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Submission - Inquiry into Paid Maternity, Paternity and Parental Leave (2008)

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Inquiry into Paid Maternity, Paternity and Parental Leave

Submission of the Australian Human Rights Commission to the Productivity Commission

 

24 November 2008

 

Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

Table of
Contents



1
Introduction

  1. The Australian Human Rights Commission (‘the
    Commission’)[1] makes this
    submission to the Productivity Commission in its Inquiry into Paid Maternity,
    Paternity and Parental Leave (‘the Inquiry’).

  2. The Commission is Australia’s national human rights
    institution.[2]

  3. The Commission has a long-standing commitment to achieving a national scheme
    of paid maternity leave, and more recently, to achieving a more comprehensive
    scheme of paid leave for parents.[3]

  4. The Commission made a submission to the Inquiry in June 2008. This first
    submission contained the Commission’s proposal for a National Paid Leave
    Scheme for Parents. The Commission’s proposal draws on Australia’s
    international human rights obligations and labour standards, the
    Commission’s previous work in this area, a range of national policy
    objectives, and national and international
    research.[4]

  5. The Commission welcomes the Inquiry’s Draft Report, Paid Parental
    Leave: Support for Parents with Newborn Children     (‘Draft
    Report’), which sets out a robust proposal for a national scheme of paid
    leave for mothers, fathers and supporting parents.

  6. A national, statutory scheme of paid leave for parents is well overdue.

  7. In an uncertain global financial environment a national scheme of paid leave
    for parents is essential for maintaining productivity and building a strong and
    sustainable economy.

  8. The Commission notes the Prime Minister’s commitment to introducing a
    scheme[5] and looks forward to seeing
    its implementation following the Productivity Commission’s final report in
    February.

  9. In this second submission, the Commission’s comments will be limited
    to key aspects of the Inquiry’s proposed model, specific issues which the
    Inquiry has asked for feedback on, including advantages and disadvantages of the
    proposed model, and aspects of the Commission’s previous proposal that
    would enhance the Inquiry’s model.

  10. The submission makes a number of recommendations for improving the
    Inquiry’s proposed model.

2 Summary

  1. This submission welcomes the Productivity Commission’s Draft Report as
    an important milestone towards implementing a national scheme of paid leave for
    parents.

  2. A national scheme of paid leave for parents is an urgent policy
    priority.

  3. The Commission endorses the Draft Report’s proposed model of paid
    parental leave as a sound first stage of achieving a world class scheme of paid
    leave entitlements for parents in Australia.

  4. However, the Commission considers that the model needs to be improved in a
    number of specific areas. In particular:

    • Legislated independent review: The model should include a legislated
      independent review after two years of operation in order to make any necessary
      improvements to the model, with a view to extending the scheme

    • Research, monitoring and evaluation: The model must include a
      comprehensive program of research, monitoring, and evaluation in order to track
      the impacts of the model in its first phase, with a view to improving and
      building on the model to improve its effectiveness

    • Education and awareness-raising campaign: The model needs to include
      provision for a well-funded, comprehensive, accessible education and
      awareness-raising campaign for both employees and employers, including targeted
      assistance for particular groups, in order to ensure that the model contributes
      positively to the national public policy objectives and

    • Funding for the Commission: There is a need to make provision for
      increased funding to the Commission. Increased funding would be needed for the
      Commission to play a leadership role in the updating of pregnancy discrimination
      guidelines under the Sex Discrimination Act 1984 (Cth) (‘the
      SDA’) which take into account the model, and for the Commission to lead
      public, employer and employee based education strategies to prevent an increase
      in pregnancy-related discrimination. Increased funding would also be needed to
      respond to likely increases in pregnancy and sex discrimination enquiries from
      both employers and employees, and complaints under the
      SDA.

  5. Subject to the above improvements, the Commission recommends that the
    Australian Government adopt the Inquiry’s proposed model for
    implementation within the next 12 months.

3
Recommendations

  1. Recommendation 1: That ‘paternity leave’ be called
    ‘supporting parent leave’ in order to be inclusive of diverse family
    structures, including same-sex families.

  2. Recommendation 2: That the federal government remove its reservation
    to Article 11(2)(b) of the Convention on the Elimination of All Forms of
    Discrimination Against Women     (CEDAW).

  3. Recommendation 3: That the federal government take steps towards
    ratification of the Maternity Protection Convention 2000 (No 183) (ILO
    Convention 183), and ensure compliance with other provisions of that Convention.

  4. Recommendation 4: That the Inquiry consider measures that would
    provide financial and practical support to small employers to assist them to
    implement the proposed paid leave scheme, and make a recommendation in this area
    in their Final Report to the federal government.

  5. Recommendation 5: That subject to further modification and
    improvement undertaken in the Final Report, the federal government implement the
    Inquiry’s proposed paid leave scheme within the next 12 months.

  6. Recommendation 6: That the federal government implement the
    Inquiry’s proposal for a Maternity Allowance to provide income support for
    those ineligible for the proposed paid leave scheme.

  7. Recommendation 7: That following implementation of the proposed paid
    leave scheme an independent review be carried out two years into its operation
    in order to make any necessary modifications and improvements and so that a
    second stage of paid leave measures be introduced so that in total the scheme
    provides for:

    • 34 weeks of additional paid parental leave, of which 4 weeks may only be
      taken by the supporting parent, in addition to

    • 18 weeks paid parental leave, to be initially paid to the mother and

    • 2 weeks supporting parent leave to be taken concurrently at the time of
      birth.

  8. Recommendation 8: That the Minister for Education, Employment and
    Workplace Relations should have ministerial responsibility for the proposed paid
    leave scheme and that a policy unit should be established within the Department
    of Education, Employment and Workplace Relations to coordinate implementation,
    promotion, education, monitoring and review of the scheme over time.

  9. Recommendation 9: That the federal government commit to investing in
    a solid evidence base to inform ongoing monitoring, review and continuous
    improvement of the proposed paid leave scheme over time, including providing
    funding to repeat the Parental Leave in Australia Survey.

  10. Recommendation 10: That the federal government provide adequate
    funding to the Australian Human Rights Commission so that it can continue to
    provide an effective and efficient complaint service in the context of a
    predicted rise in complaints as a result of the initial implementation of the
    proposed paid leave scheme.

  11. Recommendation 11: That the federal government provide funding to the
    Australian Human Rights Commission to produce updated pregnancy and family
    responsibility guidelines as part of a broader education and awareness campaign
    for employers and employees.

  12. Recommendation 12: That the implementation of the proposed paid leave
    scheme be accompanied by a comprehensive education community awareness campaign
    that meets the diverse communication needs of the community and which includes
    targeted education strategies for groups less likely to have information about
    the new entitlements.

  13. Recommendation 13: That as part of a broader education and awareness
    campaign the federal government provides targeted education and practical
    support to employers, with a particular focus on small and medium sized
    employers as part of the implementation of the proposed paid leave
    scheme.

4 The Commission’s
work in this area

  1. The Commission has undertaken substantial work
    over an extended period of time on the need for a national scheme of paid leave
    entitlements for parents, including paid maternity leave, paid paternity leave
    (described as ‘supporting parent leave’ in this submission), and
    paid parental leave (collectively described in this submission as ‘paid
    leave’).[6]

  2. The Commission set out a detailed proposal for a national scheme of paid
    leave for parents in its first submission to the Inquiry in June
    2008.[7]

  3. The Commission is pleased to see that the Inquiry’s draft report
    reflects significant aspects of the Commission’s previous submission,
    including acknowledgement of relevant international human rights obligations and
    labour standards, acceptance of key policy objectives outlined by the
    Commission, and similarities in design features such as payment source,
    duration, payment level, payment mechanism, and eligibility.

5 Summary of advantages
and disadvantages of the proposed model

  1. The Productivity Commission seeks views about the advantages and
    disadvantages of the proposed model set out in the Draft Report.

  2. This section summarises the Commission’s views. Further details about
    the points set out below are discussed in the remainder of this submission.

5.1 Key advantages of
the proposed model

(a) Objectives of the
model

  1. The proposed model meets key national public policy objectives including
    meeting Australia’s international human rights obligations, enhancing
    maternal and child health and development, facilitating workforce participation
    by addressing women’s disadvantage in the workforce, and promoting gender
    equity and work/family balance.

(b) Compliance with
international standards

  1. Adoption of the proposed model would allow Australia to meet its
    international human rights obligations and relevant international labour
    standards, particularly in relation to duration and in terms of making the
    payment initially to mothers.

(c) Inclusion of
paternity (supporting parent) leave

  1. The two weeks of paid paternity leave (called ‘supporting parent
    leave’ by the Commission), which is also available to same-sex supporting
    partners, is an advantage of the model. It provides recognition of the role of
    fathers, will help partners to support mothers, and provide health and wellbeing
    benefits to infants and the family as a whole. Paid supporting parent leave also
    operates as a signalling device that supports male workers with family
    responsibilities within the workplace and broader society.

  2. Signalling that fathers are important in their role as carers will help
    break down family-hostile workplace structures and cultures. It will also
    contribute to greater gender equality in workplace and the home by encouraging
    the sharing of family responsibilities between men and women.

(d) Broad
coverage

  1. The proposed model of paid leave provides for broad coverage, taking into
    account the reality of women’s working lives, including women’s
    overrepresentation in part time and casual work, and multiple job holdings.

(e) Government funding
for the model

  1. The model’s funding source – largely government funding –
    is appropriate given the national benefits of the scheme, the absence of social
    insurance infrastructure that would provide another payment mechanism, and the
    limited capacity of many businesses to pay for a scheme, particularly small and
    medium sized enterprises.

(f)
Affordability

  1. A particular advantage of the model is that, in absorbing current government
    outlays on family payments, the model is relatively inexpensive compared to
    current expenditure, noting also the likely and potential returns identified in
    the Draft Report.

  2. Given that the proposed model would represent only a 2% increase in existing
    family assistance outlays by government, there is no doubt that paid leave is an
    affordable policy.

(g) Inclusion of
superannuation

  1. The Commission welcomes the inclusion of superannuation as part of the
    payments under the scheme. The Commission is concerned to ensure that paid leave
    for parents is treated as a workplace entitlement, and that it contributes to
    closing the gender gap in retirement savings between women and men.

  2. The Commission notes that the Productivity Commission recommends that
    employers contribute the cost of the superannuation component. The Commission
    does not express a view on this recommendation, recognising the expertise of the
    Productivity Commission in undertaking the assessment about the appropriate
    funding model for the scheme. The Commission emphasises that it is essential
    that the model does not operate as a disincentive to the employment and
    retention of women.

(h) Employers to
administer payment of the scheme

  1. It is appropriate, within defined parameters as specified by the Inquiry,
    for business to act as “paymasters” for the scheme as this
    recognises that paid leave is a workforce entitlement similar to other forms of
    leave.

  2. The Commission recognises that some business groups have expressed concern
    about the impact of the proposed model on employers. These concerns could be
    addressed by the provision of financial/administrative support, for example, to
    small business and other employers with limited capacity to pay, which may also
    address concerns about a possible increase in discrimination against women of
    child bearing age. The Commission notes that the Draft Report recommends
    introducing regulatory and information measures to assist business as part of
    the scheme’s implementation.

(i) Fostering of
‘top up’ arrangements

  1. Another advantage of the scheme is that it encourages employers to continue
    existing provisions for paid leave in addition to the new statutory paid leave
    entitlement, including the ability to extend the duration of leave or top up the
    statutory leave to replacement wage level. It would be useful for the final
    report to clarify how these arrangements would work given there has been come
    confusion in the community due to the wording of the Draft Report.

5.2 Key disadvantages
of the proposed model

  1. As noted above, the Commission endorses the proposed model, subject to the
    improvements set out in this submission.

  2. The Commission identifies a number of limits to the proposed model, and
    encourages the Productivity Commission to consider its recommendations for
    improvement.

(a) Limits on pre-birth
paid leave for mothers

  1. A disadvantage of the proposed model is that it does not allow women to take
    any of the paid parental leave just prior to birth.

  2. The Inquiry notes the current entitlement to unpaid leave up to six weeks
    prior to the birth date and the legal obligation of employers to transfer a
    pregnant woman worker, if necessary, to a safe job in the prenatal period or to
    be paid a ‘no safe job’ leave where this is not possible.

  3. The Inquiry also asserts that there would be poor
    ‘additionality’ (benefits that are additional to those that would
    arise through private decisions) as a result of allowing flexibility in the
    commencement of paid leave.

  4. The Commission does not accept poor additionality as a good reason for
    limiting options for women to begin taking paid leave earlier and recommends
    that paid leave be available to women to take immediately prior to birth. This
    issue is discussed further in section 7.1.

(b) Need for legislated
independent review

  1. Another disadvantage of the proposed model is that there is no intent to
    extend the scheme over time.

  2. As stated in our first submission to the Inquiry, the Commission would like
    to see the initial scheme of paid leave independently reviewed after two years
    in order to make any improvements and to implement a more comprehensive scheme
    of paid leave for parents.

  3. The two processes recommended by the Inquiry – an evaluation of the
    administrative aspects of the scheme two years into its operation and a
    comprehensive evaluation of the scheme’s impacts five years into its
    operation – would provide scope for progressively realising a world class
    scheme of leave that would provide for one year of parental care. However,
    reviews should be included as part of the legislative framework of the scheme,
    given the importance of this element of the model.

(c) Framework to build
on and extend the model

  1. In its first submission to the Inquiry the Commission recommended that,
    subject to the outcome of an independent review, the government introduce of
    further component of 38 weeks paid parental leave, with four weeks of that
    period being reserved for the supporting parent on a ‘use it or lose
    it’ basis (unless the mother is a sole parent in which case she is
    entitled to the full additional 38 weeks). The balance of the leave could then
    be taken by either parent.

  2. In light of the proposal for a period of 18 weeks paid leave, the Commission
    has amended this recommendation to provide for a further component of 34
    weeks.

  3. The Inquiry estimates that 50% of women could achieve nine months’
    leave or more on the basis of accessing privately negotiated forms of paid leave
    and other forms of leave.[8] However
    the remainder of women, particularly low skilled, low paid and/or casual
    workers, would be unable to achieve a longer period of paid leave.

  4. While this aspect of the proposed model provides a way of recognising the
    privately negotiated arrangements that have developed in Australia in the
    absence of a scheme, the drawback is that without committing to achieving a
    longer period of leave, over time the lack of equity among women workers may
    become entrenched, and the most disadvantaged women in the workforce will be
    disproportionately affected.

  5. A longer scheme of leave would meet child health and development objectives,
    encourage greater gender equality by encouraging shared care, and provide
    greater choice for parents with a preference for parental care in the early
    months of their children’s lives.

(d) Need for research,
monitoring and evaluation

  1. There needs to be greater consideration of the implementation of the scheme,
    including the capacity to monitor the scheme over time, in order to inform a
    review process, and the establishment of a dedicated policy unit, as previously
    recommended by the Commission in its earlier submission.

  2. Also absent from the proposal is provision for a comprehensive longitudinal
    research program to inform ongoing monitoring and evaluation of the scheme.
    There is a particular need for the resourcing of research in this
    area.

(e) Need for education
and community awareness campaign

  1. Another disadvantage of the scheme is that while there is provision for
    guidance for employers there is no provision for a comprehensive education and
    community awareness campaign, including targeted education strategies for groups
    of employees less likely to have information about the new entitlements.

  2. It is unlikely that the scheme will meet its policy objectives, particularly
    gender equality objectives, without an accompanying education campaign that is
    well resourced and comprehensive in scope.

  3. Education materials, including tools and support for business, are
    particularly important and would be one way of ensuring that there is not an
    increase in discrimination as a result of the introduction of the scheme.

(f) Funding for the
Commission

  1. Funding the Commission to produce updated guidelines in this area along with
    adequate resourcing of the Commission so that it can continue to provide a
    complaints handling service that is effective and efficient is a necessary
    component of the scheme’s implementation.

  2. The Commission is well placed to play a leadership role in education
    strategies with the public, employers and employees to help prevent pregnancy
    and sex discrimination. Updated guidelines which are accessible and widely
    disseminated through a positive education strategy would be an essential support
    for implementing the new scheme by helping to ensure there is not an increase in
    discrimination against women of child bearing age.

  3. However, even with a properly funded and targeted education campaign and
    updated pregnancy discrimination guidelines under the SDA, the Commission
    anticipates an increase in discrimination complaints as a result of the
    scheme’s implementation. The Commission has already experienced a trending
    upwards of complaints in the areas of pregnancy and sex discrimination,
    including return to work issues. The Commission should be adequately funded to
    respond to enquires from both employers and employees and to handle increases in
    discrimination complaints.

  4. The above summarises the key advantages and disadvantages of the proposed
    model. The rest of this submission expands on those key points and sets out the
    Commission’s recommendations for improving the Productivity
    Commission’s model.

6 Objectives of the
proposed paid parental leave scheme

  1. The Commission welcomes the Productivity Commission’s Draft Report as
    an important step in achieving a world class national scheme of paid leave for
    parents.
  2. The Commission is pleased to see that the proposal model is built around
    meeting three objectives that were among those identified by the Commission in
    its first submission to the Inquiry.
  3. The three objectives identified by the Inquiry as either:

singly or together ... likely to support a case for paid parental
leave, whether by addressing inherent market failures or difficulties in
realising social norms, are:

  • enhancing maternal and child health and development
  • facilitating workforce participation
  • promoting gender equity and work/family balance.

6.1 Enhancing
maternal and child health and development

  1. The Commission agrees that ensuring the health and wellbeing of mothers and
    babies is a key objective for a scheme of paid leave for parents, particularly
    in relation to mothers’ physical and emotional recovery from child birth,
    maternal bonding and attachment, and breastfeeding.

  2. Any scheme of paid parental leave must recognise and support birth mothers
    to take out of the workforce to fulfil these biologically essential tasks, and
    the Commission is pleased to see the Inquiry’s recognition of ‘the
    unique capacity of the mother to breastfeed her baby, with the health and other
    benefits this has for the mother and
    baby’.[9]

  3. In this context the Commission welcomes the Inquiry’s proposal to pay
    paid parental leave initially to mothers, who may then, if they choose, transfer
    paid parental leave rights to fathers or supporting parents.

  4. While the Commission would prefer to see this part of the proposed leave
    scheme called ‘paid maternity leave’ in recognition of the unique
    status of maternity and women’s workforce disadvantage as a result of
    their maternal role, making paid parental leave available only to eligible
    mothers in the first instance meets the purpose of this first objective in a
    practical sense.

  5. The Commission also considers that the emotional wellbeing of fathers and
    supporting parents is important and notes that close interaction and bonding
    between fathers and infants in the first few weeks after birth has been shown to
    have a positive effect on infants’ cognitive functioning, and that periods
    of both maternity and paternity/supporting parent leave support all members of
    the family – mothers, fathers and
    babies.[10]

  6. In this respect, the Commission welcomes the two week period of paid
    paternity leave, reserved for fathers or same-sex supporting parents, as
    recommended by both the Inquiry and the Commission as part of Stage One of our
    proposal. However, the Commission proposes that the leave be described as
    ‘supporting parent leave’, rather than paternity leave, recognising
    the diversity of family structures, including same-sex families.

  7. Recommendation 1: That ‘paternity leave’ be called
    ‘supporting parent leave’ in order to be inclusive of diverse family
    structures, including same-sex families.

6.2 Facilitating
workforce participation

  1. Facilitating workforce participation is another objective identified by the
    Inquiry that the Commission strongly supports as a policy objective underpinning
    a scheme of paid leave for parents.

  2. Facilitating the workforce participation of mothers is important for both
    economic and equity reasons.

  3. Women continue to be marginalised in the workforce relative to men, with
    lower participation rates among mothers in particular. Women constitute a higher
    proportion of casual workers, are more likely to work in low paid occupations
    and low skilled jobs, have low representation at senior and decision-making
    levels and continue to experience workplace discrimination on the basis of sex,
    pregnancy, potential pregnancy and family
    responsibilities.[11]

  4. These ongoing experiences of disadvantage in the labour market often stem
    from women’s unequal treatment in and access to employment as a result of
    their reproductive role. Women’s disadvantage in the workforce has been a
    key driver in Commission’s advocacy for a national paid maternity leave
    scheme over a number of years.

  5. Paid leave assists women to maintain their labour market attachment
    following childbirth, and as the Inquiry has noted, is likely to promote
    employment prior to childbirth.[12]

  6. As the Inquiry has also found, paid leave will increase the average
    Australian woman’s lifetime employment by around half a
    year.[13]

  7. Increasing women’s lifetime employment is of great benefit to women,
    particularly those at the lower end of labour market who are least likely to be
    able to access employer-funded schemes of leave. Providing income replacement
    around the time of childbirth helps ensure women maintain attachment over the
    life course, increasing their capacity to contribute to superannuation. This is
    particularly important for Australian women’s economic security given that
    they have substantially poorer retirement incomes than
    men.[14]

  8. Paid leave also benefits employers. Retaining women workers following a
    period of leave after childbirth benefits employers, who save on the costs of
    recruiting and retraining new staff, reducing turnover costs and increasing
    return to work rates.

  9. Paid leave also benefits the economy more broadly by boosting workforce
    participation prior to childbirth and assisting skilled women workers to
    maintain their workforce attachment, maximising Australia’s significant
    investment in women’s education and training.

  10. In their recent economic survey of Australia the OECD has recommended that
    efforts to increase women’s labour market participation continue, noting
    the potential benefits of a national paid parental leave
    scheme.[15]

  11. A World Economic Forum report on the status of women globally has placed
    Australia first in the world in educational attainment, ahead of every other
    nation. However, Australia falls behind on the level of women's labour
    market participation, ranking 41st in the world, behind similar countries such
    as the United Kingdom, New Zealand and
    Canada.[16]

  12. By increasing women’s participation in the labour market, paid leave
    will help strengthen labour supply among this group.

6.3 Promoting gender
equity and work/family balance

  1. The third objective identified by the Inquiry is one that the Commission
    strongly endorses having argued for it in its earlier submission and in oral
    evidence presented before the
    Inquiry.[17]

  2. As the Commission argued in its first submission, paid maternity leave helps
    address the disadvantage women experience in the workplace due to childbirth.

  3. Providing a level of income replacement for women who are currently required
    to forego their income as a result of taking time out of the workforce to give
    birth helps redress the disadvantage that women workers experience in the
    workforce relative to other workers.

  4. Australia has a range of international human rights obligations in this
    area, as outlined by the Commission in its previous submission.

  5. These human rights obligations include, but are not limited to, the right to
    work and achieving equality by addressing women’s marginalisation in
    employment.[18]

  6. The preamble to the Convention on the Elimination of All Forms of
    Discrimination Against Women     (‘CEDAW’)[19] encourages
    governments to provide the necessary supporting social services to enable
    parents to combine family obligations with work responsibilities, and recognises
    that ‘the upbringing of children requires a sharing of responsibility
    between men and women and society as a
    whole...’.[20]

  7. The preamble to CEDAW also recognises:

    ... the great
    contribution of women to the welfare of the family and to the development of
    society, so far not fully recognized, the social significance of maternity and
    the role of both parents in the family and in the upbringing of children ...

    [and that] ... a change in the traditional role of men as well as the role of
    women in society and in the family is needed to achieve full equality between
    men and women ...[21]

  8. International instruments such as CEDAW and Convention (No 156)
    Concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
    Workers with Family Responsibilities     (‘ILO Convention
    156’)[22] recognise the need
    for broader social change so that full equality of opportunity and equal
    treatment can be achieved for women workers, given that it is women give birth
    and it is women who are currently more likely to be responsible for the unpaid
    work of caring for family members.

  9. In couple households, women working both full and part time remain
    responsible for a much greater share of child care and associated domestic tasks
    than their partners.[23] While
    social attitudes and expectations of equality and fairness for men and women in
    public and private life are common, in practice actual patterns of paid and
    unpaid work do not match these beliefs, despite women’s increased
    workforce participation in recent decades.

  10. This is one of the reasons why, in addition to other work and family
    reconciliation policies, a scheme of paid leave is important for women. Paid
    leave helps women meet their current level of responsibility for care while
    providing symbolic recognition of the value of child rearing as an unpaid form
    of work that contributes to the greater social and economic good.

  11. In sharing some of the costs of child rearing, a government-funded scheme of
    paid leave provides for greater equality between workers with family
    responsibilities and workers without family responsibilities. As the Inquiry has
    argued, as a paid leave entitlement paid parental leave ‘normalises’
    efforts to balance work and family life through ‘the recognition and
    acceptance of dual roles of people as parents and as
    workers’.[24]

  12. However, it is equally important that a scheme of paid leave promotes gender
    equality by fostering shared responsibility between men and women for the care
    of children in the home.

  13. While it is necessary to provide a period of leave for women that recognises
    their unique maternal role and their current disproportionate responsibility for
    child rearing, a dedicated period of non-transferable paid leave for men which
    signals their importance as “hands-on” parents –in addition to
    a more traditional role as a breadwinner – is equally important in terms
    of broader gender equality outcomes.

  14. Signalling men’s dual roles as both workers and carers through a
    designated period of paid leave is important as a social endorsement of
    fatherhood. It also sends a strong symbolic message to employers in particular
    that fathers are carers as well as workers, helping to break down workplace
    cultures which are unsympathetic to the practice of men taking leave to care for
    children.

  15. This is why the Commission recommended, in Stage One of our initial
    proposal, to create two weeks of paid supporting parent leave, leave that is
    commonly referred to as paid paternity leave, in addition to a minimum of 14
    weeks paid maternity leave for women on health and wellbeing grounds, not
    transferable except under exceptional circumstances (such as the death or
    incapacity of the mother).

  16. The Commission welcomes the Inquiry’s recommendation of a
    non-transferable period of leave for fathers and supporting parents and is
    pleased to see its evidence used in the Draft Report.

  17. While it is not clear to what degree men will utilise the ‘Daddy
    fortnight’ as described and recommended by the Inquiry, as the Draft
    Report notes it will encourage and equip men to take ownership of caring and
    associated household tasks. Developing an education campaign to accompany the
    scheme’s introduction would increase the likelihood of take up, while
    ongoing monitoring and a comprehensive evaluation of the scheme after its
    introduction would provide tools for improving the scheme. These points are
    discussed further in sections 8 and 9.

  18. The Commission would like to see the paid paternity leave element of the
    Inquiry’s proposal developed further over time, moving toward four weeks
    of ‘use it or lose it’ leave for supporting parents coupled with a
    much longer period of transferable paid parental leave that can be shared
    flexibly between couples according to preference and care needs. These periods
    of leave are outlined in detail in Stage Two of the Commission’s proposal
    contained in its earlier submission to the Inquiry and as outlined in section
    5.2 (c).

  19. Under the Stage Two reform, the Commission also proposed a transferable
    period of paid leave to begin after an initial period of leave reserved
    for mothers, given that men are unlikely to take paid leave if it is conditional
    on taking it away from mothers. In New Zealand, for example, only 1% of mothers
    transfer their parental leave entitlement to fathers at any point during the
    leave.[25]

  20. A paid leave scheme that mixes non-transferable, individual leave
    entitlements for women and men provides clear recognition of and support for
    gender equality principles while a longer period of additional, transferable
    parental leave provides flexibility and support for couples that wish to share
    care more equally.

  21. Following a comprehensive review, implementation of a second stage of reform
    to introduce a period of leave available to either parent would provide for more
    equal access to and utilisation of paid leave for those who wish to share care
    without undermining key health and wellbeing objectives for women and children
    met under the initial stage of reform.

6.4 Additional
objectives

  1. The Commission notes that the Inquiry has considered a range of other
    objectives raised during the consultation process.

  2. While the Inquiry has picked up on much of what the Commission previously
    argued as important in devising the objectives of a paid parental leave scheme,
    we emphasise that a number of other national interest objectives will be
    positively affected by the introduction of a scheme of paid leave.

(a) Meeting
Australia’s international human rights obligations

  1. Addressing the workplace disadvantage that women experience as a result of
    maternity is a fundamental objective for a national paid leave scheme given
    Australia’s international human rights obligations in this
    area.[26]

  2. Complying with Australia’s international human rights obligations and
    labour standards is an important national objective for a paid leave scheme.

  3. The introduction of the proposed model would comply with CEDAW and allow
    Australia to remove its long-held reservation under CEDAW regarding the
    provision if paid maternity leave, and avoid further criticism of Australia by
    the CEDAW Committee.[27]

  4. Adoption of the proposed model would also prevent additional human
    rights-based criticism from other human rights bodies, such as the Committee on
    the Rights of the Child.[28]

  5. The proposed model would also comply with the maternity leave provisions of
    the International Labour Organisation (‘ILO’) Maternity
    Protection Convention 2000 (No 183)     (‘ILO Convention 183’),
    which provides a right to 14 weeks paid maternity
    leave.[29]

  6. The proposed model would also comply with the ILO’s Maternity
    Protection Recommendation     (‘ILO Recommendation
    191’),[30] which is a
    non-binding guide accompanying ILO Convention 183 which encourages member states
    to extend the period of leave to 18 weeks.

  7. ILO Recommendation 191 also addresses paid parental leave for employed
    mothers or employed fathers following the expiry of maternity leave but without
    specifying duration, eligibility or payment
    levels.[31]

  8. Following implementation of a paid leave scheme the federal government
    should take steps towards ratification of ILO Convention 183, as previously
    recommended by the Commission.[32]

  9. Recommendation 2: That the federal government remove its reservation
    to Article 11(2)(b) of the Convention on the Elimination of All Forms of
    Discrimination Against Women     (CEDAW).

  10. Recommendation 3: That the federal government take steps towards
    ratification of the Maternity Protection Convention 2000 (No 183) (ILO
    Convention 183), and ensure compliance with other provisions of that Convention.

(b) Broader social benefits

  1. A paid leave scheme for parents also delivers
    social benefits such as encouraging and providing assistance for parents to
    raise their children. Paid leave is one among a number of policy mechanisms
    which addresses the social need to support the rearing of the next generation of
    citizens and workers.

  2. To the extent that paid leave directly assists people to combine work and
    family responsibilities, it may also have flow-on benefits for the fertility
    rate, community life and social cohesion.

  3. A national scheme of paid maternity, supporting parent and paid parental
    leave can be seen as recognition by society and the Government of the importance
    and value of motherhood, parenting and children.

  4. As noted by the Inquiry under its third objective, it is important to value
    the dual role of women and men as both workers and carers. Women are an
    invaluable part of the Australian labour force; paid maternity leave provides
    the social recognition that many women perform a dual role, as employees and
    mothers.

  5. Supporting parent leave for fathers at the time of childbirth provides
    recognition that they are an integral part of family life in a hands-on way. An
    additional broader paid parental leave scheme that could be shared between both
    parents, but with a component reserved for supporting parents, would provide an
    even greater recognition of parents’ dual roles, particularly when
    combined with other family-friendly workplace policies.

  6. While these social benefits may be difficult to quantify – as
    acknowledged in the Draft Report – the Commission considers that the
    introduction of a paid leave scheme would deliver significant social benefits,
    including more family-friendly workplace cultures and benefits for business and
    the economy in terms of supporting the production of a new generation of workers
    and consumers.

(c) Economic security for women and
families

  1. Paid leave would directly contribute to
    increasing the economic security of individual families by providing a
    guaranteed source of income upon the birth of a child. While the current Baby
    Bonus and other family payments provide a level of financial support, economic
    security is also an important objective for a paid leave scheme.
  2. In particular, paid maternity leave would provide a level of income
    replacement for those women in employment who are currently required to forego
    their regular income as a result of taking time out of the workforce to give
    birth. Under current arrangements, the majority of women must forego income from
    paid work as a result of giving birth.
  3. Foregoing income is a particular issue for women in paid work. While
    ensuring women who are not in paid work are adequately supported at the time of
    childbirth is a significant concern, and one that is addressed under the
    proposed model (discussed further in section 7.4), women who are not in paid
    work at the time of birth are not faced with the same reduction in income as a
    result of childbirth.
  4. It is also important to note that facilitating paid work for both parents is
    positive for children’s wellbeing from the perspective of poverty
    alleviation. From a global perspective, children in households without a parent
    in paid work are three times more likely to grow up in poverty than children in
    one-earner households, who are in turn three times more likely to grow up in
    poverty than children of dual-earner
    couples.[33] Paid leave would ensure
    that families do not face a major drop in their pre-birth income level at
    exactly the time that they are faced with the additional costs incurred at the
    time of the birth of a child.
  5. Paid leave is also important, as noted under the Inquiry’s second
    objective, for addressing women's lifetime earning capacity. The severe
    reduction of a woman’s income as a result of leaving the workforce to bear
    and raise children can mean that women are more likely to live in poverty across
    the life cycle.

7 Key features of the
proposed paid parental leave scheme

  1. The Commission’s comments on particular features of the scheme draw on
    our particular areas of expertise rather than engaging with the technical
    aspects of the operation of the scheme.

  2. In the following section the Commission also addresses specific questions
    posed by the Inquiry in the Draft Report.

7.1
Duration

  1. As discussed above, the Commission welcomes the Inquiry’s 18 week paid
    parental leave proposal, noting that it goes beyond the baseline 14 week minimum
    recommended in ILO Convention 183 by establishing an 18 week period as
    recommended in the Convention’s accompanying ILO Recommendation
    191.[34]

  2. By providing 18 weeks of paid leave to the mother, the proposed model also
    supports the World Health Organisation (WHO) recommendation that infants be
    exclusively breastfed for up to 4 and if possible 6 months of
    age.[35]

  3. As noted above, a disadvantage of the proposed model is that it does not
    allow women to take any of the paid parental leave just prior to birth.

  4. While noting the current unpaid leave and other entitlements in this area,
    and the Inquiry’s concern with additionality, the Commission does not
    support limiting options for women to begin taking paid leave earlier and
    recommends that paid leave be available to women to take immediately prior to
    birth.

  5. Flexibility in the commencement of paid leave is particularly important for
    low income women workers, especially casual workers, who are less likely to have
    sufficient accrued paid leave to cover the prenatal period.

  6. Further, with second and subsequent births, many women will have already
    drawn on their own paid leave entitlements in order to have time away from work
    to care for a sick child, for example, or to cover school holiday periods.

  7. In order to strike a good balance on this issue it may be appropriate to
    limit the period of paid leave available prior to the birth to four to six weeks
    to ensure that a period of paid leave is available following the birth. However,
    the Commission is in agreement with the Inquiry in that it would not support a
    compulsory period of leave being mandated for women either before or after the
    birth of a child.

  8. The 2 weeks of paid leave for fathers/supporting partners is an important
    part of the proposal and is the same period recommended by the Commission in our
    earlier submission.

  9. While there is no ILO standard on the minimum length of this type of leave,
    the Commission considers that 2 weeks is an appropriate period given that it
    takes into account industry standards and current practices by fathers and other
    supporting parents, as well as a benchmark set by comparable industrialised
    countries.[36]

    Inquiry question: ‘Accordingly, the
    Commission has not recommended provision for part-time paid parental leave.
    However, we seek feedback from participants on its practicality, costs and
    merit.’

  10. In the interest of ensuring that the health and wellbeing objectives of paid
    leave can be met it would be appropriate for the first 14 weeks to be taken as a
    continuous block.

  11. Allowing for the remaining 4 weeks to be taken part time or shared would
    provide a degree of flexibility and help facilitate shared care for couples who
    wish to share caring responsibilities.

  12. As well as meeting health and wellbeing objectives this approach would be
    less disruptive to workplaces, particularly small and medium sized businesses,
    which may assist in the practical implementation of the scheme.

  13. This aspect of the scheme could be reviewed after two years as part of a
    larger review process that the Commission is recommending in order to evaluate
    and improve upon the scheme over time.

  14. If the government were to introduce a longer period of leave, such as a
    progressively realised scheme advocated by the Commission (see section 5.2 (c)),
    parents should be able to share access to additional paid parental leave to
    which either one of them is entitled (i.e. 34 weeks). For example, on a shared
    care arrangement, each parent could combine days of leave with a flexible work
    arrangement. Like the Inquiry’s proposed model, under the
    Commission’s proposal only one parent could be on paid parental leave at
    any given time. This aspect of the scheme would also need to operate in
    conjunction with the right to request flexible working arrangements National
    Employment Standard.

    Inquiry question: ‘Nevertheless, the Commission seeks feedback on whether (and if so, practically how) our proposed scheme could provide fathers with more equal
    access to paid parental leave without risks of unintended
    consequences.’

  15. The Commission considers that a dedicated period of paid leave for mothers
    is a gender equality measure given that it seeks to redress the disadvantage
    that women workers experience relative to male workers due to their maternal
    role.

  16. The 18 week period proposed by the Inquiry recognises health and wellbeing
    objectives that are biologically specific to women. As the ILO notes:
    ‘maternity is a condition which requires differential treatment to achieve
    genuine equality ... special maternity protection measures should be taken to
    enable women to fulfil their maternal role without being marginalized in the
    labour market’.[37]

  17. Women’s unequal treatment in and access to employment due to their
    reproductive role is a problem that is yet to be resolved despite decades of
    progress in legislation, workplace structures, social attitudes and government
    support for working families. Paid maternity leave provides a form of redress
    for this inequality.

  18. There may be times when it may be necessary or desirable to transfer all or
    part of this period of leave (such as the death or incapacity of the mother).
    The Commission notes that the Inquiry’s proposed model provides for this
    option.

  19. It is also important to note that there is no reason why additional periods
    of leave beyond the initial post parturition period would need to be limited to
    birth mothers. This is one of the reasons why the Commission has advocated for
    the staged introduction of a longer period of paid parental leave that can be
    shared between parents, including a dedicated period of ‘use it or lose
    it’ month of leave for the supporting parent.

  20. The advantage of a longer scheme of leave, as recommended by the Commission,
    is that it encourages the sharing of parental care for children without taking
    away from the needs of the mother and infant in the first few weeks. A better
    sharing of care responsibilities has a range of benefits including facilitating
    greater gender equality in the workplace and the home by recognising both women
    and men’s dual roles as workers and as parents. This point is also
    discussed in section 6.3.

  21. In short, the Inquiry’s proposed scheme could provide for greater
    access by fathers by being extended over time.

    Inquiry
    question:     ‘However, we seek feedback from employers on likely
    disruption burdens associated with longer periods of leave taken by
    employees.’

  22. The Commission does not express a view on this question.

7.2 Payment level,
funding sources and payment mechanism

  1. As discussed in section 5.1, the Commission sees the payment level, funding
    sources and payment mechanism as appropriate given that they closely mirror that
    which we proposed in our earlier submission to the Inquiry.

  2. The Commission is particularly pleased to see that, in paying a flat rate of
    the adult minimum wage regardless of pre-birth income, the proposed model will
    ensure that low income women employees will be better off on a paid parental
    leave scheme than they would be on family assistance payments.

  3. The Commission also notes that this will ensure that the scheme does not
    operate as a disincentive to women’s workforce participation, thereby
    meeting the Inquiry’s second policy objective of facilitating workforce
    participation.

  4. A paid leave scheme which improves the ability of women to maintain their
    labour force attachment and makes it easier for women to combine paid work and
    family life will help to address the disadvantage experienced by women in their
    earning capacity and ability to save across their lifetime.

  5. In this respect the Commission also welcomes the provision of superannuation
    in the proposed model.

  6. Women’s superannuation savings are well below those of their male
    counterparts and women have a much greater chance of living in poverty in their
    later years as a result, often due to extended periods out of the workforce to
    provide care for dependents. Compulsory superannuation contributions for women
    while they are receiving paid leave will contribute to greater parity between
    men’s and women’s retirement incomes.

  7. The Commission is pleased to see that the Inquiry has costed a
    superannuation component as part of the proposed model.

    Inquiry question: ‘However, further feedback
    is sought from participants on the costs involved in mandating the provision of
    (capped) employer superannuation contributions while an employee is on paid
    parental leave.’

  1. In its first submission, the Commission recommended that paid leave should
    include a superannuation component. The Commission reiterates this
    recommendation. Inclusion of superannuation ensures that paid parental leave is
    treated as a workplace entitlement.

  2. Further, given that women typically to take more leave from paid work as a
    result of child bearing, it is vital that paid leave includes superannuation in
    order to contribute to closing the gender gap in retirement savings between
    women and men.

  3. The Inquiry proposes that the superannuation component of 9% be paid by
    employers, rather than be government funded. Further, the Commission understands
    that 9% is the minimum that employers are compelled to provided rather than a
    ‘capped’ amount as noted in the Draft Report, thus providing for
    employees who have entitlements beyond that amount to continue to receive them.

  4. The Commission does not express a view about whether the superannuation
    component should be funded by government or employers.

  5. The Commission recognises the expertise of the Productivity Commission in
    formulating the appropriate funding model for the scheme in order to achieve the
    objectives of the scheme and the need for the Australian Government to consider
    the recommendations of the Inquiry in light of the funding implications for both
    government and business.

  6. The Commission also notes that one of the key objectives of the scheme is to
    promote gender equity and work/family balance in Australia. As such, it is
    essential that the funding model for the scheme that is ultimately adopted by
    the Australian Government does not operate as a disincentive to the employment
    of women.

  7. The Inquiry estimates that for businesses employing less than 20 people, the
    chance of an employee taking paid leave in any given year is less than 1.1% and
    that many small employers would not face any costs from the proposed scheme in
    any given year.[38]

  8. Notwithstanding this point, the Commission notes that since the publication
    of the proposed model there have been concerns expressed about the capacity of
    business, particularly small business, to administer the scheme, and that
    discrimination against women of childbearing age may be the result of the
    implementation of the proposed scheme.

  9. In order to reduce any possible disincentives to business employing women as
    a result of the proposed scheme the Commission proposes that an accompanying
    measure be introduced which provides small employers (e.g. businesses with 25
    staff or under) with support for administering the scheme.

  10. One option, as proposed by the National Foundation for Australian Women,
    would be to provide a lump sum payment to assist small employers with the cost
    of the scheme.[39]

  11. Another option would be to follow the example of the United Kingdom by
    paying small employers an extra 4.5% (or similar) of the cost of the paid leave
    scheme for each employee on
    leave.[40]

  12. Providing tools for employers such as the evidence-based guidelines
    suggested by the Inquiry[41] would
    also assist employers of all sizes.

  13. A broader education campaign (discussed further in section 9) would also
    assist employers to adapt to the new system and minimise disruption burdens, and
    must be part of the implementation of any national scheme of paid leave for
    parents.

  14. Inquiry question: ‘Accordingly, further feedback is
    sought from participants on whether other leave entitlements, such as sick,
    recreation and long service leave, should accrue during the period of paid
    parental leave, having regard to its costs and appropriateness.’

  15. The Commission does not hold a strong view on this issue.

  16. The Commission notes that the new National Employment Standards will make
    employer paid leave absences count as service for the purposes of accrued sick
    and annual leave and that periods of unpaid leave are excluded from the
    definition of service.

  17. The Inquiry points out that under their proposal an employee would legally
    be on unpaid leave from the employer during a parental leave absence and that
    while it recognises the value of paid parental leave being seen as like other
    leave that subject to further feedback and consideration it does not consider
    the accrual of other leave entitlements to be practical.

  18. The Commission does not have a particular view on this issue, recognising
    that there is, as the Draft Report notes, ‘no single set of commercial and
    legislative requirements for entitlements to current forms of
    leave’.[42]

  19. The Commission also recognises that there would be significant financial and
    ongoing compliance costs for employers associated with the accrual of other
    entitlements. These costs would occur at a time when businesses are adjusting to
    administering a new paid leave scheme.

  20. One option is to revisit this issue at the time the scheme is evaluated,
    either in two years after the implementation of the scheme, as recommended by
    the Inquiry and previously by the Commission, or at a later stage.

  21. Recommendation 4: That the Inquiry consider measures that would
    provide financial and practical support to small employers to assist them to
    implement the proposed paid leave scheme, and make a recommendation in this area
    in their Final Report to the federal government.

7.3
Eligibility

  1. As noted in section 5.1, the Inquiry’s proposed model provides for
    broad coverage, taking into account the reality of women’s working lives,
    including women’s overrepresentation in part time and casual forms of
    work, multiple job holdings and self-employment.

  2. The Commission previously recommended that the eligibility for paid leave
    include casual employment, contract work and self-employment in addition to
    other forms of full and part time work, limited to those who have been in paid
    work for 40 weeks out of the past 52 weeks with any number of employers or in
    any number of positions.

  3. The Commission is pleased to see that the proposed model provides coverage
    for the self-employed, contractors and casual workers.

  4. The proposed model is less broad in its coverage than the Commission’s
    previous proposal in that it requires continuous employment for the 12 months
    prior to the date of expected birth, and it specifies an average period of 10
    hours per week of work.

  5. While the Commission did not specify minimum average hours of work, the 10
    hours a week test seems sufficient to demonstrate significant workforce
    attachment.

  6. The Commission notes that the New Zealand paid parental leave scheme has a
    10 hour work test and that an evaluation of that scheme did not find meeting the
    weekly hours test to be an impediment to meting the eligibility
    criteria.[43]

  7. The Commission notes that the Australian Bureau of Statistics data used by
    the Inquiry shows that very few employed people would be excluded from the
    proposed scheme due to a 10 hour work test.

  8. The Commission would, however, be interested in why the Inquiry settled on
    10 hours of work test (as opposed to 8 hours, for example, this being closer to
    a standard working day), and the demographic characteristics of those employees
    who would miss out on the scheme as a result of this criteria.

  9. In the absence of that information, and noting that the newly configured
    Baby Bonus – the Maternity Payment – would be available for those
    women workers with more precarious attachment to the workforce, the Commission
    considers that the proposed eligibility criteria is reasonable.

  10. The Commission would, however, like to see the eligibly test covered in any
    review of the scheme after its implementation to evaluate any adverse effects
    for certain groups of employees and parents with particular socio-demographic
    characteristics.

  11. Inquiry question: ‘The Commission seeks feedback from
    participants on an effective arrangement that would deal with both the
    definition of the self-employed/contractors and that would ensure appropriate
    compliance.’

  12. The Commission does not have a view on this issue, but notes the
    Inquiry’s concern about the need for clarity in definition of
    self-employed and contractors and the need for a process to ensure the
    reasonable probity of arrangements for these workers.

  13. Recommendation 5: That subject to further modification and
    improvement undertaken in the Final Report, the federal government implement the
    Inquiry’s proposed paid leave scheme within the next 12
    months.

7.4 Interaction with
social security and other government payments

  1. The Commission is of the view that the government should ensure that all
    women have adequate financial support at the time of the birth of a child.

  2. This view is underpinned by Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights(‘ICESCR’) to recognise the right of families to an adequate
    standard of living.[44]

  3. However in accordance with the policy objectives of a paid leave scheme the
    Commission recognises that paid leave is primarily a workplace entitlement to
    income replacement conditional on taking leave from paid employment, not an
    income supplementation measure for low income families.

  4. It is imperative that family assistance measures designed to provide
    financial assistance to families at the time of childbirth do not operate as a
    disincentive to women’s labour market participation – one of the key
    objectives of the proposed scheme.

  5. The Inquiry’s proposal to provide a new non-income tested Maternity
    Allowance equivalent to the current Baby Bonus of $5,000 (plus other family
    assistance transfers), which is less than the maximum gross taxable paid leave
    entitlement per family of $11,544, is sufficient to provide financial support
    for families at the time of childbirth while not operating as a disincentive for
    women’s workforce participation. It is a welcome part of an overall
    package of support for parents with newborn children.

  6. The Commission also welcomes the Inquiry’s recommendation that where a
    parent takes a shortened period of paid parental leave whose value is less than
    the maternity allowance, the parent would be entitled to a payment equal to the
    difference.

  7. The Commission also welcomes the supplementary provision of the Maternity
    Payment for multiple births, in recognition of the increased costs borne by
    these families.

  8. Recommendation 6: That the federal government implement the
    Inquiry’s proposal for a Maternity Allowance to provide income support for
    those ineligible for the proposed paid leave scheme.

7.5 Interaction with
other work and family reconciliation policies

  1. The Commission welcomes the Inquiry’s attention to complementary
    policies that would improve support for parents of newborn children.

  2. The Commission supports the recommendations for more support for
    breastfeeding and strengthening of policies and programs that develop parenting
    skills.

  3. The Commission recommended an array of measures in the broader area of work
    and family reconciliation in the final paper of a two year project, It’s About Time: Women, men, work and family (2007)
    (‘It’s About Time (2007)’)[45] and would
    welcome continued attention to this area of policy in addition to the
    implementation of a national scheme of paid leave for parents.

  4. The Commission notes in particular that certain elements of the proposed
    scheme, such as the paid paternity leave period that the Inquiry terms the
    ‘Daddy fortnight’, will have a better chance of success if combined
    with other work and family reconciliation policies and programs which target men
    as carers, as previously recommended by the
    Commission.[46]

  5. A holistic approach to policy in this area, including progress in the area
    of the government’s committed and mooted reforms to early childhood
    education and care, is essential given the pressures that women and men face in
    balancing work and family life and the impacts that this has on the
    nation’s productivity and wellbeing.

  6. In summary, a paid leave scheme cannot be expected to deliver everything
    that is required for families when it comes to combining paid work and family
    responsibilities. Paid leave must be considered as part of a suite of measures
    needed in this area, which the Commission has commented on extensively in other
    submissions and policy projects.[47]

  7. Inquiry question: ‘For that reason, we
    seek feedback from participants about services for children aged less than two
    years, particularly concerning: gaps in services; learning from the existing
    policy measures; policy measures that would increase the effectiveness of
    existing programs, including coverage, the triggers for parents’ access to
    services, resourcing, and service delivery.’

  8. As part of the consultations and research conducted for the It’s
    About Time     (2007) final paper between 2005 and 2007 the Commission made a
    range of findings and recommendations in the area of early childhood education
    and care which included policies and programs for children under two years as
    well as older children.[48]

  9. Since this time the Commission has not had the opportunity to revisit these
    findings in the context of the current government’s policies and reforms
    in this complex area of policy. To the extent that this work remains current,
    the Commission’s previous work may be of interest to the Inquiry in
    determining the adequacy of policies and programs in this area.

8 Evaluation and
review

  1. The Commission endorses the Inquiry’s recognition that evaluation of
    the proposed scheme must take place on an ongoing basis in order to monitor its
    interactions with the tax and welfare system, particularly as this system is
    currently under review.

  2. The Commission also endorses the Inquiry’s recommendation for an
    evaluation of the scheme two years into its operation and again at five years
    into its operation.

  3. However the Commission would like to see that these reviews are undertaken
    not only to measure progress and evaluate the impact of the scheme against its
    objectives (including impacts on business and interactions with other payments
    and work and family policies), but that they are undertaken with a view to
    extending the scheme over time.

  4. In its earlier submission to the Inquiry, the Commission recommended a two
    stage process for reform so that an initial minimal scheme could be implemented
    as a matter of urgency, to be followed by an independent review which would
    inform the design of a second stage of reform which would provide a more
    comprehensive scheme of paid leave.

  5. The Commission reiterates that proposal that the Government legislate to
    mandate a formal, independent review of the scheme two years after its
    introduction.

  6. This review should be conducted by an independent body, informed by a solid
    evidence base, and incorporating input from key stakeholders, including
    government, business, academia and civil society groups.

  7. The Commission also reiterates its proposal for the Minister for Education,
    Employment and Workplace Relations to hold ministerial responsibility for the
    national paid leave scheme, including the independent review two years into the
    scheme’s operation.

  8. A policy unit should also be established within the Department of Education,
    Employment and Workplace Relations, and adequately resourced to coordinate
    implementation, monitoring and review of the scheme over time.

  9. Recommendation 7: That following implementation of the proposed paid
    leave scheme an independent review be carried out two years into its operation
    in order to make any necessary modifications and improvements and so that a
    second stage of paid leave measures be introduced so that in total the scheme
    provides for:

    • 34 weeks of additional paid parental leave, of which 4 weeks may only be
      taken by the supporting parent, in addition to

    • 18 weeks paid parental leave, to be initially paid to the mother and

    • 2 weeks supporting parent leave to be taken concurrently at the time of
      birth.

  10. Recommendation 8: That the Minister for Education, Employment and
    Workplace Relations should have ministerial responsibility for the proposed paid
    leave scheme and that a policy unit should be established within the Department
    of Education, Employment and Workplace Relations to coordinate implementation,
    promotion, education, monitoring and review of the scheme over
    time.

9 Research and
education

  1. Implementation of the proposed paid leave scheme should include adequate
    funding for the commissioning of longitudinal research to monitor the impact of
    the scheme against the scheme’s objectives.

  2. The commitment to research and monitoring should generate a solid,
    policy-relevant evidence base to ensure that the scheme’s interaction with
    other work and family reconciliation policies continues to positively contribute
    to the key national objectives over time.

  3. The Commission has previously identified that there is currently only
    minimal Australian research to underpin assessment of the likely success of a
    paid leave scheme.

  4. For example, it is essential that the impact of the scheme is monitored over
    time in conjunction with early childhood education and child care policies to
    assess effectiveness in improving early childhood development, leading to
    improved chances for Australia’s future generations.

  5. The Commission reiterates its previous call for the government to invest in
    generating a strong evidence base for informing over-arching policy frameworks
    of gender equality, work and family, and early childhood education and care.

  6. In particular, the re-running the Parental Leave in Australia Survey (PLAS)
    as part of a wider research program would be of benefit given that it has
    already established useful benchmarks used by the Commission, other stakeholders
    and the Inquiry in the production of the Draft Report.

  7. The particular strengths of the PLAS in relation to other surveys include
    the size and scope of the survey, which covered parents of children born in a
    particular 12 month period and that it produced over 3,500 responses from
    parents.

  8. The PLAS also has the unique capacity to track mothers’ return to work
    experiences given that the survey was conducted when the children were aged
    between 16 and 30 months, so many of the mothers had returned to work at that
    stage, allowing the effective tracking of return to work experiences.

  9. Tracking return to work experiences is particularly important given that the
    Commission has noticed an increasing trend in pregnancy and sex discrimination
    complaints in recent years.

  10. Noting that the Commission received a reduction in funding from last budget
    and noting a likely increase in complaints when a paid leave scheme is
    introduced as employers and employees grapple with operation of the new
    entitlement, an increase in operational funding would enable the Commission to
    continue to provide a complaints handling service that is effective and
    efficient.

  11. Increased tied funding to the Commission so that it could produce updated
    pregnancy and family responsibilities guidelines as part of a wider education
    and awareness raising strategy to accompany the new scheme would be another way
    of increasing the Commission’s effectiveness in carrying out its education
    function.

  12. Beyond the Commission, to ensure the effective implementation of the
    proposed paid leave scheme the government should fund and coordinate an
    education and awareness strategy to promote the rights and responsibilities
    under the scheme.

  13. The education strategy should meet the diverse communication needs of the
    community, and be tailored for, and targeted towards, groups less likely to have
    information about the new entitlements. Unions, community and other civil
    society groups could play a role in developing this strategy disseminating
    information to members to ensure that employees are aware of their new
    entitlements.

  14. All information should be culturally appropriate and available in an
    accessible format.

  15. There should also be particular support provided to employers to assist them
    to implement the new scheme. This support should include, as noted above,
    evidence-based guidelines and information about any financial or other support
    for small business in particular. Plain language forms and online tools could
    form a part of this implementation measure and could be rolled out in
    partnership with employer representative groups in order to ensure widespread
    take-up.

  16. This work could be coordinated through a dedicated policy unit established
    within the Department of Education, Employment and Workplace Relations, as
    discussed in section 8.

  17. Recommendation 9: That the federal government commit to investing in
    a solid evidence base to inform ongoing monitoring, review and continuous
    improvement of the proposed paid leave scheme over time, including providing
    funding to repeat the Parental Leave in Australia Survey.

  18. Recommendation 10: That the federal government provide adequate
    funding to the Australian Human Rights Commission so that it can continue to
    provide an effective and efficient complaint service in the context of a
    predicted rise in complaints as a result of the initial implementation of the
    proposed paid leave scheme.

  19. Recommendation 11: That the federal government provide funding to the
    Australian Human Rights Commission to produce updated pregnancy and family
    responsibility guidelines as part of a broader education and awareness campaign
    for employers and employees.

  20. Recommendation 12: That the implementation of the proposed paid leave
    scheme be accompanied by a comprehensive education community awareness campaign
    that meets the diverse communication needs of the community and which includes
    targeted education strategies for groups less likely to have information about
    the new entitlements.

  21. Recommendation 13: That as part of a broader education and awareness
    campaign the federal government provides targeted education and practical
    support to employers, with a particular focus on small and medium sized
    employers as part of the implementation of the proposed paid leave
    scheme.

[1] The Australian Human Rights
Commission was until recently known as the Human Rights and Equal Opportunity
Commission. In this submission, all endnote references to documents produced
prior to this change retain the name they were originally published under.

[2] The Commission is established
by the Human Rights and Equal Opportunity Commission Act 1986 (‘HREOC Act’). Sections 11 and 31 of the HREOC Act set out the
Commission’s functions relating to human rights and equal opportunity in
employment respectively. The Commission also has functions under the Sex
Discrimination Act 1984 (Cth), Racial Discrimination Act 1975 (Cth), Disability Discrimination Act 1992 (Cth) and Age Discrimination
Act 2004 (Cth).

[3] See the report of the
Commission’s National Pregnancy and Work Inquiry Pregnant and
Productive: It’s a right not a privilege to work while pregnant (1999)
at http://www.humanrights.gov.au/sex_discrimination/publication/pregnancy/report.html (viewed 12 November 2008) and A Time to Value: Proposal for National
Maternity Leave Scheme (2002) at http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml2/index.html (viewed 12 November 2008). See also the initial paid maternity leave publication Valuing Parenthood: Options for paid maternity leave - Interim paper (2002) at http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml/index.html (viewed 12 November 2008) and It’s About Time: Women, men, work and
family (2007) at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008). See also the initial publication Striking the Balance:
Women, men, work and family – Discussion Paper (2005) at http://www.humanrights.gov.au/sex_discrimination/publication/strikingbalance/index.html (viewed 12 November 2008). The report of the Sex Discrimination
Commissioner’s recent national Listening Tour also addressed the issue of
paid maternity leave - Gender Equality: What matters to Australian men and
women: The Listening Tour Community Report (2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 12 November 2008).

[4] Australian Human Rights
Commission, Submission to the Productivity Inquiry into Paid Maternity,
Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 12 November 2008).

[5] Prime Minister Kevin Rudd,
‘Productivity Commission recommend paid maternity’ Lateline Australian Broadcasting Corporation Broadcast 29 September. At http://www.abc.net.au/lateline/content/2008/s2377239.htm (viewed 12 November 2008).

[6] See Pregnant and Productive:
It’s a right not a privilege to work while pregnant (1999) at http://www.humanrights.gov.au/sex_discrimination/publication/pregnancy/report.html (viewed 12 November 2008) and A Time to Value: Proposal for National
Maternity Leave Scheme (2002) at http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml2/index.html (viewed 12 November 2008). See also It’s About Time: Women, men, work
and family (2007) at http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008)and the report of the Sex Discrimination
Commissioner’s recent national Listening Tour, Gender Equality: What
matters to Australian men and women: The Listening Tour Community Report (2008). At http://www.humanrights.gov.au/sex_discrimination/listeningtour/index.html (viewed 12 November 2008).

[7] Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 12 November 2008). This second submission will not reiterate every
aspect covered under the first submission.

[8] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report (2008), p XXI.

[9] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 2.16 and Chapter 4.

[10] See Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 12 November 2008), p 22-23 and research reported by the UK’s
Fatherhood Institute at http://www.fatherhoodinstitute.org/index.php?id=0&cID=586 (viewed 12 November 2008).

[11] See ABS, Labour Force,
Australia Cat No 6202.0 April 2008 (2008), ABS Forms of Employment,
Australia Cat No 6359.0 November 2007 (2008), Equal Opportunity for Women in
the Workplace Agency, EOWA 2008 Australian Census of Women in Leadership (2008) and Human Rights and Equal Opportunity Commission, Annual Report
2007-2008 (2008), p 69.

[12] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 5.13-5.14.

[13] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 5.1.

[14] See Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 12 November 2008), paras 210-213.

[15] OECD, Economic Survey of
Australia, 2008 (2008).

[16] Ricardo Hausmann, Laura
Tyson and Saadia Zahidi, The Global Gender Gap Report 2007 (2007). At http://www.weforum.org/en/initiatives/gcp/Gender%20Gap/index.htm (viewed 18 November 2008).

[17] Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 12 November 2008). See also the transcript of the Commission’s
evidence before the Inquiry at http://www.pc.gov.au/__data/assets/pdf_file/0006/80484/sydney-20080520.pdf (viewed 13 November 2008).

[18] International instruments
and human rights obligations relevant to this inquiry are discussed at length in
Human Rights and Equal Opportunity Commission, Submission to the Productivity
Inquiry into Paid Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008), paras 38-71.

[19] Convention on the
Elimination of All Forms of Discrimination Against Women, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981),
ratified by Australia 28 July 1983. The Convention is set out in the Schedule to
the Sex Discrimination Act 1984 (Cth).

[20] Preamble to the Convention on the Elimination of All Forms of Discrimination Against Women.

[21] Preamble to the Convention on the Elimination of All Forms of Discrimination Against Women.

[22] Convention (No 156)
Concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
Workers with Family Responsibilities, opened for signature 23 June 1981,
1331 UNTS 295 (entered into force 11 August 1983), ratified by Australia 30
March 1990. The following articles are of particular importance to this Inquiry:
art 3(1) (non-discrimination on basis of family responsibilities); art 7
(workers with family responsibilities to be integrated into the labour force).

[23] ABS, How Australians Use
Their Time, 2006 Cat No 4153.0 (2008) and see discussion in Human Rights and
Equal Opportunity Commission, Striking the Balance: Women, men, work
and family (2005), Chapter 3.

[24] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 6.6.

[25] OECD, Babies and Bosses:
reconciling work and family life A synthesis of findings for OECD countries (2007), p 117.

[26] See Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008), paras 38-71 and paras 123-158.

[27] See Committee on the
Elimination of Discrimination against Women, Report of the Committee on the
Elimination of Discrimination against Women, 16th and
17th Sessions, 12 August 1997 and Committee on the Elimination of
Discrimination against Women, 34th Session, Concluding comments of
the Committee on the Elimination of Discrimination against Women: Australia 16 January - 3 February 2006 and discussion at paras 53-53 in Human Rights and
Equal Opportunity Commission, Submission to the Productivity Inquiry into
Paid Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008).

[28] Concluding observations
of the Committee on the Rights of the Child: Australia 10/10/97.
CRC/C/15/Add.79 and see discussion at para 70 in Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008).

[29] International Labour
Organization Maternity Protection Convention, 2000 (No 183)
International Labour Conference (88th: 2000: Geneva Switzerland). See also
discussion at paras 57-64 in Human Rights and Equal Opportunity Commission, Submission to the Productivity Inquiry into Paid Maternity, Paternity, and
Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008).

[30] International Labour
Organization Maternity Protection Convention, 2000 (No 183) and Maternity Protection Recommendation International Labour Conference
(88th: 2000: Geneva Switzerland).

[31] Recommendation 10(3).

[32] The Commission made this
recommendation - Recommendation 5 – in Human Rights and Equal Opportunity
Commission, Submission to the Productivity Inquiry into Paid Maternity,
Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008) and previously in Pregnant and Productive:
It’s a right not a privilege to work while pregnant (1999).

[33] Willem Adema, ‘Babies
and Bosses: What lessons for governments?’ OECD Observer 264/265
(December 2007-January 2008), p 2.

[34] See discussion in section
6.4 (a).

[35] World Health Organisation,
Statement to the International Labour Conference, 2 June 2000 on the health
aspects of maternity leave and maternity protection at http://www.who.int/reproductivehealth/publications/maternal_mortality_2000/Health_aspects_of_maternity_leave.en.html (viewed 24 May 2008).

[36] Thirty-two percent of the
Equal Opportunity for Women in the Workplace Agency’s reporting
organisations provide paid paternity leave, with 83 per cent providing 1-2 weeks
of paid leave: Equal Opportunity for Women in the Workplace Survey 2005: Paid
paternity leave (2006). The majority of employed Australian fathers (74 per
cent) currently take two weeks or less of paid leave of some form at the time of
birth: ABS, Pregnancy and Work Transitions Australia Cat No 4913.0 Nov
(2005). Countries providing two weeks of paid paternity leave include Belgium,
France, Spain, United Kingdom, Sweden, Norway, and Denmark: Department for
Business, Enterprise and Regulatory Reform (UK), International Review of
Leave Policies and Related Research 2007 (2007).

[37] International Labour
Office, Equality in employment and occupation, Report III (Part 4B)
(1999), p 42.

[38] Productivity Commission, Fact sheet: some implications for employers (2008), p 2. At http://www.pc.gov.au/__data/assets/pdf_file/0006/83625/factsheetemployers.pdf (viewed 14 November 2008).

[39] National Foundation for
Australian Women, NFAW response to the Productivity Commission Draft
Report (2008), para 75. At http://www.nfaw.org/assets/Media/Response.pdf (viewed 18 November 2008).

[40] Under the UK scheme
employers who are liable to pay statutory maternity pay are able to claim back
104.5% of the money they pay out if their total National Insurance Liability in
the previous tax year was £45 000 or less (other employers may claim 92%):
Business Link, Maternity leave and pay (2008). At http://www.businesslink.gov.uk/bdotg/action/detail?r.l1=1073858787&r.l3=1080898273&r.lc=en&type=RESOURCES&itemId=1080903421&r.l2=1080898061&r.s=sc (viewed 14 November 2008).

[41] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 2.30.

[42] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children Draft
Inquiry Report, p 8.31.

[43] New Zealand Department of
Labour, Parental Leave in New Zealand 2005/2006 Evaluation At http://www.dol.govt.nz/PDFs/research-parental-leave-evaluation2005-06.pdf (viewed 23 May 2008)

[44] Article 11, International
Covenant on Economic, Social and Cultural Rights, opened for signature
December 1966, 999 UNTS 3 (entered into force 3 January 1976), ratified by
Australia 10 December 1975, entered into force for Australia 10 March 1976.

[45] Human Rights and Equal
Opportunity Commission, It’s About Time: Women, men, work and
family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008).

[46] See findings and
recommendations contained in Chapters 4 and 5 of Human Rights and Equal
Opportunity Commission, It’s About Time: Women, men, work and
family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008).

[47] Much of the
Commission’s previous work is summarised in Human Rights and Equal
Opportunity Commission, Submission to the Productivity Inquiry into Paid
Maternity, Paternity, and Parental Leave (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080602_productivity.html (viewed 14 November 2008). See also Human Rights and Equal Opportunity
Commission, It’s About Time: Women, men, work and family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008) and Human Rights and Equal Opportunity Commission, Submission to the Senate Legal and Constitutional Affairs Committee Inquiry
into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating
discrimination and promoting gender equality (2008). At http://www.humanrights.gov.au/legal/submissions/2008/20080901_SDA.html (viewed 14 November 2008).

[48] See Chapter 7 of Human
Rights and Equal Opportunity Commission, It’s About Time: Women, men,
work and family (2007). At http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html (viewed 24 May 2008).