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Deacon’s lawyers seminar on women and workplace issues

Discrimination Sex Discrimination

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
    reflect this.
  • 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
    proud of.
  • The challenge is to
    make it possible for women to both work and have children. Not to choose.
  • So, how do we address
    this challenge?
  • 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
    a skirt!
  • 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
    one year.
  • 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
    be grateful.
  • 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
    competitive economy.
  • 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.