Working time and managing care under labor: whose flexibility?

• Author: Heron, Alexandra
• Position: Contributed Article

Abstract

Since the Labor Government's election in 2007, debate around working-time flexibility has continued unabated. Employers argue that increasing employer- orientated flexibility through changes to minimum working-time standards and individual flexibility agreements is the path to enhanced productivity and a more effective economy Unions and others have focused on the need for greater employee-orientated flexibility to facilitate combining work and care. However, on neither side of the debate has much attention been paid to basic principles that might inform working-time regulation in ways that would enable individual workers to manage their work and care responsibilities better and deriver a more sustainable and gender-equitable economy. The article outlines recent contestation around flexibility and argues that without ensuring adequate minimum working-time standards for all workers, the gendered divide around work and care will continue to be reinforced.

1. Introduction

   Working-time flexibility has been consistently on the agenda since the Labor Government's election in November 2007. Employer organisations have sought greater freedom to alter employees' hours of work to suit business needs and reduce labour costs. This is framed as part of the need to increase productivity in the interests of the Australian economy and, by implication, to benefit society as a whole. For example, in March 2012 the major banks made an application to extend ordinary hours of work to weekends in the Banking, Finance, and Insurance Award 2020 (ANZ et al. 2012a). While this application was later abandoned, (1) the rationale for the original application reflects many employers' views that more 'flexible and efficient' work practices will deliver both higher productivity and lower employment costs (ANZ et al. 2012a, p. 3). Some employer groups make a direct link between enhanced employer flexibility and supporting diverse groups of workers, including women--presumably because of their care responsibilities--who otherwise may be unable to enter the labour market. For example, the Business Council of Australia recently argued that the increased flexibility in the labour market:

   has allowed a broader diversity of individual employee circumstances and working preferences to be accommodated. Without the benefit of non-standard or flexible working hours and arrangements, many women, students, older workers and people with disabilities might not be able to access the benefits of employment at all (BCA 2012, p. 4).

   In reaction to the employer push for increased employer-orientated flexibility, unions and others have raised concern about changes which lead to greater unilaterally imposed variation to the number and pattern of hours worked (see ACTU 2011; Rafferty and Yu 2010). There have also been arguments for greater employee-orientated flexibility to support combining work and care (W+FPR 2010; Skinner and Pocock 2011; Pocock, Skinner, and Williams 2012). In particular, there has been a focus on flexibility as being important for facilitating women's participation in employment in view of their greater caring responsibilities, and to enable individuals to fulfil reliably the family and community responsibilities, on which most people at some point will depend (House of Representatives 2009a; ACTU 2011). For some policy analysts, 'care may have to be something that everyone does' (Craig 2008, p. 4) to achieve gender equality. Thus, flexible work for men as well as women becomes a pivotal policy goal (AHRC 2010; W+FPR 2010). Nevertheless, the gendered 'one and a half earner' model, where fathers work full-time and mothers work part-time (Craig et al. 2007, p. 12), remains widely accepted by both sides of the policy debate as the Australian solution to combining work and care in couple families, particularly where dependent children are present.

   Developments in 2011 and the first half of 2012 exemplify the divergence of views on the type of flexibility needed in the labour market. The ACTU launched its 'Secure Jobs. Better Future' campaign in September 2011 to improve conditions for those in insecure jobs, estimated to be up to 40 per cent of the workforce (ACTU 2011, p. 4). The ACTU campaign explicitly recognises working-time insecurity, which includes too few, too many, or irregular hours of work (ACTU 2011, p. 10). More recently, the Fair Work Amendment (Better Work/Life Balance) Bill 2012, introduced by Greens MP Adam Bandt, sought to increase employees' rights to seek flexible working arrangements. At the same time, the review of the Fair Work Act 2009 (FW Act) announced at the end of 2011, and the 2012 Fair Work Australia (FWA) review of individual modern awards are being used by employer groups to push for greater flexibility for businesses, including through individual flexibility agreements.

   In this context, surprisingly little debate has focused on basic principles that might inform working-time regulation to enable workers, both collectively and individually, to manage their work and care responsibilities better and the government to deliver a more sustainable and gender-equitable economy. For example, while a more effective right to request flexible work for employees with care responsibilities than currently exists is advocated by the ACTU (2012a), little attention has been paid to the role of basic employee entitlements to regular and predictable hours, and a say in whether and how these conditions can be changed. Yet, as we argue in this article, such award rights are crucial to accessing specific employee-orientated flexibility effectively, such as any right to request flexible work-arrangements.

   The National Employment Standards (NES) and individual modern awards came into force on 1 January 2010 under the FW Act, creating a safety net of minimum standards for most employees (Murray and Owens 2009). In this article we focus on two disputed regulatory elements of the FW Act and their potential for facilitating women's participation in the labour market on an equal footing with men, and assisting men in their caring role. We first trace the development of one of the most contested of the NES: the right to request flexible working-arrangements (RTR) and the possibilities of changes to this provision. While it is a legislated standard, as opposed to an arbitrated one such as those found in individual modern awards, the operation of this NES takes place at the level of the individual within a specific workplace context (see Fudge 2011, p. 172). We then turn to the debate about individual flexibility agreements (IFA), compulsory provisions in both modern awards and enterprise agreements, which also operate at the individual level. As discussed below, an IFA allows an employee and employer to agree to an individual award or enterprise-agreement variation in order to meet the genuine needs of the employee and employer. In particular, we consider the appropriateness of trading off applicable penalty rates in IFAs in return for employees being able to work their preferred hours. Finally, we briefly highlight concerns a bout the shaky existing collective scaffolding of working-time rights that underpins the two individualised rights discussed in the article, focusing on two care-sector modern awards.

   In our analysis we draw broadly on the idea of 'gender equality-friendly' regulation, articulated by Rubery (2011). For Rubery, there are two key approaches to promote gender equality in the labour market. First, there are supply-side policies that encourage and empower women to be independent adults and facilitate continuity of employment over childbirth and childrearing. Second, there are labour-market policies that create a more gender-diversified job structure, a more harmonised regulatory system across standard and non-standard workers, and a more integrated and transparent wage-setting system (Rubery 2011, pp. 10-11). From this perspective, flexible work and (or) work-family policies that attempt to accommodate caring work by providing rights to carers and (some) subsidies to care, but have 'no particular commitment to equalizing the distribution of unpaid work between women and men' (Daly 2011, p.19) end up reinforcing gender inequality. In Australia as elsewhere, this occurs through the 'dual earner, gender specialized, family model' (Daly 2011, p. 19).

   While the gender-equality policy agenda set out by Rubery is a comprehensive one, in this article we focus only on assessing how two key aspects of Australian workplace regulation support work and caring. In ensuring such regulation is gender-equality friendly, our starting point is a recognition that in Australia, as elsewhere, men and women are not similarly situated in the labour market, for example, in respect of wages, working hours, and even access to flexible working patterns (Lewis et al. 2008, p. 279). Creating more inclusive minimum working-time standards and protections for both standard and non-standard workers is thus an important basis from which to progress towards greater gender equality in the labour market.

2. The Right to Request Flexible Working Arrangements: The Fair Work Act 2009

   Many employees successfully make informal requests for changes to their working-time arrangements (Skinner, Pocock, and Ichii 2009). The consequences, however, for those who fail to achieve some working-time flexibility to manage caring responsibilities can be severe. Findings from the 2009 Australian Work and Life Index (AWALI) survey indicate that having a request completely or partly refused is significantly associated with greater work-life interference (Skinner, Pocock, and Ichii 2009, p. 5). While the Family Provisions Test Case Decision (2005, 143 IR 245) provided for a right to request part-time work following parental leave, its effect was limited by the WorkChoices amendments to the Workplace Relations Act 1996 (see Murray 2005; Charlesworth and Campbell...