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A Time to Value - Proposal for a National Paid Maternity Leave Scheme

Part D: The Proposal

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12. OVERVIEW 13. FUNDING 14. COVERAGE 15. ELIGIBILITY 16. DURATION 17. PAYMENT LEVEL 18. PAYMENT MECHANISM 19. ROLE OF EMPLOYERS 20. INTERACTION WITH THE INDUSTRIAL RELATIONS SYSTEM 21. INTERACTION WITH EXISTING GOVERNMENT PAYMENTS 22. DATA COLLECTION AND REVIEW OF THE SCHEME

12. Overview

12.1 Introduction

Part D of the paper focuses on how a paid maternity leave scheme would actually operate were it to be introduced in Australia. The emphasis, as in the rest of the paper, is on the feedback that HREOC has received through submissions and consultations. Each Chapter canvases the views that were expressed in relation to each component of a national paid maternity leave scheme.

International Labour Organization standards and international comparisons are also included as points of reference. Australia is not a signatory to the relevant Convention, the Maternity Protection Convention, [644] and is not therefore obliged to comply with its provisions. Nevertheless, it represents a useful benchmark for considering the adequacy of any proposed scheme.

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12.2 Options for a national scheme

12.2.1 Introduction

The paid maternity leave model that HREOC proposes has wide community support, is consistent with international standards, and is similar to the systems used by comparable countries such as New Zealand and the United Kingdom.

The essential elements of this system are:

The central requirement of this model is to ensure that financial pressure does not mean that women are required to return to work in the early weeks following birth if they and their babies are not ready.

HREOC recommends a government funded fortnightly payment up to Federal Minimum Wage for 14 weeks. HREOC considers that this system is appropriate for the Australian context, and will assist in meeting the goals of addressing women's workplace disadvantage and assisting women's and babies' health and wellbeing.

As stated at 1.3.1, the most contentious issues in the consultations were:

These issues are addressed in the following Chapters. They are largely variations within a particular model.

The Australian Council of Trade Unions recommended that the specifics of a model should be negotiated between employers, unions and the Government.

The ACTU [Australian Council of Trade Unions] submission … calls for a process of negotiation between employers, government and unions to agree all the elements of the scheme. The ACTU [Australian Council of Trade Unions] sees such a process as best able to balance competing interests in a non-adversarial environment. [645]

HREOC agrees that, should the Government decide to introduce a national paid maternity leave scheme, there should be a process of negotiation regarding the fine detail of the operation of a paid maternity leave scheme. This Part of the paper includes significant detail on various structural and operational aspects of a national scheme. However, HREOC was not in a position to determine detailed administrative matters or to model the fine detail of the interaction between paid maternity leave and existing government payments. HREOC considers that there would be considerable goodwill among employer groups and unions to work with the Government to reach agreement on this finer detail.

12.2.2 The case for the status quo

Some submissions considered that the current arrangements for paid maternity leave should be continued and that there was no place for paid maternity leave that was either government funded or mandatorily employer funded. As the following extracts make clear, some groups were particularly opposed to compulsory employer funding of paid maternity leave.

The National Farmers' Federation opposed both government funding and mandatory employer funding of paid maternity leave. [646]

It is the NFF's [National Farmers' Federation's] position that paid maternity leave, as a workplace entitlement, should only be implemented by agreement at an individual workplace through existing agreement-making mechanisms. [647]

The Centre for Business and Industry supported continuation of the current system of paid maternity leave.

The current option allows employers that can afford to provide female employees with paid leave the option to do so. The current system does not encourage indirect discrimination and provides options to control costs and not enter into costly administrative structures.

Business is well aware of its social responsibility and responsibility to its employees. However, at the end of the day, decisions on family are issues for the family and are not issues for employers. [648]

The Local Government Association of Queensland considered that decisions about paid maternity leave should be left to the individual workplace.

The question of granting paid Maternity Leave is a matter for determination between an employer and the employee with enterprise bargaining as a process for establishing the principles to apply in those cases. [649]

As discussed at 3.3, HREOC considers that current arrangements for paid maternity leave are ad hoc, inequitable and disadvantage lower skilled and less well educated women, and women in casual or part time work. A continuation of the current system of enterprise based provision of paid maternity leave does not guarantee that women will be able to have a period of time away from the workforce and does not address the workplace disadvantage experienced by women on the basis of maternity. HREOC considers that the benefits of paid maternity leave set out in Part C merit the immediate introduction of a paid maternity leave scheme in Australia.

12.2.3 Alternative approaches to a government funded national paid maternity leave scheme

HREOC notes that a number of more radical proposals have also been made, both through submissions and in the wider community debate. Some of these proposals are outlined here to give a sense of the scope of the debate.

Bruce Chapman proposed a Higher Education Contribution Scheme (HECS) style loan scheme as a form of paid maternity leave.

It involves the government distributing financial assistance in the period of leave, but with parents repaying some part of this if and when future incomes exceed a certain level. [650]

Chapman promoted this model on the grounds that it could be structured to involve an input by all of those who benefit, namely the Government, the family and the employer. In addition this kind of scheme was seen as a means to smooth income across the family's lifetime. The family would be able to access additional funds at a period where they were facing increased expenses and had lower earnings. This would then be repaid at a later period when earnings were higher.

There was some opposition to this proposal as expressed by the National Pay Equity Coalition.

We regard this option as completely unacceptable. It continues the punitive and unfair arrangements that currently treat the costs of creating and nurturing the next generation as private costs rather than a social investment.

...
Forcing families to acquire substantial debt adds to the already substantial stress and financial burden they face. Whereas HECS affects mainly a minority of the population with reasonable prospects of good earnings later in life, so the costs are borne by the person who derives the benefits. A HECS-type scheme for PML [paid maternity leave] would continue to impose on individuals and families the cost of a life-event that benefits the whole community. [651]

Barry Maley from the Centre for Independent Studies has proposed:

... a non-means-tested universal child allowance or tax credit of $4000 per annum per child, replacing all other allowances. [652]

The Women's Economic Think Tank has opposed this proposal.

The proposal … from the Centre for Independent Studies for about $4,000 per child per year is costed out at $20B [billion], slightly more than the present mix of payments. However, it would require wiping out all family tax concessions and payments and child care subsidies. This would mean that low income families would lose and high income families gain from the shifts in payments and this would not be equitable. [653]

The Underemployed People's Union of Western Australia proposed a model that would include making the positions of those on maternity leave available to unemployed people.

The Swedish model would transfer to Australia well: An unemployed person is given the person who takes maternity leave their job for a year. There are many educated and professional unemployed people particularly mature people on the dole who would welcome a year's work. This model guarantees the unemployed person work for a whole year.

…
The person on leave would then get the unemployment benefit for a year no matter what their job was. This way the tax payer, the employer and the government does not pay anything. In fact the Government saves because they would not have to service or provide case managers etc to the person on maternity leave or the person who takes the job for a year. [654]

An individual proposed replacing long service leave with an entitlement to paid maternity leave.

As an alternative to the many proposals for governments to fund maternity leave, may I suggest that consideration be given to the phasing out of paid long service leave and its replacement with paid maternity leave entitlements.

This would be achieved by mandating that all new employees would not have access to paid long service leave but instead would have access to paid maternity leave. Existing employees would continue to accrue long service leave. [655]

The New South Wales State Chamber of Commerce proposed that the Government offer incentives to firms to offer paid maternity leave.

The debate as it stands has concentrated on a mandatory scheme of leave. Government should in the first instance, examine ways to encourage business to voluntarily provide a paid entitlement. Companies should be given taxation relief as the basis for funding paid leave. [656]

HREOC has not attempted in this paper to address every proposal for paid maternity leave that has been put forward. Rather, the paper focuses on HREOC's preferred model. HREOC considers that the model outlined in the remainder of Part D would deliver on the objectives outlined in Part C, has wide community support and could be relatively easily implemented in the Australian context. There are a range of criticisms of other proposals that have been put forward including that they are less able to meet the identified objectives, that they will cost more, that they are likely to meet resistance from interested parties and that they may be difficult to administer.

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12.3 Summary of the preferred scheme

Outlined below is a summary of HREOC's recommended national paid maternity leave scheme. The reasoning behind this structure, and other options raised in the public discussion, are outlined in Chapters 13-22.

The scheme that is proposed represents the minimum that is required to meet the objectives of paid maternity leave. HREOC is proposing a minimum scheme in order to establish a basic minimum entitlement for women. There was considerable public support for a more generous scheme and the extension of the scheme over time.

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Summary of HREOC's preferred model for a national paid maternity leave scheme

Funding

The national paid maternity leave scheme is to be funded by the federal Government. (Recommendation 1)

Coverage

Paid maternity leave is to be provided to women at the time of the birth of a child. The exceptions to this, where payment can be made to a woman's partner, will include: where the mother has died; where the mother is not medically able to care for the child (based on a doctor's opinion); or when the child has been adopted. (Recommendation 2)

Paid maternity leave is to be available only to women in paid work. (Recommendation 3)

Paid maternity leave is to be available to the primary carer of an adopted child irrespective of the age of the child. (Recommendation 4)

Eligibility

In order to be eligible for paid maternity leave a woman must have been in paid work (including casual employment, contract work and self-employment) for 40 weeks of the past 52 weeks with any number of employers and/or in any number of positions. Access to this payment will not be means tested. (Recommendation 5)

Duration

The national scheme of paid maternity leave will provide for up to 14 weeks of paid leave to be taken immediately prior to and/or following the birth of a child. (Recommendation 6)

The paid leave must be taken as a continuous block. (Recommendation 6)

A woman may elect to take less than the full 14 weeks of paid maternity leave, but will only receive payment in the weeks taken as maternity leave. (Recommendation 6)

Payment Level

Government funded paid maternity leave is to be paid at the rate of the Federal Minimum Wage, or the woman's previous weekly earnings from all jobs, whichever is the lesser amount. (Recommendation 7)

Previous weekly earnings are to be calculated as the greater of either:

Payment mechanism

Paid maternity leave is to be paid as a fortnightly payment during the period of leave, administered by the federal Government and available through dual payment mechanisms. (Recommendation 8)

Specifically, an individual may elect to receive payment as either:

Role of employers

Employers should be encouraged to continue existing provisions for paid maternity leave and women, including public servants, will not be excluded from any government funded national scheme on the basis of receiving employer provided paid maternity leave. (Recommendation 9)

Employer top ups to a government funded paid maternity leave are to be provided for and encouraged. Such top ups should be negotiated through standard bargaining mechanisms. (Recommendation 10)

Employers may agree to take on the administration of paid maternity leave payments on behalf of the Government and may be required to play a role in validating entitlement to government funded paid maternity leave entitlements. (Recommendation 11)

Interaction with the industrial relations system

Current industrial arrangements in relation to maternity leave will continue. (Recommendation 12)

Payment level

A woman who receives paid maternity leave will not be eligible for the Maternity Allowance, the first 14 weeks of Family Tax Benefit Part A and Family Tax Benefit Part B, and the first 12 months of payment of the Baby Bonus. The maternity leave payment will be taxable. (Recommendation 13)

Individuals will have the option of taking other available social security payments where this would result in higher payments. (Recommendation 13)

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13. Funding

13.1 Introduction

The question of who should be responsible for funding a national paid maternity leave scheme was one of the more controversial issues in HREOC's consultations. This issue also received significant media coverage.

As discussed in HREOC's interim paper, there are a wide range of possible options for funding paid maternity leave. [657] Three options were the focus of discussion in the consultations and submissions - government funded, directly employer funded or jointly funded by the Government and employers. Each of these options is discussed in this Chapter.

Funding of a national scheme was central to various groups' support for or opposition to a scheme. The importance of funding also went further than this, being a central tenet on which submissions based their views on other structural elements of a paid maternity leave scheme. Funding is presented as the first element for discussion, as other decisions on aspects of the scheme flow from the choice of funding source.

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13.2 International standards and practices

The International Labour Organization has recommended that Member Countries fund paid maternity leave through mechanisms that spread the cost across the community.

More specifically, Article 6(8) of the International Labour Organization Maternity Protection Convention recommends funding through social insurance or by Government. Direct employer funding is not recommended unless agreement on such an arrangement can be reached between Government, employers and employees at a national level. Direct employer funding is where employers fund paid maternity leave through a direct payment to their own female employees. In contrast, employers could fund paid maternity leave through payments to a central fund based on the number of men and women they employ. The rationale against direct employer funding is "to protect the situation of women in the labour market". [658]

Paragraph 4 of International Labour Organization Recommendation 191 recommends that, where social insurance or levies are used to fund paid maternity leave, contributions should be made in relation to all employees, and not just female employees. [659]

A variety of sources of funding are used to provide paid maternity leave in other countries.

For example, in the United Kingdom, Statutory Maternity Pay is funded through National Insurance. Employers make Statutory Maternity Pay payments directly to employees and then reduce their next year's National Insurance contributions by this amount.

Small employers can recover all of the payments they make under Statutory Maternity Pay plus an additional sum of 4.5 per cent as compensation for their share of National Insurance contributions paid on Statutory Maternity Pay. Larger employers recover 92 per cent of the Statutory Maternity Pay paid out. [660]

The New Zealand Paid Parental Leave scheme is fully government funded. [661] Funding of the scheme will be included as part of the 12 month review of the New Zealand scheme.

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13.3 Government funding

13.3.1 Introduction

The majority of submissions in favour of paid maternity leave considered that there was a role for Government in funding such a scheme. [662] Many submissions that considered this issue proposed that a national paid maternity leave scheme should be fully government funded. As set out at 19.4, this would leave employers with the option to top up the government funded payment. In addition, as discussed at 13.5, other submissions considered that the Government should fund a minimum payment that would then be topped up through compulsory employer funding via an employer levy.

13.3.2 A social benefit

A significant proportion of submissions considered that paid maternity leave should be government funded to reflect the community benefits of such leave. [663] For example, the Australian Industry Group believed there was:

… a strong case for the introduction of a publicly funded paid maternity leave scheme in Australia. Significant benefits would flow to the Australian community if such a scheme was introduced. [664]

The Presbyterian Women's Association of Australia in New South Wales considered that " ... the public should fund maternity payments through tax. The whole population will benefit from any population increase in the future - those who have no children as well as those who do." [665] Similarly, the New South Wales branch of the Australian Family Association proposed that a scheme should be government funded in recognition of " ... the benefit to the community of increasing the birthrate and the role that mothers play in development of children." [666]

One individual submission pointed out that:

… having children provides an essential service to the community and that parents make an invaluable contribution to the workforce. [667]

The Work + Family Policy Research Group, University of Sydney also emphasised the community benefits of paid maternity leave.

Paid maternity and parental leave benefit the whole community: children, parents, employers, business and government. Some of these benefits are short term, immediate and visible (such as the benefit to the employee of having a period of paid, job-protected leave) while others will take time to become apparent (such as a healthier population, satisfied employees, stable, well-functioning families, maintenance of skills and attachment to the labour force). Nevertheless, because the benefits are shared, we believe that the costs of paid maternity and parental leave should be borne as equitably as possible. [668]

The broader community benefits of paid maternity leave were seen by some submissions to differentiate paid maternity leave from other types of leave which are fully employer funded. The National Pay Equity Coalition considered that:

[o]n the basis that the benefits of the paid maternity leave are more broadly applied and used, it is appropriate for the contribution base to be broader than employers alone. Other forms of employment related leave are largely related to ongoing maintenance of the labour force and their benefits largely utilised and consumed within the employment relationship. [669]

Similarly, the Centre for Applied Social Research submitted that maternity leave:

… should be a government-funded entitlement rather than an employer-funded entitlement. Paid maternity leave is different to other employment related leave, such as sick leave, annual leave and long service leave as it provides a benefit not only to individual workers and workplaces in the continuing availability of that worker, but also to the wider community and economy. [670]

13.3.3 Ensuring access and spreading costs

Australian Business Industrial noted that a government funded national scheme of paid maternity leave would ensure that all women would be able to access such a payment.

Such a payment needs to be legislated on a national level and provided for through the social security system. This would ensure universality of payment to women, and prevent new industrial entitlements from being created that may have detrimental effects to female employment prospects. [671]

A government funded scheme would also spread the cost of paid maternity leave more evenly across the community and between businesses. [672] The need to share the cost of paid maternity leave more evenly was also given as a reason against direct employer funding. [673] For example, the Work/Life Association Australia "… recommended that funding be obtained from general taxation revenue, where the cost is spread across all taxpayers ... " [674] An individual submission noted that:

[w]omen are very unevenly distributed across the workforce due to gender segregation, so [directly] employer funded maternity leave would place a greater burden on some groups of employers than others. This underlines the case for a centralised, government funded scheme. [675]

An individual submission also considered that government funding may increase employer acceptance of a national paid maternity leave scheme.

Government funded paid maternity leave is the only real option to paid maternity leave being accepted across the whole range of employment sectors, especially small, private enterprises. [676]

This is consistent with those submissions from employers and employer groups who were willing to give support for paid maternity leave on the condition that such a scheme was government funded. [677]

13.3.4 Source of government funding

While a significant number of submissions supported government funding there was some division over whether paid maternity leave should be funded through a reallocation of existing government payments to parents, or whether it should be provided in addition to existing programmes.

The Hunter Business Chamber submitted that it generally supported:

… the concept of paid maternity leave, but urges [HREOC] and the government to consider how existing federal systems might be varied and enhanced to provide for its introduction. [678]

The Australian Mines and Metals Association was concerned about the possibility of a new payment placing increased demands on the Government's budget.

The funding of the entitlement should not result in additional strains on the Government's fiscal position. Consideration should be given to the rationalisation of other benefits so that there is no indirect cost to employers as a consequence. [679]

Many submissions called for a review or streamlining of current payments in order to fund paid maternity leave. This issue is discussed at 3.4.4.

The Women's Economic Policy Analysis Unit proposed that taxes be specifically identified for the purpose of funding paid maternity leave through a special levy on all taxpayers, along the lines of the Medicare levy. [680] The New South Wales branch of the Australian Family Association proposed that taxes on superannuation funds be used to fund paid maternity leave. [681]

A small number of submissions considered that Government should only fund paid maternity leave for employees in particular types of businesses, such as small business and non-profit organisations.

For example, an Australian Institute of Company Directors survey of delegates attending its May 2002 Conference on the Gold Coast found a difference in response depending on the size of business of the respondents. Its submission concluded that, while large employers were often well disposed towards, and often already provided paid maternity leave, "… small business needs government support". [682]

However, some submissions argued against government funding of a national paid maternity leave scheme. [683] For some employers their opposition to paid maternity leave meant they were unwilling to support the use of taxes paid by business ultimately being used to fund a national government scheme. For example the Kolan Shire Council considered that paid maternity leave:

… would place an unfair burden on employers, especially small business, whether it was funded directly by the government or a combination of sources for eventually the cost will be borne by the employer. [684]

The Centre for Business and Industry believed that the expense of paid maternity leave would require increased taxation.

The estimated $300 million expected to be paid annually as paid maternity leave (this figure does not include the unknown amount for government to introduce the system and staff to administer) would by necessity be collected by increased taxation or through the introduction of a new levy. With business the largest contributor of tax, it would fall predominantly onto business to fund. [685]

One academic considered that paid maternity leave would negatively impact on all taxpayers.

A mandated taxpayer-funded scheme will hurt all taxpayers, male and female alike, and, as more women begin to enter the workforce and earn higher wages, the tax burden of this scheme would increasingly fall on female workers. [686]

Other submissions considered that government funding should not be provided for what was a personal choice to have a child. One individual submission asked the question:

… why then should the government (taxpayers) have to pay … ? Women who choose not to take paid maternity leave (for whatever reason, by being self-employed, husband's income is sufficient etc) and couples who choose not to have children would end up contributing to other people's choices. [687]

HREOC notes that Governments have supported families throughout the history of Australia. As set out at 9.2, HREOC considers that it is appropriate that society support families given the benefit to the community of children and future generations.

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13.4 Direct employer funding

13.4.1 Introduction

The funding option most strongly opposed was direct employer funding. This option would require employers to meet the full cost of paid maternity leave for eligible women in their workplace. This option was strongly opposed by a wide cross-section of submissions, including submissions from unions, women's groups, employers and employer groups.

13.4.2 Employer funding would increase discrimination

A significant number of submissions considered that direct employer funding would increase discrimination against women of child bearing age in employment. [688] This was also given as a reason for supporting a government funded scheme.

Australian Business Industrial wrote that requiring employers to pay maternity leave would undermine equity objectives by "… further disadvantaging women in employment … jeopardizing many women's jobs [and] [m]aking it more difficult for many women to find and maintain employment, as a likely increase in discrimination against women of child-bearing age will occur." [689] Coles Myer submitted that the company:

… is strongly opposed to the universal imposition of an employer funded paid maternity leave scheme … [W]hilst Coles Myer Ltd., as a major employer of women, would behave as a responsible corporate citizen, Coles Myer Ltd. believes that an employer funded paid maternity leave scheme is highly likely to result in discrimination against women by less scrupulous employers. [690]

The Australian Institute of Company Directors submitted that:

[a]ny policy developments in the area of paid maternity leave must be careful not to set up a situation that encourages any segment of the economy to break the law by discriminating against those of child bearing age. [691]

An individual submission highlighted the concern from the perspective of young women.

There are many competent jobseekers out there and it will be very easy to offer employment to "a more suitable" male applicant or female over 40 years of age. Paid Maternity Leave will only cause mass discrimination against women of child bearing age. [692]

The Australian Chamber of Commerce and Industry considered that the cost of paid maternity leave may lead to some employers discriminating against women of childbearing age.

Even with the protection of anti-discrimination law, a significant disparity between the cost of male and female employment to employers will influence the decisions of some employers to engage women. Some employers will not engage employees perceived to offer the potential risk of multiple weeks of additional labour costs with no productive return. [693]

An academic supported this concern around the cost of paid maternity leave, claiming that "[a] mandated employer-funded scheme will act as a tax on the employment of females, and will tend to increase female unemployment ... " [694] Many of these comments came from employers and employer groups. HREOC was disappointed by the statements from these groups that employers would indulge in unlawful activity - deliberate discrimination against women - for financial gain. Sadly, there appeared to be some truth in this.

The New South Wales State Chamber of Commerce surveyed local businesses in regional New South Wales, receiving 781 responses. 77 per cent of respondents stated that they would be "less inclined to employ a woman if [their] business was forced to pay maternity leave". [695]

One submission from an employer flatly asserted, contrary to federal, State and Territory anti-discrimination and industrial relations legislation, that "[i]f paid maternity leave becomes a reality, we will not be employing women". [696]

However, the Australian Council of Trade Unions considered that the argument that employer funding will lead to discrimination in the employment of women may have been overstated.

The ACTU [Australian Council of Trade Unions] acknowledges that the International Labour Organization (ILO) discourages employer funded paid maternity leave schemes, highlighting the potential disincentive to employ women of childbearing age that attach to directly funded schemes. This argument may be over-stated. Occupational segregation of the Australian labour market and skill supply issues mean that alternative labour supply may not be readily available. [697]

13.4.3 Business cannot afford to pay

A number of submissions, and in particular submissions from employers and employer groups, were concerned at the cost that a directly employer funded paid maternity leave scheme would impose on business, with many considering that this was a cost that many businesses could not afford. [698]

The New South Wales State Chamber of Commerce was "… unequivocal that business, particularly small business cannot afford to fund a mandatory paid maternity leave scheme". [699] Similarly, the National Farmers' Federation considered that:

[t]he impact of forced employer responsibility for paid maternity leave will result in an increase in costs that may well be unaffordable particularly if the employer is not benefiting from paid maternity leave. [700]

This double cost to business was also emphasised in an individual submission.

Businesses cannot be expected to pay for an employee who is not there - and have to pay for a replacement as well - that is, double the money (or 1 2/3 etc) for half the output - not to mention the re-training costs. Small businesses in particular simply cannot afford this type of luxury. [701]

The Australia Industry Group was concerned about some businesses' capacity to pay.

Many businesses operate with very low profit margins and some are enduring losses. In such circumstances, there is no capacity to provide paid maternity leave benefits - despite the longer term benefits which might arise if they did. [702]

Some submissions considered that the additional cost of paid maternity leave would force some businesses to close. The Australian Chamber of Commerce and Industry considered that "[b]usiness viability, and the employment of Australian women would be threatened by any scheme which required direct employer funding". [703]

A view was also put forward that employer funded paid maternity leave could affect the international competitiveness of Australian business. The Centre for Business and Industry was concerned about the impact on international competitiveness.

[I]ncreases in employment costs add to the cost of the production which would normally be passed on to the cost of final product. International competition would, in some cases, not allow Australian firms to pass the increased price on, thus impacting firms viability and future investment and employment outlook. [704]

A submission by an individual also noted that the cost of paid maternity leave may be passed on to consumers through price increases.

If employers are going to be expected to pay, for no work done through maternity leave, as well as being unjust and unreasonable, it is going to lead to yet more price increases. [705]

13.4.4 As a social benefit, employers should not pay

As outlined in Part C, many of the objectives of a paid maternity leave scheme are social benefits. It was considered by a number of submissions that it was not appropriate to make employers pay for a measure that would benefit the whole community. [706] The Victorian Government did not support employer funding of a national paid maternity leave scheme because such a scheme has benefits for the broader community. [707] This was also given as a reason in favour of government funding of paid maternity leave. [708] For example, the Festival of Light submitted that:

[i]t is unfair to expect any employer to fund a measure which is designed to protect the community as a whole and which could put the employer at a disadvantage. [709]

13.4.5 Childbearing as a personal choice

Just as some submissions asserted that Government should not fund paid maternity leave on the basis that childbearing is merely a personal choice, [710] some submissions considered that, for the same reason, employers should not be expected to fund paid maternity leave. For example, one individual commented that:

I believe if women want a family they should be prepared to pay for themselves. This is carrying human rights too far. Having a family should be the responsibility of those that choose to have it. They should not expect their employer to pay for it. This is just expecting too much. [711]

The Centre for Business and Industry emphasised that employers should not have to pay "… for non-productive activities of their employees". [712]

13.4.6 Employer funding would affect industries disproportionately

Existing gender segregation in the workforce would mean that the cost of paid maternity leave would impact disproportionately on certain industries and businesses. This was seen by some submissions as an argument against direct employer funding of paid maternity leave. It was also the reason that some submissions preferred a levy on all employers. [713]

WEL [Women's Electoral Lobby] strongly opposes any option that imposes direct costs on employers. Such a system impacts unevenly on employers, for example employers in sectors with a high proportion of women employees aged 24 to 34 years of age such as the hospitality industry. [714]

BPW New South Wales noted that:

... female dominated industries would bear the cost eg. Nursing, teaching, secretarial and retail. [715]

13.4.7 Particular concerns for small business

A number of submissions considered that direct employer funding would be particularly difficult for small business. [716]

The Council of Small Business Organisations of Australia submitted that:

[s]mall business is the major employer of women, it can be the training ground for future women entrepreneurs. As women are going into business at three times the rate that men are we could inhibit the growth of the small business sector which is of vital importance to the Australian economy if job prospects were curtailed due to small businesses not being able to fund paid maternity leave out of their own funds. [717]

One small business operator outlined the effect this would have on her business.

I have an office of three staff (all women) and if I had to pay them maternity leave, plus employ a new person in their absence, there is no way my business would be able to support this. I would have to close my doors … and that is a fact! [718]

BPW Australia considered that:

[s]mall and micro businesses should not be expected to pay towards PML [paid maternity leave] for their staff. It is generally agreed that most businesses in this sector would not be able to withstand such pressure on their financial viability. [719]

In contrast to this view, there were some submissions that considered that small business should be treated in the same way as other businesses. [720] This was particularly the case of submissions arguing in favour of the imposition of a levy on all employers.

One individual submitted that:

... I do not believe any business should be exempt. Smaller business[es] are not exempt from paying annual leave, public holidays, sick leave etc, so they should not be exempt from such an important leave as maternity leave. [721]

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13.5 An employer levy

While most submissions were opposed to direct employer funding of paid maternity leave, a number of submissions considered that business should contribute to the cost of paid maternity leave through an employer levy.

A contribution from business was considered reasonable in light of the benefits of paid maternity leave to employers. [722] As outlined in Chapter 10, these include direct benefits to individual employers and more general labour force benefits. The Australian Manufacturing Workers' Union considered that:

[e]mployers should bear some of the costs associated with paid maternity leave. It is a work related entitlement. Employers receive the benefits of women's participation in the labour force, their skills and their contribution to society through reproduction. [723]

The Australian Federation of University Women submitted that:

[t]he idea that employers could be required to contribute according to their capacity should not be ruled out. Ultimately employers will benefit from reduced retraining costs and good staff morale in retaining experienced staff who feel valued in their double role as parent and employee. [724]

The Australian Council of Trade Unions considered employers should contribute to funding paid maternity leave given they benefit from female labour force participation. The Australian Council of Trade Unions argued that a contribution would assist employers to attract highly skilled workers to Australia, and that it would improve loyalty of staff and the reputation of the organisation among consumers. A contribution to a national paid maternity leave scheme, that submission argued, would benefit employers at a micro level by reducing employee replacement costs and staff absenteeism; and at a macro level by assisting to maintain a long term labour market supply and a pool of consumers. [725]

One individual submitted that:

[i]t is also hard to understand that … a country that requires business to pay their employees annual leave (with annual leave loading), sick leave, long service leave etc, … [does not require business] to assist employees whilst on maternity leave. Businesses need to understand that if they wish to retain committed and skilled employees, then they need to assist employees in having a smooth transition from work to maternity leave and then back to work. [726]

A significant number of submissions, in particular those from unions, proposed a specific model of joint funding through a government payment and an employer levy. [727] This model involved a government funded payment to the level of the Federal Minimum Wage, a legislated employer levy to fund payment up to Average Weekly Earnings, and negotiated employer top up to full wage replacement. The Australian Council of Trade Unions estimated that the annual cost of their proposed employer levy would be approximately $240 million, and that "[w]ithout any cross-subsidisation, the weekly cost per employee would be $0.59". [728]

This model was seen as a means of recognising the benefits to employers of the introduction of a national paid maternity leave scheme while overcoming many of the disadvantages of direct employer funding.

In recognition of the benefits to employers, the ACTU [Australian Council of Trade Unions] calls for employers to fund the gap between the federal minimum wage and women's pre-leave incomes. The ACTU [Australian Council of Trade Unions] calls for legislation introducing a levy on employers to fund the gap between the federal minimum wage and the average weekly earnings ... If such a levy were introduced with this cap, paid maternity leave would deliver full income replacement for 87% of all women accessing the scheme. If capped at AWE [Average Weekly Earnings] the scheme will meet the ILO [International Labour Organization] requirement for 2/3 of pre-leave income for 97.5% of Australia's working mothers. [729]

An employer levy was considered to be a means of avoiding the employment discrimination against women that would result from direct employer funding of paid maternity leave. [730] For example, the Australian Manufacturing Workers Union Vehicle Division recommended that:

[a]n employer levy is needed that does not constitute a disincentive to women's employment, whilst it does accommodate the financial restrictions of small business. The appropriate response would be to set a levy on the total number of employees (not on the number of women employed), as a payroll levy that "kicks in" at a certain level (larger employers would therefore subsidise small business). [731]

Some submissions considered that an employer contribution to paid maternity leave would assist in establishing the payment as a workplace entitlement and maintaining a workforce connection between employers and women on paid maternity leave. The CSIRO Staff Association considered that:

... any such scheme would benefit by inclusion of an employer component, to help maintain the employment relationship through the period of maternity leave and better encourage the return to work. [732]

Immigrant Women's Speakout also noted that an employer levy would spread the costs of paid maternity leave more evenly across employers. The uneven cost to business was seen as a disadvantage of direct employer funding. [733]

Submissions were received that argued against an employer levy. For example the Victorian Automobile Chamber of Commerce considered that an employer levy would effectively be a new tax on business.

Once again this [an employer levy] detracts the whole issue of maternity leave being a societal issue and places it back in the employment arena. In essence the levy is a new tax, which is paid by employers. [734]

The Australian Chamber of Commerce and Industry considered that an employer levy would be costly and complex to administer, would be an additional cost on employment thus reducing the ability of employers to create new jobs and would be a new tax on employment. [735] The National Pay Equity Coalition pointed out that:

[i]n some industries, including some where women's employment is concentrated, labour costs are very finely calculated (for example, retail and hospitality). In those industries, even a relatively small levy could affect the viability of enterprises, especially small ones, and/or their capacity to employ people. [736]

Some submissions considered that an employer levy would lead to employment discrimination against women. For example the New South Wales Young Lawyers Employment and Industrial Law Committee argued that "[t]he use of an employer levy will increase discrimination against women". [737]

The Shop, Distributive and Allied Employees' Association considered that an employer levy would undermine the existing social security system.

[O]n the face of it a levy on employers has substantial problems from the perspective of protection of Australia's unique social security system. If a levy can be imposed in this instance, then why not for other things? The imposition of a levy could open the way for others to argue that other social security and family support payments be made in a similar way. Such a development would spell the death knell for Australia's social security system. [738]

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13.6 HREOC's position

Submissions demonstrate that there is substantial community support for Government playing a role in funding a national paid maternity leave scheme. Those employers and employer groups who supported the introduction of paid maternity leave did so on the grounds that such a scheme be government funded. They considered that business did not have the capacity to pay for such a benefit. The majority of submissions from women's groups supported government funding as a means of ensuring that all women in paid work could access paid maternity leave and that the introduction of such a scheme did not increase employment discrimination against women on the ground of pregnancy or potential pregnancy. The scheme recommended by the majority of union submissions also included a role for Government in funding a minimum entitlement.

As discussed in Part C, HREOC considers that significant community benefits would result from the introduction of paid maternity leave. Objectives such as 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 are all social objectives that benefit the entire community. Taxpayer funding is a means of distributing the cost of this measure amongst those who benefit.

As set out in Chapter 10, HREOC recognises that employers will benefit from the introduction of paid maternity leave. These benefits include direct benefits such as a reduction in recruitment costs and increased staff loyalty, as well as broader economic benefits such as access to a more highly skilled labour force.

HREOC notes that the direct benefits of paid maternity leave will vary considerably between employers, and in some cases will not outweigh the costs of such a payment. The macro-economic benefits to employers are less directly tangible and may not be acknowledged by some employers as sufficient reason for an employer contribution to paid maternity leave. HREOC is also concerned at the impact of a directly employer funded scheme on women's employment, particularly given employers' willingness to admit that they would discriminate in their employment decisions under such a scheme.

An employer levy would spread the cost of paid maternity leave more evenly across employers and would reduce the chance of increased discrimination on the basis of pregnancy or potential pregnancy. However, HREOC acknowledges that there would be considerable employer resistance to the introduction of such a levy.

Therefore, HREOC does not propose a compulsory employer contribution to paid maternity leave, either through direct payments or an employer levy. HREOC does, however, see a role for employers to top up a government funded component through enterprise bargaining and strongly encourages employers to do so. [739]

In light of these concerns with employer funding, HREOC considers that a national scheme of paid maternity leave should be funded by the federal Government. HREOC considers that funding such a scheme is an appropriate role for the Government. This view is based on the community benefits of paid maternity leave, the failure of the existing system to deliver paid maternity leave across the workforce, and the significant community support for such an approach.

RECOMMENDATION 1

That a national paid maternity leave scheme be immediately implemented and funded by the federal Government.

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14. Coverage

14.1 Introduction

One of the most basic issues to determine in designing a paid maternity leave scheme is the coverage of such a scheme. While at first glance this appears to be a simple matter, it was in fact one of the most controversial issues in the consultations and submissions.

This Chapter covers the issue of whether paid maternity leave should be available to:

There was clear support for including adoptive parents in a paid maternity leave scheme. However, opinion was fairly evenly divided in relation to whether the payment should be for mothers only or able to be taken by either the mother or father and whether the payment should be available to all women or only women in paid work.

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14.2 Payment to women versus payment to both men and women

14.2.1 Introduction

Significant opinion was voiced on whether paid leave should be for the mother or the primary carer of a child. Almost half of the submissions received by HREOC addressed the question of whether leave should be provided as maternity or parental leave.

This Chapter canvasses the views of those in support of parental leave and those who favoured maternity leave. International standards and the approach taken in other countries is provided as a comparison in deciding this element of a proposed Australian scheme.

14.2.2 International standards and practices

The Maternity Protection Convention specifies that 14 weeks of paid leave should be available for women in paid work.

The International Labour Organization differentiates between maternity leave which "… is designed to protect working women during their pregnancy and recovery from childbirth" [740] and parental leave which it defines as "… a long term leave to allow parents to take care of an infant or young child". [741]

The possibility of including parental leave in the Maternity Protection Convention was discussed and rejected in the process of revising the 1952 Maternity Protection Convention. [742] In deciding to focus on maternity leave, the International Labour Office noted that:

... the new proposed instruments would focus on protection for women during their pregnancy and recovery from childbirth, that is on child-bearing rather than on child-rearing. [743]

CEDAW specifies paid maternity leave as a measure that state parties should take "… to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work". [744] The CEDAW working party considered replacing "maternity leave" with "paid leave for parents", however it did not adopt this suggestion, instead retaining the provision that the leave should be specifically for women. [745]

Practice varies internationally regarding whether leave is provided as maternity leave or parental leave, with the majority of countries providing leave specifically for women in the weeks around childbirth. [746] In reviewing practice among Member States, the International Labour Office observed that:

... those Members which have adopted a parental leave scheme providing benefits typically reserve the early portion of that leave for the employed mother. [747]

Canada provides 17 weeks paid maternity leave followed by 35 weeks of paid parental leave, which can be taken by either parent or shared within the first year following the child's birth.

Denmark provides 18 weeks paid maternity leave which includes four weeks leave before the birth. This is followed by 10 weeks paid parental leave which can be taken by either the mother or father. There is also a separate and additional entitlement to two weeks paid paternity leave which can be taken concurrently with the maternity leave.

Ireland provides 18 weeks paid maternity leave including up to four weeks before the birth. This is followed by 14 weeks unpaid parental leave.

Japan provides 14 weeks paid maternity leave.

As of April 2003, the United Kingdom will provide 26 weeks paid maternity leave and two weeks paid paternity leave. There is also an entitlement for up to 13 weeks of unpaid parental leave which can be taken at any time up to the child's fifth birthday.

Norway provides the option of either 48 weeks paid parental leave at full income replacement, 52 weeks paid parental leave at 80 per cent replacement rate or the paid leave can be combined with part time work for up to two years. Nine weeks of this period is reserved for the mother, consisting of three weeks compulsory leave before the birth and six weeks leave following the birth. Four weeks of leave are reserved for the father.

France provides a basic rate of 16 weeks of paid maternity leave, with longer periods available in the event of multiple births and 26 weeks available in the case of the birth of a third or subsequent child. Eleven days of paid paternity leave is available as a separate and additional entitlement to be taken within the four months following the birth.

The New Zealand Paid Parental Leave scheme confers the primary entitlement to paid leave on women, with the ability to transfer this leave to a spouse. Where leave is transferred, the spouse must meet the eligibility criteria for leave, and the level of payment is calculated on the basis of the spouse's earnings. [748]

14.2.3 Payment to women

Introduction

Many submissions supported paid maternity leave being provided specifically for women. [749] The majority of employer groups in favour of a paid leave scheme considered that this should be a payment specifically for women. This view was also supported by a range of other groups including women's groups, unions, academics, and health professionals.

Maternal health and recovery

There was a strong view amongst those who considered that leave should be specifically for women, that this was required to deliver on the health and wellbeing objectives of paid maternity leave. [750] More specifically, these submissions referred to the need for paid leave to be specifically for women due to the fact that it is women who give birth and require time away from the workplace to sufficiently recover. [751] For example the Australian Hotels Association considered that:

… the payment should be made to women only to recognise the physical demands of the later stages of pregnancy, birth, recovery from birth and establishment [of breastfeeding]. [752]

The Women's Studies Research Unit supported maternity leave on the basis that:

... the need for leave is inextricably linked with maternal health (recovery from childbirth, sleep deprivation) and child health (establishment of bonding and breastfeeding where possible). [753]

The New South Wales Working Women's Centre drew attention to international standards, noting that:

ILO [International Labour Organization] and CEDAW recommend paid maternity leave for good reason - the health and well being of mother and child, and to ensure equality in employment … [754]

Coles Myer recommended that:

[a] paid maternity leave system which is government funded should provide payments to women only as the primary objective of such a scheme would be to ensure optimal health for women and infants. [755]

The Australian Education Union submitted that:

[p]aid maternity leave is for mothers in recognition of the physical demands of the later stages of pregnancy, birth, recovery from birth and establishment, where possible of breast feeding.

In recognition of these physical facts affecting mothers this payment should not be intended to be transferable between a mother and her spouse except in exceptional circumstances. [756]

Women at the Third Annual Victorian Women's Summit supported providing a payment specifically for women in recognition of the fact that:

The Work + Family Policy Research Group considered that maternity and parental leave serve different purposes. That submission considered that:

[m]aternity and parental leave are not interchangeable. Maternity leave is about recognising women's physical and other health needs immediately before and after childbirth, and facilitating the opportunities for breast-feeding. Parental leave is about both parents having opportunities to establish close ties with their infants and facilitating participation by men as well as women in the early care of their infant children. In line with the differing objectives of maternity and parental leave, the latter should come into effect after the former - as happens in all member countries of the European Union. [758]

The same approach is taken by the Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 (Cth), introduced by the Democrats into the Senate on 16 May 2002, which limits paid maternity leave to women only on the grounds of the health and wellbeing of the mother.

[The Bill] provides paid leave for mothers in recognition of the physical demands of the later stages of pregnancy, recovery from birth and establishment, where possible, of breastfeeding. In recognition of these physical factors affecting mothers, this payment is not intended to be transferable between an employee and their spouse except in exceptional circumstances. [759]

The New South Wales Working Women's Centre also considered that:

… more generic forms of leave such as parental or paternity leave de-gender the nature of child birth and the necessity for leave, and may be subject to further debate and/or trade-off over time. [760]

Addressing women's disadvantage in the workforce

Some submissions considered payment to women was a means of addressing the disadvantage that women experience in the workforce as a result of maternity. [761] For example, the New South Wales Labor Council recommended:

… payment made to the mother. This recognises the fact that it is women who give birth and are discriminated against in terms of their workforce experience as a result. Furthermore, the period of payment is relatively short to allow for recovery from birth and establishment of breastfeeding. [762]

The Centre for Applied Social Research submitted that:

… it is our view that the 14 weeks maternity leave should be paid to women only, in recognition of ... the need to protect women against discrimination because of their child-bearing responsibilities. [763]

While Coles Myer identified health and wellbeing as the primary objective of paid maternity leave, this employer also submitted that:

... supplementary benefits of such a scheme, such as reducing workplace inequity for women can be achieved by limiting the payment to women. In practice a payment made to a woman in many cases will also provide assistance to men as part of the domestic unit. [764]

Maternity leave as a priority

Some submissions advocated that paid maternity leave should be achieved before seeking to extend the payment to primary caregivers. [765]

The Women's Economic Policy Analysis Unit noted that:

... evidence from countries where paid paternity leave is available (eg. Germany and Sweden) shows that fathers' access rate is appallingly low. As such WEPAU argues that firstly a model of paid maternity leave must be introduced; once the scheme is operational it may be appropriate to extend such provisions to fathers and/or partners. [766]

Ensuring women's access to leave

Some submissions contended that a system of parental leave would lead to some women returning to work before they were ready. This could occur in cases where the family was financially better off if the woman returned to work within the 14 weeks and the father took the paid parental leave. The Women's Action Alliance noted that:

... if it were payable to the father, because he usually earns more than the mother, there would be a financial incentive for him to claim it rather than her. [767]

A concern was also raised in some consultations that power imbalances within some families could mean that some women could be pressured to give up the paid leave. [768] This issue was not raised in the submissions.

Exceptions

Several submissions suggested that the paid leave entitlement be transferred to the primary carer in the case of death or incapacity of the birth mother. For example, BPW Australia suggested:

[p]articular consideration needs to be given to a partner where the mother has died in childbirth, allowing for the partner to take the full 14 weeks. [769]

The Australian Retailers Association argued that:

[t]he eligibility criteria should take into consideration the fact that circumstances may occur where the mother is not able to provide for the health and well being of the child and access to the benefits of the scheme should not be unduly restrictive. [770]

This exception is consistent with Paragraph 10(1) and (2) of the International Labour Organization Recommendation 191. [771]

14.2.4 Payment to primary caregiver

Introduction

A significant number of submissions supported a system of paid parental leave that made payments to the primary care giver. [772] As with payments to women only, this approach was also supported by a broad range of groups including women's groups, academics, unions, and a limited number of employer groups.

HREOC notes that any system that made payments available to the parent performing the role of primary carer should not discriminate against same-sex couples. Non-birth parents in same-sex relationships should receive the same treatment as fathers in heterosexual relationships.

Choice and flexibility

Some submissions considered that paid parental leave should be provided in order to give families choice and flexibility regarding who took leave following the birth of a child. [773]

While it is true that in many families it will be the mother that takes paid parental leave this should be a choice made by each family instead of being forced on them ... If we value parenthood we should value choices made by parents that cater for the best needs of their families. [774]

An individual submission argued that "… the important issue is that parents should have a choice and that paid leave should not be simply limited to women". [775] Another individual noted that raising children was a family duty and as such:

[f]amilies should be able to choose who will take of the childcare responsibilities - whether that is the mother, father, joint etc. Therefore paid maternity leave needs to be about providing income to the primary care giver. [776]

The Catholic Women's League of Australia suggested that:

[w]hile the physical acts of pregnancy and giving birth belong to a female there are many cases where a mother may choose to go back to employment while a father chooses to be the primary care giver - for example (and not limited to) the case of adoption or when the father works from home, or the mother's workplace takes precedence. [777]

BPW Australia considered that allowing choice in who took paid leave would influence some women's decisions on whether to have a child.

[t]his is particularly important to our members who run their own businesses or who earn significantly more than their partners - it would suit the family finances for the partner to spend some time as principal carer to free the mother up to return to work at least part-time as soon as possible. This would be a deciding factor for these potential parents in determining when and indeed whether to have a child. [778]

The changing roles of mothers and fathers

Another rationale for providing paid leave to the primary caregiver was gender equity concerns and the rights of men and fathers. As the Victorian Women Lawyers pointed out, "[f]amilies are not just a women's issue". [779]

The Australian Capital Territory Ministerial Advisory Council on Women pointed out that over time, a paid parental leave scheme:

… will lead to the development of a new standard being established in the society, including an enhanced understanding that caring responsibilities belong to both men and women. [780]

One individual considered that:

[b]y stipulating that each new parent has the right to a period of leave, the government will recognise parental leave as an entitlement for all, and not discriminate against fathers, or restrict their options of work/family arrangements. [781]

An associated argument raised in a number of submissions supporting payment to the primary caregiver was the belief that payment to the mother would only reinforce the gendered stereotypes of men as the breadwinners and women as the homemakers. One individual noted that:

… in restricting leave to only mothers there are implications, which suggest that the father has no obligation, or desire to take time off to care for a child, thus reinforcing the male "breadwinner" mentality. [782]

An academic was concerned that any new system should challenge current gendered roles.

There are signs that both women and men want greater equality in care-giving and income-earning. Women's bodies bear and breastfeed babies, and paid maternity leave gives recognition to this reality. However, a scheme must avoid any suggestion that babies and young children are the responsibility of individual mothers rather than of both parents, and of the community. [783]

One individual drew attention to the changing gender roles in our society.

Our society has dramatically changed from the times, where the man was the breadwinner and the woman threw in her job at the first sign of pregnancy to stay at home to be a full time mother. [784]

Recognising the role of fathers

A corollary to these gender equity and gender stereotype arguments is the contention made in several submissions that where parenting is shared, both parents want recognition and encouragement of this by making any payment available to the primary caregiver. [785] One individual considered that men should have the same child raising opportunities as women.

Implementing Paid Maternity Leave only addresses the financial issue for women but the converse issue of allowing men the same child raising opportunities as women has been downplayed to the point where it barely rates a mention, let alone is addressed with equal importance. Addressing both sides of the issue is implementing gender equality, which is the purpose of the HREOC whereas only addressing the women's issue is feminism. [786]

An individual submission considered that:

[t]he main disadvantage of limiting paid leave to women is that it limits the options available to women and removes any incentive to fathers to take time off to care for their children. Indeed it has the disadvantage of creating a financial barrier or penalty for men seeking to care for children while their partner returns to work. [787]

The Men's Confraternity, Western Australia pointed out that there are many fathers "… who are denied the opportunity of experiencing those first few months of their child's life, because the option is not available to them". [788]

The Women's Council, Liberal Party of Australia (South Australia) strongly asserted that:

… both parents are responsible for the production of children and therefore both parents have a responsibility for their care. Should fathers choose to play a full time caring role in the early weeks of the lives of their children, they should have access to paid parental leave on equal terms with mothers. [789]

The Anti-Discrimination Board of New South Wales considered that creating a parental leave entitlement would have symbolic value.

Although the gender neutrality of terms such as parental leave may in practice be at odds with the reality of women's primary responsibility for childbirth and child rearing, as Therese MacDermott has argued the use of a gender neutral entitlement to parental leave rather than maternity leave seeks to encourage "at least the idea, if not actuality, of shared parenting." [790]

Changing workplace cultures

Some submissions contended that extending paid leave to the primary caregiver may have wide-reaching positive effects on workplace culture and the acceptance and use of work/family balance policies. [791] An individual submission considered that:

[a] parental income maintenance may assist in encouraging fathers to take on greater child caring responsibilities and challenge managerial cultures which currently impede Australian men accessing unpaid parental leave provisions. [792]

The National Women's Council of South Australia submitted that:

… a parental leave element is essential if work place cultures are to change to support, instead of obstruct, a balance between work and home responsibilities, if stronger family ties and interaction between parents and children is to be supported, and the economic and social benefits of this family policy are to be fully realised. [793]

The Equal Opportunity for Women in the Workplace Agency suggested that providing parental leave would allow for sharing of family responsibilities between men and women and therefore inevitably have a positive effect on gender equity at work. [794]

Discrimination against women

A number of submissions expressed concern that limiting paid leave to mothers only would exacerbate the discrimination women already face in employment as employers would be reluctant to employ women of child-bearing age. [795] An individual stated that discrimination:

… will have a greater potential to be limited under a parental policy than a maternity one. A maternity leave policy has potential to further exacerbate the potential for employers to discriminate against women, a parental leave policy, to which all parents are entitled, will go some way in minimising gender associations of parenting leave. [796]

The Equal Opportunity Commission of Victoria considered that:

[a] gender neutral scheme would also seem to reduce the risk of "employment backlash" against women, as schemes focused solely on women may (dependent on funding arrangements) result in a knee-jerk reaction whereby women are subjected to potential disadvantage in terms of obtaining employment. [797]

Where a national scheme of paid maternity leave is funded by the taxpayer rather than individual employers, this concern may be less of a problem. This is because the direct cost of paid maternity leave would be borne by the Government and not the employer. There is not the same incentive for employers to not employ women of childbearing age in order to avoid the cost of paid maternity leave.

The Equal Opportunity for Women in the Workplace Agency considered that providing parental leave instead of maternity leave will "… address the concern of many men (employers and employees) about 'special treatment' for women". [798]

Transferability

A number of submissions canvassed the possibility of making the entitlement to paid maternity leave transferable to the other parent or primary caregiver. [799] This was seen as enabling a system of parental leave that acknowledged that the primary entitlement for leave should rest with the mother. In particular, these submissions proposed that the primary entitlement to paid leave reside with the mother, with the decision to transfer to be made by the mother. This proposal was supported by a significant proportion of the unions that made submissions. For example, the Australian Council of Trade Unions wrote that:

[t]he ACTU [Australian Council of Trade Unions] does not oppose the extension of eligibility to the child's father or other primary caregiver in circumstances where the mother has genuinely opted to transfer her leave entitlement.

…
However the ACTU [Australian Council of Trade Unions] believes that, consistent with the anti-discrimination purpose, and to support maternal recovery post birth, the primary entitlement should rest with the mother. [800]

The National Pay Equity Coalition submitted that:

[w]hile a key rationale for paid maternity leave is to provide a period of leave for maternal and child health while maintaining the mother's workforce attachment, there may be circumstances where the overall welfare of the household is best secured by transfer of the leave to the partner. That decision is one for the mother. It is cost neutral whether the leave is taken by the mother or her partner, provided the paid maternity leave entitlement is based on her earnings and transferred at that rate. [801]

The Independent Education Union proposed that:

[a]s in the recently introduced New Zealand model, there should be provision for women to transfer part of the maternity payment to a partner but the mother should be the primary recipient, for example, for at least six weeks of the payment. [802]

Limits on transferability

Even for those submissions that considered transferability, a view was often expressed that the duration of paid leave proposed (14 weeks) was probably inadequate to permit transferability given that women needed much of this time to recover from childbirth. The YWCA of Australia noted that:

[w]ithin a debate about 14 weeks leave there is likely to be little time for mothers to allocate to non-birth giving parents. Many women will want and need to take time off before the birth and the ILO [International Labour Organization] recommends 6 weeks leave after the birth, although this should not be a forced absence. However, it is still important to include transferability in the options in the development of a new system of parental payments. [803]

A number of submissions suggested that a portion of the leave should be reserved for the mother, with the remaining period available to either parent. Such an approach would reflect the practice in many State and federal awards of requiring women to take leave for six weeks prior to the birth of a child, unless a medical certificate is provided. [804]

The Illawarra Forum and the Illawarra Women's Health Centre considered:

[t]hat maternity leave should be available to the female parent solely for the first 8 weeks with the remaining 6 weeks negotiable as parental or maternity leave and available to either partner in the parenting arrangement. The condition that only the female parent be eligible for the first eight weeks is in recognition of the he