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Work and family: The legal perspective

Discrimination Sex Discrimination

Work and family: The legal perspective

Speech delivered by Pru Goward,
Federal Sex Discrimination Commissioner at the Women’ Lawyers Association
of NSW 2003 National Speaker Series, Sydney NSW 2000, 15 October 2003

  • Elizabeth Naylor, president
    of the Women Lawyers’ Association of NSW thank you for inviting me here
  • I am delighted to have
    been given the opportunity to take part in the Women Lawyers’ Association
    of NSW 2003 National Speaker Series.
  • 2003 means it has been
    just over one hundred years since Ada Evans was the first Australian woman
    to graduate from law.
  • Since then women have
    increasingly pursued careers in the male dominated legal profession.
  • The speed and degree
    with which women have established themselves in this profession - a profession
    often characterised by cautiousness and conservatism, raises an interesting
    question, and a question of relevance when considering women’s workforce
    participation more broadly - have women changed the legal profession and the
    workforce to accommodate their presence, or have women merely adapted to the
    strictures and culture of the workforce and legal profession?
  • Women’s presence
    essentially means the presence of those responsible for bearing, and by default
    raising children, because it is this reproductive role that has resulted in
    the vastly different life experience of men and women - and it is this childbearing
    part of the population for whom the modern workforce was not designed.
  • Rather it was designed
    to reward and advance those who enter their field at the bottom, put in the
    hours, the overtime, the months and years and slowly climb their way up to
    the top.
  • In such a structure
    career breaks, necessary for even a few days when giving birth to a child,
    are equated with lack of commitment, a lack of ambition and are looked down
  • From its inception,
    the industrial or modern workforce has reflected male life experience and
    shown no scope for accommodating the female life experience.
  • When the male breadwinner
    family model was the norm and even codified by the 1907 Harvester Judgement,
    this was an adequate design.
  • Since then however much
    has changed and today the family and the workforce operate on a different
    assumption – the assumption that women do and will continue to work.
  • They currently make
    up 45 per cent of the labour force and this figure is continually increasing.
  • Women are a crucial,
    necessary and integral part of the Australian workforce. Economic growth since
    the seventies has been on the backs of newly emancipated married women.
  • Yet there are signs
    to suggest that the workforce has not changed to incorporate this, rather
    it continues to be based on a male worker model.
  • The first sign being
    the penalty that women incur in the workforce due to their variation from
    the male worker norm – this penalty takes the form of financial disadvantage.
  • In general, a full
    time female worker will earn 84.3 cents to the male dollar even when performing
    comparable work.
  • Looking at the legal
    profession, this ratio is worse. When the earnings of full time lawyers are
    compared, women earn on average 82 cents in the male dollar.
  • In 2002-03 this translated
    to male lawyers earning an average of $92,000 a year, while female lawyers
    earnt an average of $75,700 a year.
  • While this pay equity
    gap is partly the result of men holding more senior ranking and therefore
    better remunerated positions in the legal profession, it is also the result
    of early onset discrimination: when the incomes of solicitors with less than
    one year’s experience are compared, women earn an average of $8,200
    less than their male counterparts.
  • This suggests that
    the gender pay gap is reflective of an imbedded inequality within the legal
    profession, an inequality based on the fundamental difference between men
    and women – being the ability of women to bear children.
  • The second sign pointing
    to the unchanging nature of our workforce designed for men is our declining
    fertility rate – which today sits at 1.7 children per woman.
  • This is well below the
    necessary replacement rate of 2.1 and is the result of a convergence of economic,
    social and biological factors.
  • One such factor being
    the recognition by women that to achieve in today’s highly competitive,
    time demanding, male structured and dominated professions, such as law, they
    need to adopt the male work pattern. Ultimately this means not bearing children
    – or for those who refuse to give this up, it means bearing fewer children
    and later in life.
  • It should come as no
    surprise to you that in the legal profession, the average age of first time
    mothers is 39!
  • According to a US Parents
    Association survey quoted in the recent shock book, Baby Hunger, ultra high
    achieving women are increasingly unlikely to have children.
  • Although only 14 per
    cent of those surveyed had planned to be childless, by the time they were
    40, 49 per cent of them had never had a child - in fact none of them had a
    child over the age of 36.
  • Ultra achievers weren’t
    defined as million dollar workers- but as those earning more than $100,000
    a year. Amongst Australian women today, that group is a tiny minority, it
    would however include some women working in the legal profession - and with
    the number of female university graduates now so high, you can expect that,
    in future, the number of women earning more than $100,000 will rise and childlessness
    with it.
  • To a lesser extent,
    childlessness is also more common among high achieving women, who are those
    earning more than $50,000 a year.
  • Interestingly, only
    19 per cent of ultra achieving men were childless by 40 which means that women
    making changes to fit into the male worker mould are being forced to make
    an either or choice that their male counterparts do not have to consider.
  • And women cry “that’s
    not fair”. Who can blame them?
  • With an equal slog
    at university, an equal investment in education, and an equal number of hours
    at the firm (before having children that is) this is not just.
  • It is however ironically
    the experience of those women working in a profession committed to the ideals
    of equality and justice.
  • Consider the experiences
    of women at the bar.
  • The number of women
    at the NSW bar for between five and nine years is almost half the number of
    women in practice for the first four years. Women are leaving the profession
    in those years when they are most likely to be contemplating having a family
    or trying to combine work and family.
  • Why?
  • Because the workforce,
    the family and society does not allow them to do both.
  • The 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.
  • It is only then that
    women will not be making the either or choice – a choice which Australia
    cannot afford almost half its workforce to be making today when 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.
  • There is a critical
    mass building.
  • 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
  • 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 and nurses lured by better jobs and conditions elsewhere.
  • They may have been lured
    by the higher wages and greater opportunities, 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.
  • If we want the kids
    to come home to have their families, these social conditions are going to
  • Bear this in mind when
    considering the ramifications of Australia failing to provide any universal
    scheme of paid maternity leave.
  • Our challenge then
    is fairly obvious – we need to make it possible for women to both work
    and have children. It is in our national, economic self interests to have
    a workforce, and the professions within, structured to allow them to do so.
  • So, how do we achieve
    this goal?
  • First, we implement
    changes in and around the workforce – both practical and attitudinal.
  • 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.
  • A government funded
    national scheme of 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 dangerous 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.
  • Perhaps this explains
    why the proportion of only-child families in Australia has risen from one
    in five to one in three in twenty years.
  • 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 – women
    stay at work to be eligible for the benefit. They are back at work by the
    time the child is three; it certainly encourages women to stay at home for
    longer immediately following the birth. 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.
  • 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.
  • While paid maternity
    leave cannot entirely make up for this income loss 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
  • Thanks to your colleague
    Ms Hickie, it can be argued that accessing part time work is actually a right,
    or at the very least should be seen as accepted mode of working, not a career
    limiting move – it should not have the trade off of promotion and career
  • 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 many 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.
  • Men may need encouragement
    to put their hands up – and who better than the women in their lives
    to provide it.
  • 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.


Thank you.

updated 2 December 2003