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- 14 October 2003
Industrial Relations Amendment (Adoption Leave) Bill
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Page: 3721
Second Reading
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [9.18 p.m.]: I move:
That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.
Leave granted.
Adoption leave is a form of parental leave that is taken in connection with the adoption of a child by either the adoptive father or adoptive mother in order to be the primary caregiver of the child. Under the Industrial Relations Act 1996 adoption leave is currently restricted to the adoption of a child under the age of five years. The Industrial Relations Amendment (Adoption Leave) Bill will amend the Industrial Relations Act 1996 to extend adoption leave entitlements to working parents to adopt a child who is up to 18 years of age. Since the introduction of the Act in 1996 the Government has sought to identify any anomalies that may exist in its application. Where anomalies have been found the Government has improved the Act, when and where appropriate. As the Act stands, only parents who adopt a child under the age of five years are entitled to adoption leave. This is a relatively minor amendment, yet without it parents who adopt children over the age of five years are left with no choice but to give up their jobs.
The purpose of this amending bill is to remove the age of five years as the limit to eligibility for unpaid adoption leave. The rationale for setting that age limit harks back to a time when most adoptions were of babies born in Australia, and most were under the age of two years. It made sense to put a school-age limit to adoption leave. However, current statistics on adoption tell a very different story. Most children now adopted in New South Wales come from other countries. Inter-country adoption is a comparatively recent development in Australia. Australian families began adopting children from overseas in measurable numbers in about 1975. Since then the number of overseas adoptions has grown and the number of locally born children needing adoptive placement has fallen dramatically.
The Department of Community Services requires prospective adopting parents to undertake that one parent will be a full-time primarily caregiver for a minimum of six months. The overseas adoptions facilitated by the department include children of all ages. The expectation that adoptive parents will commit to be at home caring for their adopted child for an adjustment period of 6 to 12 months extends to all children, regardless of age. These overseas-born children could be 10, 12 or 15, but will still be in need of an adjustment period to allow for a transition from their previous circumstances to their new family. Though of school age, a child might not attend school for some time while adjusting to the new family and environment. There will almost certainly be, at the very least, a new language to learn.
The parental leave provisions of the Industrial Relations Act provide the right of return to one's own job after a period of parental leave. Without this amendment, adopting parents of overseas children have little choice but to resign from the workforce, since they have no entitlement to their job after caring for their adopted child during that all-important settling in period. It is worth being clear about the numbers to which I am referring. During the financial year 2001-02, 71 overseas-born children were adopted by parents in New South Wales. Among those adoptions, only eight children were over 5 years old, and none was over 10 years old. While the numbers affected by this amendment are few, the positive benefits are significant. Working parents who make the commitment to adopt a child from overseas will not have to consider the loss of a job to do so. They can provide their new child with the same settling and bonding period that birth parents can provide under the Act, with the security of knowing their job is protected while they are on parental leave. Therefore, the financial and opportunity costs that have to be factored into the decision to adopt or not can be diminished. That is one less source of concern for adopting parents to consider.
While the positive benefits for employees in this amendment are significant, there are no negative consequences for small businesses should they be affected. Small businesses will not have to deal with a premature exit from the workplace by an adopting parent, nor with the recruitment and retraining costs that accompany such exits. The small business owner can optimise the investment made in the employee with the right of return after parental leave. This proposed amendment is another step on the Government's path towards enabling the working population of New South Wales to be better able to balance work and family commitments. The aim of this legislative change and the Government's whole approach to work and family is to promote an industrial environment in New South Wales in which employers, employees and their families can maximise the benefits of continued workplace participation without compromising family life. I commend the bill to the House.
The Hon. MICHAEL GALLACHER (Leader of the Opposition) [9.19 p.m.]: This bill amends the Industrial Relations Act 1996 to change the current restrictions for the purpose of adoption leave entitlements. It changes the age restriction from under five years to under 18 years. The Department of Community Services now requires that at least one adoptive parent care for the adopted child for at least six months on a full-time basis. It is obviously sensible to allow the parents of an adopted child to get to know the child and to allow the child to settle in with his or her new family. However, whilst the Industrial Relations Act provides for unpaid adoption leave, the current provisions allow adoptive parents to claim this only if they have adopted a child under the age of five.
In years gone by such a requirement was fair, as the clear majority of children adopted were babies born in Australia who were under the age of two. For that reason, and given that most children start school at age five, it made sense for such a requirement to be put in place. These days more children are being adopted from overseas, and if the child, whether Australian or foreign born, happens to be aged over five at the time of adoption this can present problems for the parents.
The Department of Community Services [DOCS] still requires one of the parents to care for their adopted child on a full-time basis for at least six months. Of course, this is essential in the case of a young child, in allowing the child and its new parents to adjust to the new situation. There may also be the need for the child to learn a new language at the same time. However, the full-time caring parent of an adopted child over the age of five would effectively have to resign from the work force since they are ineligible to claim unpaid parental leave from their employers on adoptive grounds. Parents cannot place their adopted child into paid care during this time.
Since children up to the age of 18 can be adopted, the current legislative provisions can present problems for prospective adoptive parents. Basically the relevant provisions of the Industrial Relations Act are not in line with the DOCS requirement for adoption. However, one potential area of concern relates to what age a child would need to be cared for full time on a six-monthly basis. For example, would a 17-year-old need to be cared for at home on a full-time basis for six months? The answer could well be no. Obviously, the situation would be different if we were talking about a 7-year-old. In that case, an under-18 limit could be unrealistic. However, since the bill brings the law into line with normal practice, the Opposition does not oppose it. The concern about an under-18 limit should be noted, whilst at the same time bearing in mind that an older child adopted from overseas or a child with special needs may need an additional level of care.
Schedule 1 amends section 55 (4) of the Industrial Relations Act 1996 to provide for the change in the minimum age of a prospective adopted child with reference to an application for unpaid adoption leave to be raised from under 5 to under 18, bringing this into line with the DOCS policy on adoptions. Provided that the other requirements of the New South Wales law are met, adoption leave will be available for the adoption of a child under the age of 18.
Working parents who adopt a child aged over 5 from overseas, or for that matter an Australian child over 5, would not have to consider the loss of one parent's job in order to do so, although, as I said, a generic under-18 limit may be unrealistic in some circumstances. Parents will have time to bond with their new child, secure in the knowledge that the job of the parent on leave is protected and secure. Accordingly, the Opposition does not oppose the bill.
Ms LEE RHIANNON [9.23 p.m.]: The Greens support this bill. It is a pleasant day when the Greens are able to congratulate the Government on doing the right thing in the industrial relations arena. As other speakers have noted, the bill makes more generous provisions for parental leave for parents adopting a child. Men and women adopting children aged between 5 and 18 can now enjoy the same rights to adoption leave as those adopting children under the age of 5. The Greens hope to see more such beneficial changes to the Industrial Relations Act—indeed, we need many, and there is scope for Labor to do more.
Another area of parental leave that needs urgent attention relates to the rights of casual workers. In many industries casualisation is becoming a fact of life. Companies like using casual workers because these workers can be hired and fired at will. They have fewer entitlements, and this means more profits. Under the Industrial Relations Act casuals are entitled to parental leave if they have had 12 months of continuous service for the same employer "on an unbroken, regular and systematic basis".
The Greens are aware that many companies apply this test in an extremely rigorous fashion. These companies define "unbroken and regular" to mean absolutely identical shift patterns every week. Many casuals work an irregular pattern of shifts but still do the same overall number of hours each week. What companies are doing is deliberately mixing up the shifts of their casuals, so that the casuals never work exactly the same shift every week. Companies know that by doing that they can benefit financially.
I cite for example a casual worker who always works 20 hours a week for her company, but some weeks she works from Monday to Wednesday and other weeks from Wednesday to Friday. Some weeks her shifts start at 9.00 a.m. and finish at 4.00 p.m. and other weeks they start at 11.00 a.m. and finish at 6.00 p.m. Sometimes each shift in a week starts at a different time. Having set up this confusing and jumbled pattern of shifts for each worker, the company argues that this is not an "unbroken, regular and systematic" pattern of work, so the casual worker cannot access any entitlements. But every week this worker has worked for the company for 20 hours.
The Greens believe that working the same number of hours each week should be enough to meet the "regular and systematic" test. Clearly, in this way casuals meet that test, but by a manipulation of the rosters they fall through the cracks. This current devious practice of some companies could deny casual workers their entitlement to parental leave. The bill cannot address this issue since the problem is broad and it applies to all entitlements owed to casual workers. But, as the work force shifts increasingly to casual employment, it is becoming a very important issue, which we would expect a Labor government to give priority to. The Greens urge the Government to consider addressing the overall needs and difficulties of casual workers in a future bill, so that casual workers can also benefit from adoption leave and also receive an overall improvement in all their entitlements.
The Hon. JOHN HATZISTERGOS (Minister for Justice, and Minister Assisting the Premier on Citizenship) [9.27 p.m.], in reply: I thank honourable members for their contributions, and I commend the bill to the House.
Motion agreed to.
Bill read a second time and passed through remaining stages.
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