Right to Request Regulation in Australia: A Step in the Direction of EmployeeOriented Flexibility?
Sara Charlesworth and Iain Campbell
Abstract
The election of a federal Labor government in November 2007 has opened up a valuable
opportunity to modernise the system of labour regulation in Australia. The new Labor government
has promised reforms that will (slowly) remove the worst features of the previous regime,
introduced during the period from 1996 to 2007. More positively, it has promised to use the
increased reach of the federal industrial relations system to introduce stronger legislated minimum
standards (‘National Employment Standards’), which will be supplemented by additional standards
through ‘modern awards’ as well as whatever improved wages and conditions are secured by trade
unions through single-employer collective bargaining. The proposals point in the right direction,
but they are cautious and may not be sufficient to establish a truly modernized system. This paper
focuses on one innovative idea that has been picked up by the federal Labor government and by the
state Labor government in Victoria - what can be called ‘right to request regulation’, which would
enhance the rights of individual employees to vary their working arrangements to suit their
circumstances (in particular their need to balance paid work and caring responsibilities). The
paper reviews the two models recently introduced in Australia and compares them with the similar
legislation found in the United Kingdom, the Netherlands and Germany. The two models can be
seen as welcome steps forward in securing greater employee-oriented flexibility, but they are
compromised by significant problems in their design.
Introduction
The issue of work/family balance, or work/life balance, is an increasingly prominent one in Australia and
other member countries of the Organisation for Economic Co-operation and Development (OECD).
Deep-seated structural changes in families and workplaces, such as the erosion of the traditional model of
the male breadwinner and female homemaker, have led to growing tensions for many workers between
their participation in paid work and their participation in life outside the workplace, including in
particular the world of unpaid caring for children and sick or disabled relatives.1
1
OECD [Organisation for Economic Co-operation and Development], Babies and Bosses: Reconciling Work and Family Life,
Volume 1: Australia, Denmark and the Netherlands, OECD, Paris, 2002; OECD, ‘Babies and bosses: Balancing work and
family life’, OECD Policy Brief, OECD, Paris, March 2005; B Pocock, The Work/Life Collision: What work is doing to
Australians and what to do about it, The Federation Press, Sydney, 2003; I Campbell and S Charlesworth, Background report:
Key work and family trends in Australia, Centre for Applied Social Research, RMIT University, Melbourne, 2004; Human
Rights and Equal Opportunity Commission [HREOC], It’s About Time: Women, Men, Work and Family, HREOC, Sydney,
2007.
1
Workers are increasingly demanding more ‘flexibility’ from their workplaces, especially in regard to
working time, in order to assist them in meeting their caring responsibilities and resolving the tensions
around work and caring responsibilities. This can of course be left to the individual, who can always
approach their employer or supervisor with a request for some flexibility change to suit their
circumstances. But it is now widely accepted that good policy in this increasingly important area requires
a broader societal approach, including in particular the introduction of minimum standards that can guide
the employer in his or her response and guarantee a result that meets social and economic goals.2
Enhanced leave entitlements are one avenue of advance for employee-oriented flexibility to achieve
better work/family balance, and most OECD countries have witnessed major advances in the
development of new forms of leave such as parental leave and carers’ leave. But also important is the
ability of employees to vary their working hours over a longer period, including, in particular, the ability
to reduce their working hours and move to a schedule of part-time work. This can facilitate longer-term
adaptation without the need for the worker to leave their job and find another one. It thus avoids the
problem of poor job quality in part-time work and paves the way for a return to full-time hours when
circumstances change. Many OECD countries, especially the Scandinavian countries, have introduced
rights for workers to move to a part-time schedule, often in association with a return from parental leave.
More recently, this approach has been extended in some countries through what is called ‘right to
request’ (RTR) regulation. The case most frequently cited in Australia is that of the United Kingdom
(UK). Since 2003 the Employment Act 2002 (UK) has provided a formal right to request changes in the
quantum, scheduling and location of working-time arrangements for employees with children under
school age, with disabled children up to 18 years3 and, since 2007, for employees with dependent adults.4
Similar regulation is also in place in the Netherlands in the Working Time Adjustment Act 2000, and in
Germany in the Part-time and Fixed Term Employment Act 2000.5 In addition to these European
OECD 2005, above n 1; C Fagan and P Walthery, ‘The Role and Effectiveness of Time Policies for Reconciliation of Care
Responsibilities’, in OECD Modernising Social Policy for the New Life Course, OECD, Paris, 2007.
3
The Employment Act 2002 (UK) c 22 inserted ss 47E, 80F-I and 104C into the Employment Rights Act 1996 (UK) c 18
(‘ERA’), which together with the Flexible Working (Procedural Requirements) Regulations 2002 (UK) and the Flexible
Working (Eligibility, Complaints and Remedies) Regulations 2002 (UK) created the system within which the UK RTR model
operates. See Murray, J, ‘The AIRC’s Test Case on Work and Family Provisions: The End of Dynamic Regulatory Change at
the Federal Level?’ (2005), 18 AJLL 325.
4
The Work and Families Act 2006 (UK) c 18 amended section 80F of the ERA to extend the RTR to carers of adults who are
in need of care. The Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 (UK), which
amended the 2002 Regulations, define this group of employees as employees who are or who expect to be caring for a person
in need of care who is either married to or the partner or civil partner of the employee, a relative of the employee, or living at
the same address as the employee.
5
The Dutch legislation came into force in July 2000 and the German legislation in January 2001. While Jacobs and Schmidt
characterise the Dutch and German models as extending a ‘right to part-time work’, in practical terms both models provide a
legal framework for an employee to request a reduction in (and in the case of a part-time employee an extension of) his or her
working hours and for the employer to have to justify any refusal of that request as discussed below. (See J Jacobs and M
Schmidt ‘The Right to Part-Time Work: The Netherlands and Germany Compared’ (2001) 17 International Journal of
Comparative Labour Law and Industrial Relations 371).
2
2
examples we can cite New Zealand, where recent amendments to the Employment Relations Act 2000
(NZ) will provide employees with children less than five years, with disabled children and/or with
dependent relatives with the right to request a variation to their hours, days or place of work from July
2008.6
Typically, RTR regulation has a number of elements, whereby certain employees have a right to request
certain variations to working-time arrangements; their employer has a duty to seriously or reasonably
consider the request; the employer can only refuse on certain business grounds; and there is a grievance
mechanism and a right of appeal to a court or tribunal where agreement cannot be reached. As this
indicates, such regulation does not provide an absolute right for employees to vary their working-time
arrangements according to their needs. It offers a ‘lighter touch’ approach. On the other hand, however,
it is much more than just a right to ask. Indeed, the terminology of ‘right to request’ is somewhat
misleading since the key aspects of the regulation are not to do with the request as such but rather to do
with the duties placed on the employers in responding to any request and the provision of a mechanism to
resolve any disputes.
In essence, RTR regulation offers a workplace process and a procedure for making and considering
employee requests to change working-time arrangements. There are two main features that distinguish
such regulation from most other working-time regulation. First, it provides the basis for an individual
right rather than a collective right - it is only activated via an individual employee’s request in respect to
changes to his or her individual working-time arrangements. Second, it is facilitative or procedural
regulation - it is not a right to achieve changes to working-time arrangements but a right to request
changes.
Modest advances in helping workers to balance their paid work and family responsibilities have been
achieved in Australia, but for the last fifteen years governments have been noticeably reluctant to act. As
a result the country appears as a laggard, particularly when contrasted with many countries in the
European Union. The fact that Australia remains one of only two OECD countries without a national paid
maternity leave scheme reflects the largely passive approach taken by the federal government to the
provision of family-friendly benefits over the last decade. This approach has relied on promoting the
voluntary initiatives of larger employers. Trade union initiatives aimed at generalising family-friendly
benefits have been consistently opposed on the grounds this will impose unreasonable burdens on
6
Amended by the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (NZ). The changes
provide employees who care for others the statutory right to request flexible working hours if they have “the care of any
person” and have been employed by their employer for 6 months prior to making the request. It should be noted that the
amendments are much wider than those contained in the initial Bill, which limited the RTR to parents of young or disabled
children only, as in the UK.
3
employers, particularly small business.7 Not surprisingly, as the OECD has politely noted, there is only a
“low penetration” of family-friendly work practices in Australia,8 with most available only to a minority
of employees, primarily composed of higher-skilled workers in large and/or public sector enterprises.
In recent years, however, RTR regulation has been increasingly discussed in Australia. It first came to
public attention in what was known as the Family Provisions Test Case run by the peak union body, the
Australian Council of Trade Unions (ACTU) before the Australian Industrial Relations Commission
(AIRC) in 2004.9 This Test Case was designed to introduce new standards into federal awards for
flexible working-time arrangements to help workers balance their paid work and family responsibilities.10
Drawing on the experience of RTR legislation in the United Kingdom, one of the main ACTU claims
was for an employee to be able to request a change in hours to enable the employee to provide care, with
an obligation on the employer to consider such requests seriously. The change requested related not only
to the number of hours worked but also to the times at which work is performed.11 Also included among
the ACTU claims were new rights for an employee to work on a part-time basis after returning from
parental leave until the child reaches school age12 and to access up to an additional 12 months unpaid
parental leave.13 In its 2005 decision, the AIRC provided only for eligible employees to have a ‘right to
request’ three new parental leave provisions: an increased period of simultaneous parental leave; an
additional 12 months unpaid parental leave; and for employees with children below school age a return to
work on a part-time basis after parental leave.14 The obligation on the employer was to ‘consider’ the
request and only to refuse the request ‘on reasonable grounds related to the effect on the workplace or the
employer’s business’.15 Examples given of such grounds were ‘cost, lack of adequate replacement staff,
loss of efficiency and the impact on customer service’.16 Any disputes would of course be handled by the
normal dispute resolution procedures specified in awards. At the time the AIRC described its decision as
a “cautious” one, which could be built on at a future hearing, subject to a review of its efficacy in
S Charlesworth and B Probert, ‘Why Some Organisations Take On Family-Friendly Policies: The Case of Paid Maternity
Leave’ in Refereed papers Vol 1, Proceedings of the 19th Conference of AIRAANZ, University of Sydney, 9-11 February,
2005, 119, p 120.
8
OECD 2002, above n 1, p 17.
9
Parental Leave Test Case 2005 (2005) 143 IR 245 (‘Family Provisions Test Case’). See J Murray, above n 3; S Williamson
and M Baird ‘Family Provisions and Work Choices: Testing Times’ (2007) 20 AJLL 53.
10
The ‘test case’ has been a uniquely Australian phenomenon in which the AIRC – usually in response to an application from
the ACTU – held public hearings to consider evidence for and against proposed changes in standard award conditions and then
handed down a judgment that would often vary these standard award conditions. S Cooney, J Howe and J Murray, ‘Time and
money under work choices: Understanding the new Workplace Relations Act as a scheme of regulation’ (2006) 29 UNSWLJ
215, at 229-230.
11
A part of the ACTU claim concerning the location of work was not pursued Family Provisions Test Case, above n 9, at [3].
12
Ibid at [9].
13
Ibid at [8].
14
Ibid at [396].
15
Ibid.
16
Ibid.
7
4
meeting the needs of employees and its impact on the ability of employers to manage their businesses
efficiently.17
The AIRC decision introduced a limited ‘right to request’ part-time work into Australia. In the normal
course of events the decision could have been expected to be put into effect through new clauses in
federal and state awards. However, the decision was overshadowed and disrupted by the radical
WorkChoices changes introduced by the federal Coalition government in March 2006, which displaced
many awards and indeed threatened the end of the award system. The results of the AIRC decision were
not incorporated into the stripped-down minimum conditions identified as Australian Fair Pay and
Conditions (AFPC) standards. Moreover, the AIRC Test Case provisions were only incorporated into a
small minority of awards.18
Though stalled in its implementation, the AIRC decision was accompanied by some academic discussion
of the relative merits of this approach to work/family balance19 and some suggestions for new
initiatives.20 In particular, it aroused interest in the Australian Labor Party (ALP), leading to two new
models of more generalised RTR flexible work regulation. In the first part of this article we consider
these two different models. The first model is the federal government ‘requests for flexible working
arrangements standard’ to be legislated later this year as one of the ten new National Employment
Standards through amendments to the Workplace Relations Act 1996 (Cth). The second model, which
has been recently enacted at the state level through amendments to the Victorian Equal Opportunity Act
1995 (Vic), makes an employer’s refusal to accommodate the family responsibilities of an employee a
new form of discrimination.21 We set out the main rationale and features of these models and argue that,
while novel in the Australian context, they are relatively limited, albeit in different ways, particularly
when compared to the European models from which they derive. In the second part of the paper we draw
on the European experience of RTR regulation, particularly in the UK, to consider the sort of regulation
that might be most effective in the Australian context in delivering on policy goals such as better work/
family balance, job quality and gender equality.
The Two Australian Models
17
Ibid at [394], [399].
An examination of orders varying federal awards made by the AIRC shows that unions varied 435 federal awards before
WorkChoices became operative. This represents less than 20 percent of all federal awards. Williamson and Baird, above n 9.
19
J Murray ‘Work and Care: New Legal Mechanisms for Adaptation’ 15(3) Labour & Industry 66; Murray, above n 3; B Gaze
‘Quality Part-time Work: Can Law provide a Framework?’ (2005) 15(3) Labour & Industry, 89.
20
Human Rights and Equal Opportunity Commission [HREOC] It’s About Time: Women, Men Work and Family, HREOC,
Sydney, 2007.
21
On the Victorian legislation, see further (in this issue of the Journal): A Chapman, ‘Care Responsibilities and
Discrimination in Victoria: The Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic).’
18
5
The Federal Industrial Relations Model
During the 2007 federal election campaign, in which opposition to WorkChoices was one of the key
issues, the ALP committed itself in government to replace the five AFPC standards with ten National
Employment Standards, intended to ‘guarantee a safety net of decent, relevant and enforceable minimum
wages and conditions for working Australians’.22 Its victory in the election paved the way for this policy
to be implemented. The text of the legislation for the ten National Employment Standards was released
on 16 June 2008, 23 following an earlier Exposure Draft published for public comment.24 The ten
standards, to be legislated later in 2008 with the aim of coming into force from 1 January 2010, include
entitlements in respect of maximum weekly hours, requests for flexible working arrangements, parental
leave and related entitlements, annual leave, personal/carer’s leave and compassionate leave, community
service leave, long service leave, public holidays, notice of termination and redundancy and a fair work
information statement.25
The parental leave standard provides that an employee who takes unpaid parental leave for his or her
available parental leave period may request his or her employer to agree to an extension of unpaid
parental leave for a further period of up to 12 months,26 and that the employer must agree to the proposed
extension unless the employer has reasonable business grounds for refusing.27 Under a separate standard,
known as the ‘the requests for flexible working arrangements standard’, employees who are a parent of a
child under school age or who have responsibility for the care of a child under school age are able to
request flexible working arrangements.28 The stated aims of this standard are to ‘help all working
families balance their work and family responsibilities’ and to help ‘businesses to manage their
Australian Labor Party [ALP] Forward with Fairness: Labor’s plan for fairer and more productive Australian workplaces,
2007, p 7.
23
Australian Government The National Employment Standards, http://www.workplace.gov.au/NR/rdonlyres/1955FD28-317844CD-9654-56A3D5391989/0/NationalDiscussionPaper_web.pdf.
24
Australian Government. National Employment Standards Exposure Draft: Discussion Paper, Department of Employment
and Workplace Relations, Commonwealth of Australia, Canberra, 2008. 129 Submissions were received on the Discussion
Paper. See:
http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/TheAustralianGovernmenthasreleasedthenewNatio
nalEmploymentStandardsNES.htm.
25
In this paper we do not canvas the adequacy of this set of standards nor their interaction with the proposed ‘modern awards’
in providing a ‘fair minimum safety net of enforceable terms and conditions of employment for employees’ as set out in
section 576A(2)(b) of the Workplace Relations Act 1996 (Cth) (as inserted by the Workplace Relations Amendment
(Transition to Forward with Fairness) Act 2008 (Cth) s 9). We note, however, that despite being intended to cover ‘all’
workers, many of the standards expressly exclude casual employees (such as in all or part of the annual leave, personal/carers
leave and compassionate leave, community service leave, public holidays and notice of termination and redundancy standards)
and/or those without the requisite length of service with the one employer (such as 12 months in the requests for flexible work
and the parental leave standards). Further, apart from those standards discussed in this paper a number of standards provide, in
effect, for contingent employee rights. For example, while the maximum weekly hours are deemed to be 38, the effect of this
standard can be undercut by requiring employees to work ‘reasonable additional hours’ and by averaging provisions in awards.
See L Bamberry, I Campbell and S Charlesworth ‘NES Exposure Draft Submission’ at
http://www.workplace.gov.au/NR/rdonlyres/EE82474A-30BB-4DEA-ACBAE83CD55B5A06/0/108BamberryCampbellCharlesworth.pdf.
26
National Employment Standards, above n 23, s 22(1).
27
Ibid, s 22(3).
28
Ibid, s 13(1).
22
6
workforce to encourage greater workforce participation’.29 ‘Flexible working arrangements’ are not
defined, although a note in the standard provides that examples of changes in working arrangements
include ‘changes in hours of work, changes in patterns of work and changes in location of work’.30 The
obligation on employers is to ‘consider’ a request, with the addendum that ‘requests may only be refused
on reasonable business grounds’. This is less strongly worded than the parental leave standard, where an
employer must agree to the request unless there are reasonable business grounds.31
The federal RTR model clearly draws on the Family Provisions Test Case decision. The new standard,
however, differs from the AIRC decision in several ways. In some respects it appears stronger. First, in
respect of flexible work, the new policy extends the RTR from part-time work to other forms of flexible
work. Second, the new policy extends the group who are eligible for the RTR from eligible employees
returning from parental leave, as in the Family Provisions Test Case decision, to employees who are
parents with children under school-age. In other respects, however, the new RTR flexible work standard
is much weaker than that provided in the Family Provisions Test Case decision. First, the coverage of the
standard is limited to permanent or ongoing employees with at least 12 months of continuous service
with the employer, and to casual employees who have been engaged on a regular and systemic basis for
at least 12 months and who have a reasonable expectation of continuing engagement with the employer
on a regular and systemic basis.32 This qualification requirement will exclude many of the working
parents of preschool-age children who are most likely to make requests. In February 2006 for example,
21 percent of working women of child bearing age (25-44 years) had less than 12 months service with
their current employer.33 Second, although the RTR flexible work standard similarly suggests that
‘requests may only be refused on reasonable business grounds’, what might be considered reasonable
business grounds are not elaborated in the new standard. Indeed, in May 2007 the then Shadow Minister
(now Minister) for Small Business, Craig Emerson, responded to Australian Chamber of Commerce and
Industry (ACCI) concern about the ALP’s RTR proposal by assuring ACCI that ‘[a]ny adverse impacts
on business practices are grounds to refuse flexible work arrangements or a 12-month extension of
parental leave’.34
Finally, and perhaps most importantly, the new RTR standard provides no enforcement mechanism and
there is no grievance procedure or process to provide redress where requests are unreasonably refused. In
29
Australian Government, above n 24, p 10.
National Employment Standards, above n 23, s 13(1).
31
Ibid, s 13(5)..
32
Ibid, s 13(2).. This qualification period was not originally part of the standard set out in the Exposure Draft of the National
Employment Standards, above n 24. It is noteworthy that this limitation on eligibility was expressly recommended by
Australian Chamber of Commerce and Industry (ACCI) and the Australian Industry Group (AIG) in their submissions on the
Exposure Draft. See above n 24.
33
Australian Bureau of Statistics, Labour Mobility Australia, February 2006, Cat. no. 6209.0, 2007.
34
C Emerson, ‘Extension of Parental Leave - ACCI Leaves out the Crucial Detail’, Media Statement, 2 May 2007, at
<http://www.alp.org.au/media/0507/mssbic020.php> (accessed 4 June 2008).
30
7
announcing its National Employment Standards the government stated that legislation to be introduced
later in 2008 would include compliance in relation to the National Employment Standards.35 To date,
however, the extent to which the new ‘independent umpire’, Fair Work Australia, will deal with disputes
around the National Employment Standards is still unspecified. In respect of two of these standards, the
RTR flexible work and the RTR up to an additional 12 months of unpaid parental leave, the Exposure
Draft explicitly ruled out a dispute resolution process or what it termed ‘third party involvement’.36 In
these two cases, where an employer refuses the request, the process will apparently end with an employer
putting the reasons for the refusal of a request in writing. As Craig Emerson put it in May 2007: ‘There’s
no adjudication, no legal process and no union official under the bed’.37 This explicit rejection of any
grievance mechanism where an employer refuses a request means that these standards will be poor ones.
The Victorian Anti-Discrimination Model
In 1996 Victoria referred most of its industrial relations powers to the Commonwealth. After the abrupt
halt to the flow-on effect of the Family Provisions Test Case decision by WorkChoices, the Victorian
Labor government committed in its 2006 election campaign to use anti-discrimination legislation to
effect RTR flexible work for Victorian workers.38 In 2008, amendments to the Equal Opportunity Act
1995 (Vic) (EOA) were passed, with intended effect from 1 September 2008.39 The Victorian antidiscrimination RTR model regulation is somewhat similar to that proposed at the federal level by the
Human Rights and Equal Opportunity Commission.40 Section 7 of the Equal Opportunity Amendment
(Family Responsibilities) Act 2008 (Vic) (EOAA) amended the EOA to provide that employers,
principals and firms comprising five or more partners must accommodate the parental or carer
responsibilities of those offered employment, of employees, of contract workers, and of partners and
persons invited to become a partner. These changes expand the range of what constitutes discrimination
against parents or carers in employment and employment-related areas under the EOA. They provide in
essence that employers are not to unreasonably refuse to accommodate the responsibilities an employee
has as a parent or carer.41 In determining whether a refusal to accommodate family responsibilities is
The Hon Julia Gillard MP, Minister for Employment and Workplace Relations ‘New National Employment Standards
Released’, Media Release, 16 June 2008 at
http://mediacentre.dewr.gov.au/mediacentre/Gillard/Releases/NewNationalEmploymentStandardsReleased.htm.
36
Australian Government, above n 24, p 10.
37
Emerson, above n 34.
38
Victorian Australian Labor Party [VALP]. Safer Fairer Workplaces, ALP, Melbourne 2006, p 11.
http://www.alpvictoria.com.au/media/docs/Safer-Fairer-Workplaces-5d249349-aafd-4bfe-add2-b4fc0aee2387.pdf.
39
Section 2 of the Equal Opportunity Amendment (Family Responsibilities) Act 2008 (Vic) (EOAA) sets the default date of
operation as 1 September 2008. Private communications with the Victorian Equal Opportunity and Human Rights
Commission indicate that 1 September 2008 is the anticipated commencement date of the new amendments.
40
HREOC, above n 1, p 61-64. HREOC’s proposal was that a Family Responsibilities and Carer’s Rights Act be introduced,
which would, amongst other things, include a right for employees with family and carer responsibilities to request flexible
work arrangements with a corresponding duty on employers to reasonably consider these requests. Refusal by an employer to
reasonably consider such a request could then be the subject of a complaint by an employee to HREOC.
41
Equal Opportunity Act 1995 (Vic) ss 13A(1), 14A(1), 15A(1), 31A(1) (as inserted by the Equal Opportunity Amendment
(Family Responsibilities) Act 2008 (Vic) s 7).
35
8
unreasonable, all relevant facts and circumstances must be considered; for example, in relation to
employees these include:

the person's circumstances, including the nature of his or her responsibilities as a parent or carer;

the nature of the role that is on offer;

the nature of the arrangements required to accommodate those responsibilities;

the financial circumstances of the employer;

the size and nature of the workplace and the employer's business;

the effect on the workplace and the employer's business of accommodating those responsibilities,
including:
o the financial impact of doing so;
o the number of persons who would benefit from or be disadvantaged by doing so;
o the impact on efficiency and productivity and, if applicable, on customer service of doing so;
o the consequences for the employer of making such accommodation; and

the consequences for the person of not making such accommodation.42
The EOAA makes it unlawful discrimination for an employer to unreasonably refuse to accommodate the
parental or carer responsibilities of an employee.43 Where this occurs, an employee or potential employee
will be able to make a complaint about any contravention to the Victorian Equal Opportunity and Human
Rights Commission but will not have to prove direct or indirect discrimination to make out the complaint.
In Victoria complaints that do not resolve in conciliation may be referred to the Victorian Civil and
Administrative Tribunal for determination.
The Victorian anti-discrimination RTR model extends eligibility to a broader group of workers who have
parental and carer responsibilities than the federal industrial relations model. In particular, by offering
protection to those offered employment, the EOAA has the potential to empower a successful job
applicant to seek accommodation of his or her caring responsibilities before actually commencing
employment. Further, the wording of the provisions suggests that the quantum and scheduling of hours as
well as the location of work are covered. Examples of accommodating employees included in the EOAA,
such as rescheduling a regular staff meeting so that an employee can attend and allowing for flexible
break times,44 would suggest that the duty to accommodate extends also to the organisation of work,
something that is not envisaged in the federal RTR model. These and other examples included in the
42
See Equal Opportunity Act 1995 (Vic) ss 13A(2), 14A(2), 15A(2), 31A(2).
Section 6. The EOAA thus introduces a new ground of discrimination into Australian anti-discrimination law, in addition to
the other grounds of direct and indirect discrimination, such as sex, carer, parental, family responsibilities and breastfeeding
discrimination, which can be used by complainants to seek redress where their caring responsibilities have not been
accommodated.
44
Equal Opportunity Act 1995 (Cth) ss 14A(1), 15A(1).
43
9
EOAA amendments are non-exclusive, and it is likely that there may be other innovative ways that an
employer could accommodate a person's parental or carer responsibilities.
How Do the Australian Models Measure Up?
How do these two Australian RTR models compare with the initiatives in place in three European Union
(EU) countries, the Netherlands, Germany and the UK? We summarise the key features of the RTR
regulation in each of these countries below.45
RTR regulation was first introduced in the Netherlands in 2000 in the Working Time Adjustment Act
2000, with the explicit aim of enhancing the options for workers to change their working-time
arrangements depending on their needs across the life course.46 The regulation allows employees in
businesses with more than 10 employees and who have more than 12 months service to request a
reduction or an extension of their working hours. The German RTR regulation introduced in 2001 in the
Part-time and Fixed Term Employment Law 2000 is modelled on the Dutch regulation and is aimed both
at promoting job creation for the unemployed by enabling full-time employees to work on a part-time
basis and at enhancing equal employment opportunities for men and women by allowing employees more
time for family responsibilities, voluntary work or education.47 Employees in businesses with more than
15 employees and with more than six months service are eligible to make a request to reduce their
working hours. While the German RTR also provides employees with the option to request an increase in
working time, it differs from the Dutch regulation in that employees who seek such an extension only
have a right to preferential consideration of existing vacancies.48
The UK RTR regulation was introduced in 2003 via the Employment Act 2002. The UK RTR is more
limited than both the Dutch and the German provisions, in that it restricts the right to parents with six
months service or more with children under school age and disabled children under 18 years. After a
comprehensive evaluation of the UK RTR in 2006, the RTR was extended to employees with caring
For more detailed exposition and analysis on these various models see S Burri, H Opitz, and A Veldman, ‘Work-family
Policies in Working Time put into Practice. A comparison of Dutch and German Case law on Working Time Adjustment’
(2003) 19 The International Journal of Comparative Labour Law and Industrial Relations, 321; A Hegewisch ‘Employers
and European Flexible Working Rights: When the Floodgates Were Opened’ Issue Brief, Fall 2005, Centre for Work/Life
Law, UC Hastings College of the Law, San Francisco; A Hegewisch ‘Individual Working Time Rights in Germany and the
UK: How a Little Law Can Go a Long Way’ in A Hegewisch (ed) Working Time for Working Families: Europe and the
United States, Friedrich Ebert Foundation, Washington, 2005; K Kornbluh ‘Win-Win Flexibility: A Policy Proposal’, New
America Foundation, 2005, http://www.newamerica.net/publications/policy/win_win_flexibility_a_policy_proposal; C Fagan,
A Hegewisch and J Pillinger, Out of Time: Why Britain needs a new approach to working-time flexibility, Trades Union
Congress, London, 2006; and S Himmelweit ‘The Right to Request Flexible Working: a ‘very British’ approach to gender
(in)equality?’ (2007) 33 Australian Bulletin of Labour 246.
46
Burri et al, above n 45, at 322.
47
Ibid.
48
Hegewisch ‘Individual Working Time Rights in Germany and the UK’, above n 45 at 106.
45
10
responsibilities for certain adult dependents from April 2007.49 The scope of flexibility in the UK RTR
regulation is wider than that in the Netherlands and Germany, providing for changes to the quantum and
scheduling of hours as well as the location of work. It should be noted, however, that in both the
Netherlands and Germany there is an absolute right to part-time work as part of lengthy periods of
parental leave.
While the three European RTR models each have different limitations, it would be fair to say that the two
Australian models considered here are generally weaker across several dimensions. First, in both the
Netherlands and in Germany, eligibility to make a request includes both employees with and employees
without caring responsibilities.50 This means that in effect eligible Dutch and German employees making
a request under the regulation are not obliged to provide a reason for their request. Under both the
continental European models, requests are limited to changes in working time and do not extend to the
location of work as in the UK model. Importantly, however, both provide an avenue for part-time
employees to request an increase in their hours either to a longer hours part-time job or to a full-time
job.51 Nevertheless one restriction of all three European models is that the frequency of requests is
limited – to once every 24 months in the Netherlands and Germany and to once every 12 months in the
UK.52 Second, while the Victorian anti-discrimination RTR model provides coverage for the widest range
of workers of any of the RTR models discussed in this paper, the federal RTR model potentially excludes
more employees than do any the European models, despite their size of workplace and service
requirements, because of its exclusion of irregular casual employees and employees with less than 12
months continuous service.
Third, in general terms, the European examples of RTR regulation provide for a far more rigorous
approach to the duty of employers to seriously consider requests once they are made. For example, in
respect of the rejection by an employer of a request concerning the quantum of hours, the Dutch RTR
offers the toughest test. It provides that an employer can only reject a request if there are ‘serious
countervailing business reasons’.53 The German RTR model is less stringent and an employer can refuse
a request based on ‘operational reasons’, including the extent to which the reduction of working time
interferes with course of work or safety in the business or causes disproportionate costs.54 In practical
effect, the UK RTR regulation is less onerous again. Reasons on the basis of which a request for flexible
49
Above n 4.
Jacobs and Schmidt, above n 5, at 376.
51
However the German regulation only requires employers to “give a preference” to requests from part-time employees for an
extension of hours unless this would conflict with urgent operational reasons or requests of other part-time employees: ibid at
375.
52
Hegewisch, Employers and European Flexible Working Rights, above n 45, at 5.
53
This may include reasons such as difficulties in recruiting another employee to fill the residual hours or health and safety
concerns: ibid.
54
Jacobs and Schmidt, above n 5, at 378.
50
11
work may be refused include the burden of additional costs, an inability to reorganise among existing
staff, and planned structural changes.55 In the federal RTR flexible work standard there are no specified
business grounds. Instead Fair Work Australia, the new ‘independent umpire’, is to provide general
information and assistance to employers as to what may constitute reasonable business grounds.56
Interestingly, however, the list of considerations in the Victorian anti-discrimination RTR model is quite
extensive and requires consideration of not only the consequences for the employer of accommodating an
employee with carer or parental responsibilities but also the consequences for the employee of not being
so accommodated.
Fourth, the European RTR models have explicit complaint processes and enforcement machinery. While
there are some differences, employers are required to provide reasons for any refusal of a request in
writing and rights of appeal are provided, including to courts and tribunals. In both the Netherlands and
Germany, once internal grievance processes are exhausted, employees can contest an employer’s
decision to refuse their request on its merits.57 However, in the case of the UK these rights of appeal are
limited to procedural matters rather than the substance of any employer refusal of a request.58
Nevertheless, the contrast with the federal government’s RTR flexible work standard is stark. This
standard provides only that employers must give the employee a written response to the request within 21
days, stating whether the employer grants or refuses the request, and where the request is refused, stating
the reasons for this refusal.59 The explicit rejection in the Exposure Draft and in ALP policy of any ‘third
party involvement’ where disputes arise about implementation suggests that in practice an employer will
not have to demonstrate that they have either considered the request, seriously or otherwise, or advance
business reasons for the refusal of a request within the required time period.
Finally, in comparison with the employment regulatory framework used in the Netherlands, Germany and
the UK, the main drawback of the anti-discrimination RTR model is that it is only a right to lodge a
complaint after an employer refuses to accommodate a worker’s family responsibilities. This limits the
practical effect of such regulation. It presents an additional hurdle in that a complaint has to be brought
by an individual employee in order to activate the protection in the legislation. In Australia in particular,
J Levin-Epstein ‘How to Exercise Flexible Work: Take Steps with a “Soft Touch” Law’, Work-Life Balance Brief No. 3,
Center for Law & Social Policy, UC Hastings College of the Law, San Francisco, 2005, p 3.
56
Australian Government, above n 24, p12.
57
According to Hegewisch, as at 2005, less than 30 such disputes in each country had resulted in court action in each country
given the strength of union representation in those countries and the enterprise level grievance mechanisms. Hegewisch,
Employers and European Flexible Working Rights, above n 45 at 3.
58
See regulations 3, 6 and 8 of the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (UK). If a
person believes their request has not been taken seriously he or she can refer a claim to an employment tribunal. However the
tribunals are not empowered to question the substance of the employer’s decision to refuse all or part of the request, only to
verify that the correct procedure was followed, that the request was taken seriously and that denial was in accordance with the
permitted grounds: G James ‘The Work and Families Act 2006: Legislation to Improve Choice and Flexibility?’ (2006) 35
Industrial Law Journal 272 at 276.
59
National Employment Standards, Sections 13(4) and 13(6), above n 23.
55
12
any anti-discrimination RTR model will limited by the length and complexity of the current complainthandling process in anti-discrimination jurisdictions.60 For example, the investigation and conciliation
process is more drawn out than that in the industrial relations jurisdiction, which may well make any
ongoing employment relationship more fraught. This presents a serious constraint since the real potential
of RTR regulation is to vary working arrangements in the same job, and this is sacrificed if carers are
forced to look for another job. However, within the limits of a complaint-based anti-discrimination
jurisdiction, the Victorian RTR model does represent an innovation. While the EOA amendments do not
expressly reverse the legal or evidentiary burden on complainants to prove discrimination, the practical
effect of the new Victorian RTR provisions is to place the burden on the employer to adduce evidence in
response to a claim of unreasonable refusal of accommodation; that is, it is the employer who must prove
that he or she has not unreasonably refused the request. Importantly, the Victorian model arguably has
the potential to provide employees with a ‘a right to refuse’ inflexible work arrangements, such as
unilaterally imposed overtime or certain rostering schedules, albeit in effect a right to complain after an
employee has been disadvantaged after refusing family-unfriendly conditions.
Optimum RTR Regulation
The broad policy goal of the two Australian RTR models is to help workers in balancing their work and
family responsibilities within the context of business requirements. The related policy goals of gender
equality and job quality are also crucial. Working arrangements that promote or hinder the work/family
balance directly affect the distribution of domestic and care-related work between women and men.61 To
realise the potential of RTR regulation government intervention must ensure that such regulation does not
reinforce gender divisions between work and care, or divisions between those with caring responsibilities
and those without. Working arrangements also play an important role in determining the quality of work,
particularly for employees with caring responsibilities, and steps will need to be taken to ensure that a
successful request does not result in the trade-off of conditions such as permanency, access to training
and career advancement.62 Indeed, the impact of a successful request on job quality has gendered effects
60
Criticism of the limited redress provided under the individual complaint mechanism of anti-discrimination jurisdictions is
long-standing. See for example M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia, Oxford
University Press, Melbourne, 1990; and B Gaze ‘Quality Part-time Work: Can Law Provide a Framework?’ (2005) 15(3)
Labour & Industry 89.
61
A Scheele ‘Gender and the quality of work: an overview of European and national approaches’ (2007) 13 Transfer 595, at
599.
62
See J Chalmers, I Campbell and S Charlesworth, ‘Part-time Work and Caring Responsibilities in Australia: Towards an
Assessment of Job Quality’ (2005) 15(3) Labour & Industry, 41. In evaluations of the implementation of the UK RTR, for
example, there is evidence that many of those who had changed their working arguments reporting some adverse
consequences in doing so, including reduction in pay, intensified workload and/or a deterioration in relationships with
colleagues and/or their manager. H Holt and H Grainger Results of the Second Flexible Working Employee Survey,
Employment Relations Research Series No.3, Department of Trade and Industry, London, 2005 at 19; and H Hooker, N
13
as any negative consequences will be experienced disproportionately by women, exacerbating pay gaps,
stress and stereotypical attitudes to women.63
What would make for optimum RTR regulation? If it is to become anything more than ‘sound bite’
legislation,64 an effective Australian RTR employment standard would need to incorporate a number of
elements. First, it should establish a broadly conceived right to request flexible work that is available to
all employees, not only those with caring responsibilities. This is the case in the Netherlands and
Germany, and has been advocated by the Trade Union Congress and the former Equal Opportunities
Commission in the UK on job quality and gender equality grounds.65 Extending the RTR to all
employees would, as Fagan et al argue, have a number of benefits. It would help address gendered
working-time norms and the gendered take-up of flexible work and it would challenge the view that
flexible work is ‘non-standard’. A broad right to request would also create a more solid base for the
effective implementation of flexible working rights and lower potential for resentment from those
excluded.66 Most importantly, it would encourage a more strategic, integrated and systematic approach to
working time across the life course, such as that reflected in the schemes linked to working-time accounts
that have been introduced in Germany and the Netherlands.67
Second, optimum RTR regulation should provide for the direct facilitation of a request. In this respect, a
RTR in employment regulation is stronger than the anti-discrimination model outlined above, which
provides for a right to complain where a request is refused. This is not to discount the value of access to
an anti-discrimination RTR model in conjunction with an employment regulatory model. UK experience
shows that while anti-discrimination mechanisms are not sufficient on their own, they can be very useful
in bolstering any employment regulation and in providing an alternative forum in which to deal directly
with issues of discrimination that may have arisen in the refusal of a request. While complaints about an
employer’s refusal to reasonably consider a request are only considered on procedural grounds by the UK
Employment Tribunal under the RTR provisions, the Tribunal can also consider the grievance on its
merits under the Sex Discrimination Act 1986 (UK).68
Neathey, J Casebourne and M Munro The Third Work-Life Balance Employee Survey: Main Findings Employment Relations
Research Series No. 58, Department of Trade and Industry, London, 2007, at 74.
63
Himmelweit, above n 45.
64
The first iteration of the UK RTR regulation was referred to as ‘sound bite legislation’ on the grounds of its relatively weak
provisions for justification and for remedies where a request was refused: L Anderson ‘Sound Bite Legislation: The
Employment Act 2002 and New Flexible Working “Rights” for Parents’ (2003) 32(1) Industrial Law Journal, 37, at 41.
65
For example, see Trade Union Congress, ‘Government must be bold when extending flexible working rights, says TUC’,
Press release, 14 May 2008 ‘ http://www.tuc.org.uk/work_life/tuc-14774-f0.cfm; Equal Opportunities Commission
‘Investigation into flexible and part time work – background’
http://83.137.212.42/sitearchive/eoc/Defaultaf70.html?page=15443. Last updated 28 July 2006.
66
Fagan et al, above n 45, at 11-16.
67
Ibid. at 51-52.
68
It should be noted that recourse to the Sex Discrimination Act 1986 (UK) is due in part to the incapacity of the UK
Employment Tribunal to interrogate the reasons for refusing a request. Moreover, while useful for women who can construct
an indirect sex discrimination claim, it would be difficult for men, both in the UK and in Australia, to do likewise without
14
Third, optimum RTR regulation should provide for a clear legislative obligation placed on employers to
consider such requests reasonably and seriously. There are two elements that need to be considered in
this respect: the grounds permitted for refusal of a request, and the right to seek review of whether these
grounds have been met. In regard to the first element, it is important that the details of any RTR
regulation provide a clear definition of the procedure and the ‘business grounds’ on which a request can
be turned down.69 This would ideally follow the Dutch model of only being able to refuse such requests
when there are ‘serious countervailing business reasons’. The ‘reasonableness’ of any refusal of a request
also requires in our view a consideration of the impact on the worker in much the same way as provided
for under the Victorian anti-discrimination RTR model.70 In regard to the second element, a right of
appeal when agreement cannot be reached to a court or tribunal where the business case evidence for any
refusal can be evaluated and scrutinised, such as in Germany and the Netherlands, is also integral to
effective RTR regulation.71 There has been much criticism of the more limited UK procedural rights of
redress under the RTR flexible work,72 a model which the new NZ RTR appears to follow. As noted
above, the Australian RTR national employment standard does not currently even specify these limited
rights, a feature which is strongly supported by two of Australia’s major employer groups. 73 Yet as the
Victorian government succinctly puts it:
To be effective, a right must be capable of vindication in a manner appropriate to its nature,
otherwise it is not a right at all but a guideline. A safety net of comprehensive, fair and relevant
employment conditions is after all a public statement of what constitutes socially acceptable
express protection against discrimination on the grounds of family responsibilities or parental and carer status such as under
the EOA. The Family Responsibilities and Carers’ Rights Act recommended by HREOC to prohibit discrimination against
employees with family responsibilities and to provide a mechanism for a RTR flexible work arrangements would thus be a
useful complement to any federal RTR standard. See HREOC, above n 1, at 58-59.
69
Fagan and Walthery, above n 2, at 96. Indeed, a number of submissions to the federal government on the draft RTR flexible
work standard argued that what constitute ‘reasonable business grounds’ in considering a request should be defined. See for
example submissions from The Women’s Electoral Lobby, Centre for Work + Life the Australian Council of Trade Unions at
http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/DiscussionpaperonNationalEmploymentStandards.
htm.
70
The consideration of the impact on the worker making the request was also explicitly supported in several submissions on
the Exposure Draft RTR standard such as those from JobWatch, HREOC and the Australian Catholic Council for Employment
Relations at
http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/DiscussionpaperonNationalEmploymentStandards.
htm.
71
Fagan and Walthery, above n 2, p 6.
72
See for example Anderson, above n 64; Fagan et al, above n 45; James, above n 58.
73
ACCI and AIG at
http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/DiscussionpaperonNationalEmploymentStandards.
htm. Indeed the AIG argues that the lack of any enforcement mechanism is ‘more likely to achieve positive outcomes than a
heavy-handed prescriptive approach’. AIG ‘National Employment Standards Exposure Draft: Australian Industry Group
Submission’, at http://www.workplace.gov.au/NR/rdonlyres/D96FBA59-B49E-403E-8C12130C8016A5A1/0/123AustralianIndustryGroup.pdf, at 30. However, the Australian Human Resources Institute, with 13,000
HR practitioner members, expresses concern that if there is no requirement for compliance or ability to enforce the RTR
flexible work, it will ‘allow third parties to criticise employers for non–compliance against a standard which is not
enforceable’, at http://www.workplace.gov.au/NR/rdonlyres/9D8FC51D-DF60-43A4-92CD9AB6B7DA8BCE/0/NES_Sub_AHRI.pdf, at 4.
15
minima in a democratic society that respects human dignity. A minimum is nothing if an
employer may depart from it when inconvenient.74
What other sort of pre-conditions are necessary to make RTR regulation an effective mechanism to
ensure genuine employee choice over working-time arrangements? An individual right such as the RTR
may appear to gesture towards a neoliberal understanding of choice and individual negotiation between
employee and employer, and indeed this may be the basis of its broad support. However, such regulation
is not a substitute for other minimum working-time standards. While the three European RTR models all
go a considerable way towards an employee-centred regime of flexibility, they fall short of the concept of
‘time sovereignty’, where employees have extended control of their working-time arrangements.75 One of
the most important limitations of facilitative regulation such as a RTR is that it is ultimately dependent on
the business context and employer discretion, albeit codified discretion. As Hegewisch notes, in effect
RTR regulation places an obligation on the employee to consider the business and the organisational
feasibility of any request at the time of making it.76
Arguably, then, any RTR needs to be underpinned by a set of comprehensive non-negotiable collective
employment rights, especially in respect of working-time and leave arrangements. These include the
regulation of weekly and daily hours, overtime and unsocial hours. As Lee and McCann argue, such
regulation provides the minimum necessary to enable employees to exercise a certain degree of genuine
choice over their working-time arrangements.77 Other regulation is also needed that protects employees
from unilateral or arbitrary changes in their working hours quantum, schedule or location of work. In
addition to such regulation, individual employees need a right to ‘refuse’ certain arrangements such as
long hours that may, over shorter or longer periods and at various points of the life course, make it
difficult to accommodate their specific needs.78 The Dutch and the German RTR models have developed
within an established framework of working-time regulation to limit long hours and enhance individual
flexibility for full-time workers. This is unlike the more porous regulatory framework in which the two
Australian RTR models sit. This does not seem likely to change given the new federal government’s
Victorian Government ‘Victorian Government Submission to the Commonwealth of Australia National Employment
Standards – Commonwealth Exposure Draft and Discussion Paper’ at http://www.workplace.gov.au/NR/rdonlyres/6A649B9647B5-4EBB-98C6-45896C1E9006/0/127VictorianGovernment.pdf, at 9.
75
Hegewisch, Individual Working Time Rights in Germany and the UK, above n 45, p 107. As Linda Dickens aptly puts it ,
where the concern is less with the responsibilities of business than the burdens which equality rights may place on them, it
leaves “rights”, such as the RTR, “resting precariously on securing agreement of those against whom they are exercised”: L
Dickens ‘The Road is Long: Thirty Years of Equality Legislation in Britain’ (2007) 45 British Journal of Industrial Relations
45(3), 463 at 470.
76
Hegewisch, Individual Working Time Rights in Germany and the UK, above n 45, p 107-108.
77
S Lee and D McCann ‘Working time capability: Towards realizing individual choice’, in J-Y Boulin, M Lallement, J
Messenger and F Michon (eds) Decent working time: new trends, new issues ILO, Geneva, 2006, pp 78-79.
78
See D McCann, ‘Temporal Autonomy and the Protective Individualisation of Working-Time Law: The Case of Overtime
Work’ 2007, 17(3) Labour & Industry 29, at 37-38.
74
16
continued reliance on individual bargaining around family-friendly benefits, access to which remains
subordinated to what business deems are operational requirements.79
Provisions underpinning a minimum wage and job security such as unfair dismissal protection are also
vital. Short-term casual employees and new employees will still lack job security under the new federal
government’s industrial relations policy. The policy limits access to unfair dismissal protection to
employees with more than 12 months’ service in workplaces with fewer than 15 employees and to
employees with six months or more services in larger workplaces.80 Lack of job security can make it a
risky business to request a variation to working-time arrangements and can work to undercut any sense of
entitlement to flexible work arrangements that a right to request has the potential to confer.
Other government and social supports are also required to ensure employees can practically access RTR
regulation. One of the most critical is government commitment and resourcing, including of child care
and other infrastructure.81 In the UK for example, the RTR is part of a broader work and family policy
package, which includes increased paid maternity and paternity pay and child care credits.
Ensuring support for effective implementation
The UK RTR regulation, despite its weaker scope and enforcement mechanisms, is seen by many as
more successful than the stronger Dutch and German models.82 This success is reflected in its increasing
rate of take-up and the low request refusal rate.83 While take-up is uneven, gendered and is less evident in
managerial and professional occupations,84 there are indications that the UK RTR has increased the
acceptability of flexible working to employers85 and effected cultural change within many organisations,
giving employees a little more ‘elbow power’ in negotiations with line managers.86 Indeed, despite the
stronger regulatory frameworks of both the Dutch and German RTR models, in our view the UK
approach to RTR, including the regulation, the guidance materials and the significant commitment of the
government to making it work, may be more suitable for transplantation to a deregulated industrial
relations regime such as that found in Australia.
79
In the National Employment Standards Exposure Draft, above n 24, p 10, the federal government stated the following in
relation to the RTR flexible work standard: “[T]he Government considers that implementing family friendly arrangements is
best dealt with at the workplace level. Whether a particular flexible working arrangement requested by an employee can be
accommodated by an employer will vary depending on the circumstances of the particular business”.
80
ALP, above n 22, p 19.
81
Fagan and Walthery, above n 2, p 23.
82
See Hegewisch, Employers and European Flexible Working Rights, above n 45; Hegewisch, Individual Working Time
Rights in Germany and the UK, above n 45; Kornbluh, above n 45.
83
Hegewisch, Individual Working Time Rights in Germany and the UK, above n 45, p 104.
84
Himmelweit, above n 45; Fagan and Walthery, above n 2, p 22.
85
Hegewisch, Employers and European Flexible Working Rights, above n 45, p 3.
86
Hegewisch, Individual Working Time Rights in Germany and the UK, above n 45, p 119.
17
While one reason for the relative success of the UK RTR regulation is the strict procedural schedule for
the negotiation of flexible work,87 another significant factor has been the process used to develop the
regulation and to support and monitor its introduction. The passing of the legislation was preceded by
wide and inclusive consultation, from the establishment of a Work and Parents Taskforce to the inclusion
of the largest UK employer association, the Confederation of British Industry, and the union peak body,
the Trades Union Congress, in the UK working party drafting the law.88 An extensive public education
campaign preceded and accompanied implementation of the legislation. The government sponsored a
Work-Life Balance Campaign, to support employers in allowing their employees to work flexibly and to
share best practices. Perhaps most significantly, the government provided financial incentives to
businesses to develop flexible work policies and practices. According to the UK Department of Trade
and Industry, 400 employers were given £11.3 million as part of the Work-Life Balance Challenge
Fund.89
In the UK the RTR process is facilitated by the development of employee and employer guidelines and
by the availability of simple forms for employee requests and employer decisions that are placed on a
specific government web portal. This has worked to make the process relatively transparent and
consistent. Importantly there is a comprehensive system of review and evaluation in place around the
regulation, which includes regulatory impact statements, employer and employee surveys and research
evaluations. This has provided a critical evidence base for incremental expansion of those eligible to
make a request and has worked to garner employer support for the recent extension of the RTR to those
with adult carer responsibilities. A recent cycle of review, evaluation and consultation has led to the UK
government’s commitment to a further extension of the RTR to cover parents of children up to 16 years
old.90
Another critical element to support an effective RTR is union involvement and commitment. As Lee and
McCann argue, we need not only strong laws, but also strong unions to ensure that employees with
limited bargaining power are able to exercise genuine choice and are not compelled to forgo their
rights.91 In the UK, government resourcing provided to the Trades Union Congress and to key employer
associations has worked to inform and support unions, employers and employees to better understand and
implement the RTR. The involvement of unions and employer groups in the process of the ongoing
87
Murray, above n 19; see also Anderson, above n 64, at 44.
Hegewisch, Employers and European Flexible Working Rights, above n 45; Kornbluh, above n 45.
89
Kornbluh, above n 45, p 4.
90
Department for Business, Enterprise and Regulatory Reform (UK) ‘Flexible working to help 4.5 million more parents’ Press
Release, 15 May 2008. At http://www.wired-gov.net/wg/wg-news1.nsf/0/BF1D328CF077AD6F8025744A002A74A7?OpenDocument.
91
Lee and McCann, above n 77, p 86. For example, analysis of data from the 2004 UK Workplace Employment Relations
Survey suggests that unions, where they are recognised, generally act as positive mediators in helping translate legislative
intent into workplace practice. L Dickens ‘Equality and Work-Life Balance: What’s Happening at the Workplace’ (2006) 35
Industrial Law Journal, 445, at 445.
88
18
evaluation of the RTR regulation helps ensure individuals have the capacity to exercise the right to
request. It also has the potential to normalise the take-up of flexible working-time arrangements and to
help change work cultures by giving employees confidence to raise flexible work arrangements with their
employer, either informally or through the RTR process.92 Case-study research on the impact of the UK
RTR suggests the regulation has given a positive impetus to an existing trend towards employee-oriented
flexibility apparent in some companies. It has also provided senior management with a rationale to
implement flexibility consistent with employer-of-choice status.93
Conclusion
Finally, we briefly consider some strategic and practical issues of the implementation of the federal RTR
flexible work standard in the Australian context. Our focus here is on the federal standard rather than the
anti-discrimination RTR model contained in the recent Victorian EOA amendments and proposed by
HREOC,94 as the former has the potential to more directly impact on employees and employers.
The National Employment Standards will not be implemented until January 2010. Given the federal
government’s pre-election policy on RTR flexible work, the political caution that has since been
expressed about any changes to this policy, and the grudging support of business for the final version of
the National Employment Standards,95 the RTR standard is unlikely to be altered before it appears in a
Bill before the House of Representatives. While it may be more strategic to take an incremental approach
to the improvement of the standard over time, there are two crucial changes that are required to make the
federal RTR standard functional, albeit limited, before it passes into legislation. First, the qualification
period before an employee can make a request must be reduced to a maximum of six months and the
exclusion of irregular casual employees removed. Second, the same rights of redress that will be put in
place where an employee believes that all or part of the other nine standards are breached should be
extended to the RTR flexible working arrangements standard. Without rights to a grievance process
where an employer refuses a request, this standard will be little more than guidance for enterprise policy.
This does not represent an advance on existing enterprise provisions. Recent case studies of the operation
of company flexible work policies in the United States point to the danger that the ‘formalised discretion’
92
Levin-Epstein above n 55, at 4.
R Croucher and C Kelliher ‘The right to request flexible working in Britain: the law and organisational realities’, (2005) 21
International Journal of Comparative Labour Law and Industrial Relations, 503.
94
Above n 40.
95.
P Anderson ‘Proposed National Employment Standards’ Media Release, ACCI, 16 June 2006
http://www.acci.asn.au/text_files/media_releases/2008/56-08.pdf.
93
19
inherent in a RTR policy can work to institutionalise and legitimise unequal access to attractive work
conditions, rather than challenge patterns of inequality.96
Limiting the exclusion of employees and ensuring a remedy similar to those for the other standards
would provide the basis for a staged approach to improvement, whereby RTR flexible work could be
extended from parents to carers, then from carers to all workers. An incremental approach has also been
the approach taken in the UK, as outlined above. One advantage of a staged approach in the Australian
context would be to address the inevitable resistance from business without watering down the
requirements of employers. Government consultation with business should emphasis that the voluntary
and contingent nature of the right is already a concession to business and that the UK experience has
shown that by legislating in a phased way such regulation does not add unduly to the costs to business.97
How a commitment to proper review, evaluation and consultation could be realised is a more difficult
question. The federal ALP policy for Fair Work Australia envisages machinery to enable it to conduct
inquiries and recommend adjustment to the National Employment Standards.98 However, ultimately any
amendments to any of these standards will require a legislative change, which will make any
improvements contingent both on the political numbers and on political will, unlike with the former
AIRC test case mechanism.
Notwithstanding the limitations of the RTR in Germany, the Netherlands and the UK, it would appear
that this regulation has in fact strengthened the position of employees in respect of balancing work and
family life.99 In the Netherlands, the RTR regulation is seen as a reflection of existing trends in workingtime arrangements, building on that country’s now well-established take-up of part-time work, while the
German regulation has been described as more of an ‘engine pushing things forward’ because of the
traditional hostility of German employers to part-time work.100 As noted above, the UK legislation is seen
to have expanded the slow take-up of more flexible work arrangements, particularly in large firms. While
smaller companies may have a more evasive approach to the legislation,101 in larger companies RTR
regulation has acted as an impetus to the implementation of policies that pre-dated or coincided with the
legislation, with human resources managers using the regulation to overcome internal resistance from
line managers.102
E Kelly and A Kalev ‘Managing flexible work arrangements in US organizations: formalized discretion or “a right to ask”’
(2006) 4 Socio-economic Review 379 at 408.
97
G Fitzner and H Grainger, ‘The right to request flexible working: a review of the evidence’, presentation to Britain at Work
2007 Seminar Series, 29 March 2007, at <http://www.berr.gov.uk/files/file38818.ppt> (accessed 4 June 2008).
98
ALP, above n 22, p 18.
99
Burri et al, above n 45, at 354.
100
Ibid, at 344.
101
Croucher and Kelliher, above n 93, at 518.
102
Ibid, at 519-520.
96
20
What can we expect in Australia? The assumptions behind the very different rights in the federal RTR
flexible work standard and the Victorian EOA amendments are the same; an expectation that cultural
change within workplaces around support for employees with family responsibilities can be realised by
providing structured guidance for employers about the ‘right thing to do’.103 To this extent the weight
given to employee rather than employer-oriented flexibility in guidelines and other related material
produced by the federal and Victorian governments and the demonstrated extent of government
commitment to use the regulatory changes to drive cultural change in smaller as well as larger
workplaces will be crucial. Once both models are implemented, it will be instructive to track the take-up
of these procedural rights over time, as well as the gender equality and job quality outcomes of making or
refusing a request.
103
In a second reading of the EOA amendments in the Victorian Legislative Council, the Member for Southern Metropolitan,
Mr Evan Thornley described the amendments as ‘just codified common sense’: Victoria, Parliamentary Debates, Legislative
Council, 5 February 2008, p 28.
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