Final submission 30 October '98
page updated 03/08/99

National Women's Justice Coalition 

Notes: This page contains the NWJC submission on maternity protection at work to the  International Labour Organisation's  report on Maternity Protection at Work, (ILO, 1997, Geneva) and a questionaire. The call for endorsements has closed and the endorsement list will be posted shortly to this page.

Take this link to the Australian Equal Pay Watch web site - see the feature Maternity Protection at Work  and Australia's performance

Also take this link to the NWJC's 1996 submission on the Workplace Relations Bill which focused primarily on maternity pay

Submission for endorsement

The call for endorsements began on 30 October 1998 and ended on 25 November 1998. The submission has been endorsed by 90 organisations and over 200 individuals. Take this link to the list of   endorsements

Download the submission in rich text format (copy also below)


REVISION OF THE ILO MATERNITY PROTECTION CONVENTION (REVISED)1952 (No.103) AND RECOMMENDATION 1952(No. 95)
 

NATIONAL WOMEN’S JUSTICE COALITION (AUSTRALIA) SUBMISSION TO THE INTERNATIONAL LABOUR CONFERENCE 87th SESSION 1999
 


1. The National Women's Justice Coalition
2. The context for this submission
3. This submission
4. Overview of the situation in Australia
5. Current legal position in Australia
6. European standards
7. ILO Questionnaire
I8. FORM OF THE INTERNATIONAL INSTRUMENT(S)
8.1 The Convention needs to be revised
8.2 Supplement the Convention with a Recommendation
9. DEFINITION AND SCOPE
9.1 All employed women should be protected
9.2 Employment status
9.3 Length of service
9.4 Reporting progress on implementing the convention
10. CONTENT OF A CONVENTION
10.1 Maternity leave
10.2 Genuine and realistic support for
10.3 Need to improve on existing minimum standards
10.4 Childcare difficulties for women returning to work.
10.5 Most women need or want longer than 12 weeks maternity leave
10.6 NWJC Proposal
10.7 Extending the minimum maternity leave period
10.8 Illness arising out of pregnancy or childbirth
11. MATERNITY BENEFITS
11.1 Cash Benefits
11.2 Sex discrimination / pay equity
11.3. Loss of superannuation
11.4 European case law
11.5 The Convention on the Elimination of All Forms of Discrimination Against Women
11.6 Maternity Allowance
11.7 Why the Allowance is not maternity pay
11.8 Social justice issues
11.9 Maternity Pay is good for business
11.10 The need for national legislation
12. MEDICAL BENEFITS
13. PROTECTION OF EMPLOYMENT
13.1 Protection against dismissal
13.2 Need for protective industrial legislation
13.3 Need for other anti-discrimination measures
13.4 Right to return to work part-time
13.5 Breastfeeding facilities and breaks at work
13.6 Right to family  leave
13.7 Employers duty to inform employees of their entitlements
13.8 Links to other Conventions

REFERENCES
ACKNOWLEDGMENTS



1. The National Women's Justice Coalition
The National Women's Justice Coalition (NWJC) has a broad national membership of individuals and organisations committed to advancing and protecting women's rights and ensuring that women's needs and interests are properly reflected in the laws of Australia.

2. The context for this submission

3. This submission

The NWJC notes that Australia never ratified the ILO Convention no 103 and successive Governments have failed to comply with the standards of protection that it sets. In brief, these are a right to 12 weeks paid maternity leave, the right to paid breastfeeding breaks after returning to work, and an absolute prohibition against dismissal during maternity leave. The NWJC welcomes the decision of the ILO to review the Maternity Protection Convention. The NWJC notes that the Government of Australia is responding to the ILO Questionnaire but as the NWJC was not consulted in that process we are taking this opportunity to make a submission directly to the ILO. We appreciate that standards set in the ILO Convention must be acceptable to a wide range of national contexts. However, in this submission we seek to draw attention to the particular problems experienced by women in Australia. We are particularly concerned to ensure that all women workers have access to an adequate period of paid maternity leave, the right to return to work part-time, and more effective protection against dismissal.
 

4. Overview of the situation in Australia

As we approach the 21st Century most working women in Australia still do not have access to paid maternity leave, and dismissal of and discrimination against women on grounds of pregnancy or family responsibilities remain widespread.
The effect of non-compliance with ILO standards is that for most women in Australia, motherhood means substantial loss of earnings and demotion and insecurity in the world of work. The lack of maternity protection is becoming increasingly problematic as women’s participation in the paid workforce in Australia continues to increase. The labour force participation rate for women increased from 42% in 1973 to 54% in 1997, while the proportion of women in the workforce increased from 40% in 1987 to 44% in 1997 (ABS, The Labour Force, Australia, 1973; 1987; 1997.) In the last decade, the female labour force has grown by much more than the male labour force and the greatest growth has been in part-time and casual work. Moreover increasing numbers of women with dependent children are going out to work. In 1997, 63% of married women with dependent children, and 49% of those with a child under 5, were in the workforce (The Labour Force Status Survey, ABS Catalogue no.6224.0, June 1997).

Integrating work and family is a continuing theme of Australian social policy, and there is in principle commitment to "family friendly" employment policies. Yet a recent study confirmed that most Australian workplaces remain unfriendly environments for workers with family responsibilities (Agreements Database and Monitor, No.16, Australian Centre for Industrial Relations Research and Training, March 98). Failure to provide adequate maternity, parental and family leave is an illustration of the double standards about 'the family' that prevail in many English-speaking countries (M Bittman & J Pixley, The Double Life of the Family, Allen and Unwin 1997, p 253).

Perhaps it is not surprising that Australia's fertility rate is at an all time historical low of 1.8 births per woman and falling. This is not simply a lifestyle issue or one that can be left to "market forces" to resolve. The future economic security of all Australians depends on the next generation of workers. If bearing and rearing children were recognised as a vital contribution to society then the costs would be more equitably shared than at present. Surveys show that women would like to have more children but are constrained by economic and social circumstances. Commentators agree that the answer does "not lie in restricting women's labour force participation (instead) the only viable approach.... is to institute conditions under which women and men can participate in paid employment and have the number of children that they say they want to have" (P McDonald, People and Place, Vol 6, No 1, 1998). This must include enhanced maternity rights at work.

The NWJC supports the ILO’s view that maternity protection measures are not only fundamental in promoting the health, safety and economic well-being of pregnant and nursing women but are also a necessary condition for equality in employment. They are a vital means of reducing discrimination against women in employment.

The NWJC therefore endorses the calls made by the ILO in its report on Maternity Protection at Work (1997) for member states to strengthen the employment rights of pregnant women and women who have recently given birth. The report emphasises the importance of paid maternity leave in enabling women to reconcile their unique biological role and their wage earning activity and asks "how, given that unique role, could one speak of equality between men and women without guaranteeing their right to interrupt their paid work for the birth of a child and return to work afterwards?" We believe it is the responsibility of National Governments to provide this guarantee of paid maternity leave, and to fund or underwrite it, as it is in the interests of the whole of society that women should not be disadvantaged in the workforce by having children. The NWJC submits that any revisions to the Convention should reflect this principle.
 

5. Current legal position in Australia

At present Australian law provides an entitlement to 52 weeks unpaid maternity leave (now incorporated into the Workplace Relations Act 1996 s 170KB). In terms of duration this is ideal, BUT

The law in Australia does not guarantee all working women access to paid maternity leave. Commonwealth public servants are entitled after 12 months continuous service to 12 weeks maternity leave on full pay (Maternity Leave (Commonwealth Employees) Act 1973). In some States and Territories a similar entitlement exists for those State/Teritory public servants. Women in the private sector are dependent on what is in their award or agreement. Although there are notable exceptions, especially among larger companies, there is very little access to paid maternity leave in the private sector and indications are that the position is not improving significantly.

There has been very little research on maternity protection issues here. The report of the main study in this area, 'Maternity Leave in Australia - A Survey of Employee and Employer Experiences', is based on a survey conducted in 1985. Published by the Australian Institute of Family Studies in 1988, it looks at the extent, coverage and take up of maternity leave, paid and unpaid. It is clear from this and other more recent sources that only a very small proportion of employed women have a right to paid maternity leave. Data from the Australian Workplace Industrial Relations Survey (AWIRS) indicates that only 59% of public sector workplaces and 23% of private sector workplaces offer any paid maternity or parental leave (Changes at Work, August 1997). The lack of progress made through workplace bargaining reinforces the need for legislation in this area.

Federal and State anti-discrimination legislation offers varying levels of protection against discrimination and dismissal on the ground of pregnancy. For example, while the greatest protection is afforded by the federal Sex Discrimination Act 1984 this legislation does not apply to employees of state instrumentalities. And in New South Wales the Anti-Discrimination Act 1977 does not apply to businesses with fewer than 6 employees.
 

6. European standards
Compared to conditions prevailing for working women in Australia, the maternity rights enjoyed by working women in many European countries are of a high standard, although still being developed and litigated over by women in Europe. Adoption by the European Community of Council Directive 92/85 EC on Pregnant Workers means that all women employees in the member states are guaranteed at least 14 weeks paid maternity leave. In many cases this is enhanced by national legislation - so for example most working women in the UK are covered by employment protection laws that give them 40 weeks maternity leave (11 weeks before the birth, 29 weeks after), 18 of which are paid. Furthermore, all women workers are protected by an absolute prohibition on dismissal during pregnancy or maternity leave. We will be referring to the development of mimimum standards in Europe where relevant in the course of this submission.


7. ILO Questionnaire

In the following part of the submission, the NWJC addresses some of the specific questions posed by the ILO in its questionnaire. The text of the questions appears in italics and the question numbers in square brackets.

8. FORM OF THE INTERNATIONAL INSTRUMENT(S)

8.1 The Convention needs to be revised

[1.] Should the International Labour Conference adopt a Convention revising the Maternity Protection Convention (Revised) 1952 (no.103)
YES. Some of the provisions in the current Convention are now outdated and inappropriate. The NWJC believes that the Convention should be revised not only in light of changing patterns of women’s workforce participation, but also in light of developments in employment protection in many countries, in medical understanding of pregnancy, in health and safety at work standards, and in view of contemporary international standards and goals on issues such as breastfeeding, childcare and parenting. It is possible to build on the experience of other international instruments relevant to maternity protection such as the European Pregnant Workers Directive which was adopted in 1992. It is our hope that Australia, as an active member of the ILO, will use this opportunity to review current levels of matenity protection and to renew their commitment to improving standards in this important area.

8.2 Supplement the Convention with a Recommendation

[2.] If so, should the International Labour Conference also adopt a Recommendation supplementing the Convention revising Convention No 103.
YES. The Recommendation would provide greater detail about best practice for those member States whose law and practice comply with the essential provisions of the Convention. However, it is important that the Convention itself should set adequate standards and not relegate important issues to the Recommendation which has a less prescriptive effect.

9. DEFINITIONS AND SCOPE

9.1 All employed women should be protected

[3.(1)] Should the instrument apply to all employed women, provided that, in the case of a Convention, a Member may after consulting the representative organisations of employers and workers concerned, exclude wholly or partly from its scope limited categories of employed women or of enterprises when its application to them would raise special problems of a substantial nature?
The NWJC believes that all working women should be eligible for maternity protection. The instrument should therefore apply to all employed women without exclusion or exemption. It is not consistent with the welfare, equity and social justice goals of maternity protection to exclude certain groups - on the basis of either employment status or length of service or any other attribute or factor. The danger is that if excluded categories of workers are permitted, there will be attempts by some employing bodies to define women workers as belonging to those categories so as to minimise their obligations. Until all women who need time off work to have a baby are guaranteed it, with a job to return to, women will continue to pay much heavier economic and career costs than men for the privilege of having a family.

9.2 Employment status

At the moment nearly one third of women workers in Australia are likely to be ineligible for maternity leave on the basis of their employment status. This is because casual and seasonal workers, who make up some 30% of the female paid workforce, are totally excluded from the parental leave provisions of the federal Workplace Relations Act 1996 (Schedule 14(2)) and state industrial legislation. Thus some of the most vulnerable groups of women workers are denied maternity rights. This is not consistent with the approach taken in relation to unfair dismissal for example where "regular" casuals can be entitled to protection against dismissal (Workplace Relations Regulations, Reg 30B(1)(d)).

The fact is that trends towards, and policies supporting, casualisation and 'flexibility' mean that the proportion of women workers in these 'excluded' categories will increase. It is absolutely vital therefore that the scope of the Convention should encompass all working women. The precarious position of many pregnant workers is illustrated by a recent NSW Industrial Relations Commission case in which a woman employee with less than 12 months service was dismissed because she intended to take a few days off to give birth to her baby. She won her case of unfair dismissal and the Full Bench of the Commission upheld this on appeal but made the point that while the dismissal was unfair in the circumstances employers are not generally obliged to provide employees with less than 12 months service or casuals with maternity leave or the right to return to work after any time off (case against Tenterfield Rural Lands Protection Board, reported in CCH Employment Law Update, NSWIRC 21/11/97).

9.3 Length of service

The statutory right to unpaid maternity and parental leave is subject to a 12 month continuous service requirement (Workplace Relations Act, Schedule 14). Data show that 24% of women currently employed have been in their job for less than 12 months (ABS, Labour Mobility, February 1994). Figures provided by the ILO indicate that women have more job turnover than men and that in 1991 some 22% of women in the OECD had been in their job for less than 12 months. Making maternity leave conditional on 12 months service with the same employer means women can be more adversely affected by job mobility, by redundancy or dismissal, or indeed promotion. Changing jobs at the wrong moment can put at risk this important entitlement. It is inconsistent with the increasing emphasis on ‘flexibility’ to penalise employees for job mobility. The NWJC believes that there should be no restrictions on eligibility in the form for example of a length of service requirement. This is consistent with the European Council Directive on Pregnant Workers (92/85) which imposes none.

9.4 Reporting progress on implementing the convention

The NWJC supports the inclusion of a reporting requirement whereby national strategies to progress coverage can be clearly identified and monitored.

10. CONTENT OF A CONVENTION

10.1 Maternity Leave

[5(1)] Should a woman to whom the Convention applies, on production of a medical certificate stating the presumed date of her confinement, be entitled to a period of maternity leave of not less than 12 weeks?

The NWJC believes that a 12 week maternity leave period is inadequate. The Convention currently provides for a minimum period of 12 weeks maternity leave. This proposal therefore represents no change. The rationale for proposing to retain the 12 week maternity leave period seems to be that beyond this period the leave should be parental, available to either parent. Indeed the ILO argues that maternity leave itself should be kept to a minimum, on the basis that ‘the constraints associated with the biological role...should be differentiated from the tasks of raising and caring for children which can be shared by men and women’ (Maternity Protection At Work, ILO, p.39). Given that it is still overwhelmingly women who care for children, especially in the first 12 months, this will only create an illusion of gender equity. Whilst in theory, in a two parent household the mother could return to work after 12 weeks maternity leave and the father could then take parental leave the reality is that few men take parental leave seriously, even where it comes with full income replacement (M Baker, Canadian Family Policies: Cross National Comparisons, University of Toronto Press, 1995). It is also extremely questionable that the period of leave specifically required to ensure the health and welfare of mother and baby is as little as 12 weeks, to cover before and after birth (see below).

10.2 Genuine and realistic support for breastfeeding

Breastfeeding exclusive of other foods is recognised and promoted worldwide as the preferred method of feeding for infants up to 4 to 6 months (16-26 weeks) old. Beyond this period, breastfeeding is regarded as a necessary complement to other foods. The health benefits of breastfeeding for both mother and child have been extensively documented. A maternity leave period of 12 weeks will in most cases expire when the infant is between 6-8 weeks old, bearing in mind that the woman will have commenced her leave some weeks before the baby is due, and births can be late. Often it takes 6-8 weeks to establish successful and comfortable breastfeeding.

In April 1998 the Australian Government published a guide to Combining Breastfeeding and Employment, distributed by the Work and Family Unit of the federal Department of Workplace Relations and Small Business. Launching it, the Minister for Health and Family Services, and the Minister for Workplace Relations and Small Business issued a joint statement in which they declared that "Such is the importance of encouraging our nation's mothers to breastfeed their infants, that Australia has adopted a target for the year 2000 to have 80 percent of babies at least partially breastfed up to six months of age. There is no doubt that this is best for the health and well-being of our babies." Research has shown that women who combine breastfeeding and working take less time off work to care for sick children.

The National Health and Medical Research Council recommended as far back as 1984 that adequate maternity leave should be provided for lactating women, as well as amenities for women to breastfeed close to their place of work. Providing a right to take breastfeeding breaks or express milk at work is important and should not be affected by the provision of more extended paid maternity leave. The NWJC submits that providing a protected six month period of paid maternity leave is the best way to ensure that all mothers have the opportunity to breastfeed their babies for the recommended period.

10.3 Need to improve on existing minimum standards

The European Union Pregnant Workers Directive specifies a minimum period of 14 weeks maternity leave, which was a political compromise as the original draft proposed 16 weeks. In many European countries, and many ILO member states, there is already legislation providing more than this. Revision of the ILO Convention is an opportunity to set an improved minimum standard.

10.4 Childcare difficulties for women returning to work.

Access to appropriate, affordable childcare for very young babies is extremely difficult in Australia (D. Brennan, The Politics of Australian Childcare, CUP, 2nd ed 1998). While the number of government funded childcare services grew rapidly between 1989 and 1996, the majority of new places were for children in older age groups (especially primary school aged children needing out of school care). In any case, government sponsored growth has now virtually come to a halt. In addition, changes to the funding of childcare under the Coalition government elected in 1996 have made this service much less affordable for parents. The policy changes include: abolition of operational subsidies for community-based long day care centres and outside school hours care services; a more restrictive formula for calculating entitlement to childcare assistance; and limiting fee relief to 50 hours per week for work-related care and 20 hours per week for non work-related care.

These changes have had a major impact on community based child care. A survey conducted by the National Association of Community Based Children's Services in 1997 showed that many parents had withdrawn their children from formal care or reduced their own hours of paid work. The higher cost of child care is likely to have particularly severe consequences for families who require care for two or more children, sole parents in part-time low-paid work and couples where the hourly earnings of the secondary earner are low (G. Tasker and D.Siemon, Is Child Care Affordable? Pressures on Families and their use of formal long day care.Brotherhood of St Laurence and Community Child Care, Melbourne, 1998). Many services have now adopted a two-track fee system in which fees charged for under-two year olds are higher than fees for older children. This impacts on women's return to work after maternity leave.
 

10.5 Most women need or want longer than 12 weeks maternity leave

If maternity leave is to serve its purpose - part of which is to protect the woman's attachment to the workforce - it must be of adequate duration. Data show that in Australia most women seek maternity leave longer than 12 weeks. In the AIFS survey, only 15% of women taking maternity leave requested 12 weeks or less and most women wanted 52 weeks leave (H Glezer, Maternity Leave in Australia, AIFS 1988, p 51; Paid Maternity Leave, A Discussion Paper on Paid Maternity Leave in Australia, National Women’s Consultative Council, 1993, p 29). Those women who wish to return to work sooner rather than later would of course be free to do so.
 

10.6 NWJC Proposal

The NWJC believes that the Convention should specify a minimum period of (paid - see below) maternity leave to which all women workers should be entitled is 6 months or 26 weeks. The reasons for this are as follows:

10.7 Extending the minimum maternity leave period

[2] Should a Member which ratifies the Convention examine periodically, in consultation with the most representative organisations of employers and workers, the possibility of extending, as appropriate, the period of maternity leave referred to above?

Yes, if 12 weeks is adopted as the minimum in the revised Convention, efforts should certainly be made by individual Member states, especially the more affluent ones, to extend the period of entitlement as argued above.
 

10.8 Illness arising out of pregnancy or childbirth

[7.] In case of illness, complications or risk of complications arising out of pregnancy or confinement, should additional leave be provided on the basis of a medical certificate before or after confinement, as the case may be?

YES. It is very important that women should have access to sick leave additional to their maternity leave in the event that they suffer medical complications and adverse health consequences as a result of their pregnancy or giving birth. The European Pregnant Workers Directive allows for a woman to postpone her return to work for up to four weeks after the end of her maternity leave if she is ill. There have been a number of important decisions by the European Court of Justice which confirm that failure to allow a woman to take sick leave because her sickness is pregnancy-related is unlawful sex discrimination (Dekker v Stichting VJV Centrum (1991) IRLR 27, ECJ; Herz v Aldi Marked etc (1991) IRLR 31, ECJ; Webb v EMO Air Cargo Ltd (1994) IRLR 482,ECJ; Brown v Rentokil Ltd(1998),IRLR 446).

The statutory parental leave scheme in Australia currently requires employees to deduct from their parental leave entitlement any period of sick leave that has been taken in respect of the same pregnancy (Workplace Relations Act 1996 Schedule 14(4)(2)). This is a form of pregnancy discrimination because men's entitlement to parental leave is not subject to reduction in this way, and it confuses the purposes of maternity or parental leave with sick leave. The policy objective here should be to ensure that women who do suffer medical or health problems as a result of their pregnancy or giving birth do not also suffer adverse employment consequences - that is, that their maternity leave entitlements are not jeapordised and they are protected from dismissal or other forms of discriminatory treatment. Ensuring adequate additional leave for pregnancy or childbirth related medical problems is becoming increasingly important in countries like Australia where many women are deferring childbirth. As the age at which women give birth rises so too do the attendant health risks, and the maternity protection laws must reflect this.
 

11. MATERNITY BENEFITS

[8] While absent from work on maternity leave .....should all women who comply with the conditions prescribed in each Member State be entitled to receive cash, and medical benefits in accordance with national laws and regulations?
YES

11.1 Cash Benefits

[9(1)] ....should cash benefits be at a level which ensures the full and healthy maintenance of the woman and her child in accordance with a suitable standard of living, by providing for either:
(a) the replacement of the woman’s previous earnings at a rate which should be not less than two thirds of those earnings or of the amount taken into account for the purpose of computing benefits; or
(b) a flat rate benefit of an appropriate amount?

The NWJC believes it is essential that working women should be guaranteed an income during their period of maternity leave, and wherever possible this should be full earnings replacement. Individual employers should not have to fund the full cost of this. Governments should subsidise the cost to ensure that employers are not deterred from employing women by perceptions of increased overheads, and because it is a social equity measure for which public funds can and should be used.
 

It was shameful to see national and international reports of the ILO’s finding that Australia is one of a very few industrialised nations that do not guarantee paid maternity leave and indeed is one of the poorest providers of paid maternity leave benefits in the world. The ILO’s research was widely reported in the press under headlines such as "Mothers cheated" (West Australian, 17.2.98) or "Maternity benefits among lowest" (Sydney Morning Herald, 17.2.98).
 

11.2 Sex discrimination/pay equity

In affluent countries like Australia, where most workers are entitled to expect access to paid leave on grounds of ill-health or long service or for the purposes of recreation or study, failure to guarantee pay during maternity leave must be seen as a sex discrimination issue. In the absence of paid maternity leave, women must routinely take unpaid time off work for a reason directly connected to their sex. Men are much more likely to receive their normal pay for any time off that they need or to which they are entitled. There is evidence that the loss of pay and benefits resulting from the time off work that women need to have babies is a significant contributor to the continuing pay inequality between women and men (Waldfogel,J. 'The effect of children on women's wages', American Sociological Review, 62, 1997).
 

11.3. Loss of superannuation
The inequalities are compounded by the loss of superannuation that women suffer as a result of being denied maternity pay. Unless paid maternity leave becomes the norm, carrying with it an entitlement to superannuation benefits, giving birth incurs loss of future security as well as current income (T. MacDermott, Linking Gender and Superannuation, International Journal of Discrimination and the Law, 1997, vol 2).
 

11.4 European case law

Women in Europe had made substantial headway in arguing that under the European Directive on Equal Treatment and Article 119 on Equal Pay, any loss of pay, benefit, promotion or position as a result of pregnancy or maternity is a detriment that amounts to unlawful sex discrimination -- on the basis that "but for" their sex they would not have been pregnant and "but for" their pregnancy they would not have suffered the detriment (see for example the case of Webb cited earlier). This progress was stalled by a somewhat contradictory decision of the European Court of Justice on maternity pay which held that an employer's failure to maintain full pay during maternity leave did not necessarily amount to sex discrimination under European law (Gillespie and Others v Northern Health and Social Services Board etc Case C-342/93, European Court of Justice, 13.2.96). The ambiguous wording of the provisions in the European Directive on Pregnant Workers relating to maternity pay have not helped much either. These require "maintenance of a payment to and/or entitlement to an adequate allowance for female workers" during their maternity leave. It should be noted that the European Court of Justice said in the case of Gillespie that while the relevant European Directives do not necessarily require full pay during maternity leave "the amount payable could not be so low as to undermine the purpose of maternity leave, namely the protection of women before and after giving birth. In order to assess the adequacy of the amount payable from that point of view, the national court must take into account not only the length of maternity leave but also of the other forms of social protection afforded by national law in the case of justified absence from work." (judgement para 20) In the Australian context, this brings us back to the necessary comparison with the incidence of paid sick leave, long service leave, recreation leave.

Furthermore, it is still the case that where women employees who are denied full pay during their maternity leave can point to male comparators who are entitled under their contract of employment to paid sick leave and other forms of paid leave they may well succeed in a discrimination claim. This is a strategy of last resort for women because it is offensive and inappropriate to equate pregnancy and maternity leave with illness and sick leave. It is also of little use to women who cannot point to a male comparator, which is often the case given the highly sex segregated character of the Australian labour force. In any event the point is that the onus should not be put on individual women to litigate over their right to maternity pay.

The NWJC submits that experience with the European Pregnant Workers Directive and relevant case law indicates the need for the ILO Convention to contain a clear and unambigous entitlement to full earnings replacement during the protected maternity leave period.
 

11.5 The Convention on the Elimination of All Forms of Discrimination Against Women
 

Australia is a signatory to the CEDAW but entered a reservation to Article 11(2)(b). This clause says that in order to prevent discrimination against women on the grounds of maternity and to ensure their effective right to work, States Parties must take appropriate measures "to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;"
 

11.6 Maternity Allowance

In 1994 it looked as though Australia might finally be preparing to lift that reservation, when the previous Federal Government and the ACTU negotiated an agreement under the Accord Mark VII that would give all working women 12 weeks paid maternity leave. It was said to be "in the spirit of ILO convention 103". However, by the time the new Maternity Allowance was announced in the May 1995 Federal Budget, it had mutated into a means-tested lump sum payment that was dubbed the "baby bonus". It is not tied to workforce participation. This was widely regarded as a betrayal of working women. The then Assistant Secretary of the ACTU, Jennie George, commented that "This was supposed to be in recognition of women workers loss of income in having children. Now it’s a welfare payment to mothers, whether working or not." The Women’s Electoral Lobby issued a scathing press release pointing out that "the means testing of employment conditions is not a principle that the ACTU should embrace lightly" - and asking if it would be acceptable to allow means testing of recreation leave or long-service leave. The ACTU has since accepted that it is a "step towards" paid maternity leave. The Maternity Allowance is a welcome and valuable contribution towards the costs of having a baby, for those families who receive it, but it cannot be regarded as maternity pay.
 

11.7 Why the Allowance is not maternity pay

Paid maternity leave, properly understood, is income replacement during a period of absence from the paid workforce to have a baby. The average weekly wage is $605 for women in full-time work, $264 for those in part-time work (Weekly Earnings of Employees, ABS Cat. no. 6310.0, August 1997) The Maternity Allowance is a lump sum payment of $950 (1997/8), an amount equivalent to 6 weeks of Parenting Allowance. It is means tested on family income so families with a combined income of approximately $64,000 or more are not eligible for the payment. The Maternity Allowance does not depend on employment status nor does the rate of payment correlate in any way to income forgone by a period of leave. It does not facilitate continuous employment nor promote on-going attachment to the paid workforce. Maternity pay from an employer does not preclude a person claiming Maternity Allowance but the amount received must be included as income for the purposes of the means test. The reality is that the MA is a social security payment designed to offset some of the costs associated with the birth of a child (T. Macdermott, Alternative Law Journal vol 21 no 5 Oct 1996). Also, in 1997 the Government made receipt of 25% of the MA payment dependant on proof of having completed the baby’s immunisation, in an attempt to increase Australia's low immunisation rates. So it is now also serving as an immunisation incentive. If the Government of Australia was confident that the Maternity Allowance constituted maternity pay it would surely seek to remove its reservation to CEDAW clause 11(2)(b).

11.8 Social justice issue

Income replacement during maternity leave is a social justice as well as a gender equity issue. Most families now rely on two incomes and the loss of income during a woman’s maternity leave is a significant contributor to family and child poverty. The latest Australian Social Trends (ABS,1997) shows that families with children are now more likely to rely on two incomes. The proportion has increased from 41% in 1981 to 54% in 1997. The ILO Report says "as joint breadwinning becomes the norm, discrimination in employment on the basis of actual or potential maternity has implications for the whole of society."(p10) If breastfeeding is discouraged, either by requiring a rapid return to work or not providing adequate lactation breaks and facilities, it can cost a family $1200 to use artificial infant formula (Bundrock V., The Economic Benefits of Breastfeeding in Australia, LRC Topics in Breastfeeding IV, 1992). Single parent families are generally headed by women, many of whom are in the workforce, and are more likely to be poor. These are particularly adversely affected by lack of paid maternity leave.

11.9 Maternity Pay is good for business

There is evidence that providing paid maternity leave, along with other 'mother friendly' employment policies can benefit employers as well as employees - in terms of retention rates, return on investment in staff, improved loyalty and morale etc (see for example A. Pilat, Reaping the rewards of a family-friendly workplace at the NRMA, Employee Relations Brief, Vol 2, No.4/5, 1997). The Discussion Paper on Paid Maternity Leave in Australia published in 1993 by the National Women's Consultative Council and the Office for the Status of Women comprehensively canvassed these arguments for providing paid leave and presented realistic options for funding it in such a way that individual employers do not have to meet the full cost. Government support for paid maternity leave would reinforce the message to employers, and ensure a more consistent approach.

11.10 The need for national legislation

It is essential that minimum maternity entitlements be guaranteed by law, especially in countries like Australia where increasingly the emphasis is on negotiating individual agreements at work and women are acknowledged to be in a disadvantaged bargaining position. At the moment access to paid maternity leave is extremely arbitrary and women have very unequal rights. Justice, equity and efficiency demand that there be uniform provision. In Australia the only way to ensure national coverage and uniform entitlements is for the Commonwealth to legislate. It is also important to be aware that when the Government is implementing international instruments, the legislation must closely reflect the precise terms of the instrument. This reinforces the need for the Convention to contain clear and adequate provisions. The NWJC believes that it is very important that the revised Convention should specify that national legislation ensuring maternity entitlements is required.

12. MEDICAL BENEFITS

[11]. Should a woman be entitled to pre-natal, confinement and postnatal care, as well as hospitalisation care when necessary?

YES. Pregnant women in the workforce should be entitled to paid time off work for antenatal care, to include any time off required to attend for diagnostic tests. It can be very difficult to make appointments for such tests, and other forms of antenatal care, outside of working hours. The European Pregnant Workers Directive provides a right to paid time off for this purpose.

13. PROTECTION OF EMPLOYMENT

13.1 Protection against dismissal

[12.(1)] Should it be unlawul for an employer to terminate the employment of a woman who is pregnant, absent on maternity leave or additional leave as referred to in questions 5 and 7 above, and during a period following her return to work after such leave, to be prescribed by national laws and regulations, except on grounds unrelated to the pregnancy or childbirth and its consequences or nursing?

YES. Industrial legislation federally and in NSW presently prohibits both dismissal on the ground of pregnancy and dismissal during absence on maternity leave, providing the employee is not casual. The NWJC believes that, unlike the Australian situation, there should be no exemptions based on employment status. It is important to provide an absolute prohibition on dismissal during pregnancy and maternity leave unless there are exceptional reasons unconnected with pregnancy/maternity. This is the standard provided for in the relevant European Directive and it acknowledges the vulnerability of women to dismissal during this time. This vulnerability is demonstrated by the fact that despite more than 10 years of national anti-discrimination laws prohibiting pregnancy discrimination in Australia, significant numbers of pregnancy related discrimination complaints continue to be received by bodies such as the Human Rights and Equal Opportunities Commission (see Annual Reports, 1992 -97), and the NSW Anti-Discrimination Board (see for example "Why Don’t You Ever See a Pregnant Waitress?", Report of the Inquiry into Pregnancy Related Discrimination, New South Wales Anti-Discrimination Board, September 1993). The NWJC notes and welcomes the present inquiry into discrimination on grounds of pregnancy being undertaken by Australia's Human Rights and Equal Opportunities Commission.

13.2 Need for protective industrial legislation

The incorporation of anti-discrimination provisions into "mainstream" industrial legislation is a relatively recent development in Australia, having first occurred in the Commonwealth Industrial Relations Reform Act 1993. Prior to this the anti-discrimination jurisdiction had been somewhat marginalised in that it was seen by practitioners, unions and employer bodies as being separate everyday industrial relations concerns. The NWJC believes that the incorporation into Australian industrial relations legislation of anti-discrimination provisions (such as those providing that dismissal on ground of pregnancy is unlawful termination) will dramatically increase both employers awareness of their responsibilities and women's awareness of their rights in relation to pregnancy and maternity entitlements.
 

We argue that the Australian experience shows that the prohibition on dismissal of women who are pregnant or absent on maternity leave must be contained in strong and explicit legislation which is fully integrated into the day to day industrial relations framework to be effective. The Convention should explicitly provide that national laws and regulations must be enacted which prohibit dismissal in these circumstances.
 

13.3 Need for other anti-discrimination measures

[(2)] Should the Convention provide that a Member adopt other measures to ensure that maternity does not constitute a source of discrimination in employment?
 

Yes. The NWJC believes that the revised Convention should require Members to adopt certain measures to ensure that maternity is not a source of discrimination. The measures to be adopted should be directed towards ensuring that women workers have the following unequivocal rights:

13.4 Right to return to work part-time

In Australia there is no absolute right to return to work part-time after the birth, let alone a guarantee of returning part-time to the same position with the same pro-rata remuneration and benefits. Where part-time work is available under industrial awards it is generally not connected with maternity. Thus while industrial awards may set pay and conditions for regular part-time workers, only a few Federal industrial awards contain part-time provisions which are explicitly connected with returning to work after maternity leave.
 

These provisions allow women to work part-time from after the birth until the child's second birthday, providing the employer agrees. However relatively few women workers are covered by these provisions, and the requirement for employer agreement has proved an obstacle to those who are eligible. A large number of cases continue to be reported to agencies such as the NSW Working Women's Centre, of women who are offered part-time work on return from maternity leave only at a lower level in status and pay than the position they previously occupied.
 

Many women who are not given the choice of returning to work in a part-time capacity after maternity leave have little option but to resign - sacrificing their longterm financial security. This imposes a considerable cost not only on women workers in terms of their careers and personal and financial well-being, but also on their employers in terms of loss of knowledge and experience and recruitment costs. It can also expose employers to costly discrimination claims. The Human Rights and Equal Opportunity Commission recently found in favour of a woman who brought a sex discrimination claim against the law firm with which she worked, for refusing to allow her to work part-time after her maternity leave (Hickie v Hunt and Hunt, March 1998). This may spur other employers here to change their practices but in the absence of a statutory right to return part-time, women will often give up the attempt.

Those Australian companies that pride themselves on being family friendly employers have reported both considerable increases in employee retention and cost savings flowing from providing women employees the right to return to work part-time until the child reaches school-age (eg NRMA Ltd).

NWJC submits that in our experience all parties benefit from providing women with the right to return to their regular positions part-time after maternity leave. Offering part-time work after maternity only where there is mutual agreement does not provide sufficient protection to women workers. The Convention should reflect this by providing that part-time work after childbirth is a right.

Where regular part-time work is available it must be paid the same remuneration and entitlements as full-time work on a pro rata basis. This is recognised in European case law and in ILO Convention 175 on Part-Time Work, and should be reinforced in this Convention.
 

13.5 Breastfeeding facilities and breaks at work

Where women choose to resume work while breastfeeding, they should be provided with adequate facilities and time to breastfeed or express milk. This should be explicitly guaranteed in the Convention.


13.6 Right to family leave
 

Many Australian workers are now eligible for at least three days of 'personal or carer's leave' each year. These are paid leave days either additional to, or part of, personal sick leave entitlements. They are intended to be used by workers who hold primary responsibility for caring for their families when illness or other problems arise which must be attended to. The Australian Industrial Relations Commission said, in awarding family leave, that they were doing so in accordance with ILO Convention 156 on Family Responsibilities (Family Leave Test Case Decision November 1994).
The NWJC submits that the provision of support for women workers who have family responsibilities through measures such as family or carer's leave is an integral aspect of ensuring that women do not experience continuing discriminatory outcomes in the long-term as a result of maternity. The Convention should refer to the need for members to provide this ongoing support, which should be available to all employed women.

13.7 Employers duty to inform employees of their entitlements

The NWJC proposes that the Convention should include a provision requiring employers to notify employees of their entitlements. The evidence in Australia is that many women, particularly those employed in the private sector, do not know what their maternity entitlements are, or the extent of employment protection that applies to them, and have never been given any information about this (see Maternity Leave in Australia, AIFS). In addition to employers having an obligation to keep their own employees informed, there should be a broad-based government-funded community education campaign to ensure that women know their rights and can use them.
 

13.8 Links to other Conventions
 

The NWJC submits that the Convention under revision should urge members to have regard to the other relevant ILO Conventions in implementing their obligations under the instrument. The relevant conventions include ILO 100 on Equal Remuneration, ILO 111 on Discrimination in Employment and Occupation, ILO 156 on Family Responsibilities and ILO 175 on Part-Time Work.
 

References

There is a lack of empirical research in Australia on maternity protection issues. This in itself is an indication of the lack of attention paid to the issues. The main published reports which are relevant are:


Acknowledgements

This submission was prepared for the National Women's Justice Coalition by Jenny Earle, Solicitor at the Women's Legal Centre (ACT & Region). She is particularly grateful for comments and assistance from Ruth Jost (Equal Pay Watch), Caroline Alcorso, Alex Heron, Joanna Longley, Deb Brennan (Department of Government, University of Sydney) Dell Horey (Maternity Alliance), Therese MacDermott (Faculty of Law, University of Sydney, Julie Greig (Nursing Mothers Association), Helen Glezer (Australian Institute of Family Studies), Susan Biggs (Families At Work).
 
 

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