Unions, advocates target childcare changes in NES

The National Employment Standards must be fit for purpose and recognise the realities of modern care arrangements, multiple bodies have argued.

As recently reported by HR Leader, absenteeism and attrition rates among working parents are high on the priority list for proposed changes to the National Employment Standards (NES).

Various representative bodies continue to push for greater attention despite flexible working conditions and parental leave – which childcare needs are often addressed through – being excluded from the House of Representatives standing committee on employment, workplace relations, skills and training.

The Australian Council of Trade Unions (ACTU) argued multiple points connected to parental leave and childcare, despite the inquiry not focusing on these arrangements. Beyond advocating for roster justice and more predictable hours, it called for an expansion of the NES to reflect increasingly accepted norms for minimum labour standards, including improved entitlements to carer’s leave, reproductive healthcare, and five weeks of annual leave.

Along with the Australian Services Union’s submission, the ACTU also argued that current gender-blind NES can have a reverse effect, and potentially promote gender disadvantage; for example, in its assumption that workers can be on-call. This system is structurally incompatible for anyone with childcare responsibilities, which often, again, falls on women.

In its submission to the inquiry into the operation and adequacy of the NES, the Shop, Distributive and Allied Employees’ Association (SDA) called for the formal recognition of grandparents who undertake caregiving duties and the extension of carer’s leave and flexible working arrangements.

It outlined that they are a key enabler of workforce participation for parents, particularly mothers, for whom formal childcare is unaffordable, unavailable, or incompatible with work hours, but working grandparents in SDA jobs struggle due to inflexible rosters, variable hours, and a lack of formal workplace recognition of their caring role.

Similarly, a submission by the Working Women’s Centre NSW highlighted how Australian women undertake 64 per cent of unpaid care work, and section 65 of the Fair Work Act perpetuates the “Primary Model of Care” by requiring a “nexus” or direct connection to an employee’s requirement for flexible working.

In practice, this means the second parent’s – often the father’s – requests for flexible or remote work to assist with family responsibilities are not easily approved, leaving, most often, the mother to manage childcare and potentially exhausting her own flexible arrangements. Not only can one parent lose their eligibility for flexible work arrangements, but the seemingly neutral legal rule creates a gendered “trap”.

While this was partially addressed in the June 2023 Secure Jobs, Better Pay reforms, it remains that the second parent does not have an automatic right to work flexibly just because they are a parent. They can, however, now challenge a refusal in the Fair Work Commission.

The Working Women’s Centre NSW also criticised the 12-month minimum service requirement, claiming it conflicts with the objects of the entitlement by denying the flexibility that would facilitate long-term workforce participation for women.

Moreover, national community service organisation OzChild raised concerns that foster carers are under increasing financial and social pressure with the cost-of-living crisis and increasingly complex needs of children entering the foster system.

In its submission, OzChild and the National Foster Care Sustainability Group encouraged three recommendations as outlined by Families Australia: the recognition of statutory kinship and foster careers as a defined group under the NES, eligibility for all relevant NES leave entitlements, and better commission of national data collection to better understand the employment patterns, income and work impacts felt by statutory kinship and foster carers.

Despite flexible working arrangements and parental leave being excluded as a topic within the House of Representative inquiry into the NES, meaning childcare-related entitlements were not a primary focus of the review, it is clear that this is top of mind for many representative bodies.

It is also important to note that other investigations, such as the Senate select committee on work and care inquiry, did focus heavily on the intersection of early childhood education and employment. Governmental response in mid-2024 did see structural changes, such as an additional two weeks of paid parental leave, landing at 26 weeks, and up to four weeks of concurrent parental leave from July 2025.

In addition, the Productivity Commission’s Final Report on Early Childhood Education and Care (ECEC), released in September 2024, remains the current blueprint for long-term reform, with aims such as the Universal Access Goal, which would allow every child to have the right to 30 hours (or three days) high-quality care per week for 48 weeks a year.

The Senate inquiry into ECEC quality and safety will also be analysing the quality and safety of the childcare sector and how workforce pressures and the market-based system impact them. While a 15 per cent wage increase for ECEC workers was also introduced in late 2024, this was a two-year commitment ending on 30 November 2026, at which time it is expected this increase will be folded into award rates.

The WGEA Gender Pay Gap Transparency report (2024–2026) similarly outlined new obligations for large employers to meet at least three specific gender equality targets, which will no doubt intersect with the interests of working parents.

Finally, the new framework identified in the Aged Care Act 2024 looked to protect other outlier carers, such as the “sandwich generation” – those caring for children and aging parents. This outlined a standard of care that unions are calling to be a benchmark requirement within the NES.

With childcare remaining a topic of interest, it seems the work isn’t done yet in supporting working parents, grandparents and child carers in the many forms they take.