Is there a right to request part-time work? Equal time, Autmun 2006
Family Responsibilities Test Case flow-on
In NSW the rights of workers with carers responsibilities have been covered under the Anti-Discrimination Act 1977 since amendments to the Act came into force in March 2001.
Since 8 August 2005 this has been coupled with the right to request part-time work becoming an industrial entitlement under the Family Responsibilities Test Case for some employees covered by federal awards (NB. this decision is not safeguarded under the new federal WorkChoices legislation).
For those covered under NSW awards, the NSW Industrial Relations Commission provided that such awards will be varied by general order on 19 December 2005 to incorporate the decision.
The NSW decision provides the following additional entitlements to workers covered by State awards:
- the right to request two years’ unpaid parental leave (up from one year parental leave);
- the right to request part-time work until a child reaches school-age;
- the right to request both parents be allowed a simultaneous period of unpaid parental leave up to eight weeks (previously one week);
- an increase from five to 10 days in the amount of carer's leave that can be accessed yearly from accrued personal leave;
- the right for casuals to take two days' leave to attend to family matters; and
- an obligation on employers and workers to communicate while an employee is on leave about changes to work arrangements.
The industrial ‘right to request’ provisions are qualified with the employer's right to refuse where there are reasonable grounds to do so.
Similarly, recent State discrimination case law has defined ‘carer’s responsibilities’ to include consideration of a request for part time work. In a recent 2005 decision, an employer who refused a new mother’s request to return to work part time unlawfully discriminated against her on the basis of her caring responsibilities. The company required that she return to her job after maternity leave full time. While it offered her alternative jobs that were part time, they weren’t as well paid or convenient. The Tribunal said that company failed to give full and proper consideration as to whether the travel consultant could perform her role part time on the basis she proposed or a variation of her proposal. [Tlevil v The TravelSpirit Group Pty Ltd [2005] NSWADT 204 (15 December 2005)].
In another case, an employer who did not give ‘due consideration’ to a manager’s right to request part-time work was found to discriminate on the ground of carer’s responsibilities. The woman had asked to work three days per week temporarily as she had been unable to find suitable childcare. The company refused on the basis that they needed the woman to work full time as she was a manager, and they believed her proposal was unworkable. The Tribunal found in the circumstances the requirement to work full time was unreasonable. It found that the company had failed to properly consider the woman’s proposal and had responded to it in a ‘knee-jerk’ way. The company was ordered to pay the woman $16,000 [Reddy v International Cargo Express (2004) NSWADT 218]
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