Developments in discrimination jurisprudence
and paid maternity leave
Sally Moyle, Director Sex Discrimination
Unit, Human Rights and Equal Opportunity Commission
45 minute speech, 23 July 2003,
Lexis Nexis Butterworths: Avoiding Litigation and Minimising Risk in Employment
Law, Crown Plaza Darling Harbour, Sydney NSW 2000
- Thank you for inviting me to address
today's conference.
- I have been asked to discuss the
latest legal developments in the area of sex discrimination including the
latest developments in maternity leave.
- As the Director of the Sex Discrimination
Unit I work with the Sex Discrimination Commissioner, Pru Goward, in her policy
and advocacy work.
- One of the objects of the Sex
Discrimination Act 1984 is to promote the notion of equality between men
and women. To do this we are tasked to undertake research, produce publications
and voluntary guidelines and engage the public agenda.
- The Commission and the Commissioner
also have the ability to seek leave of courts to intervene in court cases
that deal with important issues of discrimination and equality. We are able
to appear as either a party to litigation or as amicus curiae.
- It is important that the Commission
continues to intervene in cases involving the Sex Discrimination Act
and that the Sex Discrimination Commissioner continues to seek opportunities
to be amicus curiae. We see the development of comprehensive case law
as vital to the acceptance of human rights and equal opportunity in Australia.
- Interestingly, for such a slim
piece of law, the Sex Discrimination Act is surprisingly complex and
obscure. There are gaps in our understanding of the limits of operation of
the law, and the jurisdictional framework can only be described as a jigsaw,
patching together bits of federal jurisdiction form various heads of power
under the Constitution.
- It will be to the benefit of us
all, and particularly of workplace participants, to have some jurisprudence
developed to make the limits of the law clear.
- I refer to workplace participants.
This is an important area of work for the Sex Discrimination Unit. This is
because 85 per cent of the complaints received under the Sex Discrimination
Act in 2001/02 were in the area of employment. It is obviously the major
focus of concern of complainants under our Act, and therefore it is of major
concern in our policy and advocacy work.
- Today I would like to discuss
some of our legal work under the Sex Discrimination Act and also discuss
some of the policy and advocacy work we do.
- It is encouraging to note the
inclusion of paid maternity leave as an issue in a discussion of discrimination.
- Being proactive to eliminate discrimination
is obviously important for managing risk and avoiding litigation. But it is
also increasingly being recognised that managing diversity, promoting equity
and eliminating a culture of harassment and discrimination are good management
practices and important for productivity and the bottom line. Providing family
friendly policies and practices such as paid maternity leave is part of this.
- I would even go further, however,
and argue that a failure to do so is a form of gender discrimination. It is
a context for considering work and family work that should be recognised more
often.
- Public debate has primarily placed
paid maternity leave in this work and family context - and rightly so.
- In adopting this approach it is
however easy to forget that the failure to provide women in Australia with
paid maternity leave is also part of the big picture workplace discrimination
that women experience as a result of their childbearing and child caring role.
I will discuss some of these issues as we go.
- In 2001/02 over one third of the
complaints received by the Human Rights and Equal Opportunity Commission under
the Sex Discrimination Act related to pregnancy discrimination and discrimination
on the ground of family responsibility.[1] Another
third or so are sexual harassment - that perennial concern. Most of the rest
of the complaints are sex discrimination complaints - and many of these are
indirect sex discrimination that involve "motherhood' issues. Clearly most
of most of the complaints under our act relate to women's reproductive role.
- So it appears that women in Australia
continue to experience this form of discrimination in the workplace at an
alarming rate - remembering that these statistics only reflect the number
of incidents actually complained about.[2]
- Just looking at pregnancy discrimination
complaints - obviously an issue concerning women's reproductive role - there
has been a remarkable increase in the number of complaints of pregnancy discrimination
received from the previous year, being 2000-01.
- In 2000-01, 86 of the 552 complaints
received under the Sex Discrimination Act, or 16 per cent, related to pregnancy
discrimination.[3]
- In 2001-02 complaints of pregnancy
discrimination made up 212 of the 707 complaints received, or 30 per cent.[4]
- This is an almost 150 per cent
increase in numbers and a proportional increase of nearly 100 per cent!
- While this increase may be indicative
of greater awareness around the issue of pregnancy based discrimination since
the Federal Sex Discrimination Commissioner, Pru Goward, launched a paper
outlining a proposal for a national scheme of paid maternity leave last year,
this does not deny that this discrimination is occurring and needs to be addressed.
- To understand this discrimination,
we need to consider the gender assumptions upon which this discrimination
is based.
- First is the assumption that as
women are the bearers of children they should be responsible for the caring
and raising of children.
- Alongside this is the assumption
that men will be the 'breadwinners' providing families with their financial
means.
- Social and economic factors have
combined to see women more present in the paid workforce, and therefore challenging
these assumptions.
- Unfortunately what is has often
meant for these women is that they do the "second shift" they try to juggle
work and family responsibilities without seeing much change from their male
partners and little change in workplace structures.
- Women are therefore forced to
work in a society and workforce structured for a male worker and a female
child carer.
- It is hardly surprising then that
the female workforce experience is characterised by gender pay gaps. The average
weekly full time ordinary time earnings of women are 84.3 per cent of male
earnings;[5] when part time and casual workers
are added into the equation, women earn only 63 cents to the male dollar.
And this is not just part of a catch up, either - the full time earnings ratio
dropped over the last year and has been stagnating for nearly a decade.
- Women also suffer financial disadvantage
compared to men as a result of foregone earnings from taking time out of the
workforce to give birth to children - women with high levels of education
(12 years) forego $239 000 in lifetime earnings from having one child.[6]
This time out means that the women never quite catch up with their male and
childless female peers.
- Because of course women who remain
childless - and their numbers are increasing - do not need to forego earnings
as a direct result of leaving the workforce to have children.
- However these women are still
disadvantaged compared to their male peers because of gendered assumptions
about all women and all men. This can range from decisions made by young men
and women that lead to the highly sex segregated workforce we have in Australia,
and in which "women's" work is undervalued compare to what is seen as "traditionally"
men's. It is also the result of workplace discrimination.
- Let's briefly consider the male
worker for whom the workforce is designed.
- He enters the workforce, puts
in the hours, the overtime, the years and reaps the benefits which come in
the form of pay rises and promotions.
- It is a vertical climb and in
theory, should he continue to follow this pattern, there is nothing stopping
him from reaching the top. Of course we all know that socio-economic factors
such as race and class affect these outcomes, but certainly, it is likely
that gender is the most significant determining factor in how we spend our
working lives.
- For the 76 per cent of women expected
to have children, the experience will be vastly different.[7] Their
workforce experience will be usually involve career breaks.
- They may also require a different
mode of working - part time work, more access to flexible hours, perhaps a
greater need to use personal leave to care for sick children.
- Women's working lives will be
less likely than men's to be a straight line, more like a meandering path.
- Of course we know all of this.
For women to participate equally in the paid workforce, increasingly workplace
professionals are becoming aware that we need to restructure the workplace
to accommodate women's family responsibilities.
- This is exactly what paid maternity
leave provides. It makes it possible for women to leave the workforce
for a period of time around the birth of their child, while her position in
the workforce remains, at least in theory and according to the law, secure.
- Paid maternity leave means
women actually can access this period of leave - as no loss of income
will be incurred in doing so.
- Paid maternity leave therefore
allows women to combine paid work and motherhood in the period directly after
the birth of a child.
- This is why the Human Rights and
Equal Opportunity Commission recommended that a national scheme of paid maternity
leave be introduced.
- The paper, A Time to Value,
was released in December 2002. The paper outlined the benefits of a national
scheme of paid maternity leave, which include assisting in ensuring the health
and wellbeing of women and their children, promoting equality, eliminating
discrimination, contributing to the maintenance of Australia's fertility rate
and assisting with the maintenance of Australia's human capital.
- The paper proposed that women
who had been in paid work for forty of the past fifty two weeks be entitled
to fourteen weeks of paid leave, up to the level of the Federal Minimum Wage.
The payment would be Government funded. Women receiving the benefit would
not be entitled to Family Tax Benefit A and B for those weeks, would not be
entitled to the first twelve months of the Baby Bonus nor to the Maternity
Allowance.
- It was estimated that this scheme
would support 82,000 women currently in work at the time of their baby's birth.
- It is a good first step in both
allowing women to combine work and family responsibilities and in addressing
the discrimination they experience as a result of doing so, but it is only
a first step for a number of reasons.
- First, although stating the obvious,
a child is a long term responsibility. Paid maternity leave will at best allow
a woman to balance work and child care in the first few months of the child's
life.
- It is therefore not a response
to any of her needs and the subsequent discrimination she may experience once
she returns to work. And we know this is a real issue.
- It can be argued that the symbolic
valuing of motherhood that paid maternity leave may bring will result in a
greater valuing of motherhood in general and therefore a reduction in the
discrimination that women will face when they attempt to balance work and
family responsibilities at other points of their working lives.
- For most women, of course, however,
this is still hypothetical. Only about 30 per cent of women in the Australian
workforce have access to some form of paid maternity leave[8]
- and the average length of time for which it is offered is 6 weeks.[9]
- And of course paid maternity leave
is not any kind of silver bullet. It can only be useful as a first step in
restructuring our workforce to be more gender and family friendly.
- So paid maternity leave is a good
first step for allowing women to combine paid work and family responsibilities.
But it allows only women to better combine work and family.
- We proposed that paid leave be
available to women only and should not be transferable to fathers. This was
a contentious decision. However, we decided that the first fourteen postnatal
weeks should be available to the birth mother only for recovery purposes.
- But of course bearing should not
be confused with caring for children.
- We need to accept the challenge
of making sure that men are able to participate in caring for children over
the long years of their childhood.
- In terms of addressing discrimination
we must do more than make it possible for women to do the double shift with
greater ease.
- Work and family must therefore
become more than a women's issue.
- It is imperative that we engage
men.
- This should actually be quite
simple, because unlike child bearing, which is a function biologically limited
to one sex child caring and child raising is about parenting - and parenting
is about both mothers and fathers.
- Both men and women should be given
the ability and opportunity to both work and parent.
- But while we are seeing women
moving into the paid workforce in droves, we are not seeing men taking up
a comparably greater share of unpaid caring work.
- Since 1982, there has been a 76
per cent increase in the amount of time married and de facto women spend working.
They have managed this extra work in a range of ways, including by sleeping
less, buying more pre-prepared food, outsourcing domestic chores and spending
less time on recreation and leisure. In 1997, women undertook around three
quarters of unpaid childcare work, and two thirds of housework.
- In 1997, men spent 16 minutes
a day on average in child care as a main activity, women 45 minutes.[10]
These figures drastically increase when we take into account multi-tasking
and the fact that not all people do childcare - amongst people who actually
did some childcare, men spent an average of 301 minutes a day and women spent
488 minutes a day on child care.[11]
- So what to do about this? It requires
practical and attitudinal changes.
- While we recommended the first
fourteen weeks of paid leave be maternity leave only, and available to non
birth parents only in very limited circumstances, any longer period of paid
leave should be shared between parents.
- This is the standard practice
across Europe.
- In Denmark for example 28 weeks
of paid maternity leave is provided to mothers, the last 10 of which may be
taken by the father.
- Turning to more long term measures
- flexible working arrangements, including part time work should be available
to all parents.
- It can be argued that currently
they are. It is true, when workplaces offer flexible arrangements they rarely
restrict them to women, rather making them available to all employees. The
year of unpaid parental leave is available to either mothers or fathers.
- In theory then there is nothing
stopping men from accessing part time working arrangements or flexible work
hours.
- In reality, we do not live in
a society which tolerates or venerates men who do part time work or leave
work early to pick up a sick child from school.
- Our culture is such that these
men are more likely to be seen as uncommitted to their careers to an even
greater extent than women who allow their family life to intrude into their
working life. The tariff for being involved in the unpaid caring work of their
families is very high for men.
- So most of them don't do it. And
as long as men continue to earn more than women it usually makes more sense
for the women to change her paid work arrangements to factor in child care.
The discrimination is self perpetuating and circular.
- The reality is then that we can
implement as many 'family' friendly practices or policies as we like,
however unless they are coupled with a genuine attitude that either
parent can access these measures they will be for 'women only'.
- Litigation can assist in this
challenge. Obviously legal decisions can provide clarity on areas of law and
in particular fact situations that have previously been untested. This is
exactly what we are seeing in the federal discrimination jurisdiction before
the Federal Court and the Federal Magistrates' Service.
- Litigation is also useful in changing
attitudes. And we are certainly seeing that in the federal discrimination
jurisdiction also.
- Using intervention powers or acting
as amicus curiae the Sex Discrimination Commissioner is also able to raise
broader issues of sex discrimination in the courts and hopefully influence
jurisprudence in this area.
- Each of the special purpose Commissioners
of the Human Rights and Equal Opportunity Commission have the function of
assisting the Federal Court or Federal Magistrates Service as amicus curiae
in discrimination matters.
- An amicus curiae is a "friend
to the court" who assists the court on points of law in a particular case.
- Amici are generally not parties
to the proceedings, do not file pleadings or lead evidence and they may not
lodge an appeal.
- This amicus curiae function can
only be exercised with the leave of the Federal Court or the Federal Magistrates
Service where the Court is hearing an application alleging unlawful discrimination
under Division 2, Part IIB of HREOCA.
- Commissioners may seek leave to
appear as amicus where:
- the Commissioner thinks the
orders may affect to a significant extent the human rights of persons who
are not parties to the proceedings; or
- the proceedings, in the opinion
of the Commissioner, have significant implications for the administration
of the relevant Act/s; or
- the proceedings involve special
circumstances such that the Commissioner is satisfied that it would be in
the public interest for the Commissioner to assist the Court as amicus.
- The Human Rights and Equal Opportunity
Commission has produced Guidelines on the amicus function which are available
on our website.
- However myself and the SDU, in
conjunction with the Legal and Complaints sections of the Commission, are
keenly involved in assessing case as suitable for amicus applications.
- We have regular meetings to assess
terminated cases and discuss those applications that are sent to us by the
courts. Parties are actually required to send us a copy of any application
from a HREOC complaint, but in practice they often don't so we rely on the
court to forward copies of all applications to us for as assessment as potential
amicus cases.
- To date, there have only been
two cases in which the Sex Discrimination Commissioner has acted as amicus,
under the statutory regime, where the case has proceeded to a decision.
- Both cases were sex discrimination
matters and therefore both involved the Sex Discrimination Commissioner acting
as in this role.
- The cases were Ferneley v The
Boxing Authority of New South Wales[12]
and Gardner v AANA Ltd .[13]
- Both cases related to issues surrounding
women in sport. As this is outside of the topic of today's discussion I will
not discuss either in detail.
- While we keep our eyes open for
any matters that could either be risky or good opportunities in terms of the
development of the law or the interpretation of our legislation (such as in
the case of Ferneley), in practice we have defined a number or areas
of law where we re-focussing on getting some jurisprudence developed - the
discrimination experienced by women as a result of trying to combine work
and family being one such area.
- The Sex Discrimination Commissioner
cannot choose when she introduces important gender issues into the courts
when acting as amicus curiae or when intervening in cases. Rather she has
to wait for the correct opportunity and context (being the case).
- Once acting in either of these
roles the Commissioner is however able to bring to the court's attention relevant
sex discrimination issues as they affect many women - not just the complainant.
- For example, and in relation to
the discrimination that women experience as a result of trying to balance
work and family responsibilities, the Commissioner intervened in the case
of Ainsworth v Song.
- This intervention occurred when
the matter was on appeal before a Full Court of the Federal Court in 2002.[14]
- The issue at the core of the case
was dismissal on the ground of family responsibility.
- The Commission made written and
oral submissions to the Court about the meaning of "dismissal".
- Although the matter was fully
heard, it was since settled by the parties and no judgment was received.
- During the hearing the Court made
it fairly clear that they accepted the position put for Ms Song and by the
Commission that "dismissal" included constructive dismissal (as had been the
finding of the Magistrate at first instance).
- The Court seemed to accept that
Ms Song had been dismissed in this case by virtue of the fact that she had
been "demoted" to part-time employment by her employer who refused to let
her have a flexible working day that would have enabled her to take a 20 minute
break each afternoon to pick up her young son and drop him home.
- In fact all Ms Song had wanted
to do was change her lunch break from 1pm to 2.30pm to enable her to do so.
- The Court made it very clear that
it thought that it was extraordinary that the employer was not prepared to
settle the matter by allowing the flexibility that Ms Song sought.
- They urged, repeatedly, for the
parties to consider mediation and, unusually, suggested at the conclusion
of the hearing, with the decision reserved, that they take advantage of the
services of the Registrar in having one last try at settling the matter.
- The matter was settled and therefore
discontinued before a judgment was delivered.
- Although disappointing from the
point of view of development of the law, I expect it was a good thing for
Ms Song. Such is the lot of the intervener!
- Despite this outcome it appears
from this case that the courts believe that employers should be working with
employees to find solutions that will make it possible for them to combine
work and family - rather than using these conflicting commitments as grounds
for dismissal.
- These cases, as I say, have a
great ability to advance our understanding of the law and to change attitudes.
- However, there is one important
gap. And that is men's ability to litigate discrimination on the ground of
family responsibilities.
- Under the Sex Discrimination
Act, the ground of family responsibilities is limited to discrimination
that results in dismissal. It has been found to include a fairly broad interpretation
of constructive dismissal, but it is still a limited ground of discrimination.
That's why the numbers of complaints on that ground are so low - around 2%
of all complaints under the Sex Discrimination Act.
- What is more commonly being used
now in the federal jurisdiction to address this kind of discrimination is
indirect sex or pregnancy discrimination.
- The first and one of the most
well known cases concerning the discrimination women experience as they attempt
to balance work and family responsibilities, Hickie v Hunt and Hunt[15]
in fact was an indirect sex discrimination case.
- This case involved a female solicitor
at a law firm who had been nominated for advancement to contract partner.
- After the nomination, the woman
advised the firm that she was pregnant. It was agreed that she would take
three months off work after the birth and then work three days per week on
her return.
- Shortly before her scheduled return
several of the firm's partners met with the solicitor and suggested that she
reduce her practice and give up a number of her case files.
- She did not agree with this proposal
and the firm then refused her request for a temporary replacement. She returned
to work, working three days from the office and two days from home.
- In a subsequent performance assessment
the woman received an unfavourable review. In noted "I do not believe you
can run a practice and service clients three days per week."
- The woman's partnership contract
was not renewed and she complained that the statement concerning part time
work was in effect a requirement that she must work full time to maintain
her position and that such a requirement was indirect discrimination on the
grounds of sex.
- The firm responded to this by
saying that full time work was inherent to the position.
- Our Commission, which at that
stage was still hearing complaints of discrimination, found that the requirement
to work full time would inevitably disadvantage women practitioners who, like
all women, have the major responsibility for caring for children. The Commission
found that the requirement to work full time imposed on the solicitor in order
to maintain her position was not reasonable in the circumstances: indirect
sex discrimination.
- Because the case was framed as
indirect sex discrimination, a man in a similar position would not have succeeded.
- So unfortunately it was able only
to entrench attitudes around men's and women's respective roles in unpaid
caring work.
- This is one of the limits of the
Sex Discrimination Act and I believe it is one that needs to be addressed
- we need to broaden the scope of our family responsibilities anti-discrimination
provisions under the Sex Discrimination Act as some of the State and
Territory jurisdictions are now doing with their anti-discrimination legislation.
- However, in another sense, Hickie
v Hunt & Hunt was very successful in stimulating debate and affecting
attitudes - for example, at the time, it was discussed as establishing a right
to part time work (and of course this wasn't always seen as a positive!).
- Cases since are showing that a
blanket refusal to consider a woman's request for part time work on return
from maternity leave can be considered discriminatory.
- The case of Thomson v Orica
Australia Pty Ltd[16] , for example, moves
this principle along.
- In this case the complainant was
a high level account manager for a large chemical company.
- Upon returning from 12 months
maternity leave she discovered that although she had the same salary, car
and title, she had been sidelined to another division of the company where
she was to be responsible for looking after hundreds of inactive, small accounts.
- This was held by the Federal Court
to be unlawful discrimination on the grounds of pregnancy.
- Justice Allsop who presided over
the case, held that the complainant had been 'somewhat shabbily and arrogantly
treated' as a result of going on maternity leave.
- He rejected the company's argument
that the position given to her upon returning to work was identical to her
previous one.
- He stated that a position was
more than just a salary and title it was also status, duties and responsibilities.
- He pointed to the company's own
family leave policy which the complainant had relied upon and was denied.
- It stated that employees have
the right to return to their previous position following maternity leave,
or if that no longer exists, to a comparable position if available.
- This decision highlights that
courts will not let companies hide behind 'glossy' family friendly work policies.
There has to be substance and genuine commitment to these policies.
- These are great advances, but
discrimination cases suffer the same limitation as all litigation - they are
essentially reactive.
- That's why the ACTU's work and
family test case which is expected to be heard by the Australian Industrial
Relations Commission this year is exciting. As a test case, it is intended
to be proactive on these issues.
- The test case will aim to have
a number of clauses inserted in a variety of awards.
- These clauses include the right
to return to work part time from parental leave, the right to request part
time work to meet family responsibilities at other times and an extension
of unpaid parental leave to two years.
- That this test case has the ability
to facilitate change on a broader level and in a proactive manner was highlighted
by the Sex Discrimination Commissioner who stated in her media release that
the social implications that may arise out of the test case are crucial.[17]
- In addressing work and family
issues the Sex Discrimination Unit is also able to undertake a diverse range
of proactive activities.
- This includes the production of
the Pregnancy Guidelines, which outline the lawful way in which employers
should deal with pregnancy in the workplace.
- The guidelines provide a benchmark
against which employers can develop and update their policies and procedures.
- Likewise, the Sex Discrimination
Unit's paid maternity leave campaign aims to make it possible for women to
combine work and mothering in the early weeks of a child's life. It has the
potential to be a policy proposal which signals a shift in the way we approach
parenting in the workplace.
- Now I started writing this speech
wanting to give you all a very practical and pragmatic discussion of developments
in the law around sex discrimination and equality. However, I decided that
unless we remind ourselves every so often of where we are going and why, it
is sometimes difficult to work consistently towards those goals.
- I would suggest to you that what
we are trying to achieve is a society that allows both men and women to parent
and to participate in the paid workforce without disadvantage. It would be
good for women - we would reduce the amount of workplace disadvantage we currently
suffer. And we would probably get a lot more sleep. Men would be able to participate
in the caring roles that we are now seeing they sorely miss. Kids would no
doubt benefit from having two available parents. Our workplaces would be more
productive and efficient. And our society would be a better functioning place
in general.
- It is an approach I would commend
to you. As I say, there is not silver bullet. But these challenges can be
met.
- Human
Rights and Equal Opportunity Commission Annual Report 2001-02 at http://www.humanrights.gov.au/annrep01_02/.
- Human
Rights and Equal Opportunity Commission Annual Report 2001-02 at http://www.humanrights.gov.au/annrep01_02/.
- Human
Rights and Equal Opportunity Commission Annual Report 2000-01 at http://www.humanrights.gov.au/annrep00_01/.
- Human
Rights and Equal Opportunity Commission Annual Report 2001-02 at http://www.humanrights.gov.au/annrep01_02/
- ABS
6302.0 Average Weekly Earnings Australia February 2003.
- Bruce
Chapman and Matthew Gray The Foregone Earnings from Child Rearing Revised
Discussion paper No 47 Centre for Economic Policy Research Australia National
University Canberra 1999.
- John
Paice Fertility: A Baby Bounce for Australia? Department of the Parliamentary
Library Current Issues Brief No. 1 2003-04, 2003.
- ABS
6310.0 Employee Earnings, Benefits and Trade Union Membership August
2002 Canberra, p29.
- Commonwealth
Department of Employment and Workplace Relations Workplace Agreements Database
3 April 2002 unpublished data.
- ABS
4153.0 How Australians Use Their Time Commonwealth of Australia 1998,
17.
- ABS
4153.0 How Australians Use Their Time Commonwealth of Australia 1998,
25.
- [2001]
FCA 1740 (10 December 2001)
- [2003]
FMCA 81 (13 March 2003)
- Appeal
was from Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 (8
March 2002).
- (1998)
EOC 92-910
- [2002]
FCA 939 (30 July 2002).
- HREOC
media release, Tuesday 24 June 2003 "test case has crucial social implications".
Last
updated 4 September 2003
