There were a range of views on the adequacy of the existing provisions in the FWA to protect employees from pregnancy/return to work discrimination. Some submissions suggested amending existing rights under the FWA and others considered the inclusion of new rights under the FWA to clarify employer obligations and strengthen protections for employees was necessary. Amendments to existing entitlements and protections Several key amendments to existing entitlements and protections may assist in addressing the forms of discrimination examined by the National Review. Right to request flexible working arrangements While the research shows there is a relatively low awareness of the right to request a flexible working arrangement amongst employees, the results of the National Telephone Survey showed that 89% of requests for adjustments to their working arrangements (by mothers on their return to work after parental leave) were granted. However, 18% of mothers who returned to work following the birth of their child reported experiencing discrimination related to requests for flexible work. Despite some challenges faced by businesses in accommodating flexibility in the workplace (see Chapter 4), business and industry groups generally supported the to provisions in their current form, but did not ‘right request’ support amendments to include provisions for enforcement. On the other hand, the National Review received many submissions from individuals who had experienced discrimination, as well as submissions from unions and community organisations, that the right to request provisions lacked and that employers were using the business ‘teeth’ ‘reasonable provision as a basis for refusing requests without a genuine attempt grounds’ to accommodate requests. Given there is currently no right to employees’ appeal, this leaves employees with no recourse. The National Review received submissions with the following suggestions to strengthen the to ‘right request flexible working arrangements’: remove the qualification requirements relating to length of employment in s65(2); include a positive obligation on employers to reasonably accommodate an request for flexible work arrangements (including employee’s work); strengthen the enforcement mechanisms by: providing for an appeal process against a refusal to make reasonable adjustments or a failure to respond with reasons within 21 days; or removing the exemption of the to flexible work arrangements from the civil remedy ‘right request’ provisions under the FWA (s44); include a 'right to work part-time or flexibly' until a child is two years of age.
There were a range of views on the adequacy of the existing provisions in the FWA to protect employees from pregnancy/return to work discrimination. Some submissions suggested amending existing rights under the FWA and others considered the inclusion of new rights under the FWA to clarify employer obligations and strengthen protections for employees was necessary. Amendments to existing entitlements and protections Several key amendments to existing entitlements and protections may assist in addressing the forms of discrimination examined by the National Review. Right to request flexible working arrangements While the research shows there is a relatively low awareness of the right to request a flexible working arrangement amongst employees, the results of the National Telephone Survey showed that 89% of requests for adjustments to their working arrangements (by mothers on their return to work after parental leave) were granted. However, 18% of mothers who returned to work following the birth of their child reported experiencing discrimination related to requests for flexible work. Despite some challenges faced by businesses in accommodating flexibility in the workplace (see Chapter 4), business and industry groups generally supported the ‘right to request’ provisions in their current form, but did not support amendments to include provisions for enforcement. On the other hand, the National Review received many submissions from individuals who had experienced discrimination, as well as submissions from unions and community organisations, that the right to request provisions lacked ‘teeth’ and that employers were using the ‘reasonable business grounds’ provision as a basis for refusing requests without a genuine attempt to accommodate employees’ requests. Given there is currently no right to appeal, this leaves employees with no recourse. The National Review received submissions with the following suggestions to strengthen the ‘right to request flexible working arrangements’: remove the qualification requirements relating to length of employment in s65(2); include a positive obligation on employers to reasonably accommodate an employee’s request for flexible work arrangements (including work); strengthen the enforcement mechanisms by: providing for an appeal process against a refusal to make reasonable adjustments or a failure to respond with reasons within 21 days; or removing the exemption of the ‘right to request’ flexible work arrangements from the civil remedy provisions under the FWA (s44); include a 'right to work part-time or flexibly' until a child is two years of age.
SWP_Report_2014.docx