The Fair Work Act 2009 (Cth)

4.37 The Fair Work Act is one of the key Commonwealth statutes governing the employment of mature age workers. It provides for terms and conditions of employment and sets out the rights and responsibilities of employees, employers and employee organisations in relation to that employment. The Fair Work Act regulates ‘national system’ employers and employees.[52] Employment that is not covered under the national industrial relations system remains regulated by the relevant state industrial relations systems. However, some entitlements under the Fair Work Act extend to non-national system employees.[53] The Act also creates a compliance and enforcement regime and establishes several bodies to administer the Act, including the Fair Work Commission (FWC)—previously Fair Work Australia—and the FWO.

4.38 As outlined in Chapter 1, in August 2012 the Australian Government released the final Report of the Fair Work Act Review.[54] On 1 January 2013, the provisions of the Fair Work Amendment Act 2012 (Cth) implementing some of the Review’s recommendations took effect.[55] In March 2013, the Fair Work Amendment Bill 2013 (Cth) was introduced into Parliament.[56]

4.39 The ALRC makes recommendations about a number of aspects of the Fair Work Act to address legal barriers to workforce participation by mature age workers, including:

  • the National Employment Standards (NES), in particular the right to request flexible working arrangements and provisions relating to notice of termination of employment;

  • modern awards; and

  • the general protections provisions.

Flexible working arrangements

4.40 There are a number of grounds upon which the right to request flexible work arrangements under the Fair Work Act could be extended. However, the Terms of Reference for this Inquiry require the ALRC to focus on barriers to work for mature age persons. There are two possible grounds upon which an extension is likely to provide most assistance to mature age workers: extending the right to all mature age workers on the basis of their age; or to all employees who have caring responsibilities, a high proportion of whom are mature aged.[57] The ALRC prefers the latter approach and recommends that s 65 of the Fair Work Act be amended to extend the right to request flexible working arrangements to all employees who have caring responsibilities.

The importance of flexibility

4.41 The Consultative Forum on Mature Age Participation emphasised that the ‘ability to work part-time or flexible hours has been found to be the most important facilitator, after good health, for older people to work beyond retirement age’.[58] Flexible working arrangements may allow mature age workers to prolong workforce participation, maintain workforce attachment and facilitate the participation of those whose caring responsibilities affect their ability to participate in the paid workforce. This is particularly important for mature age workers: Australian Bureau of Statistics (ABS) figures indicate that the likelihood of a person providing care to a person with disability or an elderly person increases with age and that the majority of carers in Australia are aged 45 years and over.[59] In addition, the Diversity Council of Australia submitted that findings from its ‘Grey Matters’ survey highlighted that

A considerable number of mature-age employees reported having current caring responsibilities. Some 13% reported current caring roles for elderly family members, 13% for children and grandchildren, 9% for a family member with health issues and 7% for a family member with a disability.[60]

4.42 The Advisory Panel on the Economic Potential of Senior Australians emphasised that mature age persons have ‘diverse requirements for flexibility’:

some want part-time work; some want casual work; and some want to work for blocks of time, take leave and return to work ... Others wish to scale-down and work fewer hours, allowing more time for recreation. Many find it difficult to work full-time, standard hours because of their health, caring responsibilities or other specific circumstances.[61]

4.43 As a result, examining a range of legislative and other mechanisms for ensuring access to flexible working arrangements is central to enabling mature age workers to enter, re-enter or remain in the paid workforce.[62]

The right to request flexible working arrangements

4.44 Under the NES,[63] an employee who is a parent or otherwise has responsibility for a child under school age, or under 18 and has a disability, may request a change in working arrangements to assist with the care of that child.[64] To be eligible to request flexible work arrangements, the employee must satisfy certain service requirements.[65] Such a request may only be refused by an employer on ‘reasonable business grounds’.[66]

4.45 The ALRC’s proposal to extend the right to request flexible working arrangements to all employees who have caring responsibilities received support from a number of key stakeholders.[67] A number of bodies and reports have recommended the extension of the provision along these lines. For example, the House of Representatives Standing Committee on Family, Community, Housing and Youth recommended in 2009 that the right to request be extended to all employees ‘who have recognised care responsibilities, including to those who are caring for adults with disabilities, mental illness, chronic illness or who are frail aged’.[68] The Fair Work Act Review Panel recommended that, in order to increase workplace equity and remove current inequities, s 65 should be amended to ‘extend the right to request flexible working arrangements to a wider range of caring and other circumstances’.[69] In addition, in 2013 the AHRC’s Report, Investing in Care, recommended extending the right to ‘include parents of children of all ages and to encompass all forms of family and carer responsibilities such as disability and elder care’.[70]

4.46 Similarly, the UK right to request scheme, upon which the Australian provisions were based, has been incrementally extended. It applies to parents and carers of children up to the age of 16. It also applies to those with caring responsibilities for a wide range of adults including: relatives, spouses, civil partners and other household members.[71]

4.47 Some stakeholders and reports have suggested a wider approach—including extending the right to request on the basis of age—or more broadly.[72] For example, Women in Social and Economic Research (WiSER) suggested that there are a range of reasons aside from caring why mature age persons may require flexible working arrangements, including for example:

poor health, injuries and other life circumstances can make it difficult for older people to work full-time, standard hours. The RTR is important to all older workers and not only those with informal caring roles.[73]

4.48 The Advisory Panel on the Economic Potential of Senior Australians recommended that the right be extended to persons aged 55 and over.[74] In 2012, the Fair Work Amendment (Better Work/Life Balance) Bill 2012 was introduced that would, among other things, amend the Fair Work Act by extending the right to request to all employees. It would also remove the flexible working arrangements provisions from the NES and create a new part of the Act.[75] In addition, in March 2013, the Fair Work Amendment Bill 2013 (Cth) was introduced to amend the Fair Work Act. The proposed amendments include extending the right to request to a range of workers, including those with caring responsibilities and employees aged 55 years and over.[76]

4.49 However, peak industry bodies such as the Australian Chamber of Commerce and Industry (ACCI) and the Ai Group have expressed strong opposition to the extension of the right to request flexible working arrangements provisions on the basis of either caring responsibilities or mature age.[77] For example, the Ai Group emphasised that:

in practice, many mature age workers request and are granted flexible work arrangements without using the right to request provisions. This is the result of open dialogue between employees and their employers about achieving meaningful flexibility in the workplace. This, in our view, is a more effective means of promoting working arrangements that balance the needs of mature age employees with the operational requirements of their employers.[78]

4.50 Stakeholders also expressed concerns about possible stigmatisation of mature age workers if the right to request were extended to mature age workers on the basis of age alone.[79]

On what basis should the right to request be extended?

4.51 Amendment to the NES would involve a significant change to the Fair Work Act framework. However, in the ALRC’s view, amendment of the NES to extend the right to request is an important reform to enable the workforce participation of mature age persons.

4.52 The ALRC considers extending the right to request to all employees with caring responsibilities is the preferable approach to reform in this area. Given that the largest proportion of carers are mature age people, extension of the right to request to employees with caring responsibilities would predominantly benefit mature age workers. Extension on this basis would provide mature age workers with the right to request flexible working arrangements to accommodate their caring responsibilities and address a key barrier to ongoing workforce participation. Such reform balances one of the key objects underlying the right to request—to help employees balance their work and family responsibilities by providing flexible working arrangements—with the need to enable the workforce participation of mature age workers.[80] It may also reduce the need for mature age workers to seek casual employment to achieve flexibility, or rely solely on the goodwill of their particular employer to access flexible working arrangements. It would also provide a statutory basis for such requests. Extension of the right to request on this basis, rather than on the basis of age alone, is also consistent with an incremental purposive extension of the right to request.

Recommendation 4–5 Section 65 of the Fair Work Act 2009 (Cth) should be amended to extend the right to request flexible working arrangements to all employees who have caring responsibilities.

Complementary approaches

4.53 In addition to recommending extension of the right to request provisions, the ALRC suggests a range of other complementary approaches to encourage the uptake of flexible working arrangements by mature age workers.

4.54 The Australian Work and Life Index 2012 indicated that 20.6% of Australian employees had made a request for a change to working arrangements in the past 12 months, although the proportion that relied upon the formal right to request provision is unclear.[81]The survey indicated that a majority of Australian employees were unaware of the existence of the right to request provisions,[82] and that there has been no significant change in request-making following enactment of the right to request provisions.[83]

4.55 Further, FECCA emphasised that provisions such as the right to request may be unfamiliar concepts for mature age people from culturally and linguistically diverse backgrounds. As a result, ‘they may not have the confidence to assert their rights, even if they are aware of them, for a range of inter-linked reasons such as unfamiliarity, distrust of institutions and a lack of confidence’.[84]

4.56 The ALRC recommends that, as part of the National Mature Age Workforce Participation Plan discussed in Chapter 3, attention be paid to ensuring that the legislative right to request is complemented by initiatives designed to encourage

worker and management knowledge of the new right, a commitment to genuinely enact the right ... worker confidence that they will not be directly or indirectly punished or stigmatised for asking, management’s perception that agreeing to requests is worthwhile and that unreasonable refusal will have negative consequences for them.[85]

4.57 There are a range of useful government and industry initiatives and reports focused on promoting flexible work arrangements as standard business practice that could contribute to achieving these changes.[86] For example, the Diversity Council of Australia outlined a range of strategies to ‘mainstream flexible work in the Australian labour market’, including changing language, building flexibility into business strategy, engaging at a management level as well as developing broader community awareness.[87] In their joint submission, DEEWR, DHS and FaHCSIA highlighted the role that teleworking initiatives and the Centre for Workplace Leadership may play in this area.[88]

4.58 In addition, the ALRC’s proposal that the FWO should develop a guide to negotiating and implementing flexible working arrangements for mature age workers,[89] received support from a range of stakeholders.[90]

4.59 The FWO has developed a fact sheet about the right to request as well as a Best Practice Guide on the use of individual flexibility arrangements. The ALRC recommends that the FWO, in consultation with unions, employer organisations and seniors organisations, amend the fact sheet and associated material to include information for mature age workers. A Best Practice Guide on the right to request could expand the information provided in the fact sheet and should: include case studies involving mature age workers; outline circumstances in which employees might seek flexible work arrangements; provide employers with guidance on considering and accommodating requests; and include model flexibility strategies. The material should be accessible for all members of the community—including Indigenous people, members of culturally and linguistically diverse communities and people with disability.

Recommendation 4–6 The Fair Work Ombudsman (FWO) has developed material relevant to negotiating and implementing flexible working arrangements. The FWO should amend such material to include information for mature age workers, in consultation with unions, employer organisations and seniors organisations.

Other concerns

4.60 Many stakeholders expressed concerns, echoed in submissions to the Fair Work Act Review, about the current structure and operation of the right to request provision, including in relation to eligibility, its procedural nature, the limited availability of enforcement mechanisms and the grounds for refusal. For example, Carers Australia expressed particular concern about the provision failing to ‘reflect the diversity of caring situations’ and the service requirements which ‘effectively remove the capacity for carers seeking to enter or re-enter the workforce to request flexible working arrangements’.[91]

4.61 The Law Institute of Victoria submitted that there should be a right of review for unsuccessful requests for flexible working arrangements and that the FWC should also

have the power to make binding orders where a request for flexible working arrangements has been denied for reasons which do not amount to reasonable business grounds.[92]

4.62 The Australian Council of Trade Unions (ACTU) expressed the view that

simply extending the scope of the right to request flexible work arrangements without amending the legislation to include real, enforceable procedural rights, does not address the fact the provision, in practice, is nothing more than a right to ask for something.[93]

4.63 Stakeholder concerns about the nature and awareness of the existing provision are significant and the Fair Work Act Review Panel made a number of recommendations for reform in this area.[94] The Fair Work Amendment Bill 2013 (Cth) provides a non-exhaustive list of what might constitute ‘reasonable business grounds’,[95] but does not appear otherwise to address these concerns. While recommending systemic reform of the provision goes beyond the scope of this Inquiry, the ALRC suggests that the Australian Government examine these concerns in developing any further proposed amendments to the Fair Work Act.

Notice of termination of employment

4.64 The NES establish the minimum period of notice, or payment in lieu of notice, that an employer must give an employee to terminate their employment without reasonable cause.[96] The amount of notice or payment in lieu of notice is determined according to the employee’s period of continuous service with the employer.[97] However, that period is increased by one week for employees over age 45 who have completed at least two years continuous service.[98] The ALRC recommends that the Australian Government consider amending s 117(3)(b) to increase this period.

4.65 The origins of the provision lie in the 1984 Termination, Change and Redundancy Case of the former Australian Conciliation and Arbitration Commission.[99] In deciding that employees over 45 years of age should be entitled to an additional week’s notice of termination after satisfying service requirements, the Commission noted that:

Extended notice based on age is also supported by the evidence before us which indicates that persons in higher age groups often find it more difficult to obtain and adapt to comparable work elsewhere.[100]

4.66 Mature age people continue to remain unemployed for longer than their younger counterparts. In May 2012, the average duration of unemployment for people aged aged 45 and over was 62 weeks, compared to 34 weeks for job seekers aged 25–44.[101]

4.67 Evidence also suggests that, of those experiencing age discrimination, the largest proportion of that discrimination constitutes having their employment terminated or being made redundant before their younger counterparts.[102] JobWatch identified that mature age workers ‘are often the first target when businesses restructure and downsize’ and highlighted that, in some cases, ‘redundancy was used as a means of removing the [mature age worker] from their job in order to replace them with younger workers’.[103]

4.68 Extending the minimum period of notice of termination may provide incentives for employers to retain mature age workers, given the additional costs potentially associated with terminating a mature age worker’s employment. Where the employment is terminated, the longer notice period would also provide the worker with additional time or remuneration to facilitate the job search process.

4.69 Stakeholder responses to extending the notice period were mixed.[104] For example, the Employment Law Centre of Western Australia submitted that ‘an increase in the minimum period of notice would reflect the greater difficulty that older employees may encounter in finding alternative employment’.[105] However, stakeholders such as ACCI and the Ai Group opposed any extension on the basis that the provision of additional notice for employees over 45 years is a ‘long-standing workplace standard’,[106] the ‘lack of evidence to justify it and [that] the unintended consequences would outweigh any perceived benefit’.[107]

4.70 The Australian Government has introduced two sets of legislative responses to the Fair Work Act Review. While the Fair Work Act Review determined that the notice of termination provisions ‘appear to be operating as intended’,[108] the ALRC suggests that the Australian Government should consider whether these provisions could be amended to encourage retention of mature age employees. The ALRC therefore recommends that in the course of considering amendments to the Fair Work Act, the Australian Government should consider amending the provision to increase the minimum notice period for employees over 45 years of age.

Recommendation 4–7 Section 117(3)(b) of the Fair Work Act 2009 (Cth) provides that if an employee is over 45 years of age and has completed at least two years of continuous service with the employer, then the minimum period of notice for termination is increased by one week. In the course of amending the Fair Work Act 2009 (Cth), the Australian Government should consider increasing this period.

Modern awards

4.71 A modern award is an industrial instrument that regulates the minimum terms and conditions for a particular industry or occupation, in addition to the statutory minimum outlined by the NES.[109] The ALRC considers that the inclusion or modification of terms in modern awards, which may assist in addressing barriers to workforce participation for mature age workers, should be considered in the course of the 2014 review of modern awards.

How do modern awards operate?

4.72 A modern award cannot exclude any provisions of the NES, but can provide additional detail in relation to the operation of an NES entitlement. The Fair Work Act prescribes terms which must, must not, or may, be included in a modern award.[110] Under the Fair Work Act, a national system employee who is not covered by an enterprise agreement[111] and is not a ‘high income employee’[112] may be covered by a modern award.[113] However, ‘only 15.2% of the Australian workforce has their pay and conditions set by awards, while approximately 80% derive their pay and conditions from collective and individual agreements’.[114] In general, a modern award applies to employees in a particular industry or occupation and is used as the benchmark for assessing enterprise agreements before they are approved by the FWC.

Reviews of modern awards

4.73 In 2012–2013, the FWC is undertaking a review of all modern awards, based on applications to vary modern awards.[115] The scope of the current review is limited to considering whether modern awards achieve the modern awards objectives and are operating effectively, without anomalies or technical problems arising from the award modernisation process.[116] The current review is scheduled to conclude in May 2013.[117]

4.74 In addition, the Fair Work Act provides for review of each modern award every four years.[118] The first review of this kind will commence in 2014, and the FWC has indicated that it will be broader in scope than the 2012–2013 review.[119] The reviews are ‘the principal way in which a modern award is maintained as a fair and relevant safety net of terms and conditions’.[120]

4.75 The ALRC proposed that, in the course of the 2014 review, the inclusion or modification of terms in the awards to encourage workforce participation of mature age workers should be considered.[121] The proposal received support from many stakeholders.[122]

4.76 However, in its joint submission, DEEWR, DHS and FaHCSIA suggested that ‘encouraging mature worker participation might be more effectively pursued through other initiatives’.[123] The Chamber of Commerce and Industry of Western Australia (CCIWA) opposed the proposal. It submitted that such terms are ‘not an appropriate matter for inclusion in awards and in-turn should not be considered during the four-yearly award review process’, as modern awards

set minimum terms and conditions of employment (as opposed to statements of aspiration). CCI[WA] submit that terms that relate to encouraging mature age workers participation in the workforce cannot be appropriately categorised as a term or condition of employment; and if such terms are included, they will increase the already onerous regulatory burden on employers.[124]

4.77 While it may be a matter for parties to make applications for variation in the course of the review,[125] the ALRC considers that the legislatively-mandated FWC review process presents the appropriate mechanism for the FWC to consider issues relating to mature age workers in the context of modern awards.

What should be considered in the 2014 review?

4.78 The ALRC considers that s 139(1) of the Fair Work Act—which outlines the terms that may be included in modern awardsis sufficiently broad to allow scope for the inclusion of any such additional terms as required. However, terms that are discriminatory must not be included in modern awards, an issue that will need to be considered by the FWC.[126]

4.79 In exercising its functions, the FWC is required to take into account the need to respect and value the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of, among other attributes, age.[127]

4.80 In addition, stakeholders raised a number of issues that could be considered in the review. For example, the Government of South Australia raised the inclusion of Graduated Retirement Provisions, which would

offer a voluntary option for persons who have reached a certain age to access a number of flexible working arrangements that meet their needs. The provisions should provide a range of graduated retirement options that would be most suited to the needs of the industry, the employer and the worker. The Graduated Retirement Provisions should specify an age at which a worker may access these provisions, and this age should reflect the occupational requirements of modern awards for each industry or profession.[128]

4.81 The submission further explained that Graduated Retirement Provisions could assist in workforce planning processes and ‘provide the platform for conversation about how the experienced employee could best contribute to the workplace’.[129]

4.82 The ACTU suggested a suite of amendments to modern awards, primarily for the benefit of part-time workers, including:

access to part-time employment options, greater employee control over rosters and greater certainty over hours of work which assisted many older workers to transition to reduced hours of work.[130]

4.83 Finally, ACCI suggested that three hour minimum shift requirements in awards can

impact mature age employees, who wish to work for less than the required minimum shift requirement (ie only want to work as a casual for 1 hour on certain days and not for 3 hours for each shift—the employer must pay for three hours, regardless of the amount of work available and whether the employer only operates at certain hours).[131]

4.84 In light of the issues outlined above, the ALRC recommends that, in the course of the 2014 FWC review, the inclusion or modification of terms to remove barriers to workforce participation by mature age workers should be considered.

Recommendation 4–8 From 2014, the Fair Work Commission will conduct the first four-yearly review of modern awards. The review should consider the inclusion or modification of terms to encourage workforce participation of mature age workers.

Interaction between the Fair Work Act and anti-discrimination legislation

4.85 There is substantial overlap between the general protections provisions under the Fair Work Act and anti-discrimination legislation at a Commonwealth, state and territory level.[132] The ALRC recommends that the AHRC and the FWC should develop guidance to clarify how these interact and outline potential avenues for redress under this legislation for mature age workers.

4.86 A number of stakeholders suggested that ‘Commonwealth anti-discrimination laws should cover the field in discrimination legislation’.[133] However, as explained in the joint submission from DEEWR, DHS and FaHCSIA,

among the reasons the Government included anti-discrimination provisions in the Act’s general protections was to address situations where breaches of both workplace relations laws and anti-discrimination obligations occurred. This allows most employment-related matters to be dealt with simultaneously, rather than the affected parties participating in multiple claims in multiple jurisdictions.[134]

4.87 Other stakeholders, such as Victoria Legal Aid, noted that:

due to the complexity of Australian anti-discrimination law and the various options for legal redress that are available, it is common for clients to make a complaint under legislation that is not the most appropriate to the subject matter of their complaint.[135]

4.88 Victoria Legal Aid suggested that one improvement aimed at addressing this issue would involve updating and simplifying information available on the National Anti-Discrimination Information Gateway to

assist people, particularly those who do not have legal representation, to understand and evaluate the available options. For example, an aggregated comparative table setting out the protected attributes, requirements and limitations and the available remedies under the respective statutes would assist potential complainants to make this assessment.[136]

4.89 The ALRC considers that the AHRC and the FWC should work cooperatively, including with the Australian Council of Human Rights Agencies,[137] to develop guidance which clarifies the interaction of the general protections provisions under the Fair Work Act and Commonwealth, state and territory anti-discrimination legislation. The guidance should also outline the potential avenues for redress for mature age workers.

Recommendation 4–9 The Australian Human Rights Commission and the Fair Work Commission, in consultation with the Australian Council of Human Rights Agencies, should develop guidance to:

(a) clarify the interaction of the general protections provisions under the Fair Work Act 2009 (Cth) and Commonwealth, state and territory anti-discrimination legislation; and

(b) outline potential avenues for redress under this legislation for mature age workers.

[52] The definitions of ‘national system employee’ and ‘national system employer’ are contained in ss 13 and 14 of the Fair Work Act 2009 (Cth) and are extended by ss 30C, 30D, 30M and 30N to cover employers in referring states: Fair Work Act 2009 (Cth) ss 13, 14, 30C, 30D, 30M and 30N.

[53] For example, non-national system employees are entitled to unpaid parental leave, notice of termination, payment in lieu of notice and protection from unlawful termination of employment: Fair Work Act 2009 (Cth) pts 6–3, 6–4.

[54] Fair Work Act Review Panel, Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation (2012). The Australian Government had committed to reviewing the operation of the Act two years after its commencement: Explanatory Memorandum, Fair Work Bill 2008 (Cth).

[55] Fair Work Amendment Act 2012 (Cth); B Shorten (Minister for Employment and Workplace Relations), ‘Government implements first tranche response to Fair Work Act Review’ (Press Release, 15 October 2012).

[56] Fair Work Amendment Bill 2013 (Cth). Following introduction the Bill was referred to the Senate Standing Committees on Education Employment and Workplace Relations which is due to report in May 2013 and the House of Representatives Standing Committee on Education and Employment. For Australian Government announcements about relevant amendments, see, eg: B Shorten (Minister for Employment and Workplace Relations), ‘Gillard Government to Further Enhance Fair Work Act’ (Press Release, 8 March 2013); B Shorten (Minister for Employment and Workplace Relations), ‘Expanding the Right to Request Flexible Work Arrangements to Help Modern Australian Families’ (Press Release, 11 February 2013).

[57] In light of the often gendered nature of caring, such a reform is of particular importance to mature age women: see, eg, Chapter 2.

[58] National Seniors Productive Ageing Centre, Ageing and the Barriers to Labour Force Participation in Australia (2011), prepared for the Consultative Forum on Mature Age Participation, 23.

[59] Australian Bureau of Statistics, Disability, Ageing and Carers: Summary of Findings, Cat No 4430.0 (2003), 10, 49.

[60] Diversity Council of Australia, Submission 40.

[61] Advisory Panel on the Economic Potential of Senior Australians, Realising the Economic Potential of Senior Australians—Turning Grey into Gold (2011), 15.

[62] A number of stakeholders made submissions with respect to the structure and operation of individual flexibility arrangements (IFAs). However, as outlined in the Discussion Paper, given the limited use of IFAs by mature age workers and the systemic nature of any reforms aimed at IFAs, the ALRC does not consider it is appropriate to make any recommendations about IFAs: Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), [2.67]–[2.71].

[63] The NES enshrine ten statutory minimum requirements that apply to all ‘national system’ employees. The NES encompass areas such as working hours and arrangements, leave, and termination and redundancy pay and cannot be excluded by an enterprise agreement or modern award, discussed below. The NES were introduced following significant consultation to provide a ‘safety net which is fair for employers and employees and supports productive workplaces’: Explanatory Memorandum, Fair Work Bill 2008 (Cth), 25. The NES replaced the Australian Fair Pay and Conditions Standard (AFPCS) and many of the entitlements under the AFPCS and then NES arise from a long history of test cases: see, eg, J Murray and R Owens, ‘The Safety Net: Labour Standards in the New Era’ in A Forsyth and A Stewart (eds), Fair Work: The New Workplace Laws and the Work Choices Legacy (2009) 40.

[64]Fair Work Act 2009 (Cth) s 65(1), (2). The note to s 65(1) states that examples of changes in working arrangements include changes in hours of work, patterns of work and location of work.

[65] The employee must have 12 months of continuous service, or for a casual employee, be a long-term casual employee with a reasonable expectation of continuing employment on a regular and systemic basis: Ibid s 65.

[66] Ibid s 65(5).

[67] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–5. See, eg, National Welfare Rights Network (NWRN), Submission 99; Law Council of Australia, Submission 96; Carers Australia, Submission 81; Australian Federation of Disability Organisations, Submission 78; Diversity Council of Australia, Submission 71; Queensland Tourism Industry Council, Submission 67; Suncorp Group, Submission 66; DOME Association, Submission 62; JobWatch, Submission 60; R Christiansen, Submission 58; The Employment Law Centre of WA, Submission 57.

[68] House of Representatives Standing Committee on Family, Community, Housing and Youth—Parliament of Australia, Who Cares ...? Report on the Inquiry into Better Support for Carers (2009), rec 40.

[69] Fair Work Act Review Panel, Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation (2012), rec 5.

[70] Australian Human Rights Commission, Investing in Care: Recognising and Valuing Those Who Care, Research Report, Volume 1 (2013), 38.

[71]Employment Rights Act 1996 (UK) ss 80F, 80G; Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 (UK) (SI 2002 No 3236) and Flexible Working (Procedural Requirements) Regulations 2002 (UK) (SI 2002 No 3207). For discussion of the evolution of the provisions see Centre for Employment and Labour Relations Law, University of Melbourne, Submission to Fair Work Act Review (17 February 2012), 5.

[72] See, eg, Women in Social & Economic Research (WiSER), Submission 72.

[73] Ibid.

[74] Advisory Panel on the Economic Potential of Senior Australians, Realising the Economic Potential of Senior Australians—Turning Grey into Gold (2011), rec 15.

[75] The Bill also includes other significant changes, including in relation to carers, unions and the role of Fair Work Australia. The Bill was referred to the House of Representatives Standing Committee on Education and Employment which reported in June 2012. At the time of writing the Bill was before the House of Representatives.

[76] Fair Work Amendment Bill 2013 (Cth) pt 3.

[77] Australian Industry Group, Submission 97; Australian Chamber of Commerce and Industry, Submission 85; Chamber of Commerce and Industry of Western Australia, Submission 76.

[78] Australian Industry Group, Submission 97.

[79] See, eg, Brotherhood of St Laurence, Submission 54; COTA Victoria, Consultation, by telephone, 30 May 2012.

[80]Fair Work Act 2009 (Cth) s 3.

[81] N Skinner, C Hutchinson and B Pocock, Australian Work and Life Index 2012 The Big Squeeze: Work, Home and Care in 2012 (2012), 62.

[82] Ibid, 61.

[83] Ibid, 63.

[84] Federation of Ethnic Communities’ Council of Australia (FECCA), Submission 80.

[85] N Skinner, C Hutchinson and B Pocock, Australian Work and Life Index 2012 The Big Squeeze: Work, Home and Care in 2012 (2012), 60.

[86] See, eg, Australian Government, Investing in Experience Tool Kit (2012); Diversity Council of Australia, Get Flexible: Mainstreaming Flexible Work in Australian Business (2012); National Australia Bank, My Future, referred to in Comcare, Submission 29; AHRC Investing in Care Toolkit (2013); Department of Education, Employment and Workplace Relations, Corporate Champions <www.deewr.gov.au/
experience-corporate-champions> at 21 March 2013.

[87] Diversity Council of Australia, Submission 71.

[88] DEEWR, DHS and FaHCSIA, Submission 101.

[89] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–6.

[90] Australian Industry Group, Submission 97; Law Council of Australia, Submission 96; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Carers Australia, Submission 81; Australian Federation of Disability Organisations, Submission 78; Queensland Tourism Industry Council, Submission 67; DOME Association, Submission 62; JobWatch, Submission 60; R Christiansen, Submission 58.

[91] Carers Australia, Submission 81.

[92] Law Council of Australia, Submission 96.

[93] ACTU, Submission 88.

[94] Fair Work Act Review Panel, Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation (2012), 95–99, rec 5.

[95] Fair Work Amendment Bill 2013 (Cth).

[96]Fair Work Act 2009 (Cth) s 117.

[97] Ibid s 117(3)(a).

[98] Ibid s 117(3)(b).

[99]Termination, Change and Redundancy Case (1984) 1 IR 34 .

[100] Ibid.

[101] DEEWR, DHS and FaHCSIA, Submission 101, 47.

[102] Westfield Wright Pty, Attitudes to Older Workers (2012), prepared for the Financial Services Council, 13. Research also suggests mature age workers are targeted in times of economic downturn: see, eg, M Bittman, M Flick and J Rice, The Recruitment of Older Australian Workers: A Survey of Employers in a High Growth Industry, Social Policy Research Centre Report 6/01 (2001), 12.

[103] JobWatch, Submission 25.

[104] In the Discussion Paper, the ALRC proposed that the Australian Government consider amending s 117(3)(b) of the Fair Work Act to provide that if an employee is over 45 years of age and has completed at least two years of continuous service with the employer, then the minimum period of notice for termination is four weeks, rather than one week: Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–8.

[105] The Employment Law Centre of WA, Submission 57. Other stakeholders in support included ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Australian Federation of Disability Organisations, Submission 78; Women in Social & Economic Research (WiSER), Submission 72; R Christiansen, Submission 58.

[106] Australian Industry Group, Submission 97.

[107] Australian Chamber of Commerce and Industry, Submission 85. Caution recommended by Diversity Council of Australia, Submission 71.

[108] Fair Work Act Review Panel, Towards More Productive and Equitable Workplaces: An Evaluation of the Fair Work Legislation (2012), 104.

[109] Beginning in 2008, the Australian Industrial Relations Commission, and then its successor Fair Work Australia (now Fair Work Commission) conducted an award modernisation process which reviewed and rationalised existing awards to create streamlined ‘modern awards’. The award modernisation process was completed by the end of 2009, with 122 modern awards commencing operation on 1 January 2010. The Fair Work Commission continues the modernisation process including by conducting a review of modern awards as well as in relation to enterprise instruments and termination of instruments. See, eg, Fair Work Commission, About Award Modernisation <www.fwc.gov.au> at 21 March 2013.

[110] See Fair Work Act 2009 (Cth) ch 2, pt 2–3, div 3.

[111] Ibid s 57.

[112] Ibid s 47(2).

[113] The Fair Work Act 2009 (Cth) draws a distinction between where a modern award covers an employee, employer, or organisation (where it is expressed to cover them) and where it applies (if it actually imposes obligations or grants entitlements): Ibid ss 46–48. There is an obligation to comply with a modern award: Fair Work Act 2009 (Cth) s 45.

[114] DEEWR, DHS and FaHCSIA, Submission 101.

[115] See Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) sch 5, s 6. The Fair Work Act 2009 (Cth) provides for review of each modern award every four years: Fair Work Act 2009 (Cth) s 156. There is also a process for varying modern awards outside the four yearly review: Fair Work Act 2009 (Cth) s 157.

[116] The modern award review is unlikely to revisit issues already determined during the award modernisation process unless there are cogent reasons to do so, such as where there has been a significant change in circumstances: Modern Award Review 2012 [2012] FWAFB 5600 at [89], [99].

[117] For an outline and timetable on the Review, see Modern Award Review 2012–Timetable [2012] FWA 5721.

[118]Fair Work Act 2009 (Cth) s 156.

[119]Modern Award Review 2012 [2012] FWAFB 5600, [99].

[120] Explanatory Memorandum, Fair Work Bill 2008 (Cth), [600].

[121] Australian Law Reform Commission, Grey Areas—Age Barriers to Work in Commonwealth Laws, Discussion Paper 78 (2012), Proposal 2–7.

[122] Law Council of Australia, Submission 96; Government of South Australia, Submission 95; ACTU, Submission 88; Brotherhood of St Laurence, Submission 86; Australian Federation of Disability Organisations, Submission 78; Diversity Council of Australia, Submission 71; DOME Association, Submission 62; JobWatch, Submission 60.

[123] DEEWR, DHS and FaHCSIA, Submission 101.

[124] Chamber of Commerce and Industry of Western Australia, Submission 76.

[125] See, eg, Australian Industry Group, Submission 97.

[126] See Fair Work Act 2009 (Cth) ch 2, pt 2–3, div 3.

[127] Ibid s 578.

[128] Government of South Australia, Submission 30.

[129] Ibid.

[130] ACTU, Submission 38. See also ACTU, Submission 88.

[131] Australian Chamber of Commerce and Industry, Submission 44.

[132] For general protections see Fair Work Act 2009 (Cth) ch 3, pt 3–1.

[133] Diversity Council of Australia, Submission 71; Suncorp Group, Submission 66.

[134] DEEWR, DHS and FaHCSIA, Submission 101.

[135] Victoria Legal Aid, Submission 83.

[136] Ibid.

[137] The Australian Council of Human Rights Agencies is comprised of Australia’s national human rights institution, the AHRC, and human rights bodies at the state and territory level.