Supporting Working Parents: Pregnancy and Return to Work National Review in Australia

FAWN member Alexandra Heron provides an outline and observations about the recent Australian review…

Supporting Working Parents: Pregnancy and Return to Work National Review in Australia https://www.humanrights.gov.au/supporting-working-parents-pregnancy-and-return-work-national-review-0

The recently launched ‘Report of the Supporting Working Parents: Pregnancy and Return to Work National Review’ prepared by the Australian Human Rights Commission (AHRC) is significant for Australians and internationally. Its representative survey of pregnancy, maternity leave and return to work reveal high levels of discrimination. Its findings add to mounting quantitative survey evidence of pregnancy discrimination. The survey sample comprised women aged 19-49, about two years after the birth of their last child and who had been employed during their pregnancy. Respondents were asked if they had suffered unfair or disadvantageous treatment because of pregnancy, asking or taking leave or due to family responsibilities (including negative changes on their return to work). Staggeringly, nearly half (49%) reported doing so at least once (27% during pregnancy). 18% reported losing their jobs through redundancy, reorganisation, dismissal or failure to have their contract renewed. Others experienced problems relating to pay, conditions, job duties performance assessments, flexible working and negative attitudes from managers and/or colleagues as well as health and safety. On return to work many experienced poor treatment due to breastfeeding or expressing milk (22%).
Mothers were less likely to return to work with their pre-birth employer where they had reported discrimination during pregnancy: 23% compared to 13% who had not had such experiences. Sole parents were much more likely to be discriminated against during pregnancy than those in a couple relationship. Inevitably, few took formal action for a remedy: only 6% complained formally within their organisation and 4% to a government agency. Graphic illustrations of individual situations are provided from the very extensive face-to-face consultations and written submissions made to the Review.
Innovatively, the Review also conducted a survey which, although not representative of new fathers generally, documents the experiences of those fathers who took the statutory two-week paid (at the minimum wage so more generous than the UK’s) paternity leave. Of these fathers, over a quarter reported discriminatory conduct when they sought or took parental leave or on return to work.
Much has been said about the inadequacy of federal Australian anti-discrimination law including the Sex Discrimination Act 1984 (SDA), in past reviews and reports and this Review did not go into law reform issues in depth. It supports consideration of implementing some previously proposed reforms, including removing the requirement for a comparator. This requirement still exists in pregnancy and maternity discrimination cases though certain State/Territory jurisdictions have removed it. The SDA does, however, prohibit direct family responsibilities discrimination as do many State and Territory laws, often including indirect discrimination, a considerable advance on current UK discrimination rights. The Report recommends as have many others, amending the SDA to prohibit indirect discrimination on this ground.
That said, Australian law in this area is even more confusing than that in the UK. Each of the eight States and Territories has its own, different anti-discrimination legislation. In addition, national protections are contained in two sets of federal legislation: the SDA and the Fair Work Act 2009 (the FWA, an employment protection and standard-setting law as well as governing industrial relations) – with different compulsory conciliation bodies, time limits and procedures and a requirement to choose under which statute to take action. A major recommendation of the Review is to provide coherent information about rights and obligations across all jurisdictions: the production of such guidance would be a major achievement and funding has been allocated to developing this and other educational materials.
The report contains an analysis of federal statutes (including the Work Health and Safety laws ) and caselaw since 2000 (the AHRC is a federal government statutory body). Between 2000 and 2014, there were only 24 SDA final decisions (with two going to appeal). One of the leading academics in this area in Australia, Professor Sara Charlesworth, calculates that 70 cases annually might be expected if the litigation rate were similar to that in the UK. Yet, even counting State/Territory anti-discrimination jurisdictions only 14 cases were decided in Australia in a recent 18 month period. Under new provisions in the FWA, a further eight decisions under its anti-discrimination jurisdiction have been made in relation to cases brought by individuals (as all the SDA cases referred to above were). Compulsory (and in relation to the SDA often lengthy) conciliation and costs are the likely reasons for the very few decided cases. The Report does not recommend but suggests serious consideration is given to amending the SDA so that parties pay their own legal costs rather than the loser paying the winner’s as at present. This would reflect the general rule under the FWA. Consideration should also be given to increased funding for law centres to advise and take claims, as well as enabling claimants to bypass conciliation if they wish – moving in the opposite direction to UK developments.
However, aspects of the FWA and the enforcement mechanisms are points of significant interest to a UK reader. Under the FWA, a statutory body, the Fair Work Ombudsman (the FWO) is tasked to investigate and enforce breaches of certain FWA statutory rights including anti-discrimination ones. The FWO investigations can lead to agreements for enforceable undertakings (EUs) with employers who have admitted FWA breaches. EUs have been made with only five employers which relate to discrimination against pregnant women and new mothers. They illustrate a potentially more effective enforcement approach than simply awarding financial compensation and fines, as the Courts do. Undertakings have required employers to: – adopt appropriate policies and processes; – inform employees of the breaches they have committed and of their parental and anti-discrimination rights on notice boards, through newsletters or the intranet; – imposed relevant management training; – & required local publicity about the breach (the FWO engaging in national publicity) – all overseen by the FWO. The report documents this and ‘finds that Courts could place a greater emphasis on deterrence of discrimination by imposing greater financial and other consequences on the employer for breaches’.

Employer experiences of managing pregnancy and return to work are also described in the report. Some of the attitudes expressed raise a gasp especially given the difficulties faced by pregnant women and new mothers, so well illustrated by the Report. One slightly odd issue raised by employers, given it is their responsibility – was that line managers are often a problem in terms of implementing good practice policies. Employers noted they need training on their legal obligations and company policies. The review identifies the need to support line managers and floats the idea of the linking their key performance indicators (KPIs) and reward structures to parental leave policy implementation. It also notes how KPIs may be based on output or sales targets in such a way as to militate against using part-timers.
The Report’s description of employer views suggests how fragile the business case for retaining women through pregnancy and parental leave is at the organisational level. This case is set out in the Report’s first chapter, but the survey, women’s own evidence and the lack, for example, of a single successful recent legal claim for discriminatory redundancy (Appendix F summarises the scarce caselaw since 2000 for the SDA & 2010 for the FWA) suggests how women’s jobs disappear: redistribution of duties, unacknowledged disadvantage resulting from absence on leave during the selection process, or simply a preference for the replacement employee – whose training costs may have been substantial and who will inevitably be more up-to-date.
The debate about how to protect maternity at work is often looked at as an employee/employer HR issue. Compliance with the law is seen as depending on persuading employers that a win-win situation is possible for employer and employee, all that is needed is adopting proactive and positive HR policies and practices which will pay for themselves. Government regulation is cast as a side (and distasteful) issue. But this obscures the need of the whole community for children – including of employers who rarely employ women of childbearing age, preferring their non-leave taking male partners & sons. And it removes Government from a debate about a fairer distribution of the costs of maternity.
Yet how, except through Government, can costs be shared? Although not a recommendation, the report refers to submissions proposing employers be ‘incentivised’ by a direct payment or tax incentive to encourage the recruitment and retention of pregnant employees and employees returning to work after parental leave. It may be argued that employers should not be rewarded just for complying with the law: but this sort of incentivisation could conceivably be used to make greater regulation more palatable. The Report acknowledges employees ‘vulnerability to redundancy and job loss’ due to pregnancy and parenthood and recommends research to identify how to tackle this effectively. Ideas and examples are plentiful: the report refers to the express right in Germany not to be dismissed during pregnancy except in extreme circumstances. Reports in recent years have described the strength of these types of protections internationally. In less regulated environments such as Australia, further research could update and draw on these, linking to ideas around incentivisation. This could lead to ideas for expanding the existing express rights for pregnant women and new mothers available under the FWA . These are similar to those in the UK : to paid safe job leave, to some consultation during parental leave, a right to return to the job, consultation regarding changes to regular hours work, the right to request flexible working arrangements.
The Report’s recommendations are largely set out in the executive summary. Apart from the information and education dissemination mentioned above, organisations are recommended to more effectively combat harmful stereotyping. A regular national prevalence survey along the lines of the one conducted by the review is recommended as well as the further research referred to above. A number of recommendations to improve existing rights are proposed most of which have been previously recommended (and not taken up). These include recommendations that there be positive employer duties to reasonably accommodate pregnant workers and those who have family responsibilities. It is also recommended that those who seek flexible working under the right to request legislation are able to claim such a right from the start of their employment and enforce it. Existing leave entitlements should be available for antenatal appointments – this is not expressly provided for currently, nor is there any dedicated right to take paid time off for these (nor any proposed, another point of contrast with the UK). The development of specific health and safety guidance and leave for antenatal appointments and breaks from work for breastfeeding or expressing are also recommended. The report contains fascinating material but is, given the current Australian political environment, extremely cautious in terms of recommending regulatory change.

Alexandra Heron, Research Associate Women and Work Research Group, University of Sydney Business School. Views expressed are in a personal capacity.
28/08/2014