Government Lawyers - CLE Conference & Dinner

Government Lawyers -
CLE Conference & Dinner

Address given by Pru Goward

Sex Discrimination Commissioner and Commissioner responsible for Age Discrimination

Parliament House,
Sydney

12 September
2006

Thank you for
inviting me to speak to you today about my work and its legal
connections.



In the first
instance of course these connections are obvious - my work is based on an Act of
the Commonwealth Parliament, the Sex Discrimination Act of 1984, which makes
discrimination unlawful on the basis of sex, marital status, pregnancy or
potential pregnancy. It also makes indirect discrimination unlawful when an
action has that effect on a group of people. Finally, it also makes sexual
harassment and dismissal on the basis of family responsibilities unlawful. The
Act draws its authority from a United Nations treaty, the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW), to which
Australia became a signatory some time
earlier.



Each Commissioner has
pursued her own areas of interest and, as most of you would know, mine has been
working conditions for mothers and the nexus between paid work, unpaid
responsibilities and gender equality. My proposal for a national scheme of
government-funded paid maternity leave was an earlier manifestation of this
interest, but more recently I have started to tackle what I believe to be the
underlying cause of the gap in economic empowerment between men and women, that
is, the responsibilities we have in our private lives. The unpaid
responsibilities we have to care for people - our children, our elderly parents,
our adult disabled children, and indeed our pets and homes. This is all part of
my national research project ’Striking the
Balance: Women, Men, Work and
Family’.



As
the saying goes, there are only 24 hours in a day and the more of those you
spend in unpaid work, as well as the more focus you give unpaid work, the less
time and capacity you have to contribute to paid work.

Because there is no doubt that
work-life balance itself is a trade off, a compromise and an issue of
considerable debate. ‘A barbecue stopper’ as the Prime Minister has
also been wont to say, as he moves around the country listening to grandparents,
middle aged children and parents all telling him how hard it is to find time for
both, or suitable child care or transport or working
arrangements.

There is no doubt that
this modern struggle for balance is the result of more of us working than ever
before, despite our considerable and deepening caring responsibilities. We are
no longer struggling for more work, as our grandparents did, but for more time.
How ironic that in the space of a life-time, my life-time, Australia could have
gone from a country without enough work to one with too
much.

Of course, the work-life
balance each of us strikes is more than a decision made on the basis of our
individual circumstances.

Work-life
balance is also a political question, a cultural question and a public interest
question.

The reasons are all
familiar to you:

• The
  social roles played by men and women,
• industrial
  arrangements,
• government
  regulation and assistance, and
• national
  interest
  objectives.

Let
me deal briefly with
each.

Traditional
gender roles.

Women in Australia do
70% of the unpaid caring work, men do 70% of the paid work. Even in households
where women are in full-time employment and their men are unemployed, she still
does, on average, more housework than he
does.

Women are 93% of custodial
grandparents, 2/3 of them on pensions. The majority of childcare provided by
grandparents is provided by grandmas, and don ’t forget that grandparents
provide 31% of all childcare and 98% of that’s for free. When it comes to
looking after elderly parents, 91% of that care, when its still at home, comes
from daughters not sons, sisters and not their
brothers.

And of course, women do
most of the child rearing.

Men, on
the other hand, work extraordinary hours, die seven years younger, are twice as
likely to die young as women, rarely get their children after separation and are
mostly represented in the carer groups when it is caring for a disabled
wife.

Some of these choices might be
genetic, some might be the result of traditions or rational economics, some
might be constrained. These constraints show up in many conflicts between
couples - where who does what and his long working hours are often blamed for
marital conflict and under-achieving children.

Industrial arrangements are also
important. Low skilled, low paid people who are not in great demand tend to
manage their balance by choosing fewer hours or jobs at the right time with
lower remuneration than otherwise. More valued workers can and do negotiate
greater flexibilities like working from home, parental and carer ’s leave
and flexible start and finish times, but I notice it’s much harder for
them to get reduced hours. Usually working from home means you work more total
hours, not less. Some workers are able to negotiate part-time arrangements, but
this is much less likely at the professional and managerial ends; almost all
part-time work is in retail and hospitality. So again, striking the balance
comes at a significant price for women. For men, my consultations suggest they
don’t even dare ask. Employers and managers are not sympathetic to men
who seek to reduce or modify their working arrangements for the sake of their
families. Men don’t just fear that they won’t be promoted, but that
they won’t keep their jobs.

Australian men are more likely to
take bereavement leave than carer’s leave.

Government benefits and taxation
also interact to affect the equilibrium point between work and family time.
There are certainly work disincentives for second earners, usually women, when
there is a trade off between working more and receiving smaller government
benefits such as Family Assistance, although this year ’s Budget has
improved some of these taper
rates.

The availability of childcare
subsidies and planning also affects working decisions, as does the availability
of public transport, time taken to get to work on public roadways and so
on.

But the pressures on people to
care more, not less, are certainly emerging exactly at the same time as there is
pressure on people to work more, not less.

Today the pressure to care is not
just about children, including adult children. For a start, the roll-on effect
of a shortfall in childcare, or expensive childcare is grandparent care, with
the result that work-life balance is now faced by the elderly as well as by
prime age workers. Grandparents frequently give up paid work or reduce their
hours if their jobs do not enable them to combine with grandchildren care. One
in five children under 12 cared for by a grandparent, mostly grandmas. Half of
under twos cared for by a non-parent are cared for by
grandparents.

And this generation of
grandparents, workers in their late fifties and sixties, may also have to care
for their own elderly parents, thanks to our ever-increasing life expectancy. We
often describe these middle-aged workers with children, or perhaps grandchildren
to care for as well as their parents, as the ‘triple decker sandwich
generation’. Most of these are women, but in an age of increasing one
child families, you can soon make this an issue for men
also.

A third reason is globalisation
and the incredible increase in competitive pressure brought about by free trade.
It has brought great prosperity to many, but always at a price. People are
expected to work longer and harder than ever before; trans national corporations
require meetings and turn-arounds at all hours, and that sense of pressure which
comes from knowing your company is up against companies from around the world.
Middle managers, both in the public and private sectors, work ridiculous hours.
Unless the world changes its mind about globalisation, I can ’t see this
changing.

Almost
a quarter of the workforce works an average of 50 hours a week or more, and many
of these workers are men with families.

The
industrial reforms of the past 15 years have enabled much of this. The
sclerotic, industrial system of awards and centralised wage fixing has gradually
been made more flexible by the addition of negotiated arrangements such as
enterprise agreements which have certainly fuelled Australia’s economic
growth over the past decade, and jobs with it.

But
undoubtedly much of the productivity growth to come from this new industrial
flexibility was the result of people being prepared to work longer hours, or
less family friendly hours without penalty rates, or more uncertain hours as
casuals or contract workers. That was all traded away against more money and, of
course, more jobs.

Ah
yes, the sanguine might say, but people adapt. Families adapt. This is just an
adjustment phase. This may be true, although I cannot see how relationship
building, the development of love, trust and respect between family members, can
simply be sped up to accommodate the requirements of work. Love takes
time.

A
further pressure will be the demographics of ageing.

How do we maintain,
let alone increase the current size of the Australian workforce in a future of
low fertility and rapid ageing....and if we succeed, how do these people find
time to care?

In less than 40 years
time one in four of us will be over 65. On present trends we will be spending
almost twice as much of our Gross Domestic Product on the old age pension as we
do on Defence. You might say that is not a bad thing so try seeing it this way:
Federal Treasury Secretary, Ken Henry, a calm and collected man not known for
panicking, has estimated that once you include health care, spending on aged
care by the year 2042 will require a GST of 24 cents in the
dollar.

It’s difficult to see
Australia being able to pursue prosperity with so much of its wealth tied up in
funding retirement, essentially in transfer
benefits.

For this reason,
governments are keen to enable (using carrots and sticks) more Australians to
work for longer. Not only to ensure their skills and training are retained for
as long as possible in an era of stagnating growth in the labour force, but also
to reduce reliance on old age pensions and state provided aged services.

We need to ensure older Australians
are willing and able to work. At present Australians over the age of 55
don’t participate as much in paid work as older workers in other developed
countries. This is especially true of
women.

Only 40% of Australian women
between 55 and 64 are in paid work, much lower than most of Europe and the US.
Try Sweden, where almost 80% of this age group
works.

Much of this low participation
rate I believe can be explained by the extensive caring responsibilities born by
this group.



For this group of
older workers, retaining them will not just be about superannuation benefits,
but about how well employers and society can enable them to keep working while
meeting at least some of these caring responsibilities, as well as their own
changing personal and health needs. Looking after elderly parents is an
increasingly vexatious issue for middle-aged children workers. Every time an
elderly parent is cared for by a family member, there is less pressure on the
public purse and on the family’s finances. One way or another, the state
ends up paying - either by providing the sorts of flexibilities that enable
children to do it themselves, or by ripping more taxes out of people to pay
others to do the caring for them.

How do we persuade employers they
are worth keeping, despite their other responsibilities and that there are
possibilities other than full time
retirement.

How do we persuade
employees to stay? Call centre or factory workers, for example, are unlikely to
be bounding to work with unbridled enthusiasm day after day, year after
year.

Interestingly, many businesses
tell me it is older male managers in their sixties who are now as likely to seek
part time work as young mothers. The ANZ is leading the way with part time work
programmes for older workers, men and women, trying to hang on to all their
skills and experience. Some want shorter days, some want shorter weeks - the
most popular type of part-time work for older workers is a shorter year (where
they get to take three months or six months a year off unpaid, but with their
salary averaged over the full 12 months). Others want less responsibility and
are prepared to drop pay - something many organisations find difficult to deal
with.

Retaining these workers means
providing working conditions that fit with their caring responsibilities as well
as their retirement dreams. It need not be about caring responsibilities; it is
always about life balance.

Of course
much of our concern about funding aged care would not be so agitated were it not
for our low fertility rate - the low number of future tax payers expected to
support us baby boomers in our very lengthy old
age.

And frankly, I think part of our
low fertility is a response to poor work-life balance. While it might be true
that most of us find partners at work, it’s also true that work keeps us
apart. Working hours frequently discourages intimacy and that the demands of
work, and young women believing their work choices will not support their family
choices, increasingly choosing to delay having children. Amongst high achievers
and tertiary educated women, this problem is significant - of course it is no
accident that these are also sought after workers who work long hours. Surely if
work-life balance were an acceptable, talked about and embraced life-objective,
this choice need not be so stark? And it is not just an issue of childlessness,
but of decreasing family size. Remember that from this year’s Budget, a
family of three children is classified as large. Because when childcare is
expensive or non-existent, when working hours are long and unrelenting, why
would women, having had one child and struggled, ever do it again. Perhaps that
is why, in the space of a generation (from 1980 to 2000), the number of
only-child families has gone from one in five to one in three of all families
and, if the demographers are right, you can make that one in two families living
in our major cities.

International
evidence suggest that places which support women to work flexibly with children,
financially support their working motherhood with benefits like paid maternity
leave, have experienced improved fertility rates. Traditional countries such as
Italy, Spain, Portugal and Germany, on the other hand, have some of the lowest
birth rates in the developed world. Where you force women to choose between
work OR children, but not to have both, a significant number will choose work
and no children.

Let me finish by
reflecting on the recommendations we are currently considering for ’Striking the
Balance: Women, Men, Work and
Family’.

It
is now in the final stages of being written. It is a big, comprehensive look at
Australian family life and the impact of our paid and unpaid responsibilities on
life. It finds, I believe, Australia at a cross roads. A wealthy country with
jobs to burn and high living standards, but increasingly stretched for time that
money can’t buy, but time that is priceless (the time we devote to our
friends and our families). Now maybe Gen Y will work this out better and it
will take care of itself, although every survey I have seen of young men and
women confirms that young men, at least, believe they will continue to do the
bulk of the paid work and the caring will be their female partner’s
responsibilities.

The question for
the report is: what can we recommend that will help any of this, and in
particular, what changes to the law might assist? In my view, legal changes can
only ever make a limited difference to social questions as complex as this, but
that is not to say they are irrelevant - they do play a part.

Without giving any indication of
which way the report might go (it is still being finalised) there are three
frequently proposed legal remedies.

The first is to introduce
legislation similar to that of the UK’s; a provision which would enable
those with caring responsibilities the right to negotiate part-time working
conditions and have the employer to reasonably consider them, with the emphasis
on reasonable. Part of being reasonable would be allowing for the firm’s
economic viability, the nature of the work involved and so on. It has,
apparently, encouraged the spread of part time opportunities in the British
workforce and there is the same potential here. It is a conservative approach,
but one which may at least encourage employers and employees to start having
conversations about suitable arrangements, thus overcoming any tendency to
assume that the other party either has no ideas or no
flexibility.

A second approach would
be to overhaul the family responsibilities provisions of the Sex Discrimination
Act so that they apply in cases other than dismissal. It might be that they
would apply when they were refused part-time options or flexible conditions.
Although you might assume this extension would only assist women in meeting
their responsibilities, it is most unlikely, in my view, that this would remain
the case. The need to give men and women a fair go would soon see to
that.

A third approach would be the
introduction of an entire Act designed to protect employees against workplace
discrimination on the basis of their caring responsibilities. This would
obviously be a very big step for a government and would need to be very
carefully considered, but it is certainly strongly supported by carer
advocates.

There are other measures
that might go part of the way towards the promotion of more flexible working
arrangements, such as raising awareness of the benefits to business of retaining
skilled and valued staff by providing flexibilities, backed up by as many
practical examples as come to hand. Encouraging awareness of the importance of
men as fathers and engaged fathers, not just ‘credit cards on
sticks’, is also going to be important in persuading people that it is
about equality for women AND men. There is plenty in this for men too, and
certainly plenty in this for children and those who need family
support.

You can be sure there will
be dozens of bright ideas and good suggestions when we release our final report
in the next few months.

What we can
be clear about already is there is no question of whether Australia can afford
to do any of this, but whether it can afford not
to.

Thank you.

Last
updated

September 13, 2009