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HREOC Submission: Productivity Commission on the Inquiry into Paid Maternity, Paternity and Parental Leave

Legal Legal
Friday 14 December, 2012

Submission of the

HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION (HREOC)

to the

Productivity Commission

on the

Inquiry into Paid Maternity, Paternity and Parental Leave

2 June 2008

Human Rights and Equal Opportunity
Commission
Level 8, 133 Castlereagh St

GPO Box 5218
Sydney NSW 2001
Ph. (02) 9284 9600

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Table of Contents


Introduction

  1. The Human Rights and Equal Opportunity Commission (HREOC) makes this
    submission to the Productivity Commission in its Inquiry into Paid Maternity,
    Paternity and Parental Leave (‘the Inquiry’).

  2. HREOC is Australia’s national human rights
    institution.[1]

  3. HREOC has undertaken substantial work over an extended period of time on the
    need for a national scheme of paid leave entitlements for parents, including
    paid maternity leave, paid paternity leave (described as ‘supporting
    parent leave’ in this
    submission)[2] and paid parental leave
    (collectively described as ‘paid leave’).

  4. In 1999, HREOC conducted its National Pregnancy and Work Inquiry, which led
    to publication of Pregnant and Productive: It’s a right not a privilege
    to work while pregnant
    (‘Pregnant and Productive (1999)’).[3] At that
    time, HREOC first recommended that the Australian Government (‘the
    Government’) undertake economic modelling and analysis of possible paid
    maternity leave options.

  5. This work was followed by HREOC’s A Time to Value: Proposal for
    National Maternity Leave Scheme
    in 2002 (‘A Time to Value (2002)’)[4] and It’s
    About Time: Women, men, work and family
    in 2007 (‘It’s About
    Time
    (2007)’),[5] both
    involving extensive public consultation and expert input. HREOC recommended the
    immediate introduction of a national paid maternity leave scheme as a priority
    in both of these reports. In 2007, HREOC also called for consideration of
    paternity and parental leave entitlements.

  6. In 2007/8, the new Sex Discrimination Commissioner, Elizabeth Broderick
    conducted her national Listening
    Tour.[6] Once again, the need for a
    national scheme of paid leave for parents emerged as a major theme.

  7. Accordingly, HREOC welcomes the opportunity to participate in this
    important, long-awaited inquiry for the Australian community.

  8. This submission draws on HREOC’s previous paid leave reports,
    recommendations and consultations. The submission also incorporates
    HREOC’s recommendations from the National Inquiry into Discrimination
    against People in Same-Sex Relationships: Financial and Work-Related
    Entitlements and Benefits, contained in the Same Sex: Same Entitlements
    Report
    (2007).[7]

Summary

  1. There is an urgent need to establish a national paid leave scheme. However
    it is essential that a national paid leave scheme progressively realises a range
    of key national public policy objectives.

  2. A national paid leave scheme should:

    1. ensure the health and wellbeing of mothers, babies, fathers and
      families;

    2. address women’s workplace disadvantage as a result of their maternal
      role;

    3. promote gender equality by fostering shared responsibility between men and
      women for the care of children;

    4. deliver benefits to the economy and employers;

    5. foster economic security for parents and children;

    6. deliver social benefits for the Australian community as a whole; and

    7. comply with Australia’s international human rights obligations and
      labour standards.[8]

  3. HREOC considers that implementing a national paid leave scheme should be
    staged and continuously improved over time in order to achieve these key
    national objectives in an effective and sustainable way. HREOC therefore
    proposes a national paid leave scheme which is implemented in two stages.

  4. HREOC’s proposed National Paid Leave Scheme (Stage One) introduces a
    first phase of paid maternity leave (14 weeks) and supporting parent leave (two
    weeks). Stage One should be introduced immediately.

  5. Two years after implementation of Stage One, the Government should conduct a
    comprehensive, independent review (the ‘Two Year Review’) of Stage
    One in order to assess its effectiveness in contributing to the key national
    objectives. Following the Two Year Review, HREOC proposes introduction of the
    National Paid Leave Scheme (Stage Two). Stage Two builds on Stage One by
    introducing an additional paid parental leave component (38 weeks, of which four
    weeks are reserved for the supporting parent on a “use it or lose
    it’ basis). HREOC recognises that its current Stage Two proposal may need
    to be modified and improved before introduction, depending on the outcomes and
    learnings from the Two Year Review.

  6. HREOC considers that its National Paid Leave Scheme will positively
    contribute to the key national objectives. In particular,:

  7. Paid Maternity Leave will:

    1. provide an essential minimum period of paid leave for mothers to recover
      physically and emotionally from birth, to establish breastfeeding and to bond
      with the child;

    2. enable babies to form a secure attachment to their
      mother;

    3. address the disadvantage that women experience in their ability to stay
      attached to the labour market as a result of giving birth;

    4. increase the labour market attachment of mothers by contributing to an
      increase in return to paid work following childbirth;

    5. ease the financial pressure on mothers, fathers and other supporting parents
      at a time when additional expenses are incurred as a result of a new
      child.

  8. Supporting Parent Leave will:

    1. Enable supporting parents to bond with their child;

    2. Enable babies to form a secure attachment with their other parent;

    3. Support the sharing of parenting responsibilities from an early stage;
      and

    4. Provide new mothers with support from their partner while they adjust to
      their new role and, where applicable, provide support where the mother is
      transitioning back to paid work.

  9. Paid Parental Leave will:

    1. Enable mothers to continue breastfeeding according to choice;

    2. Support parents to provide personal care for their child for the first year
      of the child’s life;

    3. Contribute to healthy child development during the first
      year;

    4. Support working parents to share their parenting responsibilities and their
      paid work according to choice;

    5. Provide greater flexibility and choice for parents as to how they arrange
      their parenting responsibilities with their paid work;

    6. Enable supporting parents, particularly fathers, to take leave from paid
      work in order to enhance bonding with their child, contribute to healthy child
      development and establish a strong parenting relationship based on partnership
      with the child’s mother.

  10. In conjunction with other key national public policies (such as the right to
    request flexible work, and early childhood education and care), a National
    Paid Leave Scheme
    will:

    1. Enhance women’s workforce participation and participation in public
      life;

    2. Facilitate supporting parents’ greater participation in family
      life;

    3. Increase economic security for women, men and their
      families;

    4. Contribute to reduction in the gender pay gap and inequality in retirement
      savings;

    5. Provide benefits to employers by attracting and retaining female staff,
      leading to increased productivity;

    6. Provide a greater economic return for investment in education and skills
      development of women;

    7. Contribute to maintaining an acceptable aged dependency ratio to support the
      ageing Australian population;

    8. Value the role of children and parenting as an investment which provides
      social and economic benefits to the country.

  11. HREOC urges the Inquiry to model the likely impact of both State One and
    Stage Two of its National Paid Leave Scheme. The modelling should separately
    assess both stages of the proposal against its key national objectives, taking
    into account the interaction with current government payments, and other paid
    work and family responsibility policies such as the right to request flexible
    working arrangements and the unpaid parental leave entitlements contained in the
    proposed National Employment Standards, and both committed and mooted reforms to
    the provision of early childhood education and care services.

  12. HREOC may then modify its proposal in the subsequent stage of this
    inquiry.

  13. Promotion and education of a new national paid leave scheme within the
    Australian community is essential. HREOC urges that the implementation of the
    National Paid Leave Scheme be accompanied by a comprehensive education and
    awareness-raising campaign that meets the diverse communication needs of the
    community. Promotion and education strategies should be tailored for, and
    targeted towards, groups less likely to have information about the new
    entitlements. All information should be culturally appropriate and made
    available in an accessible format.

  14. A national paid leave scheme should be subject to continuous review,
    informed by a strong evidence base. HREOC urges the Government to develop and
    fund an independent research agenda which will generate reliable evidence over
    time of the impacts of the national paid leave scheme in conjunction with other
    key public policy initiatives, including social security and family assistance
    payments, the right to request flexible work arrangements, and early childhood
    education and care policies, on the key national objectives.

  15. As noted above, HREOC proposes a formal Two Year Review of a national paid
    leave scheme, in whichever form it initially takes. The Two Year Review should
    be included in the legislative arrangements for introduction of the scheme. The
    Two Year Review is essential in order to measure the impacts of Stage One of the
    scheme, and to implement a more substantial package of paid leave measures
    taking into account the findings of the review.

  16. A national paid leave scheme must be considered as part of a suite of
    measures to enable people to meet their paid work and family
    responsibilities.

  17. HREOC’s two-staged proposal for a National Paid Leave Scheme is
    summarised in the table set out below.

Table
of HREOC’s Proposed National Paid Leave Scheme for
Parents
HREOC’s PROPOSAL FOR A NATIONAL PAID LEAVE SCHEME
STAGE ONE for immediate implementation
STAGE TWO for implementation (with possible
modification) following Two Year Review
PAID MATERNITY LEAVE (‘PML’)
SUPPORTING PARENT LEAVE (‘SPL’)
PAID MATERNITY LEAVE (‘PML’)
SUPPORTING PARENT LEAVE (‘SPL’)
PAID PARENTAL LEAVE (‘PPL’)
Duration
PML will provide for an entitlement to 14 weeks of paid
leave to be taken immediately prior to and/or following the birth of the
child.
PML must be taken as a continuous block.
A woman may elect to take less than the full 14 weeks of
PML, but will only receive payment in the weeks taken as maternity
leave.
SPL will provide for up to two weeks of paid leave for the
supporting parent (see Coverage below) to be taken concurrently with the PML
period, or immediately after the PML period.
Where the birth mother is not in paid employment, the SPL is
to be taken in the first 14 weeks after birth of the child.
SPL must be taken in a continuous block.
The supporting parent may elect to take less than the full
two weeks of SPL, but will only receive payment for the period of leave
taken.
Same as Stage One
SPL will provide for up to two weeks of paid leave to be
taken concurrently with the PML period only. SPL can no longer be taken
immediately at the end of the PML period.
In other respects, duration is the same as Stage One of
SPL.
PPL will provide for up to 38 weeks of paid parental leave,
to be taken following the PML period and within the first year of the
child’s birth.
However, four weeks of the 38 weeks of PPL may only be taken
by the supporting parent, with the exception of a sole parent, in which case,
the sole parent is entitled to up to the full 38 weeks of PPL.
The parents of a child may share the 34 weeks of PPL to
which both parents are entitled. For example, parents may choose a shared care
arrangement, with both parents undertaking paid work on a part-time basis,
sharing the care of the child at alternative times.
However, PPL time cannot be taken concurrently by both
parents at the same time.
Coverage
PML 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 the
supporting parent, 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
gives up care of the child; or where the child has been adopted.
SPL is to be provided to the supporting parent of the child.
The supporting parent is either the father of the child, or the partner of the
mother, depending upon which person is to share parental responsibility for the
child.
The exception to this is where the birth mother is a sole
parent, (i.e. no supporting parent) in which case SPL is to be provided to women
in receipt of PML.
Same as Stage One
Same as Stage One
PPL is to be provided to the birth mother and/or the
supporting parent, subject to the restrictions set out under Duration,
above.
Eligibility
In order to be eligible for PML, 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.
In order to be eligible for SPL, the supporting parent 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.
Same as Stage One
Same as Stage One
In order for a birth mother to be eligible for PPL, she must
be eligible for PML and any supporting parent must be in paid work.
In order for a supporting parent to be eligible for PPL, the
parent must be eligible for SPL, and the birth mother must have returned to paid
work (unless the birth mother does not share parental responsibility for the
child).
Payment level
PML 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.
Payment is to be paid as taxable income, including
superannuation, on a pro rata basis.
Previous weekly earnings are to be calculated as the greater
of either:

- the average of a woman’s weekly
earnings from all jobs immediately prior to taking leave;
or

- an average of her weekly earnings from all jobs
during the time in employment over the previous 12 months.
SPL is to be paid at the rate of the Federal Minimum Wage,
or the supporting parent’s previous weekly earnings from all jobs,
whichever is the lesser amount.
Payment is to be paid as taxable income, including
superannuation, on a pro rata basis.
Previous weekly earnings are to be calculated as the greater
of either:

- the average of a supporting parent’s
weekly earnings from all jobs immediately prior to taking leave;
or

- the average of their weekly earnings from all jobs
during the time in employment over the previous 12 months.
Payment level may increase beyond Stage One to two-thirds of
the average of the woman’s previous weekly earnings (with weekly earnings
calculated on the same basis as Stage One) or more, in order to progressively
achieve the key national objectives of a national paid leave scheme.
The payment level should be not less than Stage One of
PML.
The payment level of SPL is to be calculated on the same
basis as Stage Two of PML, by reference to the supporting parent’s average
weekly earnings.
PPL is to be paid at the same rate as Stage Two of the
person’s PML or SPL, whichever is the applicable payment.
Funding source
PML is to be funded by the Australian
Government.
SPL is to be funded by the Australian
Government.
If the payment level is increased to two-thirds of the
woman’s previous weekly earnings or more, the two-year review should
confirm the most effective funding model which will continue to meet the key
national objectives of a national paid leave scheme.
If the payment level remains at the Federal Minimum Wage,
PML should continue to be funded by the Australian Government.
The funding source is the same as Stage Two of
PML.
The funding source for PPL is the same as Stage Two of PML
and SPL.
Payment mechanism
PML is to be paid as a fortnightly payment during the period
of leave.
For women who have been in employment with the same employer
for the 40 weeks of the past 52 weeks, payment is to be made by that
employer.
For women who have been with more than one employer during
the same period of eligibility, the woman may elect to receive payment as
either:

- a fortnightly payment from Government to the
individual; or

- a payment from the employer to the
individual, with the employer being reimbursed by the Government as above
(subject to the employer agreeing to offer this option).
Where payment is made by the employer, the employer is
reimbursed by Government for the PML cost, which may include a reasonable
administration fee.
SPL is to be paid as a fortnightly payment during the period
of leave.
For supporting parents who have been in employment with the
same employer for 40 weeks of the past 52 weeks, payment is to be made by that
employer.
For supporting parents who have been with more than one
employer during the same period of eligibility, the parent may elect to receive
payment as either:

- a fortnightly payment from
Government to the individual; or

- a payment from the
employer to the individual, with the employer being reimbursed by the Government
as above (subject to the employer agreeing to offer this option).
Where payment is made by the employer, the employer is
reimbursed by the Government for the SPL cost, which may include a reasonable
administration fee.
The payment mechanism will be dependent upon the funding
source for Stage Two of PML.
The payment mechanism will be dependent upon the funding
level and source for Stage Two of SPL.
The payment mechanism is to be the same as the
person’s Stage Two PML or SPL, whichever is the applicable payment.

NATIONAL PAID LEAVE SCHEME ARRANGEMENTS APPLICABLE TO
BOTH STAGE ONE AND STAGE TWO
Role of employers
Employers should be encouraged to continue existing
provisions for paid leave. Parents, including public servants, should not be
excluded from any government funded component of the National Paid Leave Scheme
on the basis of receiving employer provided paid leave.
Employer “top ups” to a government funded paid
leave are to be provided for and encouraged. Such top ups should be negotiated
through standard bargaining mechanisms.
Employers may be required to play a role in validating
entitlement to government funded paid leave.
Interaction with the social security and other government
payments
A person who receives paid leave entitlements under the
National Paid Leave Scheme will continue to be entitled to applicable social
security and family assistance schemes, including the Baby Bonus, in accordance
with existing eligibility criteria.

Interaction with other work and family reconciliation policies
Paid leave must be considered as part of a suite of measures
to enable Australians to meet their paid work and family responsibilities.
Modelling of HREOC’s proposal must take into account
likely interaction with work and family reconciliation policies such as the
right to request flexible working arrangements and the provision of early
childhood education and care.
Interaction with existing legislation
Current industrial arrangements in relation to paid leave
should continue.
Under Stage One all employees taking paid leave who are
eligible under these provisions would be accorded the right to return to their
previous job in keeping with the return to work guarantee that applies under the
unpaid parental leave provisions of the Workplace Relations Act 1996.
Under Stage Two, further consideration of the interaction
between unpaid parental leave is needed assuming the eligibility for the broader
scheme of paid leave remains the same as the initial stage in order to establish
a coherent set of paid and unpaid leave entitlements.
Independent review and other institutional arrangements
The National Paid Leave Scheme, including the Two Year
Review, should be legislated at national level.
The Two Year Review should be an independent review which
enables participation by relevant stakeholders.
The Minister for Employment and Workplace Relations should
have ministerial responsibility for implementation, monitoring and review of the
National Paid Leave Scheme.
A policy unit should be established within the Department of
Education, Employment and Workplace Relations and adequately resourced to
coordinate implementation, promotion and education, monitoring and review of the
scheme over time.
The implementation of the scheme should be accompanied by a
comprehensive community awareness and education campaign that meets the diverse
communication needs of the community and which includes targeted education
strategies for groups less likely to have information about the new
entitlements, including information available in an accessible format.
The Government should invest in a comprehensive longitudinal
research program to inform ongoing monitoring, research and evaluation of the
new scheme, including assessing its interaction with other work and family
reconciliation policies and early childhood education and care services, in
order to continually improve the effectiveness of these measures.

Key
Recommendations

  1. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable national scheme of 14 weeks paid maternity leave be
    introduced, principally to ensure the health and wellbeing of mothers and
    babies, to address the workplace disadvantage that women experience as the
    result of maternity, and to contribute to women’s ability to participate
    on equal terms with men in all aspects of life (Recommendation 1).
  2. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable, separate entitlement of two weeks supporting parent
    leave be introduced and made available either at the time of birth for the
    supporting parent to take concurrently with the birth mother’s paid
    maternity leave, or immediately after that period of paid leave, principally to
    support the bonding between that parent and their child, as an important support
    for the mother and/or as a way of transitioning to alternative care arrangements
    following the mother’s return to paid work (Recommendation 2).

  3. HREOC recommends: That following an independent review after two years, any
    necessary modifications and improvements to the National Paid Leave Scheme are
    made and that Australia implement a second stage of measures. This would provide
    in total:

    • 38 weeks of paid parental leave, of which 4 weeks may only be taken by the
      supporting parent, in addition to;

    • 14 weeks paid maternity leave; and

    • 2 weeks paid supporting partner leave to be taken concurrently at the time
      of birth.

    HREOC urges the modelling and analysis of each
    stage of the scheme by the Productivity Commission during the course of the
    current Inquiry so that the best funding model for stage two can be determined
    and so that community views on the suitability of models can be canvassed
    (Recommendation 3).

  4. HREOC recommends: That the Government remove its reservation to Article
    11(2)(b) of the Convention on the Elimination of All Forms of Discrimination
    Against Women
    (CEDAW) (Recommendation 4).

  5. HREOC recommends: That the Government take steps towards ratification of the Maternity Protection Convention 2000 (No 183) (ILO Convention
    183
    ), and ensure compliance with other provisions of that Convention
    (Recommendation 5).

  6. HREOC recommends: That following implementation of Stage One of
    HREOC’s proposal, the scheme be independently reviewed after 2 years in
    order to measure the impacts of the first phase, including determining how well
    it is meeting its objectives, impacts on business, interactions with existing
    government payments, and other work and family policy measures, and to make any
    necessary improvements in order to implement a second stage of a more
    substantial paid leave entitlements (Recommendation 14).

  7. The full list of recommendations may be found in the appendices to this
    submission.

Background
to this Submission: HREOC’s Commitment to a National Paid Leave Scheme for
Parents

  1. HREOC has a long-standing commitment to achieving a national paid leave
    scheme for parents, particularly paid maternity leave, and has undertaken
    substantial work in this area.

  2. HREOC is responsible for administering the Sex Discrimination Act
    1984
    (Cth) (‘SDA’). One of the objects of the SDA is to ‘promote recognition and acceptance within the community of the
    principle of the equality of men and
    women.’[9]

  3. HREOC’s work in the promotion of paid maternity leave, supporting
    parent leave, and paid parental leave pursues this objective. As detailed
    further below, HREOC considers that a national paid leave scheme for parents
    will contribute to greater gender equality between men and women, particularly
    in the ability to engage in paid work, and to participate in the sharing of care
    for children.

  4. As Australia’s national human rights institution, HREOC’s
    commitment to promoting paid leave for parents is also grounded in
    Australia’s international human rights obligations, together with relevant
    international labour standards. HREOC’s work in the area has been guided
    and informed by these obligations and standards, adapted and applied to
    Australia’s domestic context.

  5. In this section, the submission sets out the international human rights
    obligations and labour standards relevant to paid leave for parents and
    summarises HREOC’s previous work in this area.

Compliance
with Australia’s International Human Rights Obligations and Labour
Standards

  1. HREOC’s commitment to the need for a national scheme of paid leave is
    grounded in Australia’s international human rights obligations and labour
    standards.

  2. The Australian Government has agreed to be bound by a number of
    international instruments which are relevant to this inquiry. These
    international instruments include:

    1. Convention on the Elimination of All Forms of Discrimination Against
      Women
      (‘CEDAW’);[10]

    2. Convention (No 156) Concerning Equal Opportunities and Equal Treatment
      for Men and Women Workers: Workers with Family Responsibilities
      (‘ILO Convention
      156’
      );[11]

    3. Convention (No 111) Concerning Discrimination in respect of
      Employment and Occupation
      (‘ILO Convention
      111
      ’);[12]

    4. Convention (No 159) Concerning Vocational Rehabilitation and Employment
      of Disabled Persons
      (‘ILO Convention
      159’
      );[13]

    5. International Covenant on Civil and Political Rights (‘ICCPR’);[14]

    6. International Covenant on Economic, Social and Cultural Rights
      (‘ICESCR’);[15]
      and

    7. Convention on Rights of the Child (‘CRC’).[16]

  1. Australia has also signed but not yet ratified the Convention on the
    Rights of Persons with
    Disabilities
    .[17]

  2. In addition to Australia’s international human rights obligations set
    out above, a number of international labour standards are relevant to the need
    for a paid leave scheme for parents, as follows:

    1. Maternity Protection Convention 2000 (No 183) (‘ILO
      Convention 183
      ’); and

    2. Maternity Protection Recommendation (‘ILO Recommendation
      191
      ’).[18]

  3. Australia is a member of the International Labour Organisation
    (‘ILO’) and is an elected member of the ILO Governing Body. ILO
    Convention 183
    and ILO Recommendation 191 were both adopted as
    international instruments at the 88th Session of the International
    Labour Conference in 2000. At the conference, the Australian Government
    representatives voted in favour of adoption of both
    instruments.[19] However, Australia
    has yet to ratify ILO Convention 183. ILO Recommendation 191 is a
    non-binding guideline for ILO member states and cannot be ratified.

  4. The international human rights obligations and labour standards, set out
    above, include provisions which support the need for paid leave for parents,
    including paid maternity leave, supporting parent leave, and paid parental
    leave.

  5. HREOC’s work in this area has been particularly informed by the
    following international instruments:

Convention
on the Elimination of All Forms of Discrimination Against Women

  1. CEDAW has been ratified by Australia and is scheduled to the
    SDA.

  2. Australia is bound by the terms of CEDAW, subject to any express
    reservations made at the time of its ratification. CEDAW is a key
    international instrument which places an obligation on State Parties
    to:

    1. ensure that women have an effective right to paid work;

    2. prevent discrimination against women workers; and

    1. provide for paid maternity leave.

  3. The preamble to CEDAW recognises ‘...the great contribution of
    women to the welfare of the family and to the development of society, so far not
    fully recognized ... [and] the social significance of
    maternity...’.[20]

  4. CEDAW places a general international obligation on the Australian
    Government to ‘... take all appropriate measures to eliminate
    discrimination against women in the field of
    employment’[21] in order to
    ensure, inter alia, the ‘right to work as an inalienable right of
    all human beings.’[22]

  5. Article 11(2) provides that women should not be discriminated against on the
    ground of maternity.[23] It
    specifies the appropriate measures that States Parties should take to ensure
    non-discrimination.

  6. Article 11(2)(a) prohibits dismissal on the grounds of pregnancy. The
    SDA gives effect to this obligation by prohibiting discrimination in
    employment on the grounds of pregnancy or potential
    pregnancy.[24]

  7. Article 11(2)(b) states that States Parties should also take appropriate
    measures to introduce paid maternity leave. It provides:

    In order
    to prevent discrimination against women on the grounds of marriage or maternity
    and to ensure their effective right to work, States Parties shall take
    appropriate measures... To introduce maternity leave with pay or with comparable
    social benefits without loss of former employment, seniority or social
    allowances ...

  8. Under CEDAW, the provision of paid maternity leave is seen as a
    distinct international obligation, separate to the general provision of
    assistance to parents combining work and family
    responsibilities.[25]

  9. When Australia ratified CEDAW, it did so with the specific exclusion
    of art 11(2)(b), the provision concerning paid maternity leave. This
    reservation remains in place despite repeated
    criticism.[26] The CEDAW Committee
    has expressed concern that Australia has not introduced a system of paid
    maternity leave and retains its reservation under CEDAW. The CEDAW
    Committee has urged Australia to ‘take further appropriate measures to
    introduce maternity leave with pay or with comparable social
    benefits.’[27]

  10. The CEDAW Committee has also expressed concern over Australia’s
    non-ratification of ILO Convention 183, discussed further
    below.[28]

  11. HREOC notes and welcomes the Government’s recent commitment to
    progressing the protection and promotion of women’s rights by starting the
    process of consultation with the States and Territories on Australia becoming a
    party to the Optional Protocol to the Convention for the Elimination of
    Discrimination against Women
    (‘Optional Protocol to
    CEDAW
    ’).[29] However,
    while the reservation against art 11(2)(b) of CEDAW continues to operate,
    working women in Australia will not be able to make a complaint under the
    Optional Protocol to CEDAW regarding a denial of access to paid maternity
    leave.

  12. It is important to note that Australia has also been a party to the
    International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) since 1976. Under art 10(2), the Government is
    under an obligation to provide special protection to

    mothers during
    a reasonable period before and after childbirth. During such period working
    mothers should be accorded paid leave or leave with adequate social security
    benefits.

ILO
Convention 103, Convention183 and Recommendation 191

  1. ILO Convention 103, ILO Convention 183 and ILO
    Recommendation 191
    each contain provisions regarding paid maternity leave.

  2. As noted above, Australia is a state party to ILO Convention 103.
    However, ILO Convention 103 has been in place for over 50 years and was
    clearly in need of modernisation in light of contemporary conditions. In 2000,
    the ILO adopted ILO Convention 183 to replace ILO Convention 103.
    As noted above, Australia voted in favour of adoption of the new ILO
    Convention 183
    but has yet to take steps towards its ratification.

  3. Adopted in 1952, ILO Convention 103 provides for a right to 12 weeks
    maternity leave,[30] during which
    women workers are entitled to receive ‘cash and medical
    benefits’.[31] The rate of
    cash is to be sufficient ‘for the full and healthy maintenance of [the
    mother] and her child in accordance with a suitable standard of
    living.’[32]

  4. The new ILO Convention 183 applies to all employed women and now
    provides a right to 14 weeks maternity
    leave.[33] During the maternity
    leave period, a woman worker is also entitled to cash benefits. The cash
    benefits must, at a minimum, be ‘at a level which ensures that the woman
    can maintain herself and her child in proper conditions of health and with a
    suitable standard of
    living’.[34] In addition, the
    cash benefits, ‘where...based on previous earnings...shall not be less
    than two-thirds of the woman’s previous
    earnings’[35] or, if
    calculated by some other method, ‘comparable
    to’[36] two-thirds of the
    woman’s previous earnings.

  5. ILO Recommendation 191, as a non-binding guide, encourages ILO
    member states to extend the period of leave to 18
    weeks.[37] It also provides that,
    ‘where practicable, and after consultation with the representatives
    organisations of employers and workers...cash benefits...should be raised to the
    full amount of the women’s previous earnings...taken into account for the
    purpose of computing
    benefits.’[38]

  6. ILO Recommendation 191 also addresses paid parental leave, providing
    that ‘the employed mother or the employed father of the child should be
    entitled to parental leave during a period following the expiry of maternity
    leave,’[39] without specifying
    recommended duration, eligibility or payment
    levels.[40]

  7. The ILO’s long-held concern has been to ‘enable women to
    successfully combine their reproductive and productive roles, and to prevent
    unequal treatment in employment due to their reproductive
    role’.[41]

  8. In a recent ILO study of 166 ILO member countries, Australia was identified
    as one of only five countries which does not provide paid maternity leave, along
    with Lesotho, Swaziland, Papua New Guinea and the United
    States.[42]


Convention
on the Rights of the Child

  1. Australia has also ratified the CRC. The CRC has as one of
    its fundamental principles that ‘the best interests of the child shall be
    a primary consideration’ in all actions concerning
    children.[43] States Parties to the
    CRC shall take ‘all appropriate legislative and administrative
    measures’ to ensure protection of the best interests of the
    child.[44]

  2. CRC also obliges States Parties to ‘ensure to the maximum
    extent possible the survival and development of the
    child’.[45]

  3. CRC recognises that the health and wellbeing of children is
    inextricably bound up with the lives of their parents. It contains a number of
    obligations relevant to the provision of paid maternity leave and a broader
    system of paid leave for parents to assist both parents in the performance of
    their common responsibilities.

  4. Under art 18, the Government must assist parents and legal guardians in
    ‘the performance of their child-rearing responsibilities and shall ensure
    the development of institutions, facilities and services for the care of
    children’.[46] To this end,
    Australia must ‘take all appropriate measures to ensure that children of
    working parents have the right to benefit from child-care services and
    facilities for which they are
    eligible.’[47]

  5. Under art 24(2), Australia must ensure access to ‘basic knowledge of
    child health and nutrition, [and] the advantages of breastfeeding’.

  6. In 1997, the Committee on the Rights of the Child expressed concern in
    relation to Australia’s compliance with its international obligations
    under the CRC, particularly arts 18 and 24:

    The Committee is
    concerned that women working in the private sector are not systematically
    entitled to maternity leave, which could result in different treatment between
    children of State employees and those working in other sectors. ... The
    Committee encourages the State party to review its legislation and make paid
    maternity leave mandatory for employers in all sectors, in the light of the
    principle of the best interests of the child and articles 18 (3) and 24 (2) of
    the Convention.[48]

  7. As this section summarises, there is a substantial body of international
    human rights and labour law applicable to the current Inquiry. International
    human rights and labour law has also formed the framework for HREOC’s past
    work relevant to the Inquiry as well as its current submission. The following
    section summarises HREOC’s successive stages of work in promoting paid
    leave for parents.

HREOC’s
Past Work on Paid Maternity Leave, Supporting Parent Leave and Paid Parental
Leave

  1. HREOC has had a long standing record of promoting the introduction of paid
    maternity leave, supporting parent leave and paid parental leave.

  2. In 1998, the Australian Government requested HREOC undertake its National
    Pregnancy and Work Inquiry. HREOC conducted the Inquiry and, in 1999, published
    Pregnant and Productive (1999), following extensive consultation and
    submissions.

  3. In Pregnant and Productive (1999), HREOC urged the Government to
    stimulate debate and demonstrate leadership on the need for a paid maternity
    leave scheme with a view to the Government ratifying and implementing ILO
    Convention 183
    , upon its adoption by the ILO in 2000. It also recommended
    that the Government remove its reservation to art 11(2)(b) of CEDAW.
    HREOC recommended that the then Federal Minister for Employment, Workplace
    Relations and Small Business fund the Sex Discrimination Commissioner to
    undertake ‘economic modelling and analysis to assess possible maternity
    leave options’.[49] However,
    these recommendations were not implemented.

  4. As noted by the Productivity Commission in its Inquiry into Paid Maternity,
    Paternity and Parental Leave Issues Paper (‘Issues Paper’), HREOC
    then undertook a significant examination into the need for a national paid
    maternity leave scheme.[50]

  5. Following extensive research, analysis and community consultation, in A
    Time to Value
    (2002), HREOC reported overwhelming public support for a
    national paid maternity leave scheme. HREOC proposed a basic minimum standard:
    14 weeks of paid maternity leave to be paid at the level of the Federal Minimum
    Wage and funded by the
    Government.[51]

  6. Whilst HREOC’s proposal in 2002 represented a minimum scheme in order
    to establish a basic entitlement for working women who have children, there was
    considerable public support for a more generous paid leave scheme and the
    extension of the scheme over time.

  7. HREOC urges the Productivity Commission to give detailed examination to
    HREOC’s findings in A Time to Value (2002). HREOC’s
    submission to the current Inquiry builds on this substantial work, whilst
    adapting its findings to accommodate subsequent work and contemporary
    conditions.

  8. Commencing in 2005, HREOC undertook a further stage of research into the
    issues faced by women and men in balancing their paid work and family
    responsibilities. In 2005, HREOC released its discussion paper, Striking the
    Balance: Women, men, work and family
    (‘Striking the Balance
    (2005)’). Following public submissions, and over 40 public
    consultations and focus groups over a two-year period, HREOC released the
    project’s Final Paper, It’s About Time (2007).

  9. In It’s About Time (2007), HREOC reiterated the priority need
    for a national paid maternity leave scheme, drawing on extensive consultation
    with the Australian community on a broad range of issues in order to better
    support Australians balancing paid work and family life.

  10. In It’s About Time (2007), HREOC also argued for a broader
    approach to paid leave, including urging the Government to consider of a minimum
    of 2 weeks paid paternity leave, referred to as ‘supporting parent
    leave’ in this submission, and an additional 38 weeks of parental leave
    available to either parent.[52]

  11. HREOC proposed this broader scheme of paid leave for consideration by the
    Government in recognition of the community desire to value the role of both
    parents in parenting, increasing opportunities for more men to be involved in
    caring for children in their early years, and providing greater support for
    workers with family responsibilities overall.

  12. In September 2007, Elizabeth Broderick was appointed to HREOC as the new
    federal Sex Discrimination Commissioner. The Sex Discrimination Commissioner
    commenced her term with a national Listening Tour (‘the Listening
    Tour’), involving consultations in every state and territory regarding key
    themes of gender equality for women and men in Australia. The Listening Tour,
    which involved over 100 facilitated events, was completed in April 2008 and the
    findings will be publicly available in July 2008.

  13. Through the Listening Tour, HREOC has confirmed that there is a continuing
    high level of community support for a paid maternity leave
    scheme.[53]

  14. In addition, HREOC found strong interest among many groups, and young people
    in particular, for a broader scheme of paid parental leave in order for couples
    to be able to more equally share their paid work and family
    responsibilities.

  15. Since at least 1999, HREOC has had a sustained focus on the need for a
    national paid leave scheme for parents who are in paid work.

  16. HREOC’s commitment to the establishment of a paid leave scheme for
    parents as a national priority is based on its assessment that paid leave is a
    necessary public policy initiative to promote human rights in Australia.

  17. In HREOC’s view, a well-designed national paid leave scheme would
    achieve a number of key national objectives which are grounded in the promotion
    of human rights. In particular, a national paid leave scheme would contribute
    to the following key national objectives:

    1. ensure the health and wellbeing of mothers, babies, fathers and
      families;

    2. address women’s workplace disadvantage as a result of their maternal
      role;

    3. promote gender equality by fostering shared responsibility between men and
      women for the care of children;

    4. deliver benefits to the economy and employers;

    5. foster economic security for parents and children;

    6. deliver social benefits for the Australian community as a whole; and

    7. fulfil Australia’s compliance with its international human rights
      obligations and international labour standards.

  18. Australia is now one of only two remaining OECD countries to lack a national
    paid leave scheme. It is urgent that a scheme is developed. Australia has the
    advantage of drawing on the now extensive international comparative experience.
    However, due to the range of national objectives to be achieved, HREOC
    recognises that a national paid leave scheme is an important public policy
    initiative which needs to be implemented in a considered and sustainable manner.

  19. A national scheme for Australia needs to be developed taking into account
    the domestic context, including current government payments, such as the Baby
    Bonus and Family Tax Benefit B, and work and family policies, such as those
    contained in the draft new National Employment Standards, and the provision of
    early childhood education and care services.

  20. Accordingly, HREOC remains of the view that a minimum national paid
    maternity leave scheme of 14 weeks is an urgent priority, together with two
    weeks supporting parent leave as Stage One of implementation.

  21. Based on its assessment of the current domestic context, informed by
    international comparative experience, HREOC has formed the view that a second
    stage of implementation after two years is also necessary, involving a broader
    scheme of paid parental leave.

  22. In this submission, HREOC sets out its analysis of the merits of Stage One
    and Stage Two of its proposed National Paid Leave Scheme by reference to the key
    national objectives set out above.

  23. The submission then provides further detail of the basis for key features of
    its proposed National Paid Leave Scheme, with particular reference to duration,
    eligibility and coverage, payment levels, funding source, and payment
    mechanisms.

  24. The submission addresses the interaction of its proposed National Paid Leave
    Scheme with social security and other government payments, other work and family
    reconciliation policies and existing legislation.

  25. Finally, the submission sets out its rationale for the Two Year Review, and
    the other institutional arrangements which are required to support the
    implementation, monitoring, review and continuous improvement of a national paid
    leave scheme.

National
Objectives of a Paid Leave Scheme for Parents

  1. In undertaking its examination of paid maternity leave in 2002, HREOC
    canvassed a wide range of possible objectives for a paid maternity leave scheme,
    along with consideration of broader systems of paid leave.

  2. Drawing on these findings and later work undertaken by HREOC, the following
    objectives are those which HREOC considers appropriate for the design of an
    effective national paid leave scheme for
    parents.[54]

Ensuring
the Health and Wellbeing of Mothers, Babies and Their
Families

  1. HREOC considers that its proposed National Paid Leave Scheme, involving
    immediate introduction of 14 weeks paid maternity leave and two weeks supporting
    parent leave in Stage One, followed by introduction in Stage Two (subject to the
    Two Year Review) of paid parental leave to provide for a year of paid leave for
    parents, will positively contribute to ensuring the health and wellbeing of
    birth mothers, their babies, and the supporting parent.

  2. The health and wellbeing of mothers and babies is a fundamental objective of
    a paid leave scheme.

  3. A period of paid leave reserved for birth mothers – paid maternity
    leave – is biologically essential for women so that they can take time off
    from paid work prior to and immediately following childbirth in order to recover
    physically and emotionally from childbirth and must be considered a priority for
    the Inquiry.

  4. The need for paid maternity leave is highlighted by the particular
    challenges that mothers with disability face due to the overall poor health of
    women with disability as a result of problems accessing health
    care.[55]

  5. Many women experience health problems as a consequence of childbirth, and
    even when these problems are mild, new mothers still require a period of
    adjustment.

  6. The time required by mothers to fully recover from childbirth is dependent
    on a range of factors, but has been estimated to take up to 6 months or
    longer.[56] The variable recovery
    period for mothers supports HREOC’s proposal for a minimum of 14 weeks
    reserved for the birth mother, for immediate introduction. Stage Two would then
    provide parents with the ability to choose who may take the paid parental leave
    entitlements for the balance of the one year of paid leave.

  7. The health and wellbeing of a child is likely to be affected by the health
    of their mother.

  8. A period of paid maternity leave is necessary for maternal bonding and
    attachment with significant health benefits for both mothers and infants.

  9. The health benefits of breastfeeding for children and mothers are
    well-established. Paid maternity leave is essential for establishing and
    maintaining a breastfeeding routine. Breastfeeding promotes child health.

  10. The World Health Organisation (‘WHO’) affirms the right of women
    to ‘go safely through pregnancy and childbirth’. WHO recommends that
    infants be exclusively breastfed for up to 4 and if possible 6 months of
    age.[57] Mothers may also wish to
    continue breastfeeding for a longer period of time. A national paid leave
    scheme extended to a year will provide flexibility for mothers regarding their
    ability to sustain breastfeeding. Mothers may either remain on paid leave or
    introduce greater sharing of paid leave and paid work with the supporting parent
    in order to manage breastfeeding.

  11. In addition to supporting the breastfeeding of a child, a national paid
    leave scheme extended progressively to a year will increase the ability of
    parents to provide personal care for their child. The OECD notes evidence that
    child development suffers when infants do not get full time personal care for
    the first 6-12 months of his or her
    life.[58]

  12. Child development research demonstrates that good nurturing and responsive
    care in the first years of life improve outcomes for children’s learning,
    behaviour, and physical and mental health throughout life, providing multiple
    short and long term benefits for individuals and
    society.[59]

  13. The need for a national paid leave scheme is again highlighted by the
    considerable needs of a child with a disability. The health and wellbeing needs
    for children born with disability can be extensive, requiring additional
    parental leave.

  14. For children with disabilities, a longer period of paid parental leave would
    provide the financial support and time for obtaining early intervention
    services. The early period of life is a crucial time in that the earlier a child
    is identified as having a developmental delay or disability the greater the
    likelihood that the child will benefit from intervention
    strategies.[60]

  15. Parents of a child with disability also require additional time and support
    to cope emotionally, to seek support for the child and plan for the
    future.[61] A longer paid leave
    scheme of a year’s duration will assist in ensuring that parents are able
    to provide the intensive personal care required in the early stage of the life
    of a child with disability.

  16. International and domestic child development experts argue that paid leave
    gives parents the opportunity to provide their children with an immediate
    loving, secure and responsive relationship in which they can grow and develop.
    The NSW Commission for Children and Young People, the Queensland
    Commission for Children and Young People and Child Guardian, and the National
    Investment for the Early Years organisation (‘NIFTeY’) note that
    paid maternity leave plays a key role in providing the time for this
    relationship to develop, and recommend introducing an initial period of paid
    maternity leave followed by an eventual increase to 12 months of paid maternity
    leave.[62] HREOC proposes paid
    parental leave in Stage Two in order to enable parents to tailor their
    arrangements for personal care of the child in light of paid work commitments,
    which may include flexible work arrangements with both parents sharing personal
    care of the child.

  17. The United Nations Children’s Fund (‘UNICEF’) has noted
    that ‘generous maternity and paternity leave and pay and
    ‘family-sensitive’ working conditions clearly meet the needs of both
    children and working
    parents’.[63]

  18. This evidence supports the case for a longer period of paid leave as well as
    highlighting the need for a coordinated response to children’s health and
    development needs through access to good quality early childhood education and
    care, and an appropriate level of income support and service provision for
    disadvantaged families.

  19. It is important to note that the health and wellbeing of families is
    directly related to their economic security. The contribution of a national paid
    leave scheme to supporting women’s workforce participation and the
    economic security of families is discussed further below.

  20. The emotional wellbeing of fathers is another important benefit of a
    national paid leave scheme. New fathers typically bear a greater proportion of
    financial responsibility for the family following the birth of a child and
    fathers of infants work very long
    hours.[64] A period of paid
    maternity leave eases the financial pressure following the birth of a child.
    Supporting parent leave for fathers promotes paternal bonding, assists fathers
    to adapt to fatherhood, and helps fathers to support their partners. This
    principle applies to any supporting partner, including those in same-sex
    relationships.

  21. Close interaction and bonding between fathers and their children in the
    first few weeks after birth is recognised as beneficial for developing infants
    as well as for mothers and
    fathers.[65]

  22. The longer period of paid parental leave proposed in Stage Two will also
    enable fathers to have greater involvement in their child’s life, by
    having the choice to share personal care for the first year. In addition,
    fathers will have four weeks of the paid parental leave reserved for them, even
    where the mother remains the primary carer of the child at home for the first
    year.

  23. It is clear that children benefit emotionally and cognitively from
    sensitive, high quality father involvement in the early
    years.[66]

  24. HREOC considers that the specific provisions of leave available to fathers
    and other supporting parents in both its Stage One and Stage Two components
    would contribute positively to the health of fathers through greater supports
    for direct involvement in bonding, and early parenting during the critical first
    year of a child’s life.

Addressing
Women’s Workplace Disadvantage

  1. Addressing the workplace disadvantage that women experience as the result of
    maternity is an equally fundamental objective for a national paid leave scheme.

  2. In 1996, the ILO noted that ‘maternity is a condition which requires
    differential treatment to achieve genuine equality ... special maternity
    protection measures should be taken to enable women to fulfil their maternal
    role without being marginalized in the labour
    market’.[67]

  3. Women’s unequal treatment in and access to employment due to their
    reproductive role is a problem that is yet to be resolved despite decades of
    progress in legislation, workplace structures, social attitudes and government
    support for working families.

  4. Women continue to be marginalised in the workforce with lower participation
    rates than men, particularly in the case of mothers. Women constitute a higher
    proportion of casual workers, are more likely to work in low paid occupations
    and low skilled jobs, have low representation at senior and decision-making
    levels and continue to experience workplace discrimination on the basis of sex,
    pregnancy, potential pregnancy and family
    responsibilities.[68]

  5. Women’s ongoing experiences of disadvantage in the labour market have
    been a key driver in HREOC’s push for a national paid maternity leave
    scheme.

  6. Women’s labour market participation rate is 58.4 per
    cent.[69] Women’s labour
    market participation has increased gradually over a number of decades, with the
    most recent increases due to increases in part time participation.

  7. Forty-five per cent of women workers work part
    time,[70] many of them mothers
    working part time in order to balance their paid work and family
    responsibilities. Seventy-one per cent of all part time workers are
    women.[71]

  8. By comparison, men’s participation rate has remained steady at around
    72 per cent over the past three years. 72.5 per cent of men are
    employed, 85 per cent of them full
    time.[72]

  9. While part time jobs are increasingly becoming permanent, many women
    continue to work in casual arrangements. Fifty-six per cent of casual workers
    are women, 85 per cent of whom work part
    time.[73] Whilst offering
    flexibility for employees with family responsibilities, casual work provides
    reduced job stability and benefits such as leave
    entitlements.[74]

  10. Employment rates also vary considerably between different groups of women,
    such as women with disability and Indigenous women.

  11. Women with disability are less likely to be in the paid workforce than men
    with disability.[75] For men with
    disability, the decrease in full time employment accounts for most of the
    decrease in labour force participation. For women, disability has negative
    effects on both full time and part time
    employment.[76]

  12. Aboriginal and Torres Strait Islander people have a labour market
    participation rate of 56 per cent. The labour market participation rate for
    Indigenous men is 65 per cent, while for Indigenous women it is much lower at 48
    per cent.[77]

  13. The employment rates for Australian women with children, particularly those
    where the youngest child is under six years of age, are low by comparison with
    other OECD countries. The employment rate of mothers with a youngest child under
    six years of age is 49.6 per cent, compared with the OECD average of 59.2 per
    cent.[78]

  14. At the heart of these issues are the historical structures of work that
    support the ‘ideal worker’ norm. The ideal worker norm refers to a
    traditional male breadwinner pattern of continuous full time work with no
    recognition of caring
    responsibilities.[79]

  15. This is not to say that women have not been able to enter the world of work
    and be renumerated accordingly, particularly in recent decades. However, despite
    women’s increasing movement into the paid workforce, there has not been a
    corresponding recognition of the different needs of women workers with respect
    to their maternal role. Nor has there been any significant decrease in
    women’s overall responsibility for the unpaid work of caring for family
    members.[80]

  16. In order for women to participate in the labour market on an equal basis as
    men, there must be sufficient measures to support the combination of motherhood
    with employment.

  17. Paid maternity leave is not the only policy necessary to address
    women’s workplace disadvantage, but it is an essential measure to
    recognise and support women’s right to work and have a family.

  18. In terms of Australian women’s return to work, evidence from the Parental Leave in Australia Survey (2006) shows that currently women who
    give birth take an average of around ten months (40 weeks) combined paid and
    unpaid leave before returning to paid work. The survey found that, for mothers
    who were employed prior to the birth of their child and who took leave from
    employment, one-quarter returned to paid work within six months, around 60 per
    cent returned within 12 months, and 70 per cent returned within 15
    months.[81]

  19. HREOC notes that women may return to work after a certain period for a
    number of reasons, including financial
    reasons,[82] the desire to maintain
    a career or profession, care preferences, health reasons, and reasons related to
    the nature of the various industries and occupations in which women work. Under
    Stage Two of HREOC’s paid leave proposal, women are offered up to 48 weeks
    of paid leave. This proposal delivers a significant degree of choice with
    respect to women’s return to paid work preferences.

  20. Currently, as noted in the Inquiry’s Issues Paper, access to paid
    maternity leave and paid paternity leave by Australian women and men is unevenly
    spread between different sectors and industries. For example, only 8 per cent
    of employed mothers working in elementary clerical, sales and service work
    access paid maternity leave.[83] It
    is therefore women on lower incomes, and thus those most likely to need paid
    maternity leave for financial reasons, who currently miss out under current
    arrangements. These women workers are those who most need paid maternity leave
    for financial reasons.

  21. In recent months HREOC has spoken with many people who do not have access to
    any form of paid leave in country-wide focus groups and community as part of the
    Sex Discrimination Commissioner’s national Listening Tour.

  22. Women who do not have access to paid maternity leave have reported to HREOC
    that paid maternity leave would have greatly assisted them to reconcile their
    work and family responsibilities. Examples drawn from the Listening Tour are
    indicative of the responses HREOC received on this issue:

    The fact
    that we don’t have paid maternity leave is a disgrace. When my second
    child was born, my husband wasn’t working, so I had to go back to work
    after a caesarean after two days. I had no choice. It would make a huge
    difference if we got 14 weeks to be able to physically recover.

  23. Another woman spoke of having to work late into her pregnancy and then take
    annual leave:

    I worked up until I was 38 weeks pregnant then took 2
    weeks of annual leave because I didn’t have access to paid maternity
    leave.

  24. These examples represent the human face of what a lack of paid maternity
    leave means for women in Australia. Coupled with the stories that HREOC heard
    in 2002 during the paid maternity leave project, they lend weight and urgency to
    the Inquiry’s task.

  25. HREOC continues to be of the view that, in light of the ILO standards and
    HREOC’s previous community consultation on this issue, a 14 week paid
    maternity leave scheme, to be paid at least at the level of the Federal Minimum
    Wage, is an urgent priority in order to address the particular disadvantages
    that women workers experience by reason of being mothers.

  26. Throughout the Listening Tour and during the course of HREOC’s work
    and family project, as documented in It’s About Time (2007), HREOC
    has also heard that men are increasingly wanting to take a greater role in
    family life yet face a number of barriers to doing so.

  27. One of the major barriers for men that HREOC has identified is a lack of
    support within workplaces either in terms of lack of access to family-friendly
    policies such as paid paternity leave, or where there is access to paid leave,
    family-hostile workplace cultures preventing their take
    up.[84]

  28. In HREOC’s view, a non-transferable period of two weeks’
    supporting parent leave for the supporting parent, including same-sex partners,
    to be taken either concurrently with the mother’s paid maternity leave in
    the period following childbirth, or immediately after in order to facilitate the
    transition to alternative care arrangements, is an additional priority for
    implementation along with a scheme of paid maternity
    leave.[85]

  29. The specific purpose of supporting parent leave is to support the bonding
    between the supporting parent and the child, to help the supporting parent
    support the birth mother in the period following childbirth, and to assist in
    the transition to alternative care arrangements, encompassing the broader health
    and wellbeing objectives outlined above, and contributing to meeting the gender
    equality objectives outlined below.

  30. Regarding a concurrent period of paid paternity leave for the supporting
    parent, no ILO standard exists for a minimum period of leave for the supporting
    parent. However, a benchmark of two weeks from the time of birth has been set
    by comparable industrialised
    countries.[86]

  31. Further, in a recent review of 24 countries, 15 were found to have a period
    of paid leave for the supporting parent varying from two to ten days, usually
    paid on the same basis as paid maternity leave. Another two countries offered a
    longer period of paid leave for fathers while the Canadian province of Quebec
    offered three to five weeks, depending on the level of benefit
    taken.[87]

  32. In workplaces where paid paternity leave is already available in Australia,
    fathers currently take between one and two weeks. The majority of
    employed Australian fathers (74 per cent) currently take two weeks or less of
    paid leave of some form at the time of birth (although only 18 per cent of
    employed fathers access paid paternity
    leave).[88]

  33. Eighty-three per cent of businesses with 100 or more employees who currently
    provide paid paternity leave provide between one to two weeks of
    leave.[89]

  34. Given this, HREOC supports a two week period of supporting parent leave as a
    minimum for all supporting partners.

  35. HREOC proposes in Stage One that supporting parent leave may be taken either
    concurrently during the period of paid maternity leave, or immediately at the
    end of the paid maternity leave period. HREOC recommends this flexibility to
    accommodate the varied support needs of mothers and preferred family
    arrangements. The option of the partner taking leave at the end of the
    maternity leave period is to give mothers the ability of receiving partner
    support where the mother is returning to paid work. This can be a particularly
    stressful time for mothers, for example, if child care arrangements are to be
    introduced. This option provides a working mother with intensive partner
    support at home during this particular phase of transition.

  36. In HREOC’s view, its proposals for supporting parent leave in Stage
    One and its broader scheme of paid parental leave for mothers, fathers and
    supporting parents in Stage Two will increase the ability of families to
    implement shared care arrangements in relation to their family responsibilities.
    The greater the ability of fathers and supporting parents to take paid leave
    during the first year of their child’s life, the more likely it will be
    that women will be able to stay engaged in paid work. Greater sharing of family
    responsibilities will reduce the disadvantage of women workers by reason of
    their role as mothers.

Gender
Equality

  1. Another fundamental objective for both paid maternity leave and a broader
    system of paid leave for mothers and fathers that contains periods reserved for
    supporting parents is as a means of achieving equality between men and
    women.

  2. The preamble to CEDAW states that:

    ... the role of women
    in procreation should not be a basis for discrimination but that the upbringing
    of children requires a sharing of responsibility between men and women and
    society as a whole ...

  3. The preamble recognises:

    ... the great contribution of women to
    the welfare of the family and to the development of society, so far not fully
    recognized, the social significance of maternity and the role of both parents in
    the family and in the upbringing of children ...

    [and that] ... a change in the traditional role of men as well as the role of
    women in society and in the family is needed to achieve full equality between
    men and women...[90]

  4. As noted above, one of the objectives of the SDA is to give effect to
    certain provisions of CEDAW, as well as ‘to promote recognition and
    acceptance within the community of the principle of the equality of men and
    women’.[91]

  5. ILO Convention156 obliges Australia to take measures to take account
    of the needs of workers with family responsibilities in terms and conditions of
    employment, with a view to creating effective equality of opportunity for men
    and women workers.[92]

  6. ILO Convention156 has a dual purpose, to
    create:

    [e]quality of opportunity...between men and women with
    family responsibilities, on the one hand, and between men and women with such
    responsibilities and workers without such responsibilities, on the
    other. [93]

  7. These international instruments recognise the need for broader social change
    so that full equality of opportunity and equal treatment can be achieved for
    women workers, given that women give birth and it is women who are currently
    more likely to be responsible for the unpaid work of caring for family members
    over the life cycle.

  8. The ILO notes that the required social change includes ‘a more
    equitable sharing of family responsibilities and that the excessive burden of
    family and household tasks still borne by women workers constitute one of the
    most important reasons for their continuing inequality in employment and
    occupation...’.[94]

  9. In It’s About Time (2007), HREOC reported on the impacts of the
    imbalance of paid work and family responsibilities for Australian families.
    HREOC found that impacts for women include difficulty in continuing with
    employment due to their family responsibilities, carrying a disproportionate
    share of unpaid work including child care, housework and elder care, and
    experiencing less economic security over the life cycle.

  10. As well as affecting their ability to participate in the labour market,
    researchshows that women are more likely than men to experience time
    pressures resulting from their high paid and unpaid workloads, with attendant
    health and wellbeing effects.[95]

  11. While women in paid work experience the additional pressure of managing
    family life, HREOC has found that men in full time work also express concern
    about lack of access to family
    life.[96] This lack of access to
    family life is due in large part to workplace barriers and historical and
    cultural stereotypes, despite a growing interest by men in sharing the hands-on
    care of their children,[97] and
    attitudinal research that shows that 90 per cent of Australian men and women
    believe in sharing parental
    care.[98]

  12. Without a better sharing of family responsibilities, it is unlikely that
    women will be able to participate more fully in public life, while men will be
    unlikely to participate more fully in family life.

  13. As the OECD notes in reviewing the lessons to be learned from its
    cross-country comparisons of work and family reconciliation policies:

    As long as women rather than men take time off to provide care,
    employers will still see women as less career-oriented than men, and do less to
    invest in their career opportunities ... if fathers were also to take leave to
    care for children on a comprehensive basis ... gender inequity in employment
    would likely disappear.[99]

  14. In addition to a paid maternity leave scheme and a supporting parent leave
    scheme around the time of birth, a broader scheme including paid parental leave,
    coupled with a suite of other work and family reconciliation policies, would
    allow families a greater choice in how they divide their paid work and family
    responsibilities.

  15. In a recent international review of optimal periods of leave for child and
    parental wellbeing, the authors suggest that, in order to facilitate shared
    responsibility for children by both parents, an optimal leave arrangement is 12
    months, as this allows for shared care and parental choice without taking away
    from a potential 6 months of maternal care where needed or
    desired.[100]

  16. Given that up to 6 months of paid leave is considered optimal in terms of
    maternal health and wellbeing, a longer period of leave would allow for a
    balance between the mother’s potential input in the early months
    (particularly if breastfeeding), while ensuring there is time for fathers and
    other supporting parents to have the opportunity to spend time with their child
    in the early stages of life.[101]

  17. Furthermore, a dedicated period of paid parental leave reserved for fathers
    would increase opportunities for men to be involved in care during their
    children’s early years. Research shows that the earlier men are involved
    in the care of their children, the more likely they are to continue this
    involvement through their children’s
    lives.[102]

  18. There is evidence which demonstrates that the impact of fathers taking
    parental leave is felt well beyond the period of leave itself, with studies
    showing that men who take ninety days or more of parental leave show increased
    time spent in child care over the long
    term.[103]

  19. A broad range of international evidence highlights the importance of paid
    leave entitlements in encouraging fathers to take parental
    leave.[104] Periods of paid leave
    reserved for fathers have been in place in a number of Scandinavian countries
    for many years. In Norway, Iceland, Denmark and Sweden where paid leave quotas
    have been introduced for fathers on a ‘use it or lose it’ basis,
    leave taking by fathers has more than doubled in recent
    years.[105]

  20. The ‘use it or lose it’ Scandinavian models share underlying
    principles in common but differ on a country by country basis.

  21. In Norway, the two week paternity leave after childbirth that is taken in
    conjunction with the mother’s maternity leave is taken by more than
    two-thirds of fathers, while the one month quota of parental leave is taken by
    90 per cent of fathers.[106]

  22. In Norway, where parental leave policies encourage gender equality in the
    workplace as well as the home, fathers make a substantial contribution to caring
    and household work.[107] The
    success of the policy has been attributed to its lack of choice in that this
    reduces pressures on workplace and domestic
    negotiation.[108]

  23. Another key to its success is that Norwegian parental leave policies are
    situated within Norwegian family policy, which is closely tied to its gender
    equality policy of facilitating men’s and women’s participation in
    the paid workforce on an equal basis while also equally sharing caring and
    housework.[109]

  24. In Sweden, as the Inquiry’s Issues Paper notes, the primary
    carer’s partner is entitled to 60 days of paid leave in addition to a
    parental benefit that can be shared. The paternity quota policy in Sweden is
    designed to develop men’s interest in child rearing, and is backed up by
    extensive government promotion and a national history of commitment to gender
    equality in the home as well as public
    life.[110]

  25. The Swedish paid leave scheme is grounded in the objective of gender
    equality both in the labour market and the home, as well as the acceptance of
    shared power and responsibility for children by both
    parents.[111]

  26. The impact of the paternity quota in Sweden on men’s share of
    leave-taking has not been as dramatic as in Norway, at least in part due to the
    fact that the leave can be taken up over a long period until the child is eight
    years old.

  27. When the quota was introduced in Sweden in 1993, around one in four parents
    taking parental leave were fathers. However, by 2001, the share of fathers
    taking leave grew to almost 40 per cent. Half of eligible fathers take some
    parental leave on a yearly basis, while over a five year period only one in four
    has not taken any leave.[112]

  28. Other mechanisms such as the Italian system in which the total length of
    parental leave is extended if the father also takes parental leave can also act
    as encouragement to men to spend more time with their
    children.[113]

  29. It is important to note that work and family policies in Scandinavian
    countries, of which paid parental leave is a central part, support a
    ‘dual-earner/dual-carer’ policy model which encourages both parents
    to share the responsibilities for paid work and family
    responsibilities.[114] In order to
    promote gender equality, this is a model that HREOC has supported in
    It’s About Time (2007) where HREOC proposed adoption of the broad
    concept of ‘shared work-valued care’ as a guiding principle for
    policy responses to the reconciliation of work and family
    life.[115]

  30. It is important to assess the efficacy of paid leave schemes with periods
    reserved for fathers in the context of other economic, social and attitudinal
    factors. HREOC urges the Inquiry to analyse these factors in detail in order to
    draw from them the features that could be adapted to an Australian context. In
    Sweden, for example, one researcher writes that ‘when women earn less than
    men and men are seen as indispensable at the workplace, it seems inevitable that
    the couple will “choose” the traditional alternative of mothers
    taking all or most of the
    leave’.[116]

  31. HREOC has found that the gender pay gap has a similar effect on the
    decisions couples make about their current work and care arrangements, despite
    parental preferences.[117]

  32. While it appears that a period of paid parental leave reserved for fathers
    does not function in isolation as a fully effective policy for increasing gender
    equality in the areas of paid work and family responsibilities, it does mean
    that men are encouraged and able to take ownership of caring and associated
    household tasks, including those tasks that most affect workforce
    participation.[118]

  33. A period of paid parental leave reserved for fathers sends a strong symbolic
    message that fathers are carers as well as breadwinners. In HREOC’s view,
    this would help break down the restrictive norm of the ideal worker by
    normalising the practice of men taking leave from work to care for
    children.[119]

  34. A legislated period of paid parental leave reserved specifically for fathers
    would legitimise men’s role as carers within the workplace context, and
    would help break down the view in workplaces that working fathers are less
    committed to their careers if they take leave from work for family
    reasons.[120]

  35. HREOC has also heard support for a broader paid parental leave scheme within
    the community, as reflected in It’s About Time (2007) and in focus
    groups conducted as part of the Sex Discrimination Commissioner’s national
    Listening Tour.

  36. For these reasons, HREOC supports the incremental introduction in Stage Two
    of a broader scheme of paid parental leave, with a non-transferable period of
    leave for the supporting partner within the first year of a child’s life.

  37. Like Stage One of HREOC’s paid leave scheme, this provision should be
    subject to comprehensive and ongoing review and evaluation in order to measure
    its impacts over time with a view to improving the scheme as necessary.

Benefits
to the National Economy and Employers

  1. A paid leave scheme which enables women and parents generally to maintain
    their labour force attachment will deliver benefits the national economy, and to
    individual employers.

  2. Australia is currently facing a skills shortage, and the ability of women to
    engage in paid work is a crucial factor in meeting labour force demands. In
    2007, women made up 64 per cent of bachelor degree
    commencements,[121] and 47.5 per
    cent of students in the public vocational education and training
    sector.[122] Paid maternity,
    leave which enables skilled women workers to retain labour force attachment,
    will maximise Australia’s significant investment in women’s
    education and training.

  3. In these respects, paid leave would contribute to the maintenance of an
    acceptable aged dependency ratio to support the ageing Australian population.
    As the Productivity Commission has noted, one of the implications of population
    ageing is the contraction of the workforce and economic growth at the same time
    as increasing demands on health and aged care
    systems.[123] In order to avoid
    the large fiscal gaps that will emerge, there is a need to boost labour force
    participation among various demographic groups, including parents.

  4. There are broader economic benefits that a national scheme paid leave would
    contribute to as part of a stronger investment in the early years of
    children’s development.[124]
    Nobel prize winning economist James Heckman has pointed out that not only does
    investment in young children promote fairness and social justice, it also offers
    economic benefits: increasing productivity, raising earnings and promoting
    social attachment, with returns to dollars invested estimated to be as high as
    15-17 per cent.[125]

  5. Benefits of a national scheme of paid leave for individual employers include
    savings on the costs of recruiting and retraining new staff, reducing staff
    turnover costs and increasing return to work rates of women who take paid
    leave.[126]

  6. For example, retention rates for some companies such as Monash University,
    GM Holden and other ‘Employer of Choice for Women’ companies are
    around 90 per cent.[127] For
    businesses employing highly skilled knowledge workers, this means a significant
    cost saving.

  7. Small and medium sized businesses report a number of benefits of paid
    maternity leave along with other family-friendly provisions, including lower
    staff turnover, increased productivity and higher levels of business
    performance, particularly in sales and profitability, compared with businesses
    that do not offer any such employee
    provisions.[128]

  8. HREOC also notes that small business representatives have recently pointed
    out the benefits of (government-funded) paid maternity leave in terms of the
    attraction and retention of staff in small
    businesses.[129] A
    government-funded scheme would ensure that women working in this sector are not
    precluded from at least a baseline entitlement.

Economic
Security for Women and Families

  1. In addition to delivering broad national economic benefits, a package of
    paid maternity leave, supporting parents leave and paid parental leave would
    directly contribute to increasing the economic security of individual families
    by providing a guaranteed source of income upon the birth of a child. This is
    an important objective for a paid leave scheme.

  2. In particular, paid maternity leave would provide a level of income
    replacement for those women in employment who are currently required to forego
    their regular income as a result of taking time out of the workforce to give
    birth. Under current arrangements, the majority of women must forego income
    from paid work as a result of giving birth.

  3. Foregoing income is a particular issue for women in paid work. While
    ensuring women who are not in paid work are adequately supported at the time of
    childbirth is a significant concern, women who are not in paid work at the time
    of birth are not faced with the same reduction in income as a result of
    childbirth.

  4. It is also important to note that facilitating paid work for both parents is
    positive for children’s wellbeing from the perspective of poverty
    alleviation. From a global perspective, children in households without a parent
    in paid work are three times more likely to grow up in poverty than children in
    one-earner households, who are in turn three times more likely to grow up in
    poverty than children of dual-earner
    couples.[130] Paid leave would
    ensure that families do not face a major drop in their pre-birth income level at
    exactly the time that they are faced with the additional costs incurred at the
    time of the birth of a child.

  5. In addition to general ongoing financial costs associated with having
    children, financial burdens for parents with disability and for parents of
    children with disability around the time of birth may be more onerous. This may
    include covering costs associated with appointments with specialist
    practitioners and support services, purchasing special equipment or modifying
    equipment.[131] A longer period
    of paid leave would provide particular financial support to these groups of
    parents.

  6. While there is no doubt that the cost of raising children is more than
    offset for most parents by the rewards of parenthood, paid leave is an important
    means of retaining an income level, especially with costs incurred at the time
    of the birth.

  7. In addition to experiencing disadvantage due to losing short term income at
    the time of birth, a woman's lifetime earning capacity is also severely reduced
    as a result of leaving the workforce to bear and raise children. This can often
    mean that women are more likely to live in poverty across the life cycle.

  8. Australian women have substantially poorer retirement incomes than men, with
    recent figures showing that half of all women aged 45-59 have $8 000 or less in
    superannuation, while 70 per cent have $25 000 or less. In contrast, half of
    all men aged 45-59 have $31 000 or less in superannuation, while 70 per cent
    have $80 000 or
    less.[132]

  9. This is due, in part, to women’s more limited time in the workforce as
    a result of their child bearing responsibilities, as well as pay inequities,
    systemic discrimination in access to job opportunities and historical forms of
    sex discrimination which prevented them from contributing to superannuation
    funds.

  10. HREOC heard a great deal of concern from the Australian community on this
    issue while undertaking the Sex Discrimination Commissioner’s national
    Listening Tour, and considers low retirement income to be one of the most
    pressing aspects of systemic discrimination against women.

  11. While paid leave on its own may have only a limited impact on the reduced
    lifetime earnings of women as a result of their ongoing commitment to family
    responsibilities, a paid leave scheme which improves the ability of women to
    maintain their labour force attachment and makes it easier for women to combine
    paid work and family life will help to address the disadvantage experienced by
    women in their earning capacity and ability to save across their
    lifetime. To the extent that a paid leave scheme
    for parents will increase the ability of women to remain attached to paid work
    following birth of a child, it will have longer term benefits for women by
    improving their lifetime earnings and increasing their superannuation
    savings.

  12. HREOC proposes that paid leave entitlements under the scheme should
    therefore include a compulsory superannuation contribution, provided that it is
    funded on a basis that will not act as a disincentive to business employing
    women.

  13. HREOC would like to see the Inquiry model the costs and effects of a
    superannuation component on paid maternity leave, supporting parent leave and a
    broader scheme of parental leave so that it may be considered by the community.

Broader
Social Benefits

  1. Social benefits such as encouraging and providing assistance for parents to
    raise their children represent an important objective for a paid leave scheme.
    Paid leave is one among a number of policy mechanisms which addresses this
    social need to support the rearing of the next generation of citizens and
    workers.

  2. To the extent that paid leave directly assists people to combine work and
    family responsibilities, it may also have flow-on benefits for the fertility
    rate, community life and social cohesion.

  3. A national scheme of paid maternity, supporting parent and paid parental
    leave can be seen as recognition by society and the Government of the importance
    and value of motherhood, parenting and children.

  4. Society not only benefits immediately from a next generation, its
    continuance depends upon there being future citizens and economic producers.
    This point was acknowledged by many members of the Australian community in both
    HREOC’s 2002 consultations and its consultations undertaken in preparation
    for It’s About Time
    (2007).[133]

  5. In short, while children have emotional value for their parents, they also
    have social value to the broader society.

  6. The entire community – including business – receives benefits
    which flow from the costs borne by parents raising children and it is only fair
    that the community, including governments and employers, share some of the costs
    of this care. Providing a package of paid leave is one way that the costs of
    raising children can be shared.

  7. As noted above, it is also important to value the dual role of women and men
    as both workers and carers. Women are an invaluable part of the Australian
    labour force; paid maternity leave provides the social recognition that many
    women perform a dual role, as employees and mothers.

  8. Supporting parent leave for fathers at the time of childbirth would provide
    recognition that they are an integral part of family life in a hands-on way. An
    additional broader paid parental leave scheme that could be shared between both
    parents, but with a component reserved for supporting parents, would provide an
    even greater recognition of parents’ dual roles.

  9. It is also likely that offering paid leave as a workplace entitlement would
    encourage a change in workplace culture. Workforce structures and cultures need
    to change to accommodate the lives of employees with family responsibilities.
    In keeping with the principles enshrined by ILO Convention 156, making
    workplace structures more family-friendly by mandating paid leave for parents
    would promote equality and remove systemic discrimination, to the benefit of
    women, their families and society.

  10. When combined with other family-friendly workplace policies such as a right
    to request flexible work arrangements, an improvement in the quality of part
    time work and reasonable working hours, a paid leave scheme would strengthen the
    acceptance by employers that employees should be supported in balancing work and
    family. It may also mean that more women and men feel supported to access
    existing work and family policies that may be available in their workplaces.
    The likely combined effect would be to make workplace cultures more supportive
    of workers with family responsibilities.

Complying
with Australia’s International Human Rights Obligations and International
Labour Standards

  1. HREOC considers that fulfilment of Australia’s international human
    rights obligations and compliance with international labour standards is an
    important objective of a national paid leave scheme.

  2. The introduction of Stage One of HREOC’s proposal would comply with CEDAW. Australia should finally remove its reservation under
    CEDAW regarding provision of paid maternity leave, and avoid further
    criticism of Australia by the CEDAW Committee.

  3. Adoption of Stage One would also prevent additional human rights-based
    criticism from other international human rights bodies, such as the Committee on
    the Rights of the Child.

  4. HREOC’s proposal would also comply with the maternity leave provisions
    of ILO Convention 183. Australia should take steps towards ratification
    of this Convention, as recommended by HREOC in Pregnant and Productive
    (1999), and ensure compliance with other provisions of that Convention.

Recommendations

  1. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable national scheme of 14 weeks paid maternity leave be
    introduced, principally to ensure the health and wellbeing of mothers and
    babies, to address the workplace disadvantage that women experience as the
    result of maternity, and to contribute to women’s ability to participate
    on equal terms with men in all aspects of life (Recommendation 1).

  2. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable, separate entitlement of two weeks supporting parent
    leave be introduced and made available either at the time of birth for the
    supporting parent to take concurrently with the birth mother’s paid
    maternity leave, or immediately after that period of paid leave, principally to
    support the bonding between that parent and their child, as an important support
    for the mother and/or as a way of transitioning to alternative care arrangements
    following the mother’s return to paid work (Recommendation 2).

  3. HREOC recommends: That following an independent review after two years, any
    necessary modifications and improvements to the National Paid Leave Scheme are
    made and that Australia implement a second stage of measures. This would provide
    in total:

    • 38 weeks of paid parental leave, of which 4 weeks may only be taken by the
      supporting parent, in addition to;

    • 14 weeks paid maternity leave; and

    • 2 weeks paid supporting partner leave to be taken concurrently at the time
      of birth.

    HREOC urges the modelling and analysis of each
    stage of the scheme by the Productivity Commission during the course of the
    current Inquiry so that the best funding model for stage two can be determined
    and so that community views on the suitability of models can be canvassed
    (Recommendation 3).

  4. HREOC recommends: That the Government remove its reservation to Article
    11(2)(b) of the Convention on the Elimination of All Forms of Discrimination
    Against Women
    (CEDAW) (Recommendation 4).

  5. HREOC recommends: That the Government take steps towards ratification of the
    Maternity Protection Convention 2000 (No 183) (ILO Convention
    183
    ), and ensure compliance with other provisions of that Convention
    (Recommendation 5).

Key
Features of HREOC’s Proposal

  1. HREOC has set out the key features of its proposed National Paid Leave
    Scheme for parents in the Table set out in the Summary of this submission,
    above.

  2. In A Time to Value (2002), HREOC provided the rationale for a number
    of the key features of the paid maternity leave component of its proposed
    scheme, to be introduced in Stage One and retained in Stage Two. A Time to
    Value
    (2002) deals with the duration of paid maternity leave, together with
    coverage, eligibility, payment level, funding sources, payment mechanisms, and
    return to work arrangements. HREOC adopts the content of A Time to Value
    (2002) in relation to its proposed paid maternity leave scheme.

  3. HREOC considers it essential that any paid leave scheme does not further
    disadvantage the ability of women to engage in the paid work force. It is aware
    that any proposed scheme should not disproportionately impact on the willingness
    of businesses to employ women, nor should any scheme disproportionately burden
    small business. In order to proceed with a paid leave scheme, economic
    modelling is essential.

  4. In 2002, HREOC funded its own economic modelling of the paid maternity leave
    component.

  5. However, HREOC has not undertaken further economic modelling since 2002. In
    light of HREOC’s limited resources, and the expertise available to the
    Productivity Commission in the context of the current Inquiry, HREOC requests
    that the Productivity Commission undertake the economic modelling of
    HREOC’s proposed paid maternity leave scheme, including the separate
    modelling of Stages One and Two, in light of the contemporary conditions in
    2008.

  6. Following any economic modelling which may be undertaken by the Productivity
    Commission and published in its draft report in September 2008, HREOC will then
    review its proposal, and may make further submissions to the Inquiry, in light
    of the Commission’s initial findings.

  7. In this section, HREOC provides additional submissions in relation to key
    features of its proposed scheme for consideration by the Inquiry, particularly
    in relation to duration, eligibility, payment levels and funding sources, and
    payment mechanisms, in order that economic modelling may be undertaken.

  8. Whilst HREOC considers that Stage One of its proposal should be introduced
    immediately, HREOC may wish to adjust key features of its proposed Stage Two in
    light of costing issues that may be identified arising out of economic modelling
    conducted by the Productivity Commission at this time.

Duration

  1. As noted above, HREOC recommends a national scheme of paid maternity leave
    which provides for a minimum of 14 weeks, to be taken immediately prior to
    and/or following the birth of a child.

  2. The paid maternity leave should be taken as continuous block. A woman may
    elect to take less than the full 14 weeks of paid maternity leave, but should
    only receive the payment for the weeks taken as maternity leave.

  3. During HREOC’s 2002 paid maternity leave examination, while many
    submissions from the community noted that comparable countries have or were in
    the process of extending their paid leave, most expressed a preference to
    advocate for an acceptable, achievable minimum standard. Proposals in
    submissions received by HREOC ranged from six weeks to five years.

  4. As noted above, ILO Convention 183, adopted in 2000, also provides
    for a right to no less than 14 weeks of paid maternity leave. Fourteen weeks
    paid maternity leave is a minimum standard.

  5. HREOC continues to support the extension of this period of leave over time.
    However, it proposes that the extension of paid leave should be achieved through
    a broader scheme of paid parental leave that can be shared between both parents.
    Under Stage Two, mothers would be entitled to up to 48 weeks of paid leave, by
    mutual agreement between couples (being 14 weeks paid maternity leave plus up to
    a maximum of 34 weeks paid parental leave).

  6. HREOC considers that the provision of a minimum of paid maternity leave of
    14 weeks, reserved for the birth mother, with flexibility as to which parent
    takes additional leave beyond this period would respond to the desire for
    couples to have greater choices regarding which parent is to have primary
    responsibility for paid work and care of children, including through the use of
    shared care arrangements.

  7. HREOC also proposes the introduction in Stage One of an accompanying period
    of two weeks paid leave for the supporting parent, as supporting parent leave.
    HREOC proposes a period of two weeks in light of industry standards, and current
    practices by fathers and other supporting parents to take leave immediately
    following the birth of a chid.

  8. The supporting parent leave is to be taken concurrently with the paid
    maternity leave, or, alternatively, immediately following the paid maternity
    leave period, if the couple prefer that the supporting parent be able to provide
    intensive home-based care during the early period of a mother’s return to
    paid work. In Stage Two, the supporting parent leave component may only be
    taken concurrently with the paid maternity leave component, due to the
    introduction of a further component of paid parental leave

  9. In Stage Two, HREOC proposes that, subject to the Two Year Review, the
    Government introduce of further component of 38 weeks paid parental leave, with
    four weeks of that period being reserved for the supporting parent on a
    ‘use it or lose it’ basis (unless the mother is a sole parent in
    which case she is entitled to the full additional 38 weeks). The balance of the
    leave may be taken by either parent.

  10. The parents may share access to the additional paid parental leave to which
    either one of them is entitled (i.e. 34 weeks), for example, on a shared care
    arrangement, with each one remaining in flexible paid work arrangements.
    However, only one parent can be on paid parental leave at any given time.

  11. HREOC’s proposal to progressively introduce a paid leave scheme which
    results in the ability of at least one parent to be providing personal care to
    the child for a full year (being 14 weeks of paid maternity leave plus 38 weeks
    of paid parental leave) is linked to research in child development which
    considers that one year is the optimal period for ensuring personal care for a
    child in its early years, as well as the desire to support shared care
    arrangements between parents from the earliest stages of parenting.

Recommendations
  1. HREOC recommends: That a National Paid Leave Scheme provide for:
    • an entitlement to up to 14 weeks to be taken immediately prior to and/or
      following the birth of the child to be taken as a continuous block. 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;

    • an entitlement to up to two weeks paid supporting parent leave to be taken
      concurrently with the paid maternity leave period, or, under stage one only,
      immediately after the paid maternity leave period as a continuous block;
      and

    • under Stage Two, subject to the findings of the Two Year Review, an
      additional 38 weeks of paid parental leave, to be taken following the paid
      maternity leave period within the first year of the child’s birth, but
      with 4 weeks of this leave reserved for the supporting parent. Both parents may
      share 34 weeks of paid parental leave at alternate times, including in a shared
      care arrangement with both parents working part time and sharing the paid leave
      on alternate days (Recommendation 6).

Eligibility
and Coverage

  1. HREOC considered the issue of eligibility in relation to paid maternity
    leave in A Time to Value (2002) by drawing on policy objectives,
    international standards and practices, submissions from the community and
    consideration of the Australian labour market and women’s patterns of
    work.

  2. Under HREOC’s 2002 proposal, it was argued that a paid leave scheme
    available to women in paid work would need to establish a standard or definition
    for paid work. In doing so, HREOC considered that eligibility criteria should
    aim to ensure as many women in paid work as possible are covered and that the
    criteria should be simple to administer. HREOC also considered that it is
    important for the eligibility standard to have public support and be seen as
    legitimate.

  3. HREOC continues to hold the view that requiring women to have undertaken a
    certain length of employment in order to be eligible for paid maternity leave is
    reasonable. In 2002, HREOC found a considerable level of support for the
    principle that there should be a minimum qualifying period of employment in
    order to be eligible for paid maternity leave. A mother should be able to
    demonstrate substantial labour force attachment.

  4. A number of submissions received by HREOC in 2002 supported the concept of
    portability between employers and to also permit short breaks in women’s
    employment history. HREOC’s proposed eligibility criteria reflect the
    reality of women’s employment, including those in intermittent or casual
    working relationships, contract workers and the self-employed.

  5. HREOC recommended in 2002 that, in order to be eligible for paid maternity
    leave a woman must have been in paid work for 40 weeks of the past 52 weeks with
    any number of employers and/or in any number of positions, and that access to
    this payment should not be means tested. HREOC continues to hold this view.
    Employment should include part time, casual employment, contract work and
    self-employment, employment which is pro rata or subsidised, and be inclusive of
    both open employment and employment in Business Services.

  6. Forty weeks is a longer period than the usual gestation of between 37 and 40
    weeks. As such, it ensures that a woman would not get a job after becoming
    pregnant for the sole purpose of receiving paid maternity leave. HREOC considers
    that it is highly unlikely that any woman would seek employment purely on these
    grounds. In addition, given the high level of pregnancy discrimination in the
    workforce, HREOC is of the view that many women would find it difficult to gain
    employment in the later stages of their pregnancy. However, it is important to
    note that this principle was one which was important to employer groups that
    HREOC consulted with in 2002.

  7. The other benefit of a 40 week within 52 weeks qualifying period is that it
    provides a level of protection to women who experience pregnancy discrimination.
    Complaints to HREOC on the ground of pregnancy discrimination increase in the
    final three months of pregnancy. As such, a woman who has worked continuously
    up to the final three months of pregnancy, and then is dismissed or resigns from
    employment, would still receive the 14 weeks of government funded maternity
    leave payments under this proposal regardless of other remedies which may be
    available to her. This is an important protection in those cases where
    pregnancy discrimination has been established, as well as those where a woman
    has not filed a discrimination complaint, has not been able to prove a
    complaint, or where a complaint has not yet been decided.

  8. In considering funding sources other than General Revenue for a national
    scheme of paid leave in Stage Two of HREOC’s proposal, this aspect of
    eligibility would need to be considered in light of the additional obligations
    it would put on employers. This is because a government funded scheme is based
    on labour force attachment rather than a relationship with a single employer.

  9. The Inquiry’s Issues Paper poses questions in relation to other
    primary carers, such as grandparents, foster carers and adoptive parents.

  10. HREOC is of the view that paid maternity leave should be reserved for
    mothers, with the entitlement transferable to a woman’s partner or another
    caregiver only in exceptional circumstances (such as death or incapacity of the
    mother).

  11. An exception to this rule is adoptive parents, or parents from a surrogacy
    arrangement where, due to the fact that the non-birth parents do not give birth
    to their children, the primary caregiver of the child is eligible for paid leave
    at the time of placement of the child with his or her family irrespective of the
    age of the child.

  12. Adoptive parents or parents from a surrogacy arrangement should be eligible
    for paid maternity leave to ensure equity with biological parents, in
    recognition of the different health and wellbeing issues, government
    requirements that one adoptive parent remain at home for a period after
    placement, and the disadvantages faced by older adopted children in having to
    adjust to a new family and often cultural environment.

  13. In adoption or surrogacy arrangements, the birth mother should also be
    entitled to a reasonable period of paid leave in order to recover physically and
    emotionally from the birth of the child, and its relinquishment to other
    parents.

  14. There are State/Territory government foster care payments available for
    foster parents. In HREOC’s view foster carers should not be eligible for
    paid maternity leave.

  15. While recognising the important role that grandparents play in supporting
    parents to care for their children, HREOC does not consider that grandparents
    should be eligible for paid maternity leave scheme or a broader paid leave
    scheme other than in exceptional circumstances such as the death or incapacity
    of the mother where the grandparent becomes the primary carer of the child.

  16. In relation to 2 weeks of supporting parent leave, HREOC is of the view that
    the same eligibility test with regard to employment should apply.

  17. Eligibility for any period of supporting parent leave should not
    discriminate against same-sex couples. Non-birth parents in same-sex
    relationships should receive the same treatment as fathers in opposite-sex
    relationships.

  18. Financial support for parents not in paid work at the time of the birth of a
    child is considered separately below.

  19. HREOC considers that it would be appropriate to review the eligibility
    criteria of its proposed scheme as part of the Two Year Review, described
    further below. Such a review should consider the number of women in paid work
    who are not able to access paid maternity leave due to the eligibility criteria,
    as well as possible ways of extending the scheme to a greater proportion of
    women in paid work. The review should also consider impacts on particular
    groups such as parents with disability to ensure that the scheme does not
    discriminate against people with disability and others who may be more likely to
    be in precarious employment arrangements.

  20. Where a person is eligible for paid maternity leave and is a sole parent,
    that person should be entitled to take the benefit of the supporting
    parent’s paid leave entitlements (except where the entitlement would have
    been taken concurrently). In Stage One, a sole parent would therefore be
    entitled to 16 weeks paid leave. In Stage Two, the sole parent would be entitled
    to an additional 38 weeks of paid leave.
Recommendations
  1. HREOC recommends: That in order to be eligible for paid maternity leave and
    supporting parent 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, and that access to this payment
      should not be means tested; and
    • a supporting parent 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, and that access
      to this payment should not be means tested (Recommendation 7).

Payment
Level, Funding Sources and Payment Mechanism

  1. Paid maternity leave has the potential to replace some, if not all, of the
    income women lose when they leave the workforce on maternity leave. Providing
    some level of income replacement is an important feature for a paid leave scheme
    to achieve its national objectives.

  2. A key principle identified under both ILO Convention 103 and ILO
    Convention 183
    is the adequacy of payments to ensure the standard of living
    for a woman and her child. Article 6 of the latter convention provides
    that:

    Cash benefits shall be at a level which ensures that the woman
    can maintain herself and her child in proper conditions of health and with a
    suitable standard of
    living.[134]

  3. In addition, ILO Convention 183 sets out an appropriate minimum
    standard for maternity leave payments via two payment systems. Article 6(3)
    provides that, where the maternity leave payment is based on a woman's previous
    earnings, the amount of such payment must not be less than two-thirds of that
    woman's previous earnings or the portion of those earnings taken into account
    for the purpose of calculating that payment. Article 6(4) provides that where
    the maternity leave payment is calculated by methods other than a simple
    percentage of previous earnings, the amount of such payment must be
    ‘comparable’ on average to the payments made if the two-thirds rate
    has been applied to all protected persons. The intention of this provision is
    to ensure equivalent protection despite differences in payment
    systems.[135]

  4. Under ILO Recommendation 191, member states are also encouraged to
    aspire to a system of paid maternity leave that provides full wage
    replacement.[136]

  5. HREOC’s 2002 proposal supported a variable rate of payment (as opposed
    to a flat rate) for paid maternity leave, consistent with the concept of income
    replacement, that is, that paid maternity leave should replace income that a
    woman has to forego due to maternity.

  6. HREOC’s 2002 proposed payment level for paid maternity leave involved
    a two tiered system. The scheme proposed that the payment level be at either
    the Federal Minimum Wage, or based on the average of the woman’s previous
    earnings from all jobs, whichever is the lesser amount. Previous weekly
    earnings would be calculated as the greater of either a woman’s weekly
    earnings from all jobs immediately prior to taking leave or an average of her
    weekly earnings from all jobs during the time of employment over the previous 12
    months. This scheme of leave would form a baseline minimum that could be topped
    up by employers through standard bargaining mechanisms.

  7. Given that women on higher levels of income are more likely to already
    receive negotiated employer-funded paid maternity leave, the lower level of
    coverage offered to these women would be offset by their employer-funded leave.
    Considered together, the two tier payment system would provide significant
    coverage for women to be provided with two-thirds of their income. They would
    also deliver the greatest proportional benefit to lower income women, who are
    those least likely to be able to bargain with their employer to gain paid
    maternity leave.

  8. This proposal combines a capped amount of the Federal Minimum Wage as a
    safety net providing a reasonable standard of living, with an earnings-related
    component.

  9. HREOC continues to be of the view that the ideal level of payment for paid
    maternity leave should be 100 per cent of a woman’s previous earnings,
    given this is the standard to which ILO Recommendion191 provides member
    states should aspire.[137] HREOC
    proposes that an incremental development of the paid leave scheme should foster
    an increase in payment level towards at least a minimum of two-thirds of full
    income replacement in Stage Two, following the Two Year Review.

  10. The payment levels for other forms of paid leave, such as the supporting
    parent leave and paid parental leave should be set at the same level as paid
    maternity leave. This is essential in ensuring that the paid leave scheme does
    not discriminate between parents, fosters gender equality, and promotes the
    ability to share paid work and the care of children. HREOC notes that uptake of
    paid parental leave by men is higher in European countries where the rates of
    salary compensation are high.[138]
    In keeping with the gender equality objectives for paid leave schemes, the level
    of income replacement is a key factor for consideration if men are to be
    encouraged to take up portions of the paid leave.

  11. HREOC proposes that Stage One of its scheme be funded by the Government out
    of General Revenue. In relation to Stage Two, HREOC would like the Productivity
    Commission to model funding from both General Revenue, and alternative
    arrangements, based on both payment level set at the Federal Minimum Wage, and
    at two thirds of full income replacement. HREOC is concerned to ensure that
    funding source arrangements do not operate as a disincentive to the employment
    of women, nor disproportionately burden small business.

  12. HREOC’s forward estimates of the cost of the paid maternity leave
    component of Stage One, calculated as at 2002, may still be a useful guide for
    approximating the cost of a minimal paid leave scheme funded by government.

  13. For 2006-07, estimates produced for HREOC showed the gross cost of paid
    maternity leave of 14 weeks’ duration at the Federal Minimum Wage to be
    $526 million per year, with a net cost of $219 million. HREOC also notes the
    indicative figure of $591.6 million provided by Senator Stott-Despoja’s
    recent legislative proposal, which is similar to HREOC’s 2002
    model.[139]

  14. HREOC acknowledges that, if the payment level is to be increased beyond the
    Federal Minimum Wage in Stage Two, funding from General Revenue may not be
    sustainable over the longer term. This is due in part to the regressive nature
    of such a scheme (i.e. that proportionally more tax revenue from people on lower
    incomes would be re-distributed to cover those on higher incomes).

  15. In light of these concerns, HREOC would be interested to see other ways of
    modelling a national paid leave scheme that allow for two-thirds income
    replacement at a minimum, and notes that the Inquiry has received submissions in
    support of a pooled funding system that draws funds from general revenue,
    employers and employees via a levy
    system.[140]

  16. In 2002 HREOC received some submissions in support of a joint model of
    funding for paid maternity leave by employers and government. However, there
    were significant concerns raised by employer groups in terms of cost and the
    complexity of administration.

  17. Notwithstanding these concerns, HREOC considers that the current Inquiry
    offers opportunities for modelling and re-considering a range of financing
    options for both paid maternity leave and the broader scheme of leave that HREOC
    is recommending, including canvassing the level of community support that they
    may or may not enjoy.

  18. HREOC urges the Inquiry to consider both HREOC’s 2002 model as a basis
    for an updated costing of a minimal general revenue-funded, Federal Minimum Wage
    based scheme of paid maternity and paid supporting parent leave, as well as
    other models which rely on joint contributions from employers/employees and
    government, particularly in Stage Two.

  19. HREOC proposes that the payment mechanism for delivery of the paid leave
    payments be dependent upon whether the employee has been in employment with the
    one employer only for the required eligibility period.

  20. Where the employee has been in continuous employment with the same employer,
    HREOC proposes that the employer be responsible for delivering payment to the
    employee, with reimbursement by the Government out of General Revenue to cover
    the full costs of the payment, including a reasonable administrative cost. This
    payment mechanism is to support the workplace attachment with that employer, and
    to avoid administrative complexities for employers who may introduce ‘top
    up’ payments of paid leave beyond the minimum required payment level.

  21. Where the employee has been with more than one employer during the
    eligibility period, an individual would elect to receive the payment as either a
    fortnightly payment from government to the individual or a payment from the
    employer to the individual with the employer reimbursed by the Government
    (subject to the employer agreeing to this option).
Recommendations
  1. HREOC recommends:
    • That under Stage One, paid maternity leave and supporting parent leave be
      paid at the rate of the Federal Minimum Wage, or the parent’s previous
      weekly earnings from all jobs, whichever is the lesser amount. Previous weekly
      earnings would be calculated as the greater of either a woman’s weekly
      earnings from all jobs immediately prior to taking leave or an average of her
      weekly earnings from all jobs during the time of employment over the previous 12
      months. Payment is to be paid as taxable income, including superannuation, on a
      pro rata basis.
    • That, subject to further modelling and consideration, under Stage Two the
      payment level for each element of HREOC’s scheme may increase beyond stage
      one to at least two-thirds of the average previous earnings (with weekly
      earnings calculated on the same basis as Stage One) in order to meet the key
      objectives of a national scheme of paid leave. (Recommendation 8).
  2. HREOC recommends: That under stage one of HREOC’s proposal, paid
    maternity leave and supporting parent leave be funded by the federal Government.
    Under Stage Two, following the Two Year Review, if the payment level is
    determined to increase to two-thirds of the parent’s previous weekly
    earnings or more the review should confirm the most effective funding model
    which will continue to meet the objectives of a national paid leave scheme
    (Recommendation 9).

  3. HREOC recommends: That in relation to the payment mechanism:
    • under Stage One of HREOC’s proposal, paid maternity and supporting
      parent leave are to be paid as fortnightly payments during the period of leave.
      For parents who have been in employment with the same employer for the 40 weeks
      of the past 52 weeks, payment is to be made by that employer. For parents who
      have been with more than one employer during the same period of eligibility,
      they may elect to receive the payment as either a fortnightly payment from
      Government to the individual or a payment from the employer to the individual,
      with the employer reimbursed by the Government as above (subject to the employer
      agreeing to this option); and
    • under Stage Two of HREOC’s proposal, the payment mechanism for paid
      maternity and supporting parent leave will be dependent on the funding source as
      determined by the outcome of the Two Year Review (Recommendation 10).

Interaction
with Social Security and Other Government Payments

  1. HREOC is of the view that the Government should ensure that all women have
    adequate financial support at the time of childbirth.

  2. This view is underpinned by Australia’s obligations under ICESCR to
    recognise the right of families to an adequate standard of
    living.[141]

  3. As the Issues Paper notes, there are a range of family assistance and income
    support measures currently provided by the Australian Government.

  4. HREOC proposes that, at least in Stage One, a person’s entitlement to
    social security and family assistance payments, such as the Baby Bonus, during
    any period of paid leave should be assessed in accordance with existing
    eligibility criteria.

  5. Modelling the interaction between a national scheme of paid leave and these
    payments is an important part of the Inquiry’s task.

  6. It is important that family assistance and other payments do not operate as
    a disincentive to women’s labour market participation.

  7. The interaction between paid leave and child care subsidies is particularly
    important given the intuitive expectation that paid leave would reduce the
    number of young children in child care.

  8. The interaction of a paid leave scheme with the Baby Bonus is another
    significant area for analysis given that this payment was widely regarded at the
    time of its introduction as the Government’s response to HREOC’s
    2002 proposal for a paid maternity leave scheme and the community support which
    accompanied its publication.

  9. The Baby Bonus, as a universal welfare payment designed to assist families
    with financial costs around the time of
    birth,[142] does not meet most of
    the objectives HREOC has outlined for a paid maternity leave scheme. However,
    the payment does provide a means of support at a time when family budgets may be
    stretched due to the costs of a new baby.

  10. HREOC notes the recent changes made by the Government to make the Baby Bonus
    available only on a fortnightly basis and subject to means-testing.

  11. While the Government may wish to continue providing the Baby Bonus as a
    means of supporting families financially at the time of the birth of a child,
    the payment does not meet the aims of a paid leave scheme.

  12. The Baby Bonus does not meet the labour market attachment objectives of a
    paid leave scheme, however it would meet health and wellbeing objectives and
    create a level of equity among mothers in ensuring that all women would be
    supported in their maternal role and retain an adequate standard of living.

  13. As long as the Baby Bonus or other family allowance payments ensure an
    adequate standard of income for parents and their children following birth, and
    as long as payments do not operate as a disincentive to women’s labour
    market participation, HREOC supports the retention of appropriate transfer
    payments associated with the additional costs of a new child. As with different
    financing and payment options, HREOC would like to see the interaction of such
    payments with its proposed paid leave scheme modelled as a concrete
    proposal.

  14. This type of scheme could structurally mirror the paid leave scheme in the
    United Kingdom, which provides both statutory Maternity Pay for women employees
    paid by the government via employers and a Maternity Allowance paid via the
    social security system for women with a lesser attachment to the labour
    market.[143]

Recommendations

  1. HREOC recommends: That a person who receives paid leave entitlements under
    HREOC’s proposal will continue to be entitled to applicable social
    security and family assistance payments, including the Baby Bonus, in accordance
    with existing eligibility criteria (Recommendation 11).

Interaction
with Other Work and Family Reconciliation Policies

  1. In designing possible schemes of paid leave, it is important to analyse the
    interaction with, and potential impacts on, other policy supports that assist
    men and women to combine their paid work with their family
    responsibilities.

  2. These include the right to request flexible working arrangements, and the
    unpaid maternity leave entitlements including the additional parental leave
    standard contained in the proposed National Employment Standards.

  3. HREOC has previously recommended a number of changes to the draft National
    Employment Standards, including broadening the right to request flexible working
    arrangements. HREOC has proposed that the standard be extended in relation to
    the coverage of employees with family responsibilities, employees with caring
    responsibilities, and employees with a
    disability.[144] HREOC has urged
    the Government to consider broadening the right to request by not limiting this
    right to parents of children under school age only and making it available
    to:

    • employees with all forms of family and caring responsibilities; and
    • employees with disability who may need flexibility as part of reasonable
      accommodation in the workplace.
  4. HREOC also recommended that both the proposed right to request standard and
    the additional (unpaid) parental leave (and related entitlements) standard
    explicitly set out a list of non-exhaustive factors to be taken into
    consideration by the employer when considering each request and determining what
    constitutes ‘reasonable business grounds’.

  5. In addition, HREOC has recommended that the right to request standard and
    the additional parental leave standard (and related entitlements) contain a
    dispute settlement mechanism allowing an employee to refer unresolved disputes
    around the Flexible Working Arrangements National Employment Standard to Fair
    Work Australia or some other form of conciliatory body for procedural review.

  6. HREOC also notes the Government’s committed and mooted reforms to the
    provision of early childhood education and care
    services.[145] Paid leave must be
    considered as part of a suite of measures such as these to enable Australians to
    meet their paid work and family responsibilities.

  7. This suite of measures should include a range of education and awareness
    raising activities, access to appropriate parenting services, targeted measures
    to assist disadvantaged groups of parents, incentives to assist business to play
    a stronger role in supporting workers with family responsibilities and a greater
    effort across a range of gender equality areas of policy, as contained within
    the recommendations of It’s About Time (2007).

  8. As noted previously, the gender pay gap continues to have an influence on
    the choices that men and women make about how to balance their paid work and
    care responsibilities. Women’s disproportionate responsibility for the
    care of children and other unpaid work means that women in paid work continue to
    face a “double shift” across their working lives.

  9. The pressures that women face in reconciling their work and family lives are
    not experienced in isolation from the lives of their partners. As noted in It’s About Time (2007), HREOC heard from men who wanted to take a
    greater role in caring for their children but were unable to find flexible work,
    that they faced barriers to taking up flexible work (such as the questioning of
    their commitment to their jobs), and that they faced difficulties accessing
    parenting services and cultural and attitudinal barriers.

  10. In HREOC’s view, progress in these areas will be assisted by the
    introduction of a national paid leave scheme. However, the responsibility for a
    more holistic, integrated response to fairly distributing the costs and benefits
    of care is shared between governments, employers, communities and the families
    to which we each belong.

  11. HREOC considers that the ongoing review of the effectiveness of a national
    paid leave scheme for parents against its key national objectives, including
    during the Two Year Review, detailed further below, should take into account the
    interrelationship on the combination of the range of policies in place to
    support parents to better balance paid work and family responsibilities across
    the life-cycle. For example, whilst paid maternity leave may contribute to
    enhancing the ability of women to retain labour force attachment following the
    birth of a child, their ability to stay engaged with paid work will be directly
    impacted by the availability of flexible work practices over the longer term.
    The availability of flexible work for fathers and other supporting parents will
    also directly impact on their ability to have a greater role in shared care
    arrangement, directly affecting progress in achieving greater gender equality.
Recommendations
  1. HREOC recommends: That in modelling of the first and second stages of
    HREOC’s proposal the Inquiry take into account likely impacts on different
    groups of employees, particularly those who are disadvantaged in the labour
    market, employers, and interaction with other government payments, work and
    family reconciliation policies and the provision of early childhood education
    and care (Recommendation 12).

Interaction
with Existing Legislation

  1. In keeping with the return to work guarantee that applies under the unpaid
    parental leave provisions of the Workplace Relations Act 1996, under the
    first stage of HREOC’s proposal all employees taking paid leave who are
    eligible under these provisions would be accorded the right to return to their
    previous job.

  2. In considering the second stage of broader paid leave provisions under
    HREOC’s proposal, further consideration of the interaction between unpaid
    parental leave would be needed assuming the eligibility for the broader scheme
    of paid leave remains the same as the initial stage.

  3. HREOC also considers that there is scope for reviewing the unpaid maternity
    leave provisions given that, as the Issues Paper notes, currently 27 per cent of
    recent mothers and 35 per cent of recent fathers who have been working were not
    eligible for unpaid maternity or paternity leave. While some of these employed
    mothers and fathers are self-employed, it is important to note that 17 per cent
    of mothers are ineligible because they have not worked for the same employer
    continuously for 12 months. As noted above, HREOC proposes a more expansive
    eligibility for paid leave, beyond employees in full-time employment. HREOC
    proposes that the unpaid leave entitlements should ideally match paid leave
    standards, or at least be coherent with the scheme.

  4. There is evidence that where employees are eligible for existing unpaid
    leave entitlements, some employers disregard the unpaid parental leave standard,
    particularly in terms of a guaranteed return to the job held before the employee
    went on leave.[146]

  5. HREOC receives many enquiries from women who have difficulties returning to
    work following a period of maternity leave, including accessing part time work
    on return from unpaid leave.

  6. HREOC has previously heard that some women who do have access to unpaid
    parental leave do not know they have the right to return to work after taking
    this leave or were not encouraged to use it. For example, some women leave work
    rather than experience the ‘guilt’ of inconveniencing their
    employers. Other women experience difficulties in returning to work in the
    position they held prior to taking leave or to a comparable position if her
    original job has ceased to
    exist.[147]

  7. On the Sex Discrimination Commissioner’s recent national Listening
    Tour, HREOC heard some support for a proposal to change eligibility for the
    unpaid parental leave entitlement to cover those who had worked for the same
    employer continuously for 6
    months.[148] Underlying this
    proposal is the recognition that the current standard excludes many women
    – in 2006, 24 per cent of all working women and 44 per cent of all casual
    women workers had less than 12 months continuous service with the same
    employer.[149]

  8. HREOC proposes that the Productivity Commission consider reviewing the
    unpaid parental leave provisions as part of assessing HREOC’s proposal for
    a national paid leave scheme.

  9. Part time work following a period of paid and/or unpaid leave is the
    preferred option for many women in order to balance their work and family
    responsibilities, particularly while their children are young. In this respect,
    HREOC notes the importance of the right to request flexible working
    arrangements, as outlined in the Government’s recent National Employment
    Standards exposure draft.

  10. There is a convincing argument that further education is needed to inform
    employees and employers of women’s right to return to work following
    unpaid leave as well as the need for stronger legislative protection in the area
    of pregnancy discrimination.[150]
  11. The introduction of any national scheme of paid leave would also require
    widespread education and awareness-raising around the new entitlements so that
    they will be fully functional.
Recommendations
  1. HREOC recommends: That the Inquiry consider the interaction between
    HREOC’s proposal and the current unpaid parental leave provisions in order
    to establish a coherent set of paid and unpaid leave entitlements
    (Recommendation 13).

Independent
Review of a Paid Leave Scheme for Parents and Other Institutional
Arrangements

  1. HREOC considers that it is essential that the introduction of a paid leave
    scheme for parents should be reviewed on a regular basis to monitor the impact
    of the scheme against its key national objectives.

  2. HREOC proposes that the Government legislate to mandate a formal,
    independent review of the scheme two years after introduction. The Two Year
    Review should be conducted by an independent body, informed by a solid evidence
    base, and incorporating input from key stakeholders, including government,
    business, academia and civil society groups.

  3. HREOC proposes that the Two Year Review would assess the effectiveness of
    the implementation of Stage One of the national paid leave scheme, and inform
    the design of Stage Two, prior to its implementation, including duration,
    eligibility, payment leave, funding sources, and payment mechanisms.

  4. HREOC proposes that the Minister for Employment and Workplace Relations
    should hold ministerial responsibility for the national paid leave scheme,
    including the Two Year Review.

  5. A policy unit should be established within the Department of Education,
    Employment and Workplace Relations, and adequately resourced to coordinate
    implementation, monitoring and review of the scheme over time.

  6. The Department should be responsible for coordinating the required education
    and awareness strategy to promote the rights and responsibilities under the
    scheme. The strategy should meet the diverse communication needs of the
    community, and be tailored for, and targeted towards, groups less likely to have
    information about the new entitlements. All information should be culturally
    appropriate and available in an accessible format.

  7. Implementation of the national paid leave scheme should include adequate
    funding for the commissioning of longitudinal research to monitor the impact of
    the scheme against the key national objectives. The commitment to research and
    monitoring should generate solid evidence to ensure that the paid leave scheme,
    interacting with other paid work and family reconciliation policies, continues
    to positively contribute to the key national objectives over time.

  8. HREOC has identified that there is currently only minimal Australian
    research to underpin assessment of the likely success of a paid leave scheme.
    For example, it is essential that the impact of the scheme is monitored over
    time in conjunction with early childhood education and child care policies to
    assess effectiveness in improving early childhood development, leading to
    improved chances for Australia’s future generations.

  9. HREOC urges the Government to invest in generating a strong evidence base
    for informing over-arching policy frameworks of gender equality, work and
    family, and early childhood education and care. The introduction of a national
    paid leave scheme provides an exciting opportunity to establish a solid
    evaluation framework which ensures that, over the longer term, government and
    other stakeholders are able to continuously improve the laws and policies aimed
    at progressing a range of key national objectives.
Recommendations
  1. HREOC recommends: That following implementation of Stage One of
    HREOC’s proposal, the scheme be independently reviewed after 2 years in
    order to measure the impacts of the first phase, including determining how well
    it is meeting its objectives, impacts on business, interactions with existing
    government payments, and other work and family policy measures, and to make any
    necessary improvements in order to implement a second stage of a more
    substantial paid leave entitlements (Recommendation 14).

  2. HREOC recommends: That under HREOC’s proposal the Minister for
    Employment and Workplace Relations should have ministerial responsibility for
    the paid leave scheme and that a policy unit should be established within the
    Department of Education, Employment and Workplace Relations to coordinate
    implementation, promotion, education, monitoring and review of the scheme over
    time (Recommendation 15).

  3. HREOC recommends: That the implementation of any scheme of paid leave be
    accompanied by a comprehensive community awareness and education campaign around
    the new entitlements and that this campaign meets the diverse communication
    needs of the community and which includes targeted education strategies for
    groups less likely to have information about the new entitlements, including
    culturally appropriate information available in an accessible format
    (Recommendation 16).

  4. HREOC recommends: That the Government invest in generating a solid evidence
    base to inform ongoing monitoring, review, and continuous improvement of the new
    paid leave scheme, including its interaction with other work and family
    reconciliation policies and early childhood education and care services, in
    order to continually improve the effectiveness of these measures in the longer
    term (Recommendation
    17
    ).

Conclusion

  1. HREOC welcomes the opportunity to make this submission to the Inquiry,
    presenting as it does an exciting opportunity to progress implementation of a
    national paid leave scheme for parents, long overdue in the Australian
    context.

  2. HREOC looks forward to reviewing the draft Report of the Productivity
    Commission in September 2008. Depending on the content of that draft Report,
    HREOC may make further submissions to the Inquiry, which may involve
    modification of its proposed national paid leave scheme for parents, or
    addressing issues which the Productivity Commission may raise relevant to
    HREOC’s mandate of promoting human rights in Australia.

  3. In HREOC’s view, paid maternity leave is an urgent priority. HREOC
    also considers that a national paid leave scheme for parents is an essential
    component for promoting gender equality in Australia. It is also an opportunity
    to positively contribute to a range of key national objectives.

  4. A well-designed national paid leave scheme will benefit mothers, fathers and
    other supporting parents, their children, the national economy, employers, and
    our future generations, all of whom are linked to our social and economic
    sustainability as a nation.

Appendices

List
of All Recommendations

  1. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable national scheme of 14 weeks paid maternity leave be
    introduced, principally to ensure the health and wellbeing of mothers and
    babies, to address the workplace disadvantage that women experience as the
    result of maternity, and to contribute to women’s ability to participate
    on equal terms with men in all aspects of life
    (Recommendation 1).

  2. HREOC recommends: That, as part of a first stage of a National Paid Leave
    Scheme, a non-transferable, separate entitlement of two weeks supporting parent
    leave be introduced and made available either at the time of birth for the
    supporting parent to take concurrently with the birth mother’s paid
    maternity leave, or immediately after that period of paid leave, principally to
    support the bonding between that parent and their child, as an important support
    for the mother and/or as a way of transitioning to alternative care arrangements
    following the mother’s return to paid work (Recommendation 2).

  3. HREOC recommends: That following an independent review after two years, any
    necessary modifications and improvements to the National Paid Leave Scheme are
    made and that Australia implement a second stage of measures. This would provide
    in total:
    • 38 weeks of paid parental leave, of which 4 weeks may only be taken by the
      supporting parent, in addition to;
    • 14 weeks paid maternity leave; and
    • 2 weeks paid supporting partner leave to be taken concurrently at the time
      of birth.

    HREOC urges the modelling and analysis of each
    stage of the scheme by the Productivity Commission during the course of the
    current Inquiry so that the best funding model for stage two can be determined
    and so that community views on the suitability of models can be canvassed
    (Recommendation 3).

  4. HREOC recommends: That the Government remove its reservation to Article
    11(2)(b) of the Convention on the Elimination of All Forms of Discrimination
    Against Women
    (CEDAW) (Recommendation 4).

  5. HREOC recommends: That the Government take steps towards ratification of the
    Maternity Protection Convention 2000 (No 183) (ILO Convention
    183
    ), and ensure compliance with other provisions of that Convention
    (Recommendation 5).

  6. HREOC recommends: That a National Paid Leave Scheme provide for:
    • an entitlement to up to 14 weeks to be taken immediately prior to and/or
      following the birth of the child to be taken as a continuous block. 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;
    • an entitlement to up to two weeks paid supporting parent leave to be taken
      concurrently with the paid maternity leave period, or, under stage one only,
      immediately after the paid maternity leave period as a continuous block;
      and
    • under Stage Two, subject to the findings of the Two Year Review, an
      additional 38 weeks of paid parental leave, to be taken following the paid
      maternity leave period within the first year of the child’s birth, but
      with 4 weeks of this leave reserved for the supporting parent. Both parents may
      share 34 weeks of paid parental leave at alternate times, including in a shared
      care arrangement with both parents working part time and sharing the paid leave
      on alternate days (Recommendation 6).
  7. HREOC recommends: That in order to be eligible for paid maternity leave and
    supporting parent 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, and that access to this payment
      should not be means tested; and
    • a supporting parent 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, and that access
      to this payment should not be means tested (Recommendation 7).
  8. HREOC recommends:
    • That under Stage One, paid maternity leave and supporting parent leave be
      paid at the rate of the Federal Minimum Wage, or the parent’s previous
      weekly earnings from all jobs, whichever is the lesser amount. Previous weekly
      earnings would be calculated as the greater of either a woman’s weekly
      earnings from all jobs immediately prior to taking leave or an average of her
      weekly earnings from all jobs during the time of employment over the previous 12
      months. Payment is to be paid as taxable income, including superannuation, on a
      pro rata basis.
    • That, subject to further modelling and consideration, under Stage Two the
      payment level for each element of HREOC’s scheme may increase beyond stage
      one to at least two-thirds of the average previous earnings (with weekly
      earnings calculated on the same basis as Stage One) in order to meet the key
      objectives of a national scheme of paid leave. (Recommendation 8).
  9. HREOC recommends: That under stage one of HREOC’s proposal, paid
    maternity leave and supporting parent leave be funded by the federal Government.
    Under Stage Two, following the Two Year Review, if the payment level is
    determined to increase to two-thirds of the parent’s previous weekly
    earnings or more the review should confirm the most effective funding model
    which will continue to meet the objectives of a national paid leave scheme
    (Recommendation 9).

  10. HREOC recommends: That in relation to the payment mechanism:
    • under Stage One of HREOC’s proposal, paid maternity and supporting
      parent leave are to be paid as fortnightly payments during the period of leave.
      For parents who have been in employment with the same employer for the 40 weeks
      of the past 52 weeks, payment is to be made by that employer. For parents who
      have been with more than one employer during the same period of eligibility,
      they may elect to receive the payment as either a fortnightly payment from
      Government to the individual or a payment from the employer to the individual,
      with the employer reimbursed by the Government as above (subject to the employer
      agreeing to this option); and
    • under Stage Two of HREOC’s proposal, the payment mechanism for paid
      maternity and supporting parent leave will be dependent on the funding source as
      determined by the outcome of the Two Year Review
      (Recommendation 10).
  11. HREOC recommends: That a person who receives paid leave entitlements under
    HREOC’s proposal will continue to be entitled to applicable social
    security and family assistance payments, including the Baby Bonus, in accordance
    with existing eligibility criteria (Recommendation 11).

  12. HREOC recommends: That in modelling of the first and second stages of
    HREOC’s proposal the Inquiry take into account likely impacts on different
    groups of employees, particularly those who are disadvantaged in the labour
    market, employers, and interaction with other government payments, work and
    family reconciliation policies and the provision of early childhood education
    and care (Recommendation 12).

  13. HREOC recommends: That the Inquiry consider the interaction between
    HREOC’s proposal and the current unpaid parental leave provisions in order
    to establish a coherent set of paid and unpaid leave entitlements
    (Recommendation 13).

  14. HREOC recommends: That following implementation of Stage One of
    HREOC’s proposal, the scheme be independently reviewed after 2 years in
    order to measure the impacts of the first phase, including determining how well
    it is meeting its objectives, impacts on business, interactions with existing
    government payments, and other work and family policy measures, and to make any
    necessary improvements in order to implement a second stage of a more
    substantial paid leave entitlements (Recommendation 14).

  15. HREOC recommends: That under HREOC’s proposal the Minister for
    Employment and Workplace Relations should have ministerial responsibility for
    the paid leave scheme and that a policy unit should be established within the
    Department of Education, Employment and Workplace Relations to coordinate
    implementation, promotion, education, monitoring and review of the scheme over
    time (Recommendation 15).

  16. HREOC recommends: That the implementation of any scheme of paid leave be
    accompanied by a comprehensive community awareness and education campaign around
    the new entitlements and that this campaign meets the diverse communication
    needs of the community and which includes targeted education strategies for
    groups less likely to have information about the new entitlements, including
    culturally appropriate information available in an accessible format
    (Recommendation 16).

  17. HREOC recommends: That the Government invest in generating a solid evidence
    base to inform ongoing monitoring, review, and continuous improvement of the new
    paid leave scheme, including its interaction with other work and family
    reconciliation policies and early childhood education and care services, in
    order to continually improve the effectiveness of these measures in the longer
    term (Recommendation 17).

HREOC’s
2002 Proposal for a National Paid Maternity Leave Scheme

  1. A Time to Value: Proposal for a National Paid Maternity Leave Scheme
    can be viewed in full at http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml2/index.html
  2. A hard copy of this publication will be provided the Inquiry.

Footnotes

[1] HREOC is established by the
Human Rights and Equal Opportunity Commission Act 1986 (‘HREOC
Act’). Sections 11 and 31 of the HREOC Act set out HREOC’s functions
relating to human rights and equal opportunity in employment respectively. HREOC
also has functions under the Commonwealth Sex Discrimination Act 1984, Racial
Discrimination Act 1975, Disability Discrimination Act 1992
and Age
Discrimination Act 2004.

[2] HREOC proposes the term ‘supporting parent leave’ in order to be
inclusive of non-birth parents who are not the father of the child.
[3] See http://www.humanrights.gov.au/sex_discrimination/publication/pregnancy/report.html
at 24 May 2008.
[4] See http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml2/index.html
at 24 May 2008. See also the initial publication Valuing
Parenthood: Options for paid maternity leave - Interim paper (2002
) at http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml/index.html
at 24 May 2008, which proposes options for implementing a national paid
maternity leave scheme, examines provisions in Australia compared to other
countries, and canvasses the arguments for a national scheme.
[5] See http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html
at 24 May 2008. See also the initial publication Striking the Balance: Women,
men, work and family – Discussion Paper
(2005) at http://www.humanrights.gov.au/sex_discrimination/publication/strikingbalance/index.html
at 24 May 2008, which examined family responsibilities and paid work.
[6] A report on the findings of
the Listening Tour is currently being produced and is scheduled for release in
July 2008.
[7]http://www.humanrights.gov.au/human_rights/samesex/report/index.html
at 24 May 2008 and http://www.humanrights.gov.au/disability_rights/employment_inquiry/index.htm
at 24 May 2008.
[8] Further detail
and reference material for each of these objectives can be found in
HREOC’s A Time to Value: Proposal for National Maternity Leave
Scheme
http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml2/index.html
at 24 May 2008.
[9]Sex
Discrimination Act 1984
(Cth). s 3(d).

[10]Convention on the
Elimination of All Forms of Discrimination Against Women
, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981),
ratified by Australia 28 July 1983. The Convention is set out in the Schedule
to the Sex Discrimination Act 1984 (Cth).

[11]Convention (No 156)
Concerning Equal Opportunities and Equal Treatment for Men and Women Workers:
Workers with Family Responsibilities
, opened for signature 23 June 1981,
1331 UNTS 295 (entered into force 11 August 1983), ratified by Australia 30
March 1990. The following articles are of particular importance to this Inquiry:
art 3(1) (non-discrimination on basis of family responsibilities); art 7
(workers with family responsibilities to be integrated into the labour force).

[12]Convention (No
111) Concerning Discrimination in respect of Employment and Occupation
,
opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June
1960), ratified by Australia 15 June 1973, entered into force for Australia 15
June 1974. The following articles are of particular importance to this Inquiry:
art 2 (non-discrimination in employment); art 3 (government responsibility re
non-discrimination in employment).

[13]Convention (No 159)
Concerning Vocational Rehabilitation and Employment (Disabled Persons)
, UNTS
1401(entered into force 20 June 1985), ratified by Australia 7 August 1990,
entered into force for Australia 7 August 1991. The following articles are of
particular importance to this Inquiry: art 3 (promoting employment opportunities
for people with disabilities); art 4 (non-discrimination in employment on the
basis of disability).
[14]International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976),
ratified by Australia 13 August 1980, entered into force for Australia 13
November 1980. The following articles are of particular importance to this
Inquiry: art 2(2) (right to non-discrimination); art 3 (non-discrimination on
the grounds of sex); art 17 (non-interference with privacy and family); art
23(2) (right to a family).
[15]International Covenant on Economic, Social and Cultural Rights, opened
for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976),
ratified by Australia 10 December 1975, entered into force for Australia 10
March 1976. The following articles are of particular importance to this
Inquiry: art 2(2) (right to non-discrimination); art 3 (non-discrimination on
the grounds of sex); art 6(1) right to work); art 10(1) (protection and
assistance to families); art 10(2) (2) (right to paid maternity leave); art
12(1) (right to good physical and mental health); art 12(2)(a) (government
responsibility for healthy development of children).

[16] Convention on the Rights
of the Child,
opened for signature on 20 November 1989, 1577 UNTS 3 (entered
into force 2 September 1990), ratified by Australia 17 December 1990, entered
into force for Australia 16 January 1991.

[17]Convention on the Rights
of Persons with Disabilities
, opened for signature 30 March 2007,
A/RES/61/106, signed by Australia on 30 March 2007 but not yet ratified. The
following articles are of particular importance to this Inquiry: art 6 (women
with disabilities); art 7 (children with disabilities) and art 27 (work and
employment).
[18] International
Labour Organization Maternity Protection Convention, 2000 (No 183)
and Maternity Protection Recommendation International Labour Conference
(88th: 2000: Geneva Switzerland).

[19] See International Labour
Organisation, Final record of vote on the Maternity Protection Convention,
2000
at http://www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/v-matcon.pdf
and International Labour Organisation, Final record vote on the Maternity
Protection Recommendation, 2000
at http://www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/v-matrec.pdf.
[20] Preamble to the
Convention on the Elimination of All Forms of Discrimination Against Women.
[21] CEDAW, art
11(1).
[22] CEDAW, art 11(1)(a).

[23] CEDAW, art 11(2).

[24]Sex Discrimination Act
1984
(Cth), s 7.
[25]
Article 11(2)(c) deals specifically with assistance to parents for family
responsibilities.
[26] See
Committee on the Elimination of Discrimination against Women, Report of the
Committee on the Elimination of Discrimination against Women
,
16th and 17th Sessions, 12 August 1997 and Committee on
the Elimination of Discrimination against Women, 34th Session,
Concluding comments of the Committee on the Elimination of Discrimination
against Women: Australia
16 January - 3 February 2006.

[27] Committee on the
Elimination of Discrimination against Women, Concluding comments of the
Committee on the Elimination of Discrimination against Women: Australia
, ,
34th Session, 16 January - 3 February 2006.

[28] Committee on the
Elimination of Discrimination against Women, Report of the Committee on the
Elimination of Discrimination against Women
, 16th and
17th Sessions, 12 August 1997. The Committee references ILO 103, the
1952 Maternity Convention replaced by the revised Maternity Convention ILO 183
in 2000.
[29] The Hon Robert
McClelland MP and the Hon Tanya Plibersek MP ‘Australia moves to protect
women’s rights’ (Press release, 23 May 2008).
[30] Article 3(2) provides that
‘[t]he period of maternity leave shall be at least twelve weeks, and shall
include a period of compulsory leave after confinement.
[31] Article
4(1).
[32] Article
4(2).
[33] Article
4.
[34] Article 6(2).

[35] Article
6(3).
[36] Article
6(4).
[37] Recommendation 1(1)
Maternity Protection
Recommendation
.
[38]
Recommendation 2.
[39]
Recommendation 10(3).
[40]
Recommendation 10(4).
[41] Ida
Oun and Gloria Pardo Trujillo, Maternity At Work: A review of national
legislation.
Findings from the ILO’s conditions of work and
employment database
(2005).

[42]
Id
a Oun and Gloria Pardo Trujillo, Maternity At Work: A review of
national legislation.
Findings from the ILO’s conditions of work
and employment database

(2005).
[43] Article
3(1).
[44] Article
3(2).
[45] Article
6(2).
[46] Article
18(2).
[47]
Article18(3).
[48]Concluding
observations of the Committee on the Rights of the Child: Australia

10/10/97. CRC/C/15/Add.79.
[49]
Human Rights and Equal Opportunity Commission, Pregnant and Productive
(1999), 229.
[50] The Interim
paper, Valuing Parenthood: Options for Paid Maternity Leave (2002),
formed the basis of HREOC’s community consultation http://www.humanrights.gov.au/sex_discrimination/paid_maternity/pml/index.html
at 23 May 2008.
[51] Go to http://www.humanrights.gov.au/sex_discrimination/paid_maternity/index.htm
at 23 May 2008.
[52] See
Recommendations 13 and 14 http://www.humanrights.gov.au/sex_discrimination/its_about_time/index.html
at 23 May 2008.
[53] A report
on the findings of the Listening Tour is currently being produced and is
scheduled for release in July 2008. Information about the Listening Tour,
including access to feedback provided through the Listening Tour’s online
consultation mechanisms, is available at http://hreocblog.com/ at 23 May 2008.
[54] Further detail and
reference material for each of these objectives can be found in HREOC’s A Time to Value: Proposal for National Maternity Leave Scheme (2002).

[55] Women With Disabilities
Australia ‘Lack of data means lack of action’: A clinical
examination of access to Health Services for women with disabilities
,
Presentation to HREOC Forum: Access to Health Services for People with
Disabilities (2004). http://www.humanrights.gov.au/disability_rights/health/wwda.doc
at 23 May 2008.
[56] Judith
Galtry and Paul Callister, ‘Assessing the Optimal Length of Parental Leave
for Child and Parental Well-Being’ (2005) 26(2) Journal of Family
Issues
219, 225.
[57] Statement to the International Labour Conference, 2 June 2000 on the health
aspects of maternity leave and maternity protection at http://www.who.int/reproductive-health/publications/maternal_mortality_2000/
Health_aspects_of_maternity_leave.en.html
at
24 May 2008.
[58] OECD,
Babies and Bosses: Reconciling Work and Family Life – A Synthesis of
Findings for OECD Countries
(2007) 21.

[59]M.N McCain and J. F Mustard,
Reversing the Real Brain Drain. Early Years Study Final Report (1999),
cited in NSW Commission for Children and Queensland Young People and Commission
for Children and Young People, A Head Start for Australia: An early years
framework
(2004).
[60]
Anglicare Tasmania, Forgotten Families: Raising children with disabilities in
Tasmania
(2007) http://www.anglicare-tas.org.au/index.php?option=com_docman&task=doc_view&gid=155&Itemid=81
at 24 May 2008.
[61] Association
for children with Disability & the Australian Association for Families of
Children with a Disability, Helping you and your family: Information, support
and advocacy for parents of children with a disability in Victoria
(2007) http://www.acd.org.au/information/help.htm
at 24 May 2008.
[62] NSW
Commission for Children and Young People, the Queensland Commission for
Children and Young People and Child Guardian, and the National Investment for
the Early Years, What about the kids? Improving the experiences of infants
and young children in a changing world
(2006).

[63] UNICEF, Implementation
Handbook for the Convention on the Rights of the Child
(revised ed, 2002)
253.
[64] Jennifer Baxter,
Matthew Gray, Michael Alexander, Lyndall Strazdins and Michael Bittman,
Social Policy Research Paper No. 30 Mothers and fathers with young
children: paid employment, caring and wellbeing Report for the Australian
Government Department of Families, Community Services and Indigenous Affairs
(2007) 14.
[65] Tony White and
Graeme Russell, First-time Father (2005) 119-121.

[66] Michael E Lamb and
Catherine S Tamis-Lemonda ‘The Role of the Father: An introduction’
in Michael E Lamb (ed), The Role of the Father in Child Development
(4th ed, 2004) 1 and others in this collection.

[67] International Labour
Office, Equality in employment and occupation, Report III (Part 4B)
(1999) 42.
[68] See ABS,
Labour Force, Australia
Cat No 6202.0 April 2008 (2008), ABS Forms of
Employment, Australia
Cat No 6359.0 November 2007 (2008), Equal Opportunity
for Women in the Workplace Agency, 2006 EOWA Census of Women in Leadership
(2006), and HREOC, Annual Report 2006-2007 (2007)
75-77.
[69] ABS, Labour Force,
Australia
Cat No 6202.0 April 2008 (2008)
6..
[70] ABS, Labour Force,
Australia
Cat No 6202.0 April 2008 (2008)
6..
[71] ABS, Labour Force,
Australia
Cat No 6202.0 April 2008 (2008)
6.
[72] ABS, Labour Force,
Australia
Cat No 6202.0 April 2008 (2008)
6.
[73] ABS, Employee
Earnings, Benefits and Trade Union Membership
Cat No 6310.0 August 2007
(2008).
[74] See HREOC,
Striking the Balance: Women, men, work and family (2005) 22-24.

[75] See HREOC, Issues paper 1
Employment and Disability – the Statistics (2005) http://www.humanrights.gov.au/disability_rights/employment_inquiry/papers/issues1.htm
at 24 May 2008. HREOC’s 2005 National Inquiry into Employment and
Disability found that workers with disability experience significant barriers to
participation in employment. People with disability have a comparatively lower
labour force participation rate (53.2 per cent compared to 80.1 per cent) and a
higher unemployment rate (8.6 per cent compared to 5 per cent) than those
without a disability.
[76] R
Wilkins ‘The effects of disability on labour force status in
Australia’ (2004) The Australian Economic Review 37(4), 359-382.

[77] ABS, Labour Force
Characteristics of Aboriginal and Torres Strait Islander Australians, Estimates
from the Labour Force Survey, 2007
Cat No 6287.0 (2008).

[78] ABS, Australian Social
Trends, 2007
Cat No 4102.0 (2007).

[79] See Joan Williams
Unbending Gender: Why work and family conflict and what to do about it
(2000) 2. See also HREOC, Striking the Balance: Women, men, work and
family
(2005) 59 and passim.

[80] ABS, How Australians Use
Their Time, 2006
Cat No 4153.0 (2008).

[81] Whitehouse, G., M. Baird
and C. Diamond (2006) Highlights from The Parental Leave in Australia
Surve
y http://www.polsis.uq.edu.au/index.html?page=55767
at 26 May 2008.
[82] 45 per
cent of mothers in the Parental Leave in Australia Survey said they had
returned earlier to work than they would have liked because of financial
reasons.
[83] ABS, Pregnancy
and Work Transitions Australia
Cat No 4913.0 Nov (2005).

[84] See HREOC, It’s
About Time: Women, men, work and family
(2007).

[85] Current eligibility for
unpaid parental leave excludes the same-sex partner of a woman giving birth and
potentially both members of a male same-sex couple who may use a surrogate birth
mother or enter an arrangement with a female friend to have a child through
assisted reproductive technology. HREOC notes the announcement that legislation
to remove same-sex discrimination from a range of Commonwealth laws will be
introduced in mid-2008. This legislation should extend eligibility for unpaid
parental leave to same-sex parents. The Hon Robert McClelland MP ‘Rudd
Government Moves on Same-Sex Discrimination’ (Press Release, 30 April
2008). ,
[86] Countries providing
two weeks of paid paternity leave include Belgium, France, Spain, United
Kingdom, Sweden, Norway, and Denmark: Department for Business, Enterprise and
Regulatory Reform (UK), International Review of Leave Policies and Related
Research 2007
(2007).
[87]
Department for Business, Enterprise and Regulatory Reform (UK), International
Review of Leave Policies and Related Research 2007
(2007) 53.

[88] ABS, Pregnancy and Work
Transitions Australia
Cat No 4913.0 Nov (2005).

[89] Thirty-two percent of
EOWA’s reporting organisations provide paid paternity leave, with 83 per
cent providing 1-2 weeks of paid leave: Equal Opportunity for Women in the
Workplace Survey 2005: Paid paternity leave
(2006). Update with new stats if
receive in time from EOWA – SS waiting on
these
[90] Preamble to the
Convention on the Elimination of All Forms of Discrimination Against
Women.

[91]Sex
Discrimination Act 1984
(Cth), s 39(a)(d).

[92] Art 4(b). See also the
Preamble and arts 3(1) and
6.
[93] International Labour
Organization General Survey, Workers with Family Responsibilities
International Labour Conference 80th session Geneva Report III Part
4B (1993) 25.
[94] Ibid, p
25.
[95] See research cited in
HREOC, Striking the Balance: Women, men, work and family (2005)
58-59.
[96] This point was
made repeatedly in HREOC consultations and focus groups – see HREOC, It’s About Time: Women, men, work and family (2007) Chapter
5 in particular. See also Striking the Balance: Women, men, work and
family
(2005) 52-55 and 57.

[97] See discussion in HREOC,
It’s About Time: Women, men, work and family (2007), in particular
Chapter 4 and Chapter 5.
[98] Ann Evans and Edith Gray, ‘What makes an Australian family?’ in
Shaun Wilson, Gabrielle Meagher, Rachel Gibson, David Denemark and Mark Western
(eds), Australian Social Attitudes: The first report (2005) 12, 27.

[99] Willem Adema, ‘Babies
and Bosses: What lessons for governments?’ OECD Observer No
264/265, (December 2007-January 2008).

[100] Judith Galtry and Paul
Callister, ‘Assessing the Optimal Length of Parental Leave for Child and
Parental Well-Being’ (2005) 26(2) Journal of Family Issues 219,
236-238.
[101] This point is
made in the New Zealand Department of Labour, Parental Leave in New Zealand
2005/2006 Evaluation
http://www.dol.govt.nz/PDFs/research-parental-leave-evaluation2005-06.pdf at 23 May 2008.
[102] M.E.
Lamb, S.S Chuang and C.P Hwang,, ‘Internal reliability, temporal
stability, and correlates of individual differences in paternal involvement: a
15 –year longitudinal study’ (2004) in R.D. Day and M.E. Lamb (eds), Re-conceptualizing and measuring father involvement and Michael E Lamb
and Catherine S Tamis-Lemonda, ‘The Role of the Father: An
introduction’ in Michael E Lamb (ed), The Role of the Father in Child
Development
(4th ed, 2004) 1-3.

[103] Linda Haas and C Philip
Hwang, ‘The Impact of Taking Parental Leave on Fathers’
Participation in Childcare and Ties with Children: Lessons from Sweden’
(Paper presented at the First International Conference on Community, Work and
Family, Manchester UK, 16-18 March 2005).
[104] See, for example,
Michael Thompson, Louise Vinter and Viv Young, Dads and Their Babies: Leave
arrangements in the first year
(Working Paper No 37, Equal
Opportunities Commission, UK, 2005); John Ekberg, Rickard Eriksson and Guido
Friebe, Sharing Responsibility? Short and long-term effects of Sweden’s
“Daddy-Month” reform
(Working Paper No 3, Swedish Institute for
Social Research Swedish Institute for Social Research Stockholm, 2004); Berit
Brandth and Elim Kvande, ‘Reflexive Fathers: Negotiating parental leave
and working life gender’ (2002) Gender, Work and Organization 9 (2)
186; and Thorgerdur Einarsdóttir and Gyda Margrét
Pétursdóttir, ‘Iceland Country Notes on Parental Leave
Policy and Research’ in Peter Moss and Margaret O’Brien, International Review of Leave Policies and Related Research 2006
(Employment Relations Research Series No 57, Department of Trade and Industry,
UK, 2006) 144, 150.
[105]
Ibid.
[106] Johanna
Lammi-Taskula, ‘Nordic men on parental leave: can the welfare state change
gender relations?’ in Anne Lise Elingsæter and Arnlaug Leira (eds), Politicising Parenthood in Scandinavia: Gender relations in welfare
state
s (2006) 79, 82. When the quota was introduced in 1993 the share of
fathers taking leave grew from 4 per cent to more than half of eligible fathers,
and by 2003 this had grown to 90 per cent.

[107] Adrienne Burgess and
Graeme Russell, ‘Fatherhood and Public Policy’ in Supporting
Fathers: Contributions from the International Fatherhood Summit 2003

(2004) 109,
132.
[108] B Brandth and
E Kvande, ‘Flexible work and flexible fathers’ (2004) 15(2) Work,Employment and Society 251, cited in
Margaret O’Brien, Shared Caring: Bringing
fathers into the frame
(Working Paper No 18, Equal Opportunities Commission,
UK, 2005) 30.
[109] The
Clearinghouse on International Developments in Child, Youth, and Family Policies
at Columbia University Norway Country Summary www.childpolicyintl.org/ at 26
May 2008 and Ministry of Children and Family Affairs (Norway) ‘Gender
Equality in Norway’ http://odin.dep.no/bfd/engelsk/gendereq/bn.html
at 26 May 2008.
[110] Linda L
Haas and Philip Hwang, ‘Programs and Policies Promoting Women’s
economic Equality and Men’s Sharing of Child Care in Sweden’ in
Linda L Haas, Philip Hwang and Graeme Russell (eds), Organizational Change
and Gender Equity: International Perspectives on Fathers and Mothers at the
Workplace
(2000), 133.

[111] Judith Galtry and Paul
Callister, ‘Assessing the Optimal Length of Parental Leave for Child and
Parental Well-Being’ (2005) 26(2) Journal of Family Issues 219,
235.
[112] Johanna
Lammi-Taskula, ‘Nordic men on parental leave: can the welfare state change
gender relations?’ in Anne Lise Elingsæter and Arnlaug Leira (eds), Politicising Parenthood in Scandinavia: Gender relations in welfare
state
s (2006) 79, 83-4.

[113] Peter Moss and Margaret
O’Brien, International Review of Leave Policies and Related
Research
2006 (Employment Relations Research Series No 57, Department of
Trade and Industry, UK, 2006) 157.

[114] For a discussion of this
concept see Organisation for Economic Co-operation and Development, Extending
Opportunities: How active social policy can benefit us all
(2005) 88-89 and
also Organisation for Economic Co-operation and Development, Babies and
Bosses: Reconciling Work and Family Life
Volume 4 (2005).

[115] HREOC, It’s
About Time: Women, men, work and family
(2007),41-43.

[116] Linda L Haas and Philip
Hwang, ‘Programs and Policies Promoting Women’s economic Equality
and Men’s Sharing of Child Care in Sweden’ in Linda L Haas, Philip
Hwang and Graeme Russell (eds), Organizational Change and Gender Equity:
International Perspectives on Fathers and Mothers at the Workplace
(2000)
133, 146.
[117] HREOC,
It’s About Time: Women, men, work and family (2007) 79-70.

[118] See HREOC,
It’s About Time: Women, men, work and family (2007) 109-111 and
also discussion throughout Chapter 4. See also HREOC, Striking the Balance:
Women, men, work and family
(2005) 29-33, where HREOC canvassed the ABS
statistics on time use, which show that it is not only the amounts of unpaid
work that men and women do which differ, but also the kinds of tasks they
undertake that impact upon their ability to balance paid work and family
responsibilities.
[119] See
paragraph 136 for discussion of the ideal worker norm.

[120] G Russell, L Barclay, G
Edgecombe, J Donovan, G Habib, H Callaghan and Q Pawson, Fitting Fathers into
Families: Men and the fatherhood role in contemporary Australia
(1999) 39.

[121] ABS, Education and
Work
(May 2007).
[122]
National Centre for Vocational Education Research, Australian vocational
education and training: Students and courses 2006 – Summary
(2007).

[123] Productivity Commission,
Economic Implications of an Ageing Australia, (2005).

[124] Social benefits are
discussed further at paragraphs 217-226.

[125] James J Heckman,
‘The Economics of Investing in Early Childhood’ (Address to the
NIFTeY Conference Prevention: Invest now or pay later Reducing the risk of
poorer life outcomes by

intervention in the early years,
University of NSW Sydney, 8 February
2006).
[126] Equal Opportunty
for Women in the Workplace Agency , Paid Maternity Leave – The Business
Case

http://www.eowa.gov.au/Developing_a_Workplace_Program/Employment
_Matter_Resources/EM_5_Resources/EOWA_Paid_Mat_Leave_Info/
The_Business_Case.htm

at 26 May 2008
[127] Ibid

[128] Sensis/Office for Women,
Better Conditions, Better Business (2007).

[129] Evidence to Productivity
Commission Inquiry Into Paid Maternity, Paternity and Parental Leave, Hobart, 12
May 2008, 107 (Mr Tony Steven, Council of Small Business of Australia).

[130] Willem Adema,
‘Babies and Bosses: What lessons for governments?’ (December
2007-January 2008) 264/265 OECD Observer, 2.

[131] Anglicare Tasmania,
Forgotten Families: Raising children with disabilities in Tasmania (2007) http://www.anglicare-tas.org.au/index.php?option=com_docman&task=doc_view&gid=155&Itemid=81at 26 May 2008; Yooralla, Parents with Disability Community Project.
Parents with a disability: parenting strategies and specialised equipment:
babies
 http://home.vicnet.net.au/~parentwd/d-EQP.htm
at 26 May 2008 and Yooralla, Parents with Disability Community Project
Money matters
http://home.vicnet.net.au/~parentwd/d-MON.htm
at 26 May 2008
[132] Simon
Kelly, ‘Entering Retirement: The financial aspects’ in Peter
Kriesler, Michael Johnson and John Lodewijks (eds), Essays in Heterodox
Economics
Proceedings and Refereed papers Fifth Australian Society of
Heterodox Economics Conference 11-12 December 2006, University of New South
Wales Sydney, 285-297.

[133] This point is also
acknowledged by many economists including Nancy Folbre, The Invisible Heart:
Economics and Family Values
(2001).

[134] Article
6(2)
[135] International Labour
Office, Report IV (2a). Maternity Protection at Work: Revision of the
Maternity Protection Convention (Revised),1952 (No. 103), and Recommendation,
1952 (No. 95)
International Labour Conference 88th Session, Geneva, 2000, 76 www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/rep-iv2a.pdf
at 26 May 2008.
[136]ILO
Recommendation 191,
r 2.

[137] ILO Maternity
Protection Recommendation
191

[138] Margaret
O’Brien, ‘Shared Caring: Bringing fathers into the frame’
(Working Paper No 18, Equal Opportunities Commission, UK, 2005) iv.
[139] Workplace Relations
(Guaranteeing Paid Maternity Leave) Amendment Bill 2007
(Cth).
[140] See submission 8
to Productivity Commission Inquiry Into Paid Maternity, Paternity and Parental
Leave (Julia Perry) and Evidence to Productivity Commission Inquiry Into Paid
Maternity, Paternity and Parental Leave, Canberra, 7 May 2008, 7-9 (National
Foundation for Australian Women).

[141] Article 11,
International Covenant on Economic, Social and Cultural Rights, opened
for signature December 1966, 999 UNTS 3 (entered into force 3 January 1976),
ratified by Australia 10 December 1975, entered into force for Australia 10
March 1976. .
[142] See
Family Assistance Office Family Assistance The What, Why and How (2007).
The current Baby Bonus lump sum of $4,258 represents around 8 weeks of the
current Federal Minimum Wage, or around 9 and a half weeks of the Federal
Minimum Wage once the payment increases to $5,000 as scheduled for July 2008.

[143] Summary information on
the operation of the United Kingdom’s scheme is available on the
Department for Business Enterprise and Regulatory Reform’s website http://www.berr.gov.uk/employment/employment-legislation/employment-guidance/page34244.html
at 26 May 2008.
[144] Submission 58 to the Australian Government Department of Education, Employment
and Workplace Relations on Discussion Paper, National Employment Standards
Exposure Draft (HREOC) http://www.workplace.gov.au/workplace/Publications/WorkplaceRelations/
DiscussionpaperonNationalEmploymentStandards.htm

at 26 May 2008.
[145]
Australian Government, Statement 1: Budget Overview in
Budget Paper No.1: Budget Strategy and Outlook 2008-09 11, 17 and
18, and Press Conference of the Prime Minister of Australia, the Hon Kevin Rudd
MP and Parliamentary Secretary for Early Childhood Education and Childcare, The
Hon Maxine McKew MP (Sydney, 17 April 2008) http://www.pm.gov.au/media/Interview/2008/interview_0204.cfm
at 26 May 2008.
[146] Sara
Charlesworth and Fiona Macdonald, Hard Labour? Pregnancy, Discrimination and
Workplace Rights

(2007).
[147] HREOC, A Time
to Value: Proposal for National Maternity Leave Scheme
(2002)
109.
[148] Sara Charlesworth
and Fiona Macdonald, ‘The Unpaid Parental Leave Standard: What
Standard?’ (Paper presented at the 21st Conference of the
Association of Industrial Relations Academics of Australian and New Zealand,
Melbourne, 2-8 February 2008).

[149] Sara Charlesworth,
‘An “old” right and a “new” right for working
women’ (Speech delivered at the ACTU IWD 2008 Summit – Progress for
Women in the Next Decade, Melbourne, 7 March
2008).
[150] In Pregnant and
Productive: It’s a right not a privilege to work while pregnant
(1999)
, HREOC recommended amending the Sex Discrimination Act to empower
HREOC to publish enforceable standards in relation to pregnancy and potential
pregnancy in order to strengthen legislative protection for women in this area,
including return to work issues.