Commission submissions - In support of the application by the ACTU for Parental Leave
Legal
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
JUSTICE COHEN
MR DEPUTY PRESIDENT MOORE
MR DEPUTY PRESIDENT POLITES
COMMISSIONER GRIFFIN
MR COMMISSIONER TURBET
C No 23285 of 1988
C No 23321 of 1988
FEDERATED MISCELLANEOUS WORKERS UNION OF AUSTRALIA
and
ANGUS NUGENT & SONS PTY LIMITEDAND OTHERS
Notification pursuant to section 99 of the act of a dispute re wages and conditions in the tanning industry
RETAIL AND WHOLESALE SHOP EMPLOYEES (CAPITAL TERRITORY) AWARD 1983
Application pursuant to section 59 by the Shop, Distributive and Allied Employees Association to vary the above award re parental leave.
SUBMISSION IN SUPPORT OF THE APPLICATION BY THE ACTU FOR PARENTAL LEAVE
If the Commission pleases I appear before your honours to make a submission on behalf of the Human Rights and Equal Opportunity Commission in support of the application made by the ACTU.
I would like to tender two documents. The first is an outline of our submission and the second contains extracts from the Sex Discrimination Act 1984 and a number of other documents which I shall be referring to in my submission.
The Conciliation and Arbitration Commission in its 1979 maternity leave decision stated:
The claim, if granted, would recognise the special industrial interests of those female employees who elect to combine motherhood with continued participation in the workforce.
The Conciliation and Arbitration Commission also noted that:
the material tendered with respect to employment in the public services of the Commonwealth and New South Wales suggests that a significant number of women who avail themselves of maternity leave entitlements terminate their employment shortly after returning to work. However, we consider that in the long term, maternity leave if granted, could enhance the employment prospects of women and at the same time secure the retention of skills and abilities which might otherwise be lost to industry.
(That quote comes from page 7 of ACTU Exhibit 3). It is the view of the Human Rights and Equal Opportunity Commission that maternity leave has enhanced the employment prospects of women. However, as foreseen by the Conciliation and Arbitration Commission (as it then was), maternity leave has not been sufficient to redress all the inequalities that arise between men and women resulting from their traditional roles in parenthood.
Through the national study on maternity leave the ACTU has shown that many women need more than 12 months leave in order to have equality in the employment stakes (transcript pp 92-94. THE ACTU presented evidence to your Honours to establish that child care is more readily available for children aged over 2 years (transcript p 166ff). Further, the ACTU has shown that many parents do not wish to hand over the care of their child to a stranger before the child reaches two years of age (transcript p497). The reasons parents gave for this ranged from a desire to breast feed beyond the first year to a desire for a longer period to bond with the child.
The Human Rights and Equal Opportunity Commission submits that parental leave is a vital step towards eliminating, so far as possible, discrimination against persons on the ground of sex, marital status or pregnancy in the area of employment. Further it is necessary to ensure the recognition and acceptance within the community of the principle of equality of men and women. The Human Rights and Equal Opportunity Commission considers that the introduction of paternity leave will create the conditions in which it is possible for women to share their child-rearing responsibilities with men and pursue career opportunities in a more satisfactory manner.
This submission will elaborate arguments in support of the concept of parental leave.
This submission will elaborate arguments in support of the concept of parental leave.
Our submission commences with a discussion of the ramifications of the Sex Discrimination Act 1984. In this section I will indicate the obligations of the Industrial Relations Commission to consider the principles of the Sex Discrimination Act 1984 and the United Nations Convention on The Elimination of All Forms of Discrimination Against Women. I will include an assessment of the relevance of international Treaties and Conventions in domestic law.
In the second part of our submission we will look at how the Sex Discrimination Act and by extension the Convention on the Elimination of All forms of Discrimination Against Women support the claim presently before this Commission.
Turning then to the first section on ramifications of the Sex Discrimination Act.
PART 1 - Ramifications of the Sex Discrimination Act
(1) Section 93 of the Industrial Relations Act
Section 93 of the Industrial Relations Act 1988 requires the Industrial Relations Commission to "take account of the principles embodied in the Sex Discrimination Act" when making a determination.
Please turn to page 1 of exhibit (2) where you will find section 3 of the Sex Discrimination Act set out. This section sets out the objects of the Act.
(2) The Sex Discrimination Act
First of all, I draw your attention to paragraph (a) of section 3 which states that one of the Act's objects is to give effect to certain provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women, (which, hereinafter, I shall refer to as CEDAW). CEDAW forms the schedule to the Sex Discrimination Act. If you could turn to page 2 of the exhibit you will find CEDAW set out in full.
The Australian Parliament incorporated into the Sex Discrimination Act the principles embodied in both the preamble and Articles of CEDAW by the enactment of section 3(a) of the Act.
Paragraph (b) of section 3 sets out the second object of the Act which specifically includes the elimination of discrimination on the grounds of sex, marital status or pregnancy in employment.
Paragraph (d) of section 3 sets out the third object of the Act which is the promotion of recognition and acceptance within the community of the principle of the equality of men and women.
For the purposes of section 93 of the Industrial Relations Act, it is our submission that the Industrial Relations Commission should have regard to the objects of the Act and in particular paragraphs (a) (b) and (d) of section 3.
(3) International Law
The principles embodied in the Sex Discrimination Act are derived from and inclusive of those set out in CEDAW. The implementation of CEDAW is an object of the Act, CEDAW contributes significantly to the Act's Constitutional base and legal validity.
CEDAW was adopted by the United Nations General Assembly on 18 December 1979 and signed by Australia on 17 July 1980.
It was ratified by the Australian Government on 28 July 1983 with two reservations. The reservations are set out in the exhibit at page 10 and in ACTU Exhibit 2 at page 96. As you will see there is a reservation on Article 11(2)(b) with respect to paid maternity leave. As this claim does not concern paid leave of any kind, this reservation is not relevant to our discussion of CEDAW. Nevertheless it is worth noting that the reservation refers to Australia's current inability to comply with Article 11 and does not consist of a refusal to comply. Rather it suggests that compliance may be possible at some future time.
According to prevailing legal opinion in Australia, an international convention or treaty to have effect in Australia, must both be ratified, and be the subject of domestic legislation. It is our submission that section 3(a) of the Sex Discrimination Act 1984 serves to incorporate the provisions of CEDAW into domestic legislation.
As Australia had made a reservation on two provisions in CEDAW the use of the term "certain provisions" in section 3(a) of the Act recognises the need for Parliament to distinguish between those provisions and all other provisions which were not the subject of reservation. It is arguable that all those provisions of CEDAW which are not subject to a reservation form part of Australian domestic law through the Sex Discrimination Act.
The Human Rights an Equal Opportunity Commission submits that the principles of CEDAW are embodied in the Sex Discrimination Act. An assessment of those principles must necessarily involve an examination of the Preamble and Articles of CEDAW.
It is significant to note that CEDAW has been ratified by 99 countries to date. This clearly demonstrates that the principles contained within CEDAW are an important and legitimate subject of international concern. The existence of CEDAW indicates that the community of nations are vigorously opposed to discrimination against women and are in favour of active measures to redress current inequalities between the sexes.
(4) CEDAW in Australia
I also draw to your attention to section 3(c) of the Industrial Relations Act which requires the Industrial Relations Commission to have regard to the interests of the Australian community as a whole. In ratifying CEDAW the Australian Government has joined the international community in an endeavour to redress inequality between the sexes. It has done so in the interests of the Australian community as a whole.
This international convention is evidence of internationally agreed standards and Australia's ratification and enactment of it represents its acceptance and adoption of such standards.
I also direct your honours to Section 110(2) (b) of the Industrial Relations Act which provides:
the Commission is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such a manner as it considers just …
It is our submission that the Industrial Relations Commission, in informing itself during the course of this claim, should also consider the development of the manner in which international customary international law has been incorporated into Australian domestic law.
The Human Rights and Equal Opportunity Commission submits that an examination of the case law on this matter reveals that an Australian court will treat customary law as incorporated into the domestic law of Australia, in so far as it is not inconsistent with any applicable statute law, or with any precedent already binding on the court. There are a number of cases which support this view and I have quoted the relevant passages from pages 11-26 of our second exhibit. The cases are:
Buvot v. Barbut (1736) as approved by Lord Mansfield CJ in Triquet v. Bath (1764) 3 Burr. 1478 at 1481; 97 ER936 at 938.
Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1 QB 529 CA, per Lord Denning MR at 553-554.
Chung Chi Cheung v. R [1939] AC 160 PC at 167.9-168.3
Chow Hung Ching v. R (1949) 77 CLR 449 HC, at 477.4-479.2, per Latham CJ at 462.3-5, per Starke J at 470.8-471.7 per Dixon J.
Polites v. Commonwealth (1945) 70 CLR 60 HC, per Williams J at 80.5 -81.3.
Koowarta v. Bjelke-Peterson (1982) 153 CLR 168 HC, per Gibbs CJ at 203.8-204-5.
For the purpose of ascertaining whether international customary law forms part of the domestic law of Australia, a court should have regard to international treaties and conventions, authoritative text books and practice, the Charter of the United Nations, Declarations of the General Assembly and any other relevant international developments, which might suggest that a particular subject has become a matter of international importance and concern: Polites v The Commonwealth, [loc. Cit., at [80.5] and Koowarta v. Bjelke-Peterson [loc. cit.] at 218.1 -219.3 (Stephen J). Accordingly we submit that CEDAW should be considered by your Honours.
May I also direct your honours to page 31 of our exhibit where I have quoted a passage from an article in the Australian Law Journal Volume 62 page 514 in which the Hon. Justice Kirby makes the following comments:
An increasing number of judges in all countries are therefore looking to international legal developments and drawing upon them in the course of developing the solutions which they offer in the particular cases that come before them. In this way international legal instruments are not coercive of municipal law. Nor are they given local operation where municipal law does not itself justify their direct application. They are simply used as useful background material and as indications of the developments of international customary law with which a municipal judge may properly seek to bring domestic law into harmony.
While the cases I have cited refer to decisions of Australian courts, the Industrial Relations Commission and its predecessor body has seen fit in previous decisions to have regard to certain international conventions and declarations. In the Maternity Leave Case cited in ACTU3 at page 6, the Arbitration and Conciliation Commission adopted the following passage from the Equal Pay Case of 1969:
though we realise that the various United Nations and I.L.O. declarations and conventions must carry significant weight in a general way, we must consider how, if they are to be applied, they can be fitted into our community.
The above passage was made with reference to unratified conventions and declarations. Clearly as CEDAW has been ratified its significance cannot be doubted not its substance ignored.
The intention to impose legal obligations through the Convention on the Elimination of All Forms of Discrimination Against Women can be found in the Preamble to the Convention. After noting that, despite various resolutions, declarations and recommendations of the United Nations and its specialised agencies, extensive discrimination against women continues to exist, the Preamble concludes that the States Parties to the present Convention are:
Determined to implement the principles set forth in the Declaration of the Elimination of Discrimination Against Women and, for that purpose, to adopt the measures required for the elimination of such discrimination in all its forms and manifestations. (See page 2 of exhibit (2).)
It is our submission that the current case for parental leave is supported by CEDAW. In our view CEDAW requires measures of the kind before you.
Through the Industrial Relations Act the Industrial Relations Commission is vested with the State's power to arbitrate industrial disputes and regulate working conditions. Accordingly, while it is the Executive Government that must satisfy its obligations to comply with those conventions to which it has become a signatory, it is appropriate for the Industrial Relations Commission when making a determination, to consider those international obligations which have relevance.
In summary it is submitted that section 93 of the Industrial Relations Act requires the Industrial Relations Commission to take account of the principles embodied in the Sex Discrimination Act and this includes considering Australia's international obligations under CEDAW.
PART II - Arguments in support of the Claim
(1) Introduction
I would now like to turn to the second part of our submission which appears under the heading "Arguments in support of the Claim" in the outline I have provided to you. (HREOC Exhibit 1)
In this second part of our submission we examine certain provisions of CEDAW which we submit are relevant to the present case. I also identify the nature of the obligations they give rise to. Finally we will examine the relevant provisions of the Sex Discrimination Act
We have identified four main aspects of the claim before you. They are: the claim for 52 weeks unpaid paternity leave;
the entitlement to take extended paternity leave or maternity leave up to the child's second birthday; the entitlement to take the leave in two bites, and the provision of part-time leave as an option where agreed between the employer and the employee.
These four aspects of the claim are all supported by Articles 5 and 16(d) of the Convention on the Elimination of All Forms of Discrimination Against Women and the Preamble thereto and the objects of the Sex Discrimination Act.
Articles 5 and 16 of CEDAW were not the subject of any reservation by the Australian Government. For the text of these articles please look to pages 3 and 6 of our exhibit (2). You will also find them in ACTU 2 at pages 88 and 91 respectively.
(2) CEDAW
Before turning to the Articles themselves I would like first to discuss CEDAW as a whole.
Earlier international conventions dealing with the rights of women have been based on the traditional view of woman as wife and mother. These conventions generally seek to protect women in that role. Examples of these conventions are the Convention on the Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962), Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others (1950).
Significantly, CEDAW represents a move away from the solely protective convention; it seeks the introduction of measures that will achieve a change in the traditional role of women and specifically notes the need for shared parental responsibility within the family. This intention may be found in the preamble which serves as a valuable indicator of the spirit and intent of the document's drafters. Please turn to page 2 of our exhibit (2) (or page 86 of ACTU 2) and the 13th paragraph of the Preamble which reads
Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognised, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole.
This clause acknowledges not only the shared responsibility of men and women in family matters but also the significance of maternity as a role traditionally undertaken by women, and proscribes that this should not be a basis for discrimination.
The need for shared parenting was recognised by many State Parties present at the meeting of the Third Committee of the United Nations when the Convention was discussed in draft form. For example on 17 October 1977, Ms Horlen from Sweden, when asked to comment on the draft Convention on the Elimination of all Forms of Discrimination Against Women, stated:
. . men as well as women should be given an opportunity to reconcile their employment and parenthood responsibilities...
It is also recognised in the Preamble that, in order for women to advance to an equal status with men, the stereotypical roles of men and women in society and in the family need to be revised. The preamble provides at paragraph 14:
Aware 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.
Both these basic premises of the Preamble lend clear support for measures which will have the effect of enabling men and women to share the responsibilities of the family and have been incorporated into the body of the treaty under Articles 5 and 16(d).
I turn now to an examination of the provisions of CEDAW
Article 5 and Article 16.
Article 5
Please turn to page 5 of our exhibit (2) where you will find the text of this Article.
Article 5 was described in a Press Release from the United Nations Press Section (Press Release HR/l019, 17 January 1974) as concerning
the education of public opinion for the eradication of prejudices and practices based on the idea of women's inferiority or stereotyped roles.
Three versions were originally submitted for article 5. Two of these versions included the phrase "the protection of motherhood is a common interest of the entire society" which should bear responsibility for it.
Article 5 requires the State to introduce measures which will educate the public to overcome stereotyped assumptions about the roles of men and women. It is not our submission that the Industrial Relations Commission should introduce paternity leave to foster social reform. It is, however, our submission that a change in the traditional roles of men and women in our society has been occurring, as evidenced convincingly by the ACTU in the part of their case which dealt with these matters.
In Australia's Consolidated Report to the CEDAW Committee for February 1988, submitted pursuant to Article 18 of the Convention, Article 5 is interpreted as
"imposing an obligation on governments to adopt an educative role in removal of practices based on prejudices and stereotyped assumptions to the extent that these practices have the effect of discriminating against women."
In its discussion of efforts by governments to achieve the fulfilment the fulfilment of this obligation the CEDAW Committee commented that the Article was
"challenging the stereotype of a woman as a housewife, fully occupied at home with family and housework".
The Committee supported the introduction of paternity leave and in the context of Article 5 said ;
"employed wives find themselves under considerable stress, subject both to relatively low status and high insecurity in the workforce and the major burden of housework and childcare at home."
It is our submission, your honours, that the claim before you would permit men and women the opportunity in a true sense to step outside the stereotyped roles, in particular the role of housewife and mother for women and to that extent the passage of such a claim would enable one of the aims of Article 5 to be achieved. It is particularly significant in this respect that the claim will extend the period of leave available to parents to the child's second birthday as it has been shown by the ACTU through the national study on maternity leave because the period is considered not long enough.
There is no guarantee that fathers would take up parental leave if it were available, but if it is not made available the possibility for a change in the traditional roles of men and women is severely limited. The introduction of paternity leave would be a timely response to the needs of an ever changing society.
In the past, intolerable pressures have been placed upon women to sacrifice their careers in favour of childcare. This historical pressure has been only partly remedied by the availability of maternity leave which enables women to leave the workforce for a time and retain their job.
As with the maternity leave claim in 1978, this claim is advanced principally by reference [and I quote from that claim] "the changed social and economic role of women within Australia and to their significant participation in and contribution to the Australian workforce".
Should the Industrial Relations Commission grant this claim, men and women will be provided with a viable means of achieving their desire to share equally in the upbringing of their children.
In an article by Margaret Wadstein entitled "Implementation of the UN Convention on The Elimination of All Forms of Discrimination Against Women" she says at page 13:
Article 5 also highlights the role and responsibility of men in the upbringing and development of their children, thereby capturing the statement in the preamble of the Convention which underlies that a change in the traditional roles of women and men in the family is needed to achieve full equality between women and men."
She goes on to say that in this respect experts have asked for statistics regarding the distribution of paid and unpaid work between women and men as well as facts and figures detailing the measures that have been taken to ease the double workload of women. "The focus has been on measures that facilitate and encourage paternity leave" (page 14).
Please turn to page 32 of HREOC exhibit 2 where I have extracted some pages from Australia's Consolidated Report to the CEDAW Committee. Halfway through the third paragraph on page 132 it is stated:
In addition studies show that throughout the 1966-1985 period there has been an excess supply of female labour not adequately measured by the unemployment rate as it is officially defined mainly because they are not actively seeking employment. They have been classified as "discouraged workers", generally because they have experienced problems with discrimination on the grounds of age, language, or they have difficulty with child care arrangements, or simply suitable jobs are not available. The numbers of women in this category have however decreased substantially over the past two years.
If you turn to the bottom of page 134 you will see it is stated that:
Currently surveys show that only 29% of women with pre-school aged children do not intend to re-enter the labour force.
If you then turn to page 142 the second paragraph reads:
The barriers to women's right to work that exist at present can be categorised in two groups. Firstly women's job horizons and options are limited rather than expanded by social conditioning, and education, training and retraining opportunities available. Secondly, the double working life of most women, resulting from their still bearing the major responsibility for children and domestic work, imposes a handicap or penalty on women in the paid workforce. Lacking such provisions as child care, paid parental leave, family leave refresher courses, flexible working hours and supportive social attitudes, most women are limited in their ability to enter and participate in the workforce.
We have already seen the statistical evidence of the increasing entry of women into the workforce. The ACTU in its exhibit 5 has provided numerous statistics which demonstrate that women increasingly wish to enter and stay in the workforce and that this pattern is the same whether the women are married, single, or have dependent children.
Article 5 in the New Zealand Human Rights Commission Report entitled "Convention on the Elimination of All Forms of Discrimination Against Women - What's it all About, A Review Paper, 1984", there was discussion of Article 5. The NZ HRC expressed the view that the Article refers both to men and women and that it is concerned with changing those attitudes which inhibit the opportunities of either sex. Whilst the emphasis is placed on changing attitudes it is fundamental to this process of change that measures be introduced which facilitate a change in attitudes.
We submit that such measures would have to include paternity leave which, if effective, will encourage men to participate more in the upbringing and development of their children.
Further, Article 5 requires the modification of social and cultural patterns and this can be achieved most effectively by the visibility of fathers in the early years of a child's life. In the majority of cases children currently have no expectation that their father will be present in their day to day care. Thus in order to facilitate the aims of parents who wish to achieve a change in their traditional roles it is necessary to introduce measures such as paternity leave which will provide the economic and employment security to achieve such aims. The introduction of paternity leave would also further the aims of Article 5 by providing an alternative role model for young children.
The NZ report states that
the purpose of eliminating stereotypes is to remove the coercive nature of existing expectations, that is to say, to allow people to develop their talents according to their own potential and individuality so that both men and women may exercise their own judgment and wishes in domestic matters, child rearing, commerce, politics etc.
The lack of provision of paternity leave heightens the coercive effect of the stereotype of mother as primary child carer by implicitly endorsing the view that it is unnecessary to make provision for leave for fathers because their "role" does not include "child carer". The availability of leave for fathers would serve to lessen the effect of this coercive stereotype.
Changes in the expectation that it is the mother who bears the primary responsibility for child rearing are slow to develop. The introduction of paternity leave would facilitate the development of changed expectations within the community by enabling men who already wish to participate in child rearing to share in the responsibilities of child care without sacrificing their career opportunities.
In the Australian Institute of Family Studies Monograph No. 7 titled "Maternity Leave in Australia" at page 39, which has been referred to by the ACTU in its submission, it is noted:
... in this study it was found that 1096 partners took leave at the time of birth of their child. Fifty-nine per cent of the partnered women in the sample had partners who took leave at the time of the birth, 35 percent had partners who took no time off work and seven per cent had partners who were unemployed.
The most common form of leave taken by fathers at the time of birth was recreation leave (40%), followed by paternity leave or parental leave."
The Human Rights and Equal Opportunity Commission submits that Article 5 requires the State Parties such as Australia to foster the acceptance of joint parental responsibilities within the family and to make efforts to eliminate sex-role stereotyping. The introduction of paternity leave is vital to this process and to provide support to those individuals who wish to participate shared parenting.
Article 16
I would now like to turn to Article 16(d) of CEDAW. The text of this Article is set out at page 6 of our exhibit.
It has been demonstrated by the ACTU that women still bear the major responsibility for children and domestic work. The introduction of paternity leave will encourage the view that rights and responsibilities in all matters relating to the family are equal. Accordingly the aims of Article 16 of CEDAW would be furthered.
If fathers are able to participate in the early stages of child care, they will be encouraged to accept increased responsibility throughout the upbringing of the child. The traditional roles will be less distinct and it will be less likely that a certain type of task will be considered the privileged domain of one sex over the other.
Fathers who are present from an early stage will obtain skills that they do not otherwise have access to. These skills will enable them to participate more fully in the care and understanding of their children as they grow up.
Parental leave will assist men and women to realise if they desire "the same rights and responsibilities as parents...in matters relating to their children."
(3) The objects of the Sex Discrimination Act
I turn to the next part of our submission which deals with the objects of the Sex Discrimination Act.
I would like to take your Honours back to section 3(d) of the Sex Discrimination Act which I discussed earlier. Equalisation between the sexes requires the acknowledgement of existing inequality of opportunities for women as a result of their traditional role as primarily responsible for the care of young children and consequent loss of career opportunities. In order to remedy this it was maternity leave for women was and continues to be necessary.
Mere acknowledgement of inequality is insufficient, however. It is also necessary to accept and recognise that men should share equally in family responsibilities and accordingly should be given the opportunity to do so. Measures are required which make it possible for men to assume an equal role in family responsibilities without sacrificing their careers. Only in this way that will men be encouraged to relieve women of the primary burden of childcare and be capable of it.
Australia's Consolidated Report to the CEDAW Committee 1988 states (page 33 of HREOC exhibit 2):
At September 1987 there were 1,120,700 women employed part-time. This represented 39.1% of all employed women and 78.3 per cent of all part-time employees. At March 1987 there were 518 200 women who although not officially counted as unemployed wanted to work and were available to start work within four weeks but were not actively looking for work. Of these 518 200 women, 235 500 (45.4 per cent) of them gave family considerations as the reason they were not actively looking for work.
Family considerations were broken down as follows:
Ill health of other than self (5%), unable to find suitable child care (28.7%), children too young/ preferred to care for children (49%) and other family considerations (17%).
These figures indicate that many women would find it easier to return to the workforce if alternative child care arrangements were available. Paternity leave would provide such an alternative.
Women who expressed a desire to care for their very young children may find it easier to pursue their own careers if they could hand over the day to day care of the child to the father. This possibility would be available if fathers were given the option of taking paternity leave in the manner made possible by the claim before you. If the leave is taken consecutively women would be able to rely on their partners to actively support them in their return to the workforce after a period of absence of one year. Thus the traditional expectations upon the mother to continue looking after the child would be balanced by the active support of the father in the return of the mother to the workforce.
Similarly the existence of part-time parental leave would enable women to maintain some connection with the work place whilst still taking time off to care for their child. Further the availability of this option to both parents ensures that parents who do not wish to place their child in childcare prior to the age of two would nevertheless be able to maintain a working life combined with family life.
Section 3(d) of the SDA requires that measures be taken to enable women to participate with equality of opportunity in the workforce. Maternity leave was the first step in this process of ensuring equal opportunities. It enabled women to retain their position in the workforce, their long service entitlements and thus their promotional opportunities rather than forfeiting them as a result of their absence from the workforce for child birth and care in the first year.
It can be seen from the statistics presented that it is necessary to enable men to take on some of the burden of child care to remove the remaining limits on the job horizons of women which result from a double working life and the fact that women still bear the major responsibility for children and domestic work.
It is arguable also that this double working life has the effect of indirectly discriminating against women who may find it more difficult to succeed in the workplace despite their continued place in it. In this respect section 3(b) of the Sex Discrimination Act would be furthered by the introduction of paternity leave.
(4) The provisions of the Sex Discrimination Act
The final part of my submission deals with the provisions of the Sex Discrimination Act.
I would like to begin by referring to the question which Commissioner Moore put me on notice (transcript p700). That question concerned the interpretation of section 31 of the Sex Discrimination Act.
I would like to place section 31 in context so that its interpretation can be more readily discerned.
If you turn to page 3 of our exhibit 2 you will find the text of Article 4 of CEDAW set out. Article 4 states:
1. Adoption by State Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved
2. Adoption by State Parties of special measures, including those measures contained in the present Convention, aimed at protecting maternity shall not be considered discriminatory.
Sections 33 and 31 of the Sex Discrimination Act are based on Article 4(1) and 4(2) respectively and accordingly it is useful to look to Article 4 for guidance in the interpretation of these sections.
In Koowarta v. Bjelke-Peterson (1982) 153 CLR 168 per Brennan J at page 265 it was stated that
a statutory provision corresponding with a provision in a treaty which the statute is enacted to implement should be construed by municipal Courts in accordance with the meaning to be attributed to the treaty provision in international law.
In Koowarta the Court was referring to the Racial Discrimination Act 1975 which uses similar words to those found in the treaty it is intended to implement (namely the International Convention on the Elimination of Racial Discrimination). However, in the case of Sex Discrimination Act it is not necessary to construe the intention of Parliament from the language used. This is because the intention of Parliament is clearly set out in section 3(a).
It is submitted that the words "in connection with pregnancy and childbirth" in section 31 were intended to convey the meaning that the word "maternity" conveys in Article 4. The reason for the use of these words instead of the word "maternity" is that these same words appear section 35 of the New South Wales Anti-Discrimination Act 1977 which served as a useful precedent.
The issue remains as to whether these words should be interpreted narrowly or broadly.
Australian case law would suggest that the prevailing view with regard to the interpretation of provisions in statutes such as the Sex Discrimination Act is that they should be interpreted in a way that furthers the objects of the Act.
In the case of Clarke v. Eley (IMI) Kynoch Ltd [1982] IRLR 482 Browne - Wilkinson J, when interpreting the meaning of the words "requirement or condition" as found in the English Sex Discrimination Act 1975, said:
In our view it is not right to give these words a narrow construction. The purpose of the legislature in introducing the concept of indirect discrimination in the 1975 Act and the Race Relations Act 1976 was to seek to eliminate those practices which had a disproportionate impact on women or ethnic minorities and were not justifiable for other reasons.
Preistley J A approved of this statement in Australian Iron and Steel Pty Ltd v. Najdovska (1988) 12 NSWLR 587 at 611. Priestly J A also quoted with approval the statement of Waterhouse J in Watches of Switzerland Ltd v. Savell (1983) IRLR 141 when he said:
statutory words should be given a liberal interpretation in order to implement the object of the legislation.
While these cases dealt with the meaning of the words "requirement or condition" and not the words we are currently concerned with in this case, they nevertheless indicate that where there is uncertainty about the meaning of words contained in remedial legislation those words should not be interpreted narrowly.
There is, however, authority in relation to interpretation of the words "condition and requirement" which suggests that a narrow view is appropriate, for example Perera v. Civil Service Commission [1983] IRLR 166 and Meer v. London Borough of Tower Hamlets [1988] IRLR 399.
Whether or not section 31 is read in its narrow or broad sense the Human Rights and Equal Opportunity Commission considers that maternity leave would nevertheless fall within the exemption set out in section 33 of the Sex Discrimination Act.
Again turning to CEDAW to aid in the interpretation of section 33 I submit that the section aims to preserve those measures created to remedy de facto inequality where there is de jure equality. De jure inequality would therefore arise only when a special measure is in place.
In order to decide that an act or practice which would otherwise be discriminatory is a special measure it is necessary to adduce evidence (whether statistical or other) which shows that there is existing inequality which can be remedied by the special measure. The inequality however is not determined by an examination of legal rights. It is ascertained by examining the circumstances in fact.
In the case of maternity leave it would be necessary to show that maternity leave was warranted because without it women were suffering unequal opportunities at work even though ostensibly at law they had equal opportunities.
In my view, it would not be difficult to show that the loss of such things as job security and promotional opportunities, as experienced by women due to their prevalent role in child bearing and caring, were evidence of inequality of opportunity.
As the section is not intended to exempt the discriminatory act beyond the date on which equality is achieved, it would be necessary to re-assess the statistics at regular intervals to ascertain whether or not the special measure is still warranted.
I wish to state however, that it is the view of the Human Rights and Equal Opportunity Commission that the introduction of paternity leave is a necessary step (a further special measure if you like) to ensure the equal opportunities of men and women in the work place. It has been our aim in this submission to demonstrate just how paternity leave is consistent with these aims.
FURTHER SUBMISSION OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
May it please the Commission I would like to provide information which was requested by CMR Griffin when I appeared before the Commission on behalf of the Human Rights and Equal Opportunity Commission on 14 February 1990 regarding the meaning of the word "maternity" as found in Article 4(2) of CEDAW.
As I submitted at that time it is the view of the Human Rights and Equal Opportunity Commission that section 31 of the Sex Discrimination Act should be interpreted in light of Article 4(2) of CEDAW.
CMR Griffin asked whether there were any "tests" as to the meaning of "maternity" in Article 4 of CEDAW and Deputy Presidents Moore and Polites asked for any material I could gather that dealt with that issue.
Before I turn to an examination of the meaning of "maternity" I would like to stress that my comments on page 947 of the transcript which refer to maternity leave as a special measure under section 33 of the Sex Discrimination Act continue to apply.
Further, it is noted that there is some discrepancy between the view of the ACTU and the view of the Human Rights and Equal Opportunity Commission with respect to the interpretation of section 31 of the Sex Discrimination Act. It is my view that in all other respects our arguments are consistent.
I would now like to turn to an examination of the word "maternity".
The ordinary meaning of the word "maternity" as found in the Macquarie Dictionary is:
"the state of being a mother; motherhood"
"motherliness"
"belonging to or characteristic of motherhood or the period of pregnancy"
In my view it is not insignificant that "maternity" has been used for the last ten years to describe a period of leave attributable to mothers for the purposes of childbirth, physical recuperation and childcare. In the case of the present maternity leave provisions the word "maternity" refers to the state of being a mother and "maternity leave" is that period deemed appropriate taking into account all relevant industrial circumstances.
The discussion in the travaux preparatoires to CEDAW on reproductive health and child care is ambiguous. It would appear that maternity sometimes refers only to child bearing and physical recuperation. However, it is often the case that a wider definition of maternity is taken for granted although not specifically explained. For instance, where discussion centres around the issue of maternity leave as opposed to parental leave. This raises questions about whether or not some "care time" has been interpreted as part of the meaning of maternity.
It is left unclear which terms refer to what - as both inferences can be drawn from the discussions in the travaux as well as the various contexts in which "maternity" appears in the Convention itself. Unfortunately, earlier versions which did distinguish were not adopted and their elimination and/or incorporation into the present documents are not explained.
I will outline briefly the various usages of these terms throughout the development of the Convention. My reference for this information is Rebecca Cook, the Assistant Professor and Director of the International Human Rights Program at Toronto University. She is a distinguished authority on CEDAW and has examined the travaux preparatoires to the Convention in order to extract for us a useful definition of the word "maternity". Three main documents are cited:
1. E/CN.6/591 1976 Working Paper prepared by the UN Secretary-General
2. E/CN.6/608 1976 Commission on the Status of Women. Report of the 26th Session Official Records.
3. A/C.3/32/L59 and A/C.3/33/L47 1978 Report of Working Group
As a number of Articles in CEDAW use the word "maternity" it was felt appropriate to consider each of them. The relevant Articles are Articles 4, 5, and 11 and the earlier draft Articles 12 and 13.
Unfortunately, I have not been able to obtain in time for this hearing the full texts of the earlier draft Articles 12 and 13 which have now been replaced by Article 11. However, where the current Article is referred to I have quoted it in full for ease of reference.
1. E/CN.6/591: 1976
a) Article 4(2) which currently reads:
Adoption by State Parties of special measures, including those measures contained in the present Convention aimed at protecting maternity shall not be considered discriminatory.
originally in draft form read:
"measures undertaken for the protection of women.. . due to their physical nature and for the [promotion of the welfare of mothers] shall not be interpreted. . .
Some members proposed deletion of this phrase. Some members also proposed complete deletion of Article 4(2) noting that other Articles dealt with security of women workers and the promotion of welfare of working mothers. The World Health Organization recommended "Measures undertaken for the protection of women related to reproduction and child bearing..."
All of the above were subsumed into "maternity" at the 26th session without discussion. Therefore it is unclear which aspects have been incorporated into the term. It would appear in light of other discussions that the meaning tends toward reference only to childbirth and physical recuperation. The World Health Organization's recommendation would appear to broaden the scope of the meaning of the terms since they use the words "related to".
(b) Articles 11(2)(b) and (c) provide:
In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, State Parties shall take appropriate measures:
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances
(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities.
There was a proposal by Sweden to change "maternity leave" to "paid leave for parents".
The ILO proposed cross references to the ILO Maternity Protection Convention (Revised) No. 103.
There was no discussion specifically on the interpretation of "maternity leave" or "pregnancy" in 11(2) (a)
It is worth noting that there was originally draft Article 12 that dealt exclusively with pregnancy and maternity. This Article referred specifically to pregnancy, childbirth and maternity as three different concepts. When discussing special measures for women, there was a reference to "pregnancy, childbirth and after confinement" being provisions included in Article 11. However, there is no discussion regarding the use of the terms "pregnancy", "maternity leave" and "child care" in Article 11 as relating to the terms "pregnancy", "child birth" and "maternity" in the original draft Article 12.
There was extensive discussion relating to parental as distinct from maternal obligations. Some members stated that both parents should be encouraged to care for their children, others stated that this may be good family policy but that CEDAW was not the proper place for such recommendations.
Therefore the use of maternity leave may in fact refer to leave beyond childbirth and recuperation. This raises the question of what the word "maternity" itself means.
2. E/CN.6/608
(a) Article 4(2) was accepted as it currently stands at the 26th Session. Its relationship to Article 11 was stressed and it was felt these two Articles ought to be discussed together. However, there are different terms used at different points in the discussion. For instance the terms "pregnancy", "maternity leave" and "maternity" are all used. There was no discussion as to the precise meaning or scope of the provisions.
(b) In Article 11(2) "maternity leave" as distinct from "maternity" was accepted but there was no further discussion of these terms.
It should be noted that the original draft Article 13 dealt with what is now dealt with under Article 11(2) (b) and (c). There was much discussion in the debates regarding maternal versus parental leave in the context of combining work and child care. Notably, the current Article 11(2) (b) refers specifically to maternity leave and Article 11(2) (c) refers to family obligations. The scope of the terms "maternity" and "maternity leave" was not discussed.
It is notable also that the terms of the original draft of the current Article 11(2) (b) read "Granting paid leave for pregnancy and maternity. . ."
3. (a) A/C.3/32/L59: 1978
Article 5 provides:
State Parties shall take all appropriate measures:
(a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or superiority of either of the sexes or on stereotyped roles for men and women:
(b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.
Originally Article 5(b) included the word "motherhood". This was changed at different times to either "parenthood" or "maternity" and finally was replaced by the term "maternity". There was no recorded discussion of why this choice was finally made.
A/C.3/33/L47: 1978
Article 11(2) (c) was adopted as it currently reads. There was no discussion as to the distinction between child bearing and child care.
I note that my discussion of this issue at page 948 of the transcript takes a particular view of maternity which may or may not be substantiated by the material I have presented. I note that the ACTU has taken the view that section 31 should be read to refer only to childbirth and physical recuperation. It is my opinion that both these views are substantiated to some extent by the material I present to you now.
In the Australian context and in the context of the Sex Discrimination Act I reiterate my view that the Sex Discrimination Act should be interpreted broadly in accordance with the remedial aims of the Act.
In my view paternity leave is justified on the grounds described in detail in my formal submission. As I stated at the beginning of this further submission there is some discrepancy between the view of the ACTU and the view of the Human Rights and Equal Opportunity Commission with respect to the interpretation of section 31 of the Sex Discrimination Act. It is my view that in all other respects our arguments are consistent.
Last updated 20 May 2003.
