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Carer Fact Sheets Carers In The Workplace Negotiating with your employer
Carer Fact Sheets Carers In The Workplace Negotiating with your employer
| Negotiating with your employer |
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| Monday, 24 November 2008 00:00 | ||||||
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If you have significant caring responsibilities you will need to talk with your employer about them to gain support. As your caring responsibilities may affect your ability to do your work in the same way as someone else without such responsibilities, you may feel anxious or concerned about this and even fear that you will lose your job or have to give it up. You may want to negotiate shorter hours, set hours, leave and/or flexibility at work. This Fact Sheet gives advice about your rights to ask for support for your caring role from your employer under industrial awards, enterprise bargaining agreements, Australian Workplace Agreements, Individual Transitional Employment Agreements, Common Law Contracts and anti-discrimination laws. It also highlights business arguments that focus on the benefits of family-friendly initiatives. It contains tips on negotiating with your employer, and steps to take if you have any problems along the way. Workplace laws
Depending on where you work and what sort of work you do, you will have been hired under either: 1) an industrial award, 2) an enterprise bargaining agreement (EBA) also called a collective agreement or an Individual Transitional Employment Agreement (ITEA). Many employees are also employed under common law contracts that fall outside the rules of legislation, but which require employers to just cover the minimum conditions outlined in Workchoices or, from January 1st 2010, the new National Employment Standards.
If you are covered by an award or an EBA, you will automatically have some family-friendly work provisions available to you that you simply have to discuss taking up with your employer. If you are covered by an ITEA or a common law contract, you will have to negotiate your own provisions. The Federal Government has banned the use of new AWA's and employees have had these agreements terminated or have moved employees on to an Individual Transitional Employment Agreement (ITEA). Individual Transitional Employment Agreements can run till 31st December 2009 when the new National Employment Standards begin.
Under the old AWA system there were 5 minimum conditions called the Fair Pay and Conditions Standard:
Other provisions such as meal breaks, public holidays and penalty rates had to be negotiated with your employer.
There are now 10 protections described under the proposed National Employment Standards:
Industrial awards
Historically, awards have been the main mechanism under which Australian employees have been hired. An award is a law representing the decision of an industrial tribunal on minimum rates of pay and conditions of employment. Awards are backed by State or Federal legislation that gives the tribunals the power to make and enforce fair pay and conditions. There are different awards for each industry or type of work.
Rates of pay depend on skill levels and work done but working conditions in awards apply to all employees. Rates of pay are set by industrial tribunals and increase with indexation each year. The conditions relevant to working carers include Carers' Leave and Make Up Time. Personal/Carers' Leave used to be part of sick leave and in New South Wales is leave an employee can take to care for a family member who is sick. If you take personal carers' leave you must be responsible for the care of the person who is sick. This type of leave is paid leave. You can take leave to care for:
You may also take leave for the children, parents, grandparents or siblings or your spouse or de facto spouse, or any other relative who is a member of your household. Personal carers' leave allows you to use all your current and accrued sick leave to care for the sick family member.
Sometimes extra personal leave is available but this is not intended to allow you to care for dependents. Make Up Time means you can ask your employer to take time off during your shift to attend to the person you are caring for or other matters, and make the time up later. The bereavement leave entitlement is a minimum of two days. Some awards provide for three or more days and may also impose other conditions on taking leave. Bereavement leave may also be taken in conjunction with other personal carers' leave with the agreement of your employer. A 2005 test case before the Australian Industrial Relations Commission gained agreement to extend the amount of paid personal leave available for caring purposes from five to 10 days a year, with further unpaid leave and workplace flexibility available to care for sick or otherwise needy dependents. The decision also provided that casual employees who were otherwise ineligible for time away from work to attend to family care would be able to take up to two days per occasion involving the birth, death, illness or other emergency involving a dependent. This has become the minimum standard of 10 personal/carers leave days per year. Some awards may have other benefits available to carers, so check yours to see what you are already entitled to. Where awards currently provide more generous conditions than the Fair Pay and Conditions Standard, the more generous conditions will apply to those still covered by awards. Each workplace is required to have a copy of the awards they use available for all staff to consult. If you are covered by an award and after discussion with your employer, you are legally entitled to make use of the family-friendly provisions in it. Your employer should be aware of these provisions and readily agree to them. Enterprise Bargaining Agreements Also known as certified agreements, Enterprise Bargaining Agreements or EBAs are a relatively recent arrival on the industrial relations landscape and came into effect in the early 1990s. An alternative to awards, an EBA regulates the wages, conditions and work practices of a particular company or business. It must be formally documented and registered with the appropriate industrial authority to be legally binding. EBAs are negotiated between the staff of the company or business, together with their union, and company management. Salaries with above award rates and family-friendly provisions are negotiated with management in return for increased productivity. This process usually takes a year or two. The EBA then applies for several years before it has to be renegotiated. All employees who work at the company or business benefit from increases in pay and conditions and do not have to be union members. As with awards, there should be a copy of your EBAs at your workplace so you can check the family friendly provisions available to you. If you are covered by an EBA and after discussion with your employer, you are legally entitled to make use of the provisions in it. Your employer should be aware of these provisions and readily agree to them. Once EBAs expire, they can be renegotiated. Under the new industrial relations laws employers can apply to end agreements if negotiations for a new agreement have gone on for three months. If this occurs, the minimum conditions of the Fair Pay and Conditions Standard will come into effect. Australian Workplace Agreements Australian Workplace Agreements (AWAs) were also known as individual contracts and were banned by the Federal Government in March 2008. AWAs were negotiated between individual employees and employers without reference to an award. They could last for up to five years and were to be based on the five minimum conditions of the Fair Pay and Conditions Standard. Research cited by the Human Rights and Equal Opportunity Commission's (HREOC) Striking the Balance discussion paper shows that most employees with caring responsibilities were also disadvantaged by AWAs. The HREOC report shows that while AWAs might contain family-friendly provisions, they tended to make balancing work and family more difficult because they expand the hours of ordinary work both during the week and on weekends and reduce penalty and overtime rates. Under the old industrial relations laws a 38 hour week could be averaged out over 12 months, meaning you may work just a few hours one week and more another week depending upon employer demand. Sometimes employees did not have a choice about being employed under an AWA. Under the laws, incorporated employers were able to offer AWAs to all new staff as well as to staff who were seeking promotion or who were being redeployed within an organisation. If you did not want to sign an AWA, you risked not getting the job. AWA's have been temporarily replaced by Individual Transitional Employment Agreements which can run till December 31st 2009. Individual Transitional Employment Agreements
An ITEA is a special transitional instrument which is available during the transition to a new workplace relations system. It is an individual written agreement between an employer and an employee setting out the terms and conditions of the employee's employment. This includes things like the rate of pay, hours of work and other things relating to the employee's job.
An ITEA will be assessed against a no-disadvantage test to ensure that it does not disadvantage the employee against an applicable collective agreement or applicable award. It replaces any award, workplace agreement or other industrial instrument that would have otherwise applied to the employee. The ITEA also overrides employment conditions created by state or territory laws, if it deals with those conditions, except it does not override state or territory laws covering occupational health and safety, workers' compensation, child labour, equal employment opportunity and discrimination or certain laws dealing with training arrangements.For more information visit The Department of Education, Employment and Workplace Relations website: www.deewr.gov.au
Workplace policies and practices Many paid work and family provisions are contained in organisational policies in addition to, or instead of, awards and agreements. These policies are often wide ranging and some businesses provide excellent conditions to assist employees to balance their work and family responsibilities. A number of these are showcased in the annual Australian Chamber of Commerce and Industry (ACCI)/Business Council of Australia (BCA) National Work and Family Awards.
While such policies may not be legally enforceable if not included in awards, EBAs or Contracts, it may be possible for an employee to take legal action for breach of contract. The business case for family friendly work practices Organisations with best practice work and family policies report a range of positive effects including higher retention rates, better morale, increased return rates from parental leave, higher productivity, fewer workers compensation claims, easier recruitment of high quality applicants, less industrial action, low levels of absenteeism and better customer satisfaction. For more information on the business case for family friendly work practices, see our Fact Sheet in the Employer Portal, Carers and Work.
Anti-discrimination laws NSW laws The Anti-Discrimination (Carers' Responsibilities) Act 2000 (NSW) protects working carers from discrimination. Discrimination includes unfair treatment, harassment, dismissal or threatened dismissal by anyone in your workplace. It is also against the law to treat you unfairly because someone thinks you have caring responsibilities now, did have in the past or will have in the future, or because of actual caring responsibilities in the past or future. Not everyone is covered by the law. It relates only to carers of immediate family, guardians, and those with parental responsibility for a child. The law covers caring for a parent, a child, a foster child, spouse, de facto partner, same-sex partner, grandchild, grandparent, sibling or other immediate family member in need of the person's care and support.
However, working carers are encouraged to discuss their responsibilities to care for others who are not covered by the law. For example, if you are caring for an aunt, uncle, cousin, niece, nephew, friend and/or neighbour, employers are often willing to go that extra mile given the particular circumstances.
Under the Act, employers must reasonably accommodate the caring responsibilities of their employees unless they can show it would cause them unjustifiable hardship. For examples, see our Fact Sheet Your Rights at Work. Concerns about discrimination on the grounds of carers' responsibilities can be taken to the NSW Anti-Discrimination Board. Commonwealth laws
Commonwealth anti-discrimination laws - The Sex Discrimination Act 1984 (Cth) and the Disability Discrimination Act 1992 (Cth) also protect carers. The Sex Discrimination Act 1984 (Cth) provides female workers with protection from discrimination on the grounds of their family responsibilities. These are defined as the responsibility to care for or support a dependent child or immediate family member i.e. a spouse, adult child, parent, grandparent, grandchild or sibling of the employee or of the employee's spouse.
The Disability Discrimination Act 1992 (Cth) provides protection for everyone in Australia against discrimination based on disability. Disability discrimination happens when people with a disability and/or their carers are treated less fairly than people without a disability.
Concerns can be taken to the Human Rights and Equal Opportunity Commission (HREOC). General tips for negotiating with your employer Regardless of the system under which you are employed it is important to know your rights at work as a carer and the business case for family-friendly work practices outlined above. Knowing this means you can positively frame your request for support. If you approach your employer with a solution, not a problem, you are more likely to get a positive outcome. Start by checking your award, EBA or contract to see which family-friendly provisions are already available to you and read up on anti-discrimination laws and the positive aspects of workplace flexibility for carers. If you work for a larger organisation, talk to your Human Resources officer about the company's policy on carers. It may also help to talk to your colleagues about your caring situation and gain their support. They may be able to back you up when you are absent. Ask colleagues if they have experience in juggling work and care and how the company has handled it.
Making an appointment Do your employer the courtesy of making an appointment to talk about your caring responsibilities. Think about how long it will take - 10 or 15 minutes will probably be enough time - so ask for an appointment for that long. Let your employer know what the appointment is about. The timing of your approach to make an appointment is important. It is better to approach your employer earlier in your shift rather than later. Wait until they have had a chance to clear their desk, though. After morning tea or the first break of the shift is an ideal time. If your employer has a personal assistant or secretary, make the appointment through them. If you feel you may get some support, let this person know your situation as they may be able to back you up in your request. Employers often ask their assistants what they think of these requests. Also be prepared for your employer to not want to make an appointment but to talk about your request there and then! Explaining your caring responsibilities Explain your caring situation positively and state that you want to be able to work and care at the same time. Don't apologise for caring. Privacy laws protect you and the person you are caring for. You do not need to go into detail about your relationship to the care receiver, medical conditions etc. Explain that you have checked your award, EBA or contract and the anti-discrimination legislation and that there is an increasing trend for employers to support staff to work and care at the same time. Outline the benefits for employers such as increased staff retention, loyalty, commitment and productivity.
Explain that you have thought about your situation and ask your employer if he or she would consider what you need. Let your employer know that you have considered the repercussions of your request for your position and your colleagues and that your colleagues support you. For example, you could say something like "Joan is happy to cover for me if I have to take an extended lunch hour or leave work during my shift. I can make this time up later". Frame your request in such a way that it will cause the least trouble for everyone. Offer some other choices about how you may deal with your caring responsibilities. Give a time frame for your request, eg. "I expect my caring responsibilities to last for xx number of months/years". Depending on how urgent the needs of the person you are caring for, give your employer time to think about your request. Bear in mind that it may mean a policy shift for the whole organisation so that all staff have access to flexible workplace practices as needed. Ask for a response in writing that sets out any new arrangements.
Finally, you may like to offer a guide for your employer such as our Fact Sheet Carers and Work (see the For Employers section).
Juggling work and care Continue to be open with your employer and colleagues about your caring responsibilities and the time you take off and make up. Review the situation with your employer and colleagues regularly and ask if anything could be done differently. What if I have a problem?
While family friendly policies are designed to be available to all employees, there are differences within and between workplaces as to who is able to take up flexible work options. Research from HREOC's Striking the Balance paper shows professional and office workers and women are more able to make use of carer-friendly work practices than trade or manual labourers and men. Despite this, you still have the right to ask for the support you are entitled to and your employer should respond positively.
If your employer does not allow your entitlements under your award or EBA, or if you feel harassed or discriminated against, keep a log or diary of all incidents. Talk to the person or people first and try to resolve the issue. Your employer may have a policy in place to deal with workplace grievances that you can use. You can also get help with written complaints from other sources such as trade unions, community services, community legal centres and lawyers who can talk to your employer on your behalf. This is particularly important if you have difficulties with written English. Often a simple phone call to remind your employer of their legal obligations will be enough to make sure you get your entitlements.
If you are on an ITEA and have difficulty getting the family-friendly work provisions contained in your agreement, you can use the agreement's dispute resolution process.
If these methods don't work, or aren't appropriate, helpers can support you to make a complaint to the relevant tribunal or court. There is a time limit between when incidents occurred and when you can make a complaint so check these as soon as possible. Many complaints are successfully resolved using mediation or conciliation. If this fails, you can go to the appropriate court or tribunal for a legal judgment which will then be enforced. Employees on ITEAs can take legal action in their local court for breach of contract.
If you take the final step of seeking a legal solution, it is important to know that, under anti-discrimination laws, it is illegal for you to be harassed or discriminated against for standing up for your rights in the workplace. With the weight of evidence pointing to the positive benefits of employer support of carers, these steps should be an avenue of last resort.
For more information
See our Fact Sheets Your Rights at Work and Working Carers and Anti-Discrimination Laws.
You can also look at the For Employers section and the Fact Sheet on Carers and Work.
The Department of Education, Employment and Workplace Relations website: www.deewr.gov.au
If you would like to discuss the issues raised in this Fact Sheet you may like to try:
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