Recommendation: Australian workers with caring responsibilities should
have a legislative right to apply for permanent part-time work, as provided
for in the Netherlands and Germany. This legislative right should be a
general right to part-time work, and not specific to caring responsibilities,
as provided for in the Netherlands and Germany. This will assist in the
cultural change required to reduce sex-segregation in the workplace and
at home; and reduce the effects of discrimination, often gendered, which
is associated with workers identifying as carers in the workplace.
 Murray’s research has shown: “Internationally, significant changes
have occurred in relation to the extant to which law is used to assist
workers adapt their working lives to the requirements of their care
responsibilities.”1
 The OECD international comparisons conclude that increasing part
time employment tends to increase female participation.2.
 Murray asserts: “The most advanced legislative schemes are in the
Netherlands and Germany.”3 These legislative provisions are The
Adaptation of Working Time Act (Wet op de aanpassing van e
arbeidsduur, or WAA) (Netherlands); Act on Part-time Work and
Fixed-Term Contracts (Gesetz uber Teilzeitarbeit und befristete
Arbeitsvertrage, or TzBfG) (Germany).
 Murray illustrates that: “In these states, workers who wish to change
their hours of work (up or down), or alter the distribution of hours,
may place a request with their employer. The law specifies a process
of meeting and response which must be adhered to.”4
1
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
2 Jaumotte, F. Female labour force participation : Past trends and main determinants in OECD countries, OECD, Paris,
Economics department working papers, n° 376, December, 66 p., (2003).
3
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
4
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
1
 Unlike the experience of employees in Australia, who often have to
challenge delays to their request to apply for part-time work, the
failure of the employer to respond and manage the request means the
employer, rather than employee, is penalized: “Failure by the
employer to follow this process means that the law deems the change
requested by employee to have been approved.”5
 The law provides that the employee’s request can only be refused on
certain grounds, essentially that the request is impossible for ‘serious
business reasons’. Workers whose requests have been rejected may
seek to overturn the employer’s decision in court. Early reports of
cases have shown that the courts have tended to reject the employer’s
reasons for refusal.”6
 Of course, the employers in these countries can still be relied upon to
contest workers rights to part-time work, but the legislative
framework of these conditions ensures that when contested in courts,
the objectives of the legislation are considered above the alleged
inability of employers to accommodate part-time workers as easily as
full-time workers in the workplace. For example, in analysis of the
implementation of the Netherlands and German legislation in the
courts of these respective nations, S Burri et al have argued that: “It
turns out that the courts are generally willing to acknowledge the fact
that by the enactment of the [Adaptation of Working Time Act] the
legislator restricted the entrepreneurial freedom of the employer.
Serious business reasons are therefore not easily established in
court.”7
 Murray emphasises that, “Once again it is notable that these laws have
broken free from a focus on traditional family responsibilities.
Indeed, workers in Germany and the Netherlands do not have to
5
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
6
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
7
S Burri et al, ‘Work-family policies on Working Time in Practice. A comparison of Dutch and German
Case Law on Working-time Adjustment’ (2003) 19 International Journal of Comparitive Labour Law and
Industrial Relations 321, 332.
2
present a reason for their change of hours under the legislative
schema. The ‘right to part-time work’ therefore applies generally to
any worker who wishes to adapt their working time for whatever
reason.”8 This means that workers with caring responsibilities are not
required upon to identify as carers, and reduces discrimination on the
basis of sex and/or caring responsibilities.
 The ACTU has asserted in the ACTU Family Test Case contentions
that: “Most comparable nations provide, through national regulation,
superior provisions, and many are considering further regulation to
assist employees with their caring responsibilities.”9
 These rights cannot be left to be asserted in enterprise bargaining, as
research has shown that workers with caring responsibilities, in the
majority women, have less bargaining power than workers without
caring responsibilities,10 and further that employers will pit workers
with caring responsibilities against other workers in negotiations for
new Enterprise Agreements.11
8
Jill Murray, ‘Reconciling work and care responsibilities’, Alternative Law Journal Vol 30:2 April 2005,
at page 86.
9
ACTU Family Test Case contentions: 8.7, at page 50, see http://www.e-airc.gov.au/familyprovisions/
10
Meredith Burgmann, “Women and Enterprise Bargaining in Australia” in S.Hammond (ed) Equity
under Enterprise Bargaining (ACCIRT, Sydney, 1994)
11
Marian Baird, ‘Orientations towards Paid Maternity Leave’, The Journal of Industrial Relations, Vol 46,
No 3., September 2004, at page 267.
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