Work and family: The legal perspective
Speech delivered by Pru Goward,
Federal Sex Discrimination Commissioner at the Deacon’s lawyers seminar
on women and workplace issues, 9 July 2003
- Chairman of Deacon’s
Melbourne office, Peter Beaumont, National Workplace Relations Team Leader,
Neil Napper, Ladies and Gentlemen thank you for inviting me here today.
- It gives me great pleasure
to address the Deacon’s Work and Family 2003 Forum.
- The prime minister recently
stated that work and family is today’s ‘barbeque stopper’.
- It has only in more
recent times that it has been identified as an issue of priority on our national
- But why now? Let’s
look at Australia today and this will become clearer.
- Today women make up
45 per cent of Australia’s labour force. Every year this figure has
- Women are and will continue
to be an integral, necessary and crucial part of Australia’s workforce.
- Although women have
and continue to be responsible for raising children, this increased involvement
of women in the paid workforce has not been countered by men taking on a greater
share of unpaid family responsibilities.
- The 1997 ABS Time Use
Survey found that when childcare is a main activity women spend, on average,
45 minutes a day caring for children.
- Men spend, on average,
16 minutes a day performing child care as their main activity.
- This figure is actually
an increase – be it a minor one – as in 1992 men spent 14 minutes
looking after children as a main activity.
- For women 45 minutes
a day is a decrease from the 49 minutes a day they spent on average in child
care as a main activity in 1992.
- Even taking into account
these increase and decreases - mothers continue to do, on average, about three
times as much caring for children as fathers.
- This does not include
time spent on housework and other domestic chores.
- We can only conclude
that in Australia today we continue to have in place gendered arrangements
relating to unpaid work.
- Although these arrangements
are based on nothing more than gendered assumptions on who should be doing
what when and how, until we change these assumptions we have to make it possible
for women to combine their paid work with their unpaid caring responsibilities.
- The true achievement
of course will be making it possible for all employees to balance their work
and family commitments.
- This will have to be
done sooner rather than later if Australia is to maintain its workforce.
- The developed world
is expecting to experience a shortage of 60 million workers by 2020.
- In this marketplace
workers will become the sought after commodity.
- And companies will
be forced to create and offer workplaces that are attractive and responsive
to employees’ needs – close to half of whom are women.
- If you don’t
want to take my word for this, David Morgan, CEO of Westpac, has said much
the same thing.
- As shrinking workforces
become an international trend and the competition for employees is global,
people will be in a better position than ever before to decide who they work
for and where they work.
- Countries where the
general trend is not to support employees in their other needs such as family
responsibilities, will find themselves losing their young, educated and mobile
workforce who will take up jobs in other countries.
- It’s already happening.
- Last year, despite
our great beaches, fantastic economic growth, great people like you and me
and political stability, Australia lost 40,000 people.
- People who permanently
- That is the highest
number ever. Part of the new global workforce.
- It could go higher.
- They went: lawyers,
bankers, teachers lured by better jobs and conditions elsewhere.
- Although predominately
lured by the higher wages, let us not forget that they are also landing up
in countries which offer better social conditions too.
- The UK for example,
recently upped its paid maternity leave from 18 to 26 weeks.
- Bear this in mind when
considering the ramifications of Australia failing to provide any universal
scheme of paid maternity leave.
- Australia’s workforce
today is the consequence of history. It was designed by men for men and although
it does not accommodate their fathering role particularly well – it
does not prevent them being able to both work and father.
- It does however fail
to satisfactorily accommodate women as they attempt to perform their dual
- We know it fails because
women are so often forced to choose one or the other.
- Social, economic and
physiological circumstances combine and conspire to ensure it is often child
bearing that is forfeited in this ‘either or’ choice. It is a
cruel and often personally difficult choice.
- Our child bearing trends
- Our fertility rate
currently sits at 1.7 children per woman.
- This is well below the
necessary replacement rate of 2.1.
- The average age of first
time mothers is 29.8 years – for lawyers it is 39!
- Women are having fewer
children, later in life, if at all.
- This is not the result
of disease, or men away at the war, this is the result of choice. Women, armed
with oral contraception and an education, are saying it is too hard to have
children. That is our legacy to them.
- It is not one to be
- The challenge is to
make it possible for women to both work and have children. Not to choose.
- So, how do we address
- First, we implement
changes in and around the workforce – both practical and attitudinal.
- Because right now, from
the moment a woman, even without children, enters the workforce she experiences
disadvantage as a result of her potential to bear children – she will
earn less, be less likely to be considered for promotion and be more limited
in her career opportunities.
- The statistics reflect
- Look in your own profession.
- Female law graduates
earn on average $8,200 less than their male counterparts ($45,300 v $53,500).
- This is despite the
fact that women are dominating and excelling in law classes.
- In 2002-03 irrespective
of type of practitioner, location of practice and years in practice there
were significant different income levels between male lawyers who on average
earned $92,000 a year and female lawyers earning an average of $75,700 a year.
- Most of this disadvantage
is the result of discrimination.
- Should a woman actually
go on to have children, her disadvantage increases as she tries to balance
her work and family responsibilities.
- It is estimated that
women forgo up to as much as $239,000 in lifetime earnings as a result of
leaving the workforce to bear and raise children.
- Without denying the
non-remunerable rewards of bearing and raising children, this income loss
directly contributes to women being three times more likely to be welfare
recipients than men; having retirement incomes of 50 percent less, on average,
than men; and acquiring markedly less superannuation.
- The workforce disadvantages
women because it rewards and advances those who follow a male pattern of work
– meaning they enter their field at the bottom, put in the hours, months
and years and slowly work your way up the ladder.
- Climbing the ladder
is a bit more difficult for women – and not just when they are wearing
- It is more difficult
because ‘career breaks’ - necessary for even a few days if you
want to give birth to a child - are equated with lack of commitment and lack
of ambition instead of being recognised as a different style of working.
- And one which is necessary
if women are to work and have children.
- We need to structure
our workforce so that it reflects the working patterns of both men and women.
- Creative ways of allowing
employees to meet their work and family commitments should be encouraged by
employers – not resented.
- A mother, needing to
pick up a child from day care at 3pm, who suggests that she take her lunch
break from 3 – 3.30pm rather than 1 – 1.30pm should be seen as
coming up with a solution that will work for both herself and the employer
– not dismissed.
- At least this is the
opinion of our legal courts. And it makes sense.
- Paid maternity leave
should be introduced.
- Since the release of
my interim paper last April, the county has been in the throes of an enthusiastic
debate about whether or not to introduce such a scheme.
- The final paper, A
Time to Value, which I provided to the Government last December, recommended
a government funded benefit of up to the minimum wage for women who had been
in paid work for fourteen weeks, to enable them to stay at home after childbirth.
- The minimum wage is
$448 per week.
- It was a very modest
recommendation; I proposed that women who received this benefit would not
receive others and some may even choose not to take the paid leave.
- The net cost of the
scheme was calculated at $213million a year; this would have to be the cheapest
family support programme in the country.
- We devoted much air
time, print space and public debate to this policy proposal.
- We have contemplated
it from every angle, raised every question and considered every surrounding
- The amount of debate
has been surprising as introducing paid maternity leave is hardly a revolutionary
move. It would not place Australia at the forefront of a social policy revolution.
It would simply help us catch up the lag with the rest of the developed world.
- A lag that today could
affect the future of our workforce.
- The need to remain globally
competitive aside, there are a plethora of very good reasons for introducing
a national scheme of paid maternity leave.
- First, paid maternity
leave goes some way in making it possible for women to work and have children.
- Every western country
in the world that’s trying to facilitate the choice of women to have
children and work recognises this.
- All include paid maternity
leave in the package of work and family measures on offer. It is a must-have.
- Let’s consider
- Providing 14 weeks
of income replacement may, for a start, mean that a couple is able to have
that second child or bring forward their decision to have a child by even
- Believe me, couples
save for the baby- they save her annual leave, their long service leave, they
pay ahead on their mortgages, they go without holidays.
- They do that the first
time, for the first child.
- For many it is impossible
to do it again.
- Paid maternity leave
will also allow women the time needed directly after the birth of a child
to recover physically from childbirth and establish a feeding routine without
being forced to return to work to pay the rent.
- Fourteen weeks is a
pitifully short time to be off work but, as a minimum government provision,
it is a good start.
- Second, there is the
challenge of fostering labour force participation and economic growth.
- At the moment, without
paid maternity leave being provided across the board, women often find themselves
in a different line of work following the birth of a child.
- They may go from leading
their field in IT to a part time job in a less skilled area – but one
that offers more ‘family friendly’ hours.
- The hospitality and
retail industries for example, characterised by casual hours and shift work
are dominated by students and mothers.
- This labour force shift
– of our highly skilled experts into low skilled casual work - means
that Australia loses part of its most competitive workforce. Something we
cannot afford to do in the increasingly aggressive global market.
- Others drop out of the
workforce altogether, lose their skills and experience and then find it difficult
to return or are forced to take a far more junior job than the one they left
years ago to have their first baby.
- Conclusive evidence,
from a number of OECD countries, suggests that providing a universal paid
maternity leave scheme enhances female labour force attachment - in most countries,
mothers are back at work by the time the child is aged three. Employer funded
leave certainly enhances labour market attachment.
- There is the challenge
of addressing workplace disadvantage.
- Women lose their immediate
income, often jeopardise career prospects and reduce their lifetime earnings
when they leave the workforce to have children.
- While paid maternity
leave cannot make up for this loss of income over a lifetime it does provide
some form of income replacement.
- Paid maternity leave
is also iconic.
- It is social and industrial
recognition that yes, women both work and have children.
- It recognises the non-work
related responsibilities of half of the people in the workforce.
- However it is only
one part of the package.
- Return to work issues
need to be addressed.
- Legally employers have
responsibilities to women returning to work from maternity leave.
- For example, under industrial
relations laws, awards and agreements as well as the federal Sex Discrimination
Act, an employee is entitled to return to the position they held prior to
commencing leave or to a comparable position available if her original job
has ceased to exist.
- An employee returning
from paid maternity leave may also wish to work part time or on a job share
- These should be seen
as accepted modes of working, not seen as a career limiting move – it
should not have the trade off of promotion and career advancement.
- Employers should be
aware that in both the industrial relations and anti-discrimination jurisdictions
there is an increase in the number of findings that state that women returning
to work from maternity leave should have access to part time employment.
- Add to this the unlawfulness
of employers discriminating against employees on the grounds of family responsibilities
under the federal Sex Discrimination Act.
- While fear of legal
battle is not going to assist in the reintegration of women in workplaces
after maternity leave, it serves as a strong reminder to employers that they
have a responsibility to reintegrate these women into the workplace.
- And failure to do so
will not be tolerated under the law.
- Child care should be
affordable and easily accessible. Before and after school care should be widely
available at state schools as it is at private schools.
- Every time I speak to
women in paid work they tell me that if the workforce is to work for them,
these issues must be addressed.
- Family friendly measures
are not favours, rewards for good work or token gestures for which women should
- They are crucial if
women are to continue to perform two undeniably important roles in society
– as workers and as mothers.
- Unlike paid maternity
leave, which obviously addresses issues directly related to a woman’s
child bearing role, return to work issues are not just about mothers.
- They are about parenting
- and this is how we need to consider them.
- Because as long as
they are seen as options for mothers – women, they will remain outside
of the normal practices of the workforce.
- Which brings us to the
second challenge associated with addressing the issues facing women in work
– how do we bring men on board?
- We’ve gone as
far as we can alone.
- And as long as we keep
framing issues such as flexible work practices as women’s issues we
will never get the overarching structural changes we need to occur if real
equality is to be achieved.
- More and more we hear
men saying that they would like to spend more time with their children and
that they would like to look after their newborns.
- Well, the legislated
52 weeks unpaid leave available to employees is paternal leave.
- It is available to
both women and men.
- We need to ask why aren’t
more men utilising this leave?
- We all notice that
man at a city bus stop at 5pm wearing a suit and holding the hand of the child
he’s just picked up from day care. Because he remain an anomaly. We
can all count the number of dads we see looking after children during the
- The challenge is to
make these rarities normal everyday practice.
- The challenge is to
stop saying women work and look after the children and start saying all employees
have work and family responsibilities they want to balance.
- Men must be able to
adopt flexible working arrangements, without being seen as less ambitious,
slack or ‘soft’.
- This is possible it
just requires a change in attitude and practice.
- Look at Holland for
- Here all employees
have a legislated right to part time work, and legislation prohibits discrimination
against part-time workers.
- It ensures them equal
hourly pay, pro-rated benefits, and equal opportunity for career advancement.
- Part time work is considered
‘good work’ in Holland. It is the norm for women and men. Holland
has the highest rate of part-time work among OECD countries and a very low
rate of involuntary part time work (six per cent). It is also an extremely
- The workforce will
never work for women as long as we see family responsibilities as women’s
business and as long as we see part time work, flexible work practices and
access to child care as tools to aid women balance their dual responsibilities
as workers and mothers.
- If we want a workforce
that genuinely allows people to combine work and family - as opposed to one
that just pays lip service to this concept - we need to make the workforce
a place that is structured to allow people to work and parent.
updated 25 August 2003.