Chapter 2 - Issues arising from the Bill
2.1
The private bill introduced by the Australian
Democrats addresses an issue which the committee has found to be complex in its
policy ramifications. The committee majority notes the energy which the
opposition is putting into this issue, but it considers that this energy is
likely to be misplaced if it pre-empts the report of the Sex Discrimination
Commissioner which is due in November 2002. The committee majority acknowledges
that the issue of paid maternity leave is now on the agenda for public
discussion, following the publication, by the Human Rights and Equal
Opportunity Commission, of the discussion paper Valuing Parenthood. The
committee majority declines to take a pre-emptive path, realising that the Sex
Discrimination Commissioner’s report is likely to stimulate further debate.
However some comments on the Bill are warranted
2.2
At the core of the bill is the unresolved
dilemma of whether paid maternity benefits should be embedded in social welfare
policy or whether they are, as this bill proposes, a workplace relations issue.
Upon this question turns the issue of how government benefits can be most
equitably and effectively directed to the welfare of women as employees and as
mothers. Evidence before the committee indicates the pitfalls of assuming that
benefits can be standardised for those in paid work and for those women who
stay at home. It is difficult to achieve this aim without creating perceptions
of unequal treatment. Government Party Senators regard the Government’s
announced comprehensive review of all facets of family and maternity benefits
as part of a normal cycle of policy review. The paid maternity leave debate is
in part a catalyst for this review.
Paid maternity leave as a work
and family issue
2.3
A number of witnesses and submissions considered
the issue of whether paid maternity leave is more appropriately classified as a
workplace relations issue or as a social welfare issue. The Australian Council
of Trade Unions, for instance, stated that paid maternity leave ‘is absolutely a work related entitlement. It is
like annual leave, leave for Army Reserve, jury leave or sick leave. It is
related to the fact that you necessarily take a period of time off work to have
a child.’[1]
2.4
The Women’s Action Alliance, on the other hand,
saw the issue as a social welfare issue, and on that basis suggested that
policies to support mothers should have a broader focus than women in the paid
workforce. They stated that they ‘...feel that the model in the bill
discriminates on the basis of a woman’s choice about her work role when her
children are very young, and that makes it hard ... to support.’[2]
2.5
The committee majority agrees that a universal
one size-fits-all workplace based paid maternity leave policy is flawed because
its benefits are confined to women who were in the paid workforce prior to
their child’s birth. The committee majority considers that good public policy
in this area should address the need for financial security and dignity for all
mothers with new children. At present the Federal Government spends $12 billion
on family related payments[3].
In this regard the committee notes the evidence of the Australian Family
Association, which stated:
The AFA believes that paid maternity leave should be paid to all
mothers and not only mothers in the workforce who wish to return to the
workforce. To discriminate against mothers who wish to care for their children
at home is to diminish the role that those mothers play and the work which they
do. Being a homemaker is work and should be recognised.[4]
2.6
The committee observed that while a case can be
made that paid maternity leave is a social welfare issue, or a workplace
relations issue, it does not fall clearly into either category. This bill
requires the Parliament to view maternity leave as a special case: as a
category of leave requiring regulation and payment under Commonwealth
legislation. The main objection to the proposed legislation rests upon this
point. Paid maternity leave as a workplace relations matter is addressed in the
next section.
2.7
Paid maternity leave is, nevertheless, a work
and family issue. The committee majority considers that paid maternity leave is
one element of a policy discussion about the way in which employees can balance
their roles as workers with family responsibilities. The committee majority
notes that the Government has embarked upon a comprehensive policy review of
work and family issues. The committee notes that while this review will include
consideration of paid maternity leave, this will be one element within a much
broader package of assistance intended to meet the varying needs of employees
and those outside the paid workforce. The committee majority noted the Prime
Minister’s statement to that effect:
We are looking at a range of options to provide further choice
to parents in balancing their work and family responsibilities. We’ve already
done a great deal in that area, we’ve introduced family tax benefits, we’ve
introduced the baby bonus, we’ve enhanced those benefits, particularly the family
tax benefits and we’re looking at some other options as well, including, but
not only, the issue of paid maternity leave. It’s one of a number of things,
you can’t expect any early announcement on initiatives, further initiatives in
this area but it is a very important priority of the Government over the longer
term.[5]
Effective workplace relations
policy
2.8
While the committee has noted that paid
maternity leave is best described as work and family policy, this bill has been
presented as an amendment to the Workplace Relations Act 1996. The
committee notes that since coming to office in 1996 the Government has
undertaken significant reform of workplace relations in Australia, and that the
general direction of these reforms has been to give Australian workers and
employers the opportunity to resolve workplace relations issues in the
workplace, through certified agreements and Australian workplace agreements.
The committee majority considers that this bill runs counter to this reform
process. It seeks to mandate, by statute, a matter which ought to be determined
at the workplace level along with the overwhelming majority of other employment
conditions.
2.9
The committee majority considers that, if paid
maternity leave is a desirable feature of working conditions, it can be
discussed as part of the usual process of negotiating certified agreements or
Australian Workplace Agreements. Evidence to the inquiry suggests that this is
a continuing process. The ACTU, for instance, stated that ‘if there is not 100
per cent income replacement available through a government scheme ... we will
continue to bargain in this area.’[6]
The committee majority regards this process as consistent with the intentions
of the Workplace Relations Act.
2.10
The committee noted evidence presented by government
departments which demonstrates that workplace bargaining is delivering paid
maternity leave for women in the workforce. About half (50.9 per cent) of all
women in full time employment were entitled to paid maternity leave in the June
quarter of 2000[7].
The committee further noted that 38 per cent of all women in work, full time or
part time, were entitled to paid maternity leave at that time.[8]
2.11
During hearings on this matter, the committee
heard a number of outstanding success stories where the current bargaining
arrangements have resulted in paid maternity leave schemes tailored to the
needs of both employees and companies. Esprit, for instance, gave evidence to
the committee about their paid maternity leave and family friendly policies.
Their evidence demonstrates how a flexible, negotiated policy can provide an
excellent outcome for mothers:
Esprit offers up
to 12 weeks paid maternity leave for all full-time colleagues of more than two
years service. These colleagues must intend to return to the same or a similar
position on their return to work. [...] Esprit also offer a flexible return to
work policy for colleagues who wish to return to work within six months of
maternity leave. Such a colleague would then have another 120 days owing of
maternity leave to use. For example, a colleague might return to work for two
days a week after five months, increasing this to three days a week after seven
months and then to four days a week after 10 months from the start of leave.
She would then be able to work four days a week for a further two years
following the end of the initial 12-month maternity leave. This policy allows
our colleagues the flexibility of working part time, thus finding a balance
between family and work in their child’s early years. It also allows the
company to have their valuable colleagues back in the business sooner. Other
aspects of our family friendly policy include flexible weekly working hours to
fit in with family responsibilities, car lease payment assistance during
maternity leave, utilising sick leave for family emergencies and the
flexibility to be able to work from home when the need arises.
2.12
The committee notes that the benefits available
to Esprit’s staff go much further than the benefits mandated by the current
bill. Furthermore, the committee notes that Esprit’s program was specifically
designed to attract and retain retail sales employees. This tends to rebut the
suggestion that paid maternity leave is only provided in higher-paid,
higher-skilled professions. The decision by Australian company Pacific Brands,
during the course of the inquiry, to provide paid maternity leave for many of
its factory-floor staff is further evidence that the businesses often place
value on the maintenance of a stable workforce including employees in unskilled
and semi-skilled positions.
2.13
The committee also noted the submission of the
Shop Distributive and Allied Employees Association which indicated that the SDA
has ‘had some success’[9]
in obtaining, through enterprise bargaining agreements, a range of work and
family provisions for mothers with newborn children. However the SDA made it
clear that paid maternity leave was only one among several options for flexible
working arrangements. The SDA stated that these include:
- the availability of extended (up to 3 years) unpaid parental
leave;
- an entitlement to return to work on a part time basis after a
period of parental leave;
- a specific entitlement to paid pre-natal leave for both mother
and father to attend medical appointments related to the pregnancy;
- a pro-rata amount of leave for those who have not worked for the
... required 12 months to be eligible for parental leave;
- an entitlement to consideration of family responsibilities when
establishing rosters on return to work;
- family leave; and
- paid maternity leave[10]
2.14
The committee can see no compelling reason to
impose a bill which would mandate an inappropriate ‘one size fits all’ policy
when the workplace negotiation process has already delivered more flexible,
tailored work and family options to a wide range of women, in a wide range of
workplaces, with a wide range of skill levels.
2.15
The committee noted the increasing number of
employers realising that there is a strong business case for the introduction
of a competitive work and family scheme. The ACTU, for instance stated:
Those companies that have made the decision to introduce paid
maternity leave have done so because they see the business case for being an
employer of choice, attracting and retaining highly skilled women. They see the
business case for retention, and they see that there are benefits in terms of
reduced absenteeism and so on. So, if they are sensible employers, they will
divert the funds into other initiatives which support the retention of women in
the work force and have ongoing and obvious economic and societal benefits.[11]
2.16
The Australian Industry Group agreed:
[Employers need to] take into account the costs associated with
losing a valued female employee—costs such as recruitment, selection and
training. The loss of skills is the biggest issue. Not only are there those
direct costs to the employer; there are also significant community costs—for
example, the loss of the education that has been devoted by the community and
so on.[12]
2.17
Under these circumstances, the committee notes
that if there is a business case in favour of paid maternity leave, and an
enterprise bargaining system available to negotiate and deliver work and family
related conditions, it is clearly in the interests of both business and
employees to pursue their mutual interests.
Legislative anomalies and
doubtful policy
2.18
The committee majority recognises that a private
bill which attempts to legislate for ambitious social policy measures is likely
to produce anomalous provisions. Some anomalies were identified during public
hearings on this bill. The first of these relates to the way existing paid
maternity leave schemes would mesh with the model proposed in the bill.
2.19
The bill’s practical effect will be that private
employers, including large corporations which have made a business decision to
introduce paid maternity leave, would receive what amounts to a considerable
subsidy, as the Commonwealth assumes part of existing paid maternity leave
payments. In other words, the bill will undo the substantial progress made
under the government’s reformed workplace relations processes, and will
increase the outlay of public funds to provide a benefit which these particular
employees already receive.
2.20
The committee majority noted evidence that the
bill would not take away from the focus on workplace bargaining to achieve
greater levels of payments that assists workers to meet family commitments. The
committee, for instance, heard the following evidence from the ACTU:
. ..., if the Commonwealth were to provide the $431 per week, we
would still be bargaining with those state governments to provide full income
replacement to add the extra two weeks in those states and territories where it
is 12 weeks paid leave and to increase the number of weeks in those other
states and to broaden the scope. No, we do not want to let the state
governments off the hook, but it would be inequitable for the Commonwealth to
fund the private sector and leave out those state government employees. There
are obviously mechanisms available to the Commonwealth in the states grants
process if it felt that it was giving a windfall, in particular, to states that
were already providing paid maternity leave.
In the same way, we would be encouraging private sector
employers who receive a windfall through their employees becoming eligible for
paid maternity leave to use that money to provide other family friendly
policies or to increase the level of payment—in most cases, it is only two or
six weeks anyway. In the same way, you would encourage the states to reach best
practice rather than minima.[13]
2.21
The evidence from the ACTU also suggests the
complex Commonwealth/state funding issues which would arise from the bill. The
effect of the bill may be to force states and territories to increase the paid
maternity leave benefits available to their employees, without offsetting gains
in productivity, to enable those governments to fund the benefits. This, in
turn, would be likely to result in increased calls for Commonwealth funds to
support an additional outlay by the states and territories.
2.22
An unnecessarily complex payment process is now
proposed. Under this bill, employers would receive payments from the
Commonwealth, and would then be expected to make these payments to the employee
when the employee takes paid maternity leave. This process creates unnecessary
compliance issues for businesses, particularly small businesses, as noted in
evidence from the Australian Industry Group:
We believe that most employers would be concerned about an
approach of having to provide the funding and then being reimbursed, even if
that was handled quite early on in the piece[14]
International Obligations
2.23
Some evidence and submissions before the
committee asserted a relationship between international agreements such as the
Convention for the Elimination of All Forms of Discrimination Against Women
(‘CEDAW’), and various ILO instruments, with the current bill. Senator Stott
Despoja’s second reading speech on the bill seems to support this suggestion,
by asserting that the bill:
reflects the relevant ILO recommendations that national policies
enable employees to exercise their right to work, `to the extent possible,
without conflict between their employment and family responsibilities' (ILO
Recommendation (No, 165) Concerning Equal Opportunities and Equal Treatment for
Men and Women Workers; Workers with Family Responsibilities).[15]
2.24
The committee notes the advice of the Office of
the Status of Women, the Department of Employment and Workplace Relations, and
the Department of Family and Community Services that ‘Australia has no specific
obligation in international law to provide paid maternity leave.’[16] The committee notes that the
ILO conventions which support paid maternity leave were devised and driven by
European nations with a long history of the provision of social insurance.
These policies have limited application to Australia. The Government agrees
with the basic objective of the ILO conventions – to support workers with
family responsibilities. In achieving this objective, the legislative framework
must reflect the continuing and evolving policy which we have seen in the
Workplace Relations Act.
2.25
The committee majority has, noted its opposition
to a ‘one size fits all’ policy and its strong preference for flexible policies
enabling decisions to be made by employers and employees at the workplace. If a
national ‘one size fits all’ policy cannot be accommodated, an international
declaration or convention has little relevance.
Conclusions
2.26
The committee notes that this bill has been
introduced prior to HREOC’s final report on paid maternity leave; and that the
Government has begun a process of considering work and family policy in
Australia. The committee majority considers it would be premature to consider
legislation until these processes have been completed.
2.27
The committee majority further notes that the
bill proposes a system which would mandate an inflexible paid maternity leave
scheme at a time when the Government’s workplace relations policies are clearly
delivering family-friendly flexible provisions to increasing numbers of
parents.
Recommendation
The committee recommends that the
Senate should not support the bill.
Senator
John Tierney
Chair
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