000 is approximately half that of minimum rates of pay and approximately 25 per cent of average female full-time earnings.

There has been growing discussion about, and community support for, some type of universal paid maternity leave. This has been stimulated by a series of reports and test cases since the start of 2002. In early 2002, the Sex Discrimination Commissioner released a discussion paper called Valuing Parenthood: Options for Paid Maternity Leave. This paper gen-erated enormous debate within Australia about the difficulties of combin-ing work and family responsibilities, and about the pros and cons of paid maternity leave. The discussion paper canvassed a whole range of rea-sons as to why it might be good public policy for Australia to have a

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versal paid maternity scheme. Much of the debate focussed on whether the introduction of paid maternity leave would encourage more women to have children and to have more children, and so help reverse the declin-ing fertility rate that Australia is experiencdeclin-ing.

In 2002, the Human Rights and Equal Opportunity Commission (the body under which the Sex Discrimination Commissioner sits) released its final report titled A Time to Value: A Proposal for a National Paid Ma-ternity Leave Scheme. In summary, HREOC strongly advocated the in-troduction of some type of Australian Government funded scheme to provide 14 weeks of paid maternity leave.

In 2002, the peak trade union body (ACTU) brought a test case before the Australian Industrial Relations Commission (AIRC) in an attempt to stem the growth of long hours in Australia. There were three parts to the award clause sought by the ACTU application:

• Subclause 1, Reasonable Hours of Work, prohibiting an employer from requiring an employee to work unreasonable hours of work, with a number of factors or criteria to be considered in making such an as-sessment.

• Subclause 2, Reasonable Overtime, that retains the existing right of employers to require employees to work reasonable overtime, but gives employees a right to refuse that overtime.

• Subclause 3, Paid Breaks after Extreme Working Hours, compensat-ing employees with two days paid leave after certain hours have been exceeded.

The AIRC decision rejected the ACTU claim as set out above, but adopted a modified version of subclause 2 as a new award standard. The award standard granted by the AIRC decision maintains the long-standing provisions allowing employers to require employees to work reasonable overtime but it gives employees a corresponding right under the award to refuse overtime where it would result in unreasonable work-ing hours. This right will be determined havwork-ing regard to:

• any risk to employee health and safety;

• employee's personal circumstances, including any family responsibili-ties;

• the needs of the workplace or enterprise;

• notice given by the employer of the overtime and by the employees in-tending to refuse it;

• any other relevant matter.

In 2004, the ACTU brought its Family Provisions Test Case (or as it is colloquially known, the work and family test case) before the AIRC, made up of the following claims:

• an employee right to unpaid parental leave of up to 104 weeks (an in-crease from the present 52 weeks), plus a right to an unbroken period of 8 weeks simultaneous unpaid leave for both parents at the time of the birth or placement of the child;

• consultation with employees during periods of parental leave about significant workplace changes and their effect on the employee’s posi-tion;

• an employee right to work on a part-time basis after parental leave for specified periods until the child reaches school-age;

• an employee right to request, and employer obligation to not unrea-sonably refuse, a variation in working arrangements such as hours, times and place of work;

• an employee right to request further periods of unpaid leave in con-junction with annual leave or to purchase up to 6 weeks unpaid leave and an employer obligation to not unreasonably refuse such requests.

All of these matters will be determined by the Australian Industrial Rela-tions Commission once the case concludes in the first half of 2005. The ACTU’s position is being strenuously opposed by the major employer associations and by the Australian Government.

A conciliated outcome has been reached between the industrial parties around the ACTU’s claims for unpaid emergency leave for employees to deal with emergency situations and carers’ leave. This agreement has yet to be approved by the AIRC but includes provision for:

• employee access of up to 10 days of personal leave per annum (an in-crease from the current 5 days per annum) for the purposes of caring for immediate family or household members who are sick and require care and support or who require care due to an unexpected emergency, with specified evidentiary requirements;

• where all paid personal leave entitlements have been exhausted by an employee, unpaid personal leave to be used to care for immediate family or household members who are sick and require care and sup-port or who require care due to an unexpected emergency, with the employer and employee to agree on the period of this leave;

• in the absence of agreement between the employer and employee about the period of unpaid personal leave to be taken, employees could take up to 16 hours (i.e. two days) of unpaid personal leave per occasion, provided that specified evidentiary requirements are met.

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There have been two recent developments in early 2005 worth noting.

First, the Sex Discrimination Commissioner (under the auspices of the Human Rights and Equal Opportunity Commission) has foreshadowed a new Inquiry titled Striking the Balance: Women, Men, Work and Family.

The Inquiry is innovative in that it will examine how gender roles in the area of unpaid caring work impact on the ability of men and women to participate in paid work. The terms of reference for the Inquiry are to:

(a) identify existing systemic barriers in employment faced by men and women in balancing paid work and family responsibilities;

(b) identify how gender roles in unpaid caring work affect the partici pation of men and women in paid work;

(c) examine data on:

• men and women’s access to current and proposed family friendly employment provisions,

• community attitudes toward unpaid caring work, and

• the gender dimensions of efforts to achieve work and family bal-ance;

(d) examine legislation, policies, practices and services to ensure men and women are able to combine their paid work and family re-sponsibilities.

Public submissions will be sought following the release of a discus sion paper in the first half of 2005.

The second development is the announcement of a parliamentary Inquiry into balancing work and family life. The Parliamentary Standing Com-mittee on Family and Human Services is inquiring into and reporting on how the Australian Government can better help families balance their work and family responsibilities. The committee is particularly interested in:

• the financial, career and social disincentives to starting families;

• making it easier for parents who so wish to return to the paid workforce; and

• the impact of taxation and other matters on families in the choices they make in balancing work and family life.

The Committee is due to report in the first half of 2005.

3. Take-up of leave

Australia does not have good figures on who has access to various types of parental leave, and even less information on who is accessing their en-titlements and in what manner.

a. Maternity Leave

There is no statutory maternity leave, but recent surveys report that 36-39% of women report having access to paid maternity leave (Australian Bureau of Statistics Employee Earnings, Benefits and Trade Union Membership survey 2003); Household, Income and Labour Dynamics in Australia (HILDA) survey (second wave 2002); Negotiating the Life Course Survey (2000).

b. Paternity Leave

There are no representative figures on access to non-statutory Paternity Leave.

c. Parental Leave

According to the Household, Income and Labour Dynamics in Australia (HILDA) survey (second wave 2002), nearly 60% of employed persons say they (or their fellow workers) have access to Parental Leave (al-though the question does not specify whether it is paid or unpaid). Paren-tal leave is not available to self-employed workers and many casual workers; between them, these groups make up 40-45% of those in em-ployment.

d. Other employment-related measures

According to the Household, Income and Labour Dynamics in Australia (HILDA) survey (second wave 2002), access to carer’s leave is around 70% of employed persons (those without access are mainly self-employed and casual workers). In the same study, women (83%) were much more likely to report access to permanent part-time work than men (61%), even though the possibility of part-time work is almost univer-sally available in industrial awards these days. This difference is likely to reflect both the realities of attempting to access part-time work and the probable lower preference of men to undertake such work.

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4. Recently completed and current research on leave and other