Keep pushing...we're almost there
By Susan Halliday, Sex Discrimination Commissioner to the National Baha'i Office for the Advancement of Women, International Women's Conference '99, 17 September 1999
The recent Report of the National Pregnancy and Work Inquiry tabled in parliament and launched on 25 August 1999 is the focus of my contribution to this conference. The Inquiry was granted to the Human Rights and Equal Opportunity Commission under the auspices of the federal Sex Discrimination Act by the Attorney-General, Daryl Williams, in August 1998.
The findings of this report are quite disturbing, affecting women and their partners. Pregnancy discrimination is "alive and kicking".
Before I elaborate on the findings of the Pregnancy Inquiry and the challenges facing us, I'd like to reflect on how far we've come. Ensuring sex discrimination is constantly on the agenda has not been easy. Many people have fought long and hard to gain the ground others take for granted.
We need only to look back to the early 1980's when the federal Sex Discrimination Act was proposed. One of the longest debated, and most passionately contested Bills ever to go through the Commonwealth Parliament, the objections to the proposed Sex Discrimination Bill included that it defied nature, that it would destroy the family, greatly devalue women's traditional role and push women into the workforce against their will.
That the debated Bill was passed, was in itself, a victory. And the women and men who pushed so hard for its acceptance should be congratulated - we owe them much.
Some 15 years on the Sex Discrimination Act continues to operate well, providing legal guidance, education and redress for thousands. Internationally, the Act is held in high regard and utilised by many nations initiating similar legislation.
There are those in Australia however, who'd be very comfortable returning to previous eras when the broader community supported and encouraged men's dominance over women. There are those in the community who believe my role "rots the fabric of society". But the regular stream of complaints that cross my desk indicate otherwise - we have the legislation for good reasons, and the role of the Sex Discrimination Commissioner for a clear and necessary purpose. Statistics show the Act and the role are essential.
While men also face discrimination and harassment, some 84% of complaints lodged under the Sex Discrimination Act in the 1998-99 financial year were made by, or on behalf of women. For the 1998-99 year over 80% of all complaints were employment related.
Complaints relating to pregnancy or potential pregnancy discrimination make up a significant proportion of complaints. In 1997-98 complaints to the Human Rights and Equal Opportunity Commission (HREOC) on the ground of pregnancy or potential pregnancy made under the Sex Discrimination Act constituted some 15% of all complaints. In the 1998-99 financial year this increased to 18%.
This type of discrimination is more widespread than this figure suggests however. State and territory anti-discrimination bodies also receive complaints independently. Plus other cases are dealt with by private mediators, internal company procedures and unions. Additionally, as indicated - then evidenced - by the Pregnancy Inquiry, many women do not report instances of discrimination because they fear retribution or are overwhelmed by their pregnancy or newborn child and are unable to expend extensive energy going through the formal complaint process.
The Inquiry received well over 100 written submissions. Extensive consultations with women's organisations, other non-government organisations, unions, employer groups, and individual women also provided a wealth of additional valuable data.
Entitled Pregnant and Productive: It's a right not a privilege to work while pregnant, the report was released on 25 August 1999.
Case studies
- An employer dismissed
a pregnant bar attendant on the basis that she might fall on the slippery
floors and injure her unborn child.1 Floors should be safe
for all employees.
- A Judge's Associate
who was eight months pregnant was told by the Judge that he wasn't going
to support her application for maternity leave because she had chosen
a new career. He believed women should stay at home with their children.2
- One worker was
given repeated assurances that a permanent position would only be advertised
internally, so that if she still wanted the job permanently it would
be hers. However when the employer found out she was pregnant the position
was advertised externally and the woman did not get the job.3
- A casual receptionist
became pregnant and needed some time off from work to see her doctor.
Although she gave her employer two weeks notice of her unavailability
on the day of her appointment, her employer threatened to sack her if
she did not turn up at work on that day. She went to the doctor as planned
and two weeks later she was dismissed.4
- A contract worker
with five years of service with the same employer informed her boss
that she was pregnant. She requested maternity leave and her employer
refused, saying that contract workers did not get maternity leave and
added that if anyone was to be dismissed, she'd be the "first to go".5
- A car manufacturing
company repeatedly refused to provide a pregnant worker with seating,
despite the employee providing several medical certificates requesting
seating due to bleeding and extreme pain. Seven months into the pregnancy,
the employee collapsed at work; her child was born by Caesarean, seven
weeks premature with an underdeveloped heart.6
- A TAFE Casual Supply teacher had been teaching continuously for two years. Her teaching load was 4 days, 4 hours and 15 minutes. This is half an hour short of a full-time teaching load. The teacher applied for maternity leave payment but was denied on the basis that she was a casual teacher who had not taught a full load.7
These are not isolated stories. They represent a sprinkling of the experiences detailed about poor workplace management of pregnancy.
Marginalised women clearly face great challenges in the workplace. Some young women for example, who work as apprentices and trainees face blatant discrimination on the ground of pregnancy or potential pregnancy, especially if they work in male-dominated areas. For example, 45% of workers surveyed at a construction site for the Inquiry said that if they were the boss they would be less likely to employ a tradeswoman or female apprentice of child bearing age than a man. This is outrageous blatant discriminatory stereotyping, not to mention illegal! But this is reality on the ground. The thought that almost half of the respondents would not employ a young woman because she might become pregnant sometime in the next 20 years says an awful lot about the industry, the 1950s mindset that operate within it, and in turn reflects the biased attitudes that prevail in parts of our society.
The Inquiry found that a significant number of young women have limited knowledge of anti-discrimination laws, and that when they are aware of their rights, they are reluctant to speak out in fear of losing their apprenticeship or traineeship; past experience and the treatment they've witnessed colleagues suffer clearly dictates their silence.
During a TAFE focus group, it was reported that most women in the group had been told directly at some stage in their working lives that "It's a waste of time giving you an apprenticeship 'cos you're going to get pregnant."8
Denying a woman the opportunity to start or complete an apprenticeship or traineeship because of pregnancy results in both short and long term disadvantage.
The Pregnancy Inquiry also evidenced that women living in rural and isolated areas also face additional difficulties, including lack of access to basic prenatal services. The inquiry was told these difficulties result in some women and their partners deciding not to have children, or the decision to limit the size of the family. These circumstances add to the complexities of attracting and keeping skilled workers in rural areas.
For example, the Australian Education Union cited pregnancy and work related difficulties as a major reason why women educators of child bearing age often refuse work in rural areas.
A different example was evidenced by the story of a long-term temporary employee of Queensland Health who was working in a remote location. She was unable to secure permanent employment there because she was pregnant. Permanent positions were available but, until her union intervened, her managers were not going to offer her one. This is even more extraordinary given the difficulty the management had recruiting nurses to this remote location.9
Government, industry and local residents need to make a long term commitment in order to achieve the cultural change needed; it can only benefit both workers and the community. However, as submissions to the Inquiry indicated, there are some short term practical solutions which would assist pregnant employees in rural and remote areas. Improved communications to rural areas, based on Internet and satellite technology and a national mobile phone network would dramatically increase women's access to services and information.10
The Inquiry indicated women from culturally and linguistically diverse backgrounds require information that is culturally astute and sensitive. During the Inquiry, barriers that still operate to exclude women from culturally and linguistically diverse backgrounds became apparent. These women also stated that they were often reluctant to seek information when pregnant.
Barriers included language proficiency, cultural differences, migrant status, skills and qualifications recognition and a lack of awareness of procedures and services.11 For some women, a fear of government, police, or other authority figures, management for example, ultimately prevented them from seeking information about their rights, let alone doing anything to enforce such rights.12
A project undertaken by the New South Wales Indo-China Chinese Association found that, on average, 60.7% of Chinese women interviewed had no knowledge of agencies that offer assistance in work-related discrimination issues.13 To address issues such as these, the Inquiry recommended that strategic action be taken to educate and empower all women using many different mechanisms about their rights and responsibilities in relation to pregnancy and potential pregnancy.
The Inquiry evidenced that many Aboriginal and Torres Strait Islander women were also unaware of anti-discrimination laws covering pregnancy and potential pregnancy at work.
It is common for Aboriginal and Torres Strait Islander women to want/need to return home for the birth of their child. They want to have their babies where they were born.14 To travel the required distance many women have to use part of their unpaid maternity leave. For some this impacted upon/reduced their options when returning to work.
Consultations with Working Women's Centres revealed some Indigenous women resigned when they became pregnant because they believed there was no alternative. These women were not aware of laws covering pregnancy or their right to unpaid maternity leave.
The fact that Indigenous women resign when they become pregnant, or in some cases terminate their pregnancy rather than risk losing their job, is tragic.
The Inquiry found much of the current resource material on workplace pregnancy is too complex and culturally alienating.
This discourages many women and in particular Indigenous women from seeking information themselves when employers who have a legal responsibility to provide the relevant information have failed to do so.
The Inquiry recommended that culturally specific material for Indigenous women and their families be produced.
The needs of partners also featured in Inquiry findings. Pregnancy is rarely the sole preserve of the pregnant woman, it usually involves partners, relatives and friends.
Unfortunately however, there are some employers who refuse to acknowledge partners' needs in such circumstances.
Not only have men been denied leave to attend significant medical appointments with their pregnant partners - they have been denied leave to attend the birth!
Even in situations where an industrial award or company policy is family friendly, men noted they are often reluctant to use the policies for fear of covert discrimination or being labelled as uncommitted. Unfortunately real life doesn't mirror the policy rhetoric in certain organisations (both public and private sectors). Australian workplace cultures continue to make it hard for men to ask for time off to support their pregnant partners and some men have made it clear that it's in their best interests at work not to mention their family.
Men need and should be encouraged to be involved in family life. They should not be penalised for parenting.
Finally, I would like to reflect on the title of this speech - "Keep Pushing...we're almost there". This title has a ring of optimism, heralding in a new and unprecedented time of equality and prosperity for women. But I'm afraid that we're going to need more than just a "little push" to make the progress desired. I'm concerned that the labour pains of equality have not advanced far enough to deliver us workplaces free from pregnancy discrimination. And while we are closer than we were fifteen years ago when the Sex Discrimination Act was introduced, we still have a way to go.
I look forward to continuing my work in the pregnancy discrimination arena and ask that each of you, in your own unique way, contribute what you can in order to ensure that all women find themselves in a position to continue to work while pregnant; after all this is a human right not a privilege.
Endnotes
1 Allegretta
v Prime Holdings Pty Ltd t/a Phoenix Hotel & Anor (1991) EOC 92-364,
78, 506, quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant,
HREOC, Sydney, 1999, 128.
2 Public Service Association of New South Wales (Submission
no 92) quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant,
HREOC, Sydney, 1999, 46.
3 Australian Nursing Federation (Submission no 45) quoted in
Human Rights and Equal Opportunity Commission. Pregnant and Productive:
It's a right not a privilege to work while pregnant, HREOC, Sydney,
1999.
4 Job Watch Inc (Submission no 60) quoted in Human Rights and
Equal Opportunity Commission. Pregnant and Productive: It's a right
not a privilege to work while pregnant, HREOC, Sydney, 1999 143.
5 Job Watch Inc (Submission no 60) quoted in Human Rights and
Equal Opportunity Commission. Pregnant and Productive: It's a right
not a privilege to work while pregnant, HREOC, Sydney, 1999, 145.
6 Australian Manufacturing Workers Union, National Office (Submission
no 57) quoted in Human Rights and Equal Opportunity Commission. Pregnant
and Productive: It's a right not a privilege to work while pregnant,
HREOC, Sydney, 1999, 186.
7 New South Wales Teachers Federation (Submission no 70).
8 TAFE Queensland and Group Training Australia (Focus Group,
10 March 1999).
9 Queensland Nurses' Union (Submission no 37).
10 Australian Women in Agriculture (Submission no 55).
11 Department of Immigration and Multicultural Affairs (Submission
no 28); Townsville Community Legal Service (Submission no 78); New South
Wales Government (Submission no 99).
12 Immigrant Women's Speakout (Focus Group, 22 February 1999).
13 W Tse Women and Paid Work Project - Recommendation report
on work-related issues of Chinese women, NSW Department for Women,
Sydney 1997, 13.
14 New South Wales Teachers Federation (Submission no 70);
Tranby College (Focus Group 8 February 1999).
