Part D of the paper focuses on how a paid maternity leave scheme would actually operate were it to be introduced in Australia. The emphasis, as in the rest of the paper, is on the feedback that HREOC has received through submissions and consultations. Each Chapter canvases the views that were expressed in relation to each component of a national paid maternity leave scheme.

International Labour Organization standards and international comparisons are also included as points of reference. Australia is not a signatory to the relevant Convention, the Maternity Protection Convention, [644] and is not therefore obliged to comply with its provisions. Nevertheless, it represents a useful benchmark for considering the adequacy of any proposed scheme.

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12.2 Options for a national scheme

12.2.1 Introduction

The paid maternity leave model that HREOC proposes has wide community support, is consistent with international standards, and is similar to the systems used by comparable countries such as New Zealand and the United Kingdom.

The essential elements of this system are:

that payment is made immediately prior to and following the birth of a child;
that the level of payment is at an adequate level to be comparable to market earnings;
that the duration of the paid leave is sufficient to promote women's and babies' health and wellbeing; and
that the system recognises the disadvantage that women experience in the workforce as a result of maternity.

The central requirement of this model is to ensure that financial pressure does not mean that women are required to return to work in the early weeks following birth if they and their babies are not ready.

HREOC recommends a government funded fortnightly payment up to Federal Minimum Wage for 14 weeks. HREOC considers that this system is appropriate for the Australian context, and will assist in meeting the goals of addressing women's workplace disadvantage and assisting women's and babies' health and wellbeing.

As stated at 1.3.1, the most contentious issues in the consultations were:

whether the payment should be limited to women in the paid workforce or available to all women;
whether the payment should be available to mothers only, or whether the mother could opt to transfer the leave to her partner; and
if there is a role for employers in funding paid maternity leave.

These issues are addressed in the following Chapters. They are largely variations within a particular model.

The Australian Council of Trade Unions recommended that the specifics of a model should be negotiated between employers, unions and the Government.

The ACTU [Australian Council of Trade Unions] submission … calls for a process of negotiation between employers, government and unions to agree all the elements of the scheme. The ACTU [Australian Council of Trade Unions] sees such a process as best able to balance competing interests in a non-adversarial environment. [645]

HREOC agrees that, should the Government decide to introduce a national paid maternity leave scheme, there should be a process of negotiation regarding the fine detail of the operation of a paid maternity leave scheme. This Part of the paper includes significant detail on various structural and operational aspects of a national scheme. However, HREOC was not in a position to determine detailed administrative matters or to model the fine detail of the interaction between paid maternity leave and existing government payments. HREOC considers that there would be considerable goodwill among employer groups and unions to work with the Government to reach agreement on this finer detail.

12.2.2 The case for the status quo

Some submissions considered that the current arrangements for paid maternity leave should be continued and that there was no place for paid maternity leave that was either government funded or mandatorily employer funded. As the following extracts make clear, some groups were particularly opposed to compulsory employer funding of paid maternity leave.

The National Farmers' Federation opposed both government funding and mandatory employer funding of paid maternity leave. [646]

It is the NFF's [National Farmers' Federation's] position that paid maternity leave, as a workplace entitlement, should only be implemented by agreement at an individual workplace through existing agreement-making mechanisms. [647]

The Centre for Business and Industry supported continuation of the current system of paid maternity leave.

The current option allows employers that can afford to provide female employees with paid leave the option to do so. The current system does not encourage indirect discrimination and provides options to control costs and not enter into costly administrative structures.

Business is well aware of its social responsibility and responsibility to its employees. However, at the end of the day, decisions on family are issues for the family and are not issues for employers. [648]

The Local Government Association of Queensland considered that decisions about paid maternity leave should be left to the individual workplace.

The question of granting paid Maternity Leave is a matter for determination between an employer and the employee with enterprise bargaining as a process for establishing the principles to apply in those cases. [649]

As discussed at 3.3, HREOC considers that current arrangements for paid maternity leave are ad hoc, inequitable and disadvantage lower skilled and less well educated women, and women in casual or part time work. A continuation of the current system of enterprise based provision of paid maternity leave does not guarantee that women will be able to have a period of time away from the workforce and does not address the workplace disadvantage experienced by women on the basis of maternity. HREOC considers that the benefits of paid maternity leave set out in Part C merit the immediate introduction of a paid maternity leave scheme in Australia.

12.2.3 Alternative approaches to a government funded national paid maternity leave scheme

HREOC notes that a number of more radical proposals have also been made, both through submissions and in the wider community debate. Some of these proposals are outlined here to give a sense of the scope of the debate.

Bruce Chapman proposed a Higher Education Contribution Scheme (HECS) style loan scheme as a form of paid maternity leave.

It involves the government distributing financial assistance in the period of leave, but with parents repaying some part of this if and when future incomes exceed a certain level. [650]

Chapman promoted this model on the grounds that it could be structured to involve an input by all of those who benefit, namely the Government, the family and the employer. In addition this kind of scheme was seen as a means to smooth income across the family's lifetime. The family would be able to access additional funds at a period where they were facing increased expenses and had lower earnings. This would then be repaid at a later period when earnings were higher.

There was some opposition to this proposal as expressed by the National Pay Equity Coalition.

We regard this option as completely unacceptable. It continues the punitive and unfair arrangements that currently treat the costs of creating and nurturing the next generation as private costs rather than a social investment.

...

Forcing families to acquire substantial debt adds to the already substantial stress and financial burden they face. Whereas HECS affects mainly a minority of the population with reasonable prospects of good earnings later in life, so the costs are borne by the person who derives the benefits. A HECS-type scheme for PML [paid maternity leave] would continue to impose on individuals and families the cost of a life-event that benefits the whole community. [651]

Barry Maley from the Centre for Independent Studies has proposed:

... a non-means-tested universal child allowance or tax credit of $4000 per annum per child, replacing all other allowances. [652]

The Women's Economic Think Tank has opposed this proposal.

The proposal … from the Centre for Independent Studies for about $4,000 per child per year is costed out at $20B [billion], slightly more than the present mix of payments. However, it would require wiping out all family tax concessions and payments and child care subsidies. This would mean that low income families would lose and high income families gain from the shifts in payments and this would not be equitable. [653]

The Underemployed People's Union of Western Australia proposed a model that would include making the positions of those on maternity leave available to unemployed people.

The Swedish model would transfer to Australia well: An unemployed person is given the person who takes maternity leave their job for a year. There are many educated and professional unemployed people particularly mature people on the dole who would welcome a year's work. This model guarantees the unemployed person work for a whole year.

…

The person on leave would then get the unemployment benefit for a year no matter what their job was. This way the tax payer, the employer and the government does not pay anything. In fact the Government saves because they would not have to service or provide case managers etc to the person on maternity leave or the person who takes the job for a year. [654]

An individual proposed replacing long service leave with an entitlement to paid maternity leave.

As an alternative to the many proposals for governments to fund maternity leave, may I suggest that consideration be given to the phasing out of paid long service leave and its replacement with paid maternity leave entitlements.

This would be achieved by mandating that all new employees would not have access to paid long service leave but instead would have access to paid maternity leave. Existing employees would continue to accrue long service leave. [655]

The New South Wales State Chamber of Commerce proposed that the Government offer incentives to firms to offer paid maternity leave.

The debate as it stands has concentrated on a mandatory scheme of leave. Government should in the first instance, examine ways to encourage business to voluntarily provide a paid entitlement. Companies should be given taxation relief as the basis for funding paid leave. [656]

HREOC has not attempted in this paper to address every proposal for paid maternity leave that has been put forward. Rather, the paper focuses on HREOC's preferred model. HREOC considers that the model outlined in the remainder of Part D would deliver on the objectives outlined in Part C, has wide community support and could be relatively easily implemented in the Australian context. There are a range of criticisms of other proposals that have been put forward including that they are less able to meet the identified objectives, that they will cost more, that they are likely to meet resistance from interested parties and that they may be difficult to administer.

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12.3 Summary of the preferred scheme

Outlined below is a summary of HREOC's recommended national paid maternity leave scheme. The reasoning behind this structure, and other options raised in the public discussion, are outlined in Chapters 13-22.

The scheme that is proposed represents the minimum that is required to meet the objectives of paid maternity leave. HREOC is proposing a minimum scheme in order to establish a basic minimum entitlement for women. There was considerable public support for a more generous scheme and the extension of the scheme over time.

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Summary of HREOC's preferred model for a national paid maternity leave scheme

Funding

The national paid maternity leave scheme is to be funded by the federal Government. (Recommendation 1)

Coverage

Paid maternity leave 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 a woman's partner, 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 when the child has been adopted. (Recommendation 2)

Paid maternity leave is to be available only to women in paid work. (Recommendation 3)

Paid maternity leave is to be available to the primary carer of an adopted child irrespective of the age of the child. (Recommendation 4)

Eligibility

In order to be eligible for paid maternity 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. Access to this payment will not be means tested. (Recommendation 5)

Duration

The national scheme of paid maternity leave will provide for up to 14 weeks of paid leave to be taken immediately prior to and/or following the birth of a child. (Recommendation 6)

The paid leave must be taken as a continuous block. (Recommendation 6)

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. (Recommendation 6)

Payment Level

Government funded paid maternity leave 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. (Recommendation 7)

Previous weekly earnings are to 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 in employment over the previous 12 months. (Recommendation 7)

Payment mechanism

Paid maternity leave is to be paid as a fortnightly payment during the period of leave, administered by the federal Government and available through dual payment mechanisms. (Recommendation 8)

Specifically, an individual may elect to receive payment as either:

a fortnightly direct payment from Government to the individual; or
a payment from the employer to the individual with the employer reimbursed by Government (subject to the employer agreeing to offer this option). (Recommendation 8)

Role of employers

Employers should be encouraged to continue existing provisions for paid maternity leave and women, including public servants, will not be excluded from any government funded national scheme on the basis of receiving employer provided paid maternity leave. (Recommendation 9)

Employer top ups to a government funded paid maternity leave are to be provided for and encouraged. Such top ups should be negotiated through standard bargaining mechanisms. (Recommendation 10)

Employers may agree to take on the administration of paid maternity leave payments on behalf of the Government and may be required to play a role in validating entitlement to government funded paid maternity leave entitlements. (Recommendation 11)

Interaction with the industrial relations system

Current industrial arrangements in relation to maternity leave will continue. (Recommendation 12)

Payment level

A woman who receives paid maternity leave will not be eligible for the Maternity Allowance, the first 14 weeks of Family Tax Benefit Part A and Family Tax Benefit Part B, and the first 12 months of payment of the Baby Bonus. The maternity leave payment will be taxable. (Recommendation 13)

Individuals will have the option of taking other available social security payments where this would result in higher payments. (Recommendation 13)

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13. Funding

13.1 Introduction

The question of who should be responsible for funding a national paid maternity leave scheme was one of the more controversial issues in HREOC's consultations. This issue also received significant media coverage.

As discussed in HREOC's interim paper, there are a wide range of possible options for funding paid maternity leave. [657] Three options were the focus of discussion in the consultations and submissions - government funded, directly employer funded or jointly funded by the Government and employers. Each of these options is discussed in this Chapter.

Funding of a national scheme was central to various groups' support for or opposition to a scheme. The importance of funding also went further than this, being a central tenet on which submissions based their views on other structural elements of a paid maternity leave scheme. Funding is presented as the first element for discussion, as other decisions on aspects of the scheme flow from the choice of funding source.

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13.2 International standards and practices

The International Labour Organization has recommended that Member Countries fund paid maternity leave through mechanisms that spread the cost across the community.

More specifically, Article 6(8) of the International Labour Organization Maternity Protection Convention recommends funding through social insurance or by Government. Direct employer funding is not recommended unless agreement on such an arrangement can be reached between Government, employers and employees at a national level. Direct employer funding is where employers fund paid maternity leave through a direct payment to their own female employees. In contrast, employers could fund paid maternity leave through payments to a central fund based on the number of men and women they employ. The rationale against direct employer funding is "to protect the situation of women in the labour market". [658]

Paragraph 4 of International Labour Organization Recommendation 191 recommends that, where social insurance or levies are used to fund paid maternity leave, contributions should be made in relation to all employees, and not just female employees. [659]

A variety of sources of funding are used to provide paid maternity leave in other countries.

For example, in the United Kingdom, Statutory Maternity Pay is funded through National Insurance. Employers make Statutory Maternity Pay payments directly to employees and then reduce their next year's National Insurance contributions by this amount.

Small employers can recover all of the payments they make under Statutory Maternity Pay plus an additional sum of 4.5 per cent as compensation for their share of National Insurance contributions paid on Statutory Maternity Pay. Larger employers recover 92 per cent of the Statutory Maternity Pay paid out. [660]

The New Zealand Paid Parental Leave scheme is fully government funded. [661] Funding of the scheme will be included as part of the 12 month review of the New Zealand scheme.

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13.3 Government funding

13.3.1 Introduction

The majority of submissions in favour of paid maternity leave considered that there was a role for Government in funding such a scheme. [662] Many submissions that considered this issue proposed that a national paid maternity leave scheme should be fully government funded. As set out at 19.4, this would leave employers with the option to top up the government funded payment. In addition, as discussed at 13.5, other submissions considered that the Government should fund a minimum payment that would then be topped up through compulsory employer funding via an employer levy.

13.3.2 A social benefit

A significant proportion of submissions considered that paid maternity leave should be government funded to reflect the community benefits of such leave. [663] For example, the Australian Industry Group believed there was:

… a strong case for the introduction of a publicly funded paid maternity leave scheme in Australia. Significant benefits would flow to the Australian community if such a scheme was introduced. [664]

The Presbyterian Women's Association of Australia in New South Wales considered that " ... the public should fund maternity payments through tax. The whole population will benefit from any population increase in the future - those who have no children as well as those who do." [665] Similarly, the New South Wales branch of the Australian Family Association proposed that a scheme should be government funded in recognition of " ... the benefit to the community of increasing the birthrate and the role that mothers play in development of children." [666]

One individual submission pointed out that:

… having children provides an essential service to the community and that parents make an invaluable contribution to the workforce. [667]

The Work + Family Policy Research Group, University of Sydney also emphasised the community benefits of paid maternity leave.

Paid maternity and parental leave benefit the whole community: children, parents, employers, business and government. Some of these benefits are short term, immediate and visible (such as the benefit to the employee of having a period of paid, job-protected leave) while others will take time to become apparent (such as a healthier population, satisfied employees, stable, well-functioning families, maintenance of skills and attachment to the labour force). Nevertheless, because the benefits are shared, we believe that the costs of paid maternity and parental leave should be borne as equitably as possible. [668]

The broader community benefits of paid maternity leave were seen by some submissions to differentiate paid maternity leave from other types of leave which are fully employer funded. The National Pay Equity Coalition considered that:

[o]n the basis that the benefits of the paid maternity leave are more broadly applied and used, it is appropriate for the contribution base to be broader than employers alone. Other forms of employment related leave are largely related to ongoing maintenance of the labour force and their benefits largely utilised and consumed within the employment relationship. [669]

Similarly, the Centre for Applied Social Research submitted that maternity leave:

… should be a government-funded entitlement rather than an employer-funded entitlement. Paid maternity leave is different to other employment related leave, such as sick leave, annual leave and long service leave as it provides a benefit not only to individual workers and workplaces in the continuing availability of that worker, but also to the wider community and economy. [670]

13.3.3 Ensuring access and spreading costs

Australian Business Industrial noted that a government funded national scheme of paid maternity leave would ensure that all women would be able to access such a payment.

Such a payment needs to be legislated on a national level and provided for through the social security system. This would ensure universality of payment to women, and prevent new industrial entitlements from being created that may have detrimental effects to female employment prospects. [671]

A government funded scheme would also spread the cost of paid maternity leave more evenly across the community and between businesses. [672] The need to share the cost of paid maternity leave more evenly was also given as a reason against direct employer funding. [673] For example, the Work/Life Association Australia "… recommended that funding be obtained from general taxation revenue, where the cost is spread across all taxpayers ... " [674] An individual submission noted that:

[w]omen are very unevenly distributed across the workforce due to gender segregation, so [directly] employer funded maternity leave would place a greater burden on some groups of employers than others. This underlines the case for a centralised, government funded scheme. [675]

An individual submission also considered that government funding may increase employer acceptance of a national paid maternity leave scheme.

Government funded paid maternity leave is the only real option to paid maternity leave being accepted across the whole range of employment sectors, especially small, private enterprises. [676]

This is consistent with those submissions from employers and employer groups who were willing to give support for paid maternity leave on the condition that such a scheme was government funded. [677]

13.3.4 Source of government funding

While a significant number of submissions supported government funding there was some division over whether paid maternity leave should be funded through a reallocation of existing government payments to parents, or whether it should be provided in addition to existing programmes.

The Hunter Business Chamber submitted that it generally supported:

… the concept of paid maternity leave, but urges [HREOC] and the government to consider how existing federal systems might be varied and enhanced to provide for its introduction. [678]

The Australian Mines and Metals Association was concerned about the possibility of a new payment placing increased demands on the Government's budget.

The funding of the entitlement should not result in additional strains on the Government's fiscal position. Consideration should be given to the rationalisation of other benefits so that there is no indirect cost to employers as a consequence. [679]

Many submissions called for a review or streamlining of current payments in order to fund paid maternity leave. This issue is discussed at 3.4.4.

The Women's Economic Policy Analysis Unit proposed that taxes be specifically identified for the purpose of funding paid maternity leave through a special levy on all taxpayers, along the lines of the Medicare levy. [680] The New South Wales branch of the Australian Family Association proposed that taxes on superannuation funds be used to fund paid maternity leave. [681]

A small number of submissions considered that Government should only fund paid maternity leave for employees in particular types of businesses, such as small business and non-profit organisations.

For example, an Australian Institute of Company Directors survey of delegates attending its May 2002 Conference on the Gold Coast found a difference in response depending on the size of business of the respondents. Its submission concluded that, while large employers were often well disposed towards, and often already provided paid maternity leave, "… small business needs government support". [682]

However, some submissions argued against government funding of a national paid maternity leave scheme. [683] For some employers their opposition to paid maternity leave meant they were unwilling to support the use of taxes paid by business ultimately being used to fund a national government scheme. For example the Kolan Shire Council considered that paid maternity leave:

… would place an unfair burden on employers, especially small business, whether it was funded directly by the government or a combination of sources for eventually the cost will be borne by the employer. [684]

The Centre for Business and Industry believed that the expense of paid maternity leave would require increased taxation.

The estimated $300 million expected to be paid annually as paid maternity leave (this figure does not include the unknown amount for government to introduce the system and staff to administer) would by necessity be collected by increased taxation or through the introduction of a new levy. With business the largest contributor of tax, it would fall predominantly onto business to fund. [685]

One academic considered that paid maternity leave would negatively impact on all taxpayers.

A mandated taxpayer-funded scheme will hurt all taxpayers, male and female alike, and, as more women begin to enter the workforce and earn higher wages, the tax burden of this scheme would increasingly fall on female workers. [686]

Other submissions considered that government funding should not be provided for what was a personal choice to have a child. One individual submission asked the question:

… why then should the government (taxpayers) have to pay … ? Women who choose not to take paid maternity leave (for whatever reason, by being self-employed, husband's income is sufficient etc) and couples who choose not to have children would end up contributing to other people's choices. [687]

HREOC notes that Governments have supported families throughout the history of Australia. As set out at 9.2, HREOC considers that it is appropriate that society support families given the benefit to the community of children and future generations.

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13.4 Direct employer funding

13.4.1 Introduction

The funding option most strongly opposed was direct employer funding. This option would require employers to meet the full cost of paid maternity leave for eligible women in their workplace. This option was strongly opposed by a wide cross-section of submissions, including submissions from unions, women's groups, employers and employer groups.

13.4.2 Employer funding would increase discrimination

A significant number of submissions considered that direct employer funding would increase discrimination against women of child bearing age in employment. [688] This was also given as a reason for supporting a government funded scheme.

Australian Business Industrial wrote that requiring employers to pay maternity leave would undermine equity objectives by "… further disadvantaging women in employment … jeopardizing many women's jobs [and] [m]aking it more difficult for many women to find and maintain employment, as a likely increase in discrimination against women of child-bearing age will occur." [689] Coles Myer submitted that the company:

… is strongly opposed to the universal imposition of an employer funded paid maternity leave scheme … [W]hilst Coles Myer Ltd., as a major employer of women, would behave as a responsible corporate citizen, Coles Myer Ltd. believes that an employer funded paid maternity leave scheme is highly likely to result in discrimination against women by less scrupulous employers. [690]

The Australian Institute of Company Directors submitted that:

[a]ny policy developments in the area of paid maternity leave must be careful not to set up a situation that encourages any segment of the economy to break the law by discriminating against those of child bearing age. [691]

An individual submission highlighted the concern from the perspective of young women.

There are many competent jobseekers out there and it will be very easy to offer employment to "a more suitable" male applicant or female over 40 years of age. Paid Maternity Leave will only cause mass discrimination against women of child bearing age. [692]

The Australian Chamber of Commerce and Industry considered that the cost of paid maternity leave may lead to some employers discriminating against women of childbearing age.

Even with the protection of anti-discrimination law, a significant disparity between the cost of male and female employment to employers will influence the decisions of some employers to engage women. Some employers will not engage employees perceived to offer the potential risk of multiple weeks of additional labour costs with no productive return. [693]

An academic supported this concern around the cost of paid maternity leave, claiming that "[a] mandated employer-funded scheme will act as a tax on the employment of females, and will tend to increase female unemployment ... " [694] Many of these comments came from employers and employer groups. HREOC was disappointed by the statements from these groups that employers would indulge in unlawful activity - deliberate discrimination against women - for financial gain. Sadly, there appeared to be some truth in this.

The New South Wales State Chamber of Commerce surveyed local businesses in regional New South Wales, receiving 781 responses. 77 per cent of respondents stated that they would be "less inclined to employ a woman if [their] business was forced to pay maternity leave". [695]

One submission from an employer flatly asserted, contrary to federal, State and Territory anti-discrimination and industrial relations legislation, that "[i]f paid maternity leave becomes a reality, we will not be employing women". [696]

However, the Australian Council of Trade Unions considered that the argument that employer funding will lead to discrimination in the employment of women may have been overstated.

The ACTU [Australian Council of Trade Unions] acknowledges that the International Labour Organization (ILO) discourages employer funded paid maternity leave schemes, highlighting the potential disincentive to employ women of childbearing age that attach to directly funded schemes. This argument may be over-stated. Occupational segregation of the Australian labour market and skill supply issues mean that alternative labour supply may not be readily available. [697]

13.4.3 Business cannot afford to pay

A number of submissions, and in particular submissions from employers and employer groups, were concerned at the cost that a directly employer funded paid maternity leave scheme would impose on business, with many considering that this was a cost that many businesses could not afford. [698]

The New South Wales State Chamber of Commerce was "… unequivocal that business, particularly small business cannot afford to fund a mandatory paid maternity leave scheme". [699] Similarly, the National Farmers' Federation considered that:

[t]he impact of forced employer responsibility for paid maternity leave will result in an increase in costs that may well be unaffordable particularly if the employer is not benefiting from paid maternity leave. [700]

This double cost to business was also emphasised in an individual submission.

Businesses cannot be expected to pay for an employee who is not there - and have to pay for a replacement as well - that is, double the money (or 1 2/3 etc) for half the output - not to mention the re-training costs. Small businesses in particular simply cannot afford this type of luxury. [701]

The Australia Industry Group was concerned about some businesses' capacity to pay.

Many businesses operate with very low profit margins and some are enduring losses. In such circumstances, there is no capacity to provide paid maternity leave benefits - despite the longer term benefits which might arise if they did. [702]

Some submissions considered that the additional cost of paid maternity leave would force some businesses to close. The Australian Chamber of Commerce and Industry considered that "[b]usiness viability, and the employment of Australian women would be threatened by any scheme which required direct employer funding". [703]

A view was also put forward that employer funded paid maternity leave could affect the international competitiveness of Australian business. The Centre for Business and Industry was concerned about the impact on international competitiveness.

[I]ncreases in employment costs add to the cost of the production which would normally be passed on to the cost of final product. International competition would, in some cases, not allow Australian firms to pass the increased price on, thus impacting firms viability and future investment and employment outlook. [704]

A submission by an individual also noted that the cost of paid maternity leave may be passed on to consumers through price increases.

If employers are going to be expected to pay, for no work done through maternity leave, as well as being unjust and unreasonable, it is going to lead to yet more price increases. [705]

13.4.4 As a social benefit, employers should not pay

As outlined in Part C, many of the objectives of a paid maternity leave scheme are social benefits. It was considered by a number of submissions that it was not appropriate to make employers pay for a measure that would benefit the whole community. [706] The Victorian Government did not support employer funding of a national paid maternity leave scheme because such a scheme has benefits for the broader community. [707] This was also given as a reason in favour of government funding of paid maternity leave. [708] For example, the Festival of Light submitted that:

[i]t is unfair to expect any employer to fund a measure which is designed to protect the community as a whole and which could put the employer at a disadvantage. [709]

13.4.5 Childbearing as a personal choice

Just as some submissions asserted that Government should not fund paid maternity leave on the basis that childbearing is merely a personal choice, [710] some submissions considered that, for the same reason, employers should not be expected to fund paid maternity leave. For example, one individual commented that:

I believe if women want a family they should be prepared to pay for themselves. This is carrying human rights too far. Having a family should be the responsibility of those that choose to have it. They should not expect their employer to pay for it. This is just expecting too much. [711]

The Centre for Business and Industry emphasised that employers should not have to pay "… for non-productive activities of their employees". [712]

13.4.6 Employer funding would affect industries disproportionately

Existing gender segregation in the workforce would mean that the cost of paid maternity leave would impact disproportionately on certain industries and businesses. This was seen by some submissions as an argument against direct employer funding of paid maternity leave. It was also the reason that some submissions preferred a levy on all employers. [713]

WEL [Women's Electoral Lobby] strongly opposes any option that imposes direct costs on employers. Such a system impacts unevenly on employers, for example employers in sectors with a high proportion of women employees aged 24 to 34 years of age such as the hospitality industry. [714]

BPW New South Wales noted that:

... female dominated industries would bear the cost eg. Nursing, teaching, secretarial and retail. [715]

13.4.7 Particular concerns for small business

A number of submissions considered that direct employer funding would be particularly difficult for small business. [716]

The Council of Small Business Organisations of Australia submitted that:

[s]mall business is the major employer of women, it can be the training ground for future women entrepreneurs. As women are going into business at three times the rate that men are we could inhibit the growth of the small business sector which is of vital importance to the Australian economy if job prospects were curtailed due to small businesses not being able to fund paid maternity leave out of their own funds. [717]

One small business operator outlined the effect this would have on her business.

I have an office of three staff (all women) and if I had to pay them maternity leave, plus employ a new person in their absence, there is no way my business would be able to support this. I would have to close my doors … and that is a fact! [718]

BPW Australia considered that:

[s]mall and micro businesses should not be expected to pay towards PML [paid maternity leave] for their staff. It is generally agreed that most businesses in this sector would not be able to withstand such pressure on their financial viability. [719]

In contrast to this view, there were some submissions that considered that small business should be treated in the same way as other businesses. [720] This was particularly the case of submissions arguing in favour of the imposition of a levy on all employers.

One individual submitted that:

... I do not believe any business should be exempt. Smaller business[es] are not exempt from paying annual leave, public holidays, sick leave etc, so they should not be exempt from such an important leave as maternity leave. [721]

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13.5 An employer levy

While most submissions were opposed to direct employer funding of paid maternity leave, a number of submissions considered that business should contribute to the cost of paid maternity leave through an employer levy.

A contribution from business was considered reasonable in light of the benefits of paid maternity leave to employers. [722] As outlined in Chapter 10, these include direct benefits to individual employers and more general labour force benefits. The Australian Manufacturing Workers' Union considered that:

[e]mployers should bear some of the costs associated with paid maternity leave. It is a work related entitlement. Employers receive the benefits of women's participation in the labour force, their skills and their contribution to society through reproduction. [723]

The Australian Federation of University Women submitted that:

[t]he idea that employers could be required to contribute according to their capacity should not be ruled out. Ultimately employers will benefit from reduced retraining costs and good staff morale in retaining experienced staff who feel valued in their double role as parent and employee. [724]

The Australian Council of Trade Unions considered employers should contribute to funding paid maternity leave given they benefit from female labour force participation. The Australian Council of Trade Unions argued that a contribution would assist employers to attract highly skilled workers to Australia, and that it would improve loyalty of staff and the reputation of the organisation among consumers. A contribution to a national paid maternity leave scheme, that submission argued, would benefit employers at a micro level by reducing employee replacement costs and staff absenteeism; and at a macro level by assisting to maintain a long term labour market supply and a pool of consumers. [725]

One individual submitted that:

[i]t is also hard to understand that … a country that requires business to pay their employees annual leave (with annual leave loading), sick leave, long service leave etc, … [does not require business] to assist employees whilst on maternity leave. Businesses need to understand that if they wish to retain committed and skilled employees, then they need to assist employees in having a smooth transition from work to maternity leave and then back to work. [726]

A significant number of submissions, in particular those from unions, proposed a specific model of joint funding through a government payment and an employer levy. [727] This model involved a government funded payment to the level of the Federal Minimum Wage, a legislated employer levy to fund payment up to Average Weekly Earnings, and negotiated employer top up to full wage replacement. The Australian Council of Trade Unions estimated that the annual cost of their proposed employer levy would be approximately $240 million, and that "[w]ithout any cross-subsidisation, the weekly cost per employee would be $0.59". [728]

This model was seen as a means of recognising the benefits to employers of the introduction of a national paid maternity leave scheme while overcoming many of the disadvantages of direct employer funding.

In recognition of the benefits to employers, the ACTU [Australian Council of Trade Unions] calls for employers to fund the gap between the federal minimum wage and women's pre-leave incomes. The ACTU [Australian Council of Trade Unions] calls for legislation introducing a levy on employers to fund the gap between the federal minimum wage and the average weekly earnings ... If such a levy were introduced with this cap, paid maternity leave would deliver full income replacement for 87% of all women accessing the scheme. If capped at AWE [Average Weekly Earnings] the scheme will meet the ILO [International Labour Organization] requirement for 2/3 of pre-leave income for 97.5% of Australia's working mothers. [729]

An employer levy was considered to be a means of avoiding the employment discrimination against women that would result from direct employer funding of paid maternity leave. [730] For example, the Australian Manufacturing Workers Union Vehicle Division recommended that:

[a]n employer levy is needed that does not constitute a disincentive to women's employment, whilst it does accommodate the financial restrictions of small business. The appropriate response would be to set a levy on the total number of employees (not on the number of women employed), as a payroll levy that "kicks in" at a certain level (larger employers would therefore subsidise small business). [731]

Some submissions considered that an employer contribution to paid maternity leave would assist in establishing the payment as a workplace entitlement and maintaining a workforce connection between employers and women on paid maternity leave. The CSIRO Staff Association considered that:

... any such scheme would benefit by inclusion of an employer component, to help maintain the employment relationship through the period of maternity leave and better encourage the return to work. [732]

Immigrant Women's Speakout also noted that an employer levy would spread the costs of paid maternity leave more evenly across employers. The uneven cost to business was seen as a disadvantage of direct employer funding. [733]

Submissions were received that argued against an employer levy. For example the Victorian Automobile Chamber of Commerce considered that an employer levy would effectively be a new tax on business.

Once again this [an employer levy] detracts the whole issue of maternity leave being a societal issue and places it back in the employment arena. In essence the levy is a new tax, which is paid by employers. [734]

The Australian Chamber of Commerce and Industry considered that an employer levy would be costly and complex to administer, would be an additional cost on employment thus reducing the ability of employers to create new jobs and would be a new tax on employment. [735] The National Pay Equity Coalition pointed out that:

[i]n some industries, including some where women's employment is concentrated, labour costs are very finely calculated (for example, retail and hospitality). In those industries, even a relatively small levy could affect the viability of enterprises, especially small ones, and/or their capacity to employ people. [736]

Some submissions considered that an employer levy would lead to employment discrimination against women. For example the New South Wales Young Lawyers Employment and Industrial Law Committee argued that "[t]he use of an employer levy will increase discrimination against women". [737]

The Shop, Distributive and Allied Employees' Association considered that an employer levy would undermine the existing social security system.

[O]n the face of it a levy on employers has substantial problems from the perspective of protection of Australia's unique social security system. If a levy can be imposed in this instance, then why not for other things? The imposition of a levy could open the way for others to argue that other social security and family support payments be made in a similar way. Such a development would spell the death knell for Australia's social security system. [738]

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13.6 HREOC's position

Submissions demonstrate that there is substantial community support for Government playing a role in funding a national paid maternity leave scheme. Those employers and employer groups who supported the introduction of paid maternity leave did so on the grounds that such a scheme be government funded. They considered that business did not have the capacity to pay for such a benefit. The majority of submissions from women's groups supported government funding as a means of ensuring that all women in paid work could access paid maternity leave and that the introduction of such a scheme did not increase employment discrimination against women on the ground of pregnancy or potential pregnancy. The scheme recommended by the majority of union submissions also included a role for Government in funding a minimum entitlement.

As discussed in Part C, HREOC considers that significant community benefits would result from the introduction of paid maternity leave. Objectives such as ensuring the health and wellbeing of women and their children, promoting equality, eliminating discrimination, contributing to the maintenance of Australia's fertility rate and assisting with the maintenance of Australia's human capital are all social objectives that benefit the entire community. Taxpayer funding is a means of distributing the cost of this measure amongst those who benefit.

As set out in Chapter 10, HREOC recognises that employers will benefit from the introduction of paid maternity leave. These benefits include direct benefits such as a reduction in recruitment costs and increased staff loyalty, as well as broader economic benefits such as access to a more highly skilled labour force.

HREOC notes that the direct benefits of paid maternity leave will vary considerably between employers, and in some cases will not outweigh the costs of such a payment. The macro-economic benefits to employers are less directly tangible and may not be acknowledged by some employers as sufficient reason for an employer contribution to paid maternity leave. HREOC is also concerned at the impact of a directly employer funded scheme on women's employment, particularly given employers' willingness to admit that they would discriminate in their employment decisions under such a scheme.

An employer levy would spread the cost of paid maternity leave more evenly across employers and would reduce the chance of increased discrimination on the basis of pregnancy or potential pregnancy. However, HREOC acknowledges that there would be considerable employer resistance to the introduction of such a levy.

Therefore, HREOC does not propose a compulsory employer contribution to paid maternity leave, either through direct payments or an employer levy. HREOC does, however, see a role for employers to top up a government funded component through enterprise bargaining and strongly encourages employers to do so. [739]

In light of these concerns with employer funding, HREOC considers that a national scheme of paid maternity leave should be funded by the federal Government. HREOC considers that funding such a scheme is an appropriate role for the Government. This view is based on the community benefits of paid maternity leave, the failure of the existing system to deliver paid maternity leave across the workforce, and the significant community support for such an approach.

RECOMMENDATION 1

That a national paid maternity leave scheme be immediately implemented and funded by the federal Government.

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14. Coverage

14.1 Introduction

One of the most basic issues to determine in designing a paid maternity leave scheme is the coverage of such a scheme. While at first glance this appears to be a simple matter, it was in fact one of the most controversial issues in the consultations and submissions.

This Chapter covers the issue of whether paid maternity leave should be available to:

women versus men and women;
women in paid work versus all women; and
adoptive parents.

There was clear support for including adoptive parents in a paid maternity leave scheme. However, opinion was fairly evenly divided in relation to whether the payment should be for mothers only or able to be taken by either the mother or father and whether the payment should be available to all women or only women in paid work.

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14.2 Payment to women versus payment to both men and women

14.2.1 Introduction

Significant opinion was voiced on whether paid leave should be for the mother or the primary carer of a child. Almost half of the submissions received by HREOC addressed the question of whether leave should be provided as maternity or parental leave.

This Chapter canvasses the views of those in support of parental leave and those who favoured maternity leave. International standards and the approach taken in other countries is provided as a comparison in deciding this element of a proposed Australian scheme.

14.2.2 International standards and practices

The Maternity Protection Convention specifies that 14 weeks of paid leave should be available for women in paid work.

The International Labour Organization differentiates between maternity leave which "… is designed to protect working women during their pregnancy and recovery from childbirth" [740] and parental leave which it defines as "… a long term leave to allow parents to take care of an infant or young child". [741]

The possibility of including parental leave in the Maternity Protection Convention was discussed and rejected in the process of revising the 1952 Maternity Protection Convention. [742] In deciding to focus on maternity leave, the International Labour Office noted that:

... the new proposed instruments would focus on protection for women during their pregnancy and recovery from childbirth, that is on child-bearing rather than on child-rearing. [743]

CEDAW specifies paid maternity leave as a measure that state parties should take "… to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work". [744] The CEDAW working party considered replacing "maternity leave" with "paid leave for parents", however it did not adopt this suggestion, instead retaining the provision that the leave should be specifically for women. [745]

Practice varies internationally regarding whether leave is provided as maternity leave or parental leave, with the majority of countries providing leave specifically for women in the weeks around childbirth. [746] In reviewing practice among Member States, the International Labour Office observed that:

... those Members which have adopted a parental leave scheme providing benefits typically reserve the early portion of that leave for the employed mother. [747]

Canada provides 17 weeks paid maternity leave followed by 35 weeks of paid parental leave, which can be taken by either parent or shared within the first year following the child's birth.

Denmark provides 18 weeks paid maternity leave which includes four weeks leave before the birth. This is followed by 10 weeks paid parental leave which can be taken by either the mother or father. There is also a separate and additional entitlement to two weeks paid paternity leave which can be taken concurrently with the maternity leave.

Ireland provides 18 weeks paid maternity leave including up to four weeks before the birth. This is followed by 14 weeks unpaid parental leave.

Japan provides 14 weeks paid maternity leave.

As of April 2003, the United Kingdom will provide 26 weeks paid maternity leave and two weeks paid paternity leave. There is also an entitlement for up to 13 weeks of unpaid parental leave which can be taken at any time up to the child's fifth birthday.

Norway provides the option of either 48 weeks paid parental leave at full income replacement, 52 weeks paid parental leave at 80 per cent replacement rate or the paid leave can be combined with part time work for up to two years. Nine weeks of this period is reserved for the mother, consisting of three weeks compulsory leave before the birth and six weeks leave following the birth. Four weeks of leave are reserved for the father.

France provides a basic rate of 16 weeks of paid maternity leave, with longer periods available in the event of multiple births and 26 weeks available in the case of the birth of a third or subsequent child. Eleven days of paid paternity leave is available as a separate and additional entitlement to be taken within the four months following the birth.

The New Zealand Paid Parental Leave scheme confers the primary entitlement to paid leave on women, with the ability to transfer this leave to a spouse. Where leave is transferred, the spouse must meet the eligibility criteria for leave, and the level of payment is calculated on the basis of the spouse's earnings. [748]

14.2.3 Payment to women

Introduction

Many submissions supported paid maternity leave being provided specifically for women. [749] The majority of employer groups in favour of a paid leave scheme considered that this should be a payment specifically for women. This view was also supported by a range of other groups including women's groups, unions, academics, and health professionals.

Maternal health and recovery

There was a strong view amongst those who considered that leave should be specifically for women, that this was required to deliver on the health and wellbeing objectives of paid maternity leave. [750] More specifically, these submissions referred to the need for paid leave to be specifically for women due to the fact that it is women who give birth and require time away from the workplace to sufficiently recover. [751] For example the Australian Hotels Association considered that:

… the payment should be made to women only to recognise the physical demands of the later stages of pregnancy, birth, recovery from birth and establishment [of breastfeeding]. [752]

The Women's Studies Research Unit supported maternity leave on the basis that:

... the need for leave is inextricably linked with maternal health (recovery from childbirth, sleep deprivation) and child health (establishment of bonding and breastfeeding where possible). [753]

The New South Wales Working Women's Centre drew attention to international standards, noting that:

ILO [International Labour Organization] and CEDAW recommend paid maternity leave for good reason - the health and well being of mother and child, and to ensure equality in employment … [754]

Coles Myer recommended that:

[a] paid maternity leave system which is government funded should provide payments to women only as the primary objective of such a scheme would be to ensure optimal health for women and infants. [755]

The Australian Education Union submitted that:

[p]aid maternity leave is for mothers in recognition of the physical demands of the later stages of pregnancy, birth, recovery from birth and establishment, where possible of breast feeding.

In recognition of these physical facts affecting mothers this payment should not be intended to be transferable between a mother and her spouse except in exceptional circumstances. [756]

Women at the Third Annual Victorian Women's Summit supported providing a payment specifically for women in recognition of the fact that:

women have the babies;
women do the breastfeeding;
women have the health issues associated with giving birth. [757]

The Work + Family Policy Research Group considered that maternity and parental leave serve different purposes. That submission considered that:

[m]aternity and parental leave are not interchangeable. Maternity leave is about recognising women's physical and other health needs immediately before and after childbirth, and facilitating the opportunities for breast-feeding. Parental leave is about both parents having opportunities to establish close ties with their infants and facilitating participation by men as well as women in the early care of their infant children. In line with the differing objectives of maternity and parental leave, the latter should come into effect after the former - as happens in all member countries of the European Union. [758]

The same approach is taken by the Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 (Cth), introduced by the Democrats into the Senate on 16 May 2002, which limits paid maternity leave to women only on the grounds of the health and wellbeing of the mother.

[The Bill] provides paid leave for mothers in recognition of the physical demands of the later stages of pregnancy, recovery from birth and establishment, where possible, of breastfeeding. In recognition of these physical factors affecting mothers, this payment is not intended to be transferable between an employee and their spouse except in exceptional circumstances. [759]

The New South Wales Working Women's Centre also considered that:

… more generic forms of leave such as parental or paternity leave de-gender the nature of child birth and the necessity for leave, and may be subject to further debate and/or trade-off over time. [760]

Addressing women's disadvantage in the workforce

Some submissions considered payment to women was a means of addressing the disadvantage that women experience in the workforce as a result of maternity. [761] For example, the New South Wales Labor Council recommended:

… payment made to the mother. This recognises the fact that it is women who give birth and are discriminated against in terms of their workforce experience as a result. Furthermore, the period of payment is relatively short to allow for recovery from birth and establishment of breastfeeding. [762]

The Centre for Applied Social Research submitted that:

… it is our view that the 14 weeks maternity leave should be paid to women only, in recognition of ... the need to protect women against discrimination because of their child-bearing responsibilities. [763]

While Coles Myer identified health and wellbeing as the primary objective of paid maternity leave, this employer also submitted that:

... supplementary benefits of such a scheme, such as reducing workplace inequity for women can be achieved by limiting the payment to women. In practice a payment made to a woman in many cases will also provide assistance to men as part of the domestic unit. [764]

Maternity leave as a priority

Some submissions advocated that paid maternity leave should be achieved before seeking to extend the payment to primary caregivers. [765]

The Women's Economic Policy Analysis Unit noted that:

... evidence from countries where paid paternity leave is available (eg. Germany and Sweden) shows that fathers' access rate is appallingly low. As such WEPAU argues that firstly a model of paid maternity leave must be introduced; once the scheme is operational it may be appropriate to extend such provisions to fathers and/or partners. [766]

Ensuring women's access to leave

Some submissions contended that a system of parental leave would lead to some women returning to work before they were ready. This could occur in cases where the family was financially better off if the woman returned to work within the 14 weeks and the father took the paid parental leave. The Women's Action Alliance noted that:

... if it were payable to the father, because he usually earns more than the mother, there would be a financial incentive for him to claim it rather than her. [767]

A concern was also raised in some consultations that power imbalances within some families could mean that some women could be pressured to give up the paid leave. [768] This issue was not raised in the submissions.

Exceptions

Several submissions suggested that the paid leave entitlement be transferred to the primary carer in the case of death or incapacity of the birth mother. For example, BPW Australia suggested:

[p]articular consideration needs to be given to a partner where the mother has died in childbirth, allowing for the partner to take the full 14 weeks. [769]

The Australian Retailers Association argued that:

[t]he eligibility criteria should take into consideration the fact that circumstances may occur where the mother is not able to provide for the health and well being of the child and access to the benefits of the scheme should not be unduly restrictive. [770]

This exception is consistent with Paragraph 10(1) and (2) of the International Labour Organization Recommendation 191. [771]

14.2.4 Payment to primary caregiver

Introduction

A significant number of submissions supported a system of paid parental leave that made payments to the primary care giver. [772] As with payments to women only, this approach was also supported by a broad range of groups including women's groups, academics, unions, and a limited number of employer groups.

HREOC notes that any system that made payments available to the parent performing the role of primary carer should not discriminate against same-sex couples. Non-birth parents in same-sex relationships should receive the same treatment as fathers in heterosexual relationships.

Choice and flexibility

Some submissions considered that paid parental leave should be provided in order to give families choice and flexibility regarding who took leave following the birth of a child. [773]

While it is true that in many families it will be the mother that takes paid parental leave this should be a choice made by each family instead of being forced on them ... If we value parenthood we should value choices made by parents that cater for the best needs of their families. [774]

An individual submission argued that "… the important issue is that parents should have a choice and that paid leave should not be simply limited to women". [775] Another individual noted that raising children was a family duty and as such:

[f]amilies should be able to choose who will take of the childcare responsibilities - whether that is the mother, father, joint etc. Therefore paid maternity leave needs to be about providing income to the primary care giver. [776]

The Catholic Women's League of Australia suggested that:

[w]hile the physical acts of pregnancy and giving birth belong to a female there are many cases where a mother may choose to go back to employment while a father chooses to be the primary care giver - for example (and not limited to) the case of adoption or when the father works from home, or the mother's workplace takes precedence. [777]

BPW Australia considered that allowing choice in who took paid leave would influence some women's decisions on whether to have a child.

[t]his is particularly important to our members who run their own businesses or who earn significantly more than their partners - it would suit the family finances for the partner to spend some time as principal carer to free the mother up to return to work at least part-time as soon as possible. This would be a deciding factor for these potential parents in determining when and indeed whether to have a child. [778]

The changing roles of mothers and fathers

Another rationale for providing paid leave to the primary caregiver was gender equity concerns and the rights of men and fathers. As the Victorian Women Lawyers pointed out, "[f]amilies are not just a women's issue". [779]

The Australian Capital Territory Ministerial Advisory Council on Women pointed out that over time, a paid parental leave scheme:

… will lead to the development of a new standard being established in the society, including an enhanced understanding that caring responsibilities belong to both men and women. [780]

One individual considered that:

[b]y stipulating that each new parent has the right to a period of leave, the government will recognise parental leave as an entitlement for all, and not discriminate against fathers, or restrict their options of work/family arrangements. [781]

An associated argument raised in a number of submissions supporting payment to the primary caregiver was the belief that payment to the mother would only reinforce the gendered stereotypes of men as the breadwinners and women as the homemakers. One individual noted that:

… in restricting leave to only mothers there are implications, which suggest that the father has no obligation, or desire to take time off to care for a child, thus reinforcing the male "breadwinner" mentality. [782]

An academic was concerned that any new system should challenge current gendered roles.

There are signs that both women and men want greater equality in care-giving and income-earning. Women's bodies bear and breastfeed babies, and paid maternity leave gives recognition to this reality. However, a scheme must avoid any suggestion that babies and young children are the responsibility of individual mothers rather than of both parents, and of the community. [783]

One individual drew attention to the changing gender roles in our society.

Our society has dramatically changed from the times, where the man was the breadwinner and the woman threw in her job at the first sign of pregnancy to stay at home to be a full time mother. [784]

Recognising the role of fathers

A corollary to these gender equity and gender stereotype arguments is the contention made in several submissions that where parenting is shared, both parents want recognition and encouragement of this by making any payment available to the primary caregiver. [785] One individual considered that men should have the same child raising opportunities as women.

Implementing Paid Maternity Leave only addresses the financial issue for women but the converse issue of allowing men the same child raising opportunities as women has been downplayed to the point where it barely rates a mention, let alone is addressed with equal importance. Addressing both sides of the issue is implementing gender equality, which is the purpose of the HREOC whereas only addressing the women's issue is feminism. [786]

An individual submission considered that:

[t]he main disadvantage of limiting paid leave to women is that it limits the options available to women and removes any incentive to fathers to take time off to care for their children. Indeed it has the disadvantage of creating a financial barrier or penalty for men seeking to care for children while their partner returns to work. [787]

The Men's Confraternity, Western Australia pointed out that there are many fathers "… who are denied the opportunity of experiencing those first few months of their child's life, because the option is not available to them". [788]

The Women's Council, Liberal Party of Australia (South Australia) strongly asserted that:

… both parents are responsible for the production of children and therefore both parents have a responsibility for their care. Should fathers choose to play a full time caring role in the early weeks of the lives of their children, they should have access to paid parental leave on equal terms with mothers. [789]

The Anti-Discrimination Board of New South Wales considered that creating a parental leave entitlement would have symbolic value.

Although the gender neutrality of terms such as parental leave may in practice be at odds with the reality of women's primary responsibility for childbirth and child rearing, as Therese MacDermott has argued the use of a gender neutral entitlement to parental leave rather than maternity leave seeks to encourage "at least the idea, if not actuality, of shared parenting." [790]

Changing workplace cultures

Some submissions contended that extending paid leave to the primary caregiver may have wide-reaching positive effects on workplace culture and the acceptance and use of work/family balance policies. [791] An individual submission considered that:

[a] parental income maintenance may assist in encouraging fathers to take on greater child caring responsibilities and challenge managerial cultures which currently impede Australian men accessing unpaid parental leave provisions. [792]

The National Women's Council of South Australia submitted that:

… a parental leave element is essential if work place cultures are to change to support, instead of obstruct, a balance between work and home responsibilities, if stronger family ties and interaction between parents and children is to be supported, and the economic and social benefits of this family policy are to be fully realised. [793]

The Equal Opportunity for Women in the Workplace Agency suggested that providing parental leave would allow for sharing of family responsibilities between men and women and therefore inevitably have a positive effect on gender equity at work. [794]

Discrimination against women

A number of submissions expressed concern that limiting paid leave to mothers only would exacerbate the discrimination women already face in employment as employers would be reluctant to employ women of child-bearing age. [795] An individual stated that discrimination:

… will have a greater potential to be limited under a parental policy than a maternity one. A maternity leave policy has potential to further exacerbate the potential for employers to discriminate against women, a parental leave policy, to which all parents are entitled, will go some way in minimising gender associations of parenting leave. [796]

The Equal Opportunity Commission of Victoria considered that:

[a] gender neutral scheme would also seem to reduce the risk of "employment backlash" against women, as schemes focused solely on women may (dependent on funding arrangements) result in a knee-jerk reaction whereby women are subjected to potential disadvantage in terms of obtaining employment. [797]

Where a national scheme of paid maternity leave is funded by the taxpayer rather than individual employers, this concern may be less of a problem. This is because the direct cost of paid maternity leave would be borne by the Government and not the employer. There is not the same incentive for employers to not employ women of childbearing age in order to avoid the cost of paid maternity leave.

The Equal Opportunity for Women in the Workplace Agency considered that providing parental leave instead of maternity leave will "… address the concern of many men (employers and employees) about 'special treatment' for women". [798]

Transferability

A number of submissions canvassed the possibility of making the entitlement to paid maternity leave transferable to the other parent or primary caregiver. [799] This was seen as enabling a system of parental leave that acknowledged that the primary entitlement for leave should rest with the mother. In particular, these submissions proposed that the primary entitlement to paid leave reside with the mother, with the decision to transfer to be made by the mother. This proposal was supported by a significant proportion of the unions that made submissions. For example, the Australian Council of Trade Unions wrote that:

[t]he ACTU [Australian Council of Trade Unions] does not oppose the extension of eligibility to the child's father or other primary caregiver in circumstances where the mother has genuinely opted to transfer her leave entitlement.

…

However the ACTU [Australian Council of Trade Unions] believes that, consistent with the anti-discrimination purpose, and to support maternal recovery post birth, the primary entitlement should rest with the mother. [800]

The National Pay Equity Coalition submitted that:

[w]hile a key rationale for paid maternity leave is to provide a period of leave for maternal and child health while maintaining the mother's workforce attachment, there may be circumstances where the overall welfare of the household is best secured by transfer of the leave to the partner. That decision is one for the mother. It is cost neutral whether the leave is taken by the mother or her partner, provided the paid maternity leave entitlement is based on her earnings and transferred at that rate. [801]

The Independent Education Union proposed that:

[a]s in the recently introduced New Zealand model, there should be provision for women to transfer part of the maternity payment to a partner but the mother should be the primary recipient, for example, for at least six weeks of the payment. [802]

Limits on transferability

Even for those submissions that considered transferability, a view was often expressed that the duration of paid leave proposed (14 weeks) was probably inadequate to permit transferability given that women needed much of this time to recover from childbirth. The YWCA of Australia noted that:

[w]ithin a debate about 14 weeks leave there is likely to be little time for mothers to allocate to non-birth giving parents. Many women will want and need to take time off before the birth and the ILO [International Labour Organization] recommends 6 weeks leave after the birth, although this should not be a forced absence. However, it is still important to include transferability in the options in the development of a new system of parental payments. [803]

A number of submissions suggested that a portion of the leave should be reserved for the mother, with the remaining period available to either parent. Such an approach would reflect the practice in many State and federal awards of requiring women to take leave for six weeks prior to the birth of a child, unless a medical certificate is provided. [804]

The Illawarra Forum and the Illawarra Women's Health Centre considered:

[t]hat maternity leave should be available to the female parent solely for the first 8 weeks with the remaining 6 weeks negotiable as parental or maternity leave and available to either partner in the parenting arrangement. The condition that only the female parent be eligible for the first eight weeks is in recognition of the health and recuperation periods associated with childbirth. [805]

The Women's Electoral Lobby submitted that:

[o]ne consideration is restricting any transfer of entitlements until after the seventh week, partitioning the first six weeks following child-birth for post partum recovery. Some women's circumstances, however, may dictate the need for transferability before this point. Any system should not be unnecessarily restrictive. [806]

The Australian Capital Territory Ministerial Advisory Council on Women proposed that six weeks be reserved for the mother, with the remaining period available to either parent. [807] BPW Australia considered that two weeks of a 14 week period should be able to be transferred to a woman's partner. [808]

14.2.5 HREOC's position

In the debate surrounding the revision of the Maternity Protection Convention, two distinct positions emerged. These same positions reflect those that have emerged in consultations and submissions around an Australian scheme. The International Labour Office characterised these two approaches as follows.

[T]he first, based on maternity protection, focuses on the employment rights of an employed woman during pregnancy, maternity leave and following her return to work as well as on the health of the mother and child; the second, based on parental leave, lays greater stress on gender equality and shared responsibilities of parents with regard to childrearing. [809]

HREOC acknowledges the validity of both of these approaches. There was significant division in the consultations and the submissions regarding the preferred approach. Based on the information available, HREOC considers that it is not possible to determine which of these approaches has greater community support.

However, on balance, HREOC is of the view that a fourteen week paid leave scheme should be exclusively for the use of the mother. In particular, HREOC is of the view that establishing a system focused on maternity protection is a particularly pressing concern. HREOC considers that such protection should be a basic right for women in paid work in Australia. This approach is consistent with international practice that reserves a short period of paid leave specifically for women in recognition of the impact of childbirth on women's health.

The majority of the objectives outlined in Part C directly relate to women and their experience in the workforce. It is women who experience disadvantage in the workplace based on maternity. Similarly it is women who require a period of time out of the workforce immediately prior to and following the birth of a child in order to recover from the birth and ensure their health and wellbeing. This period will also enable women, where possible, to establish breastfeeding which will benefit their child. The obvious exception to this is the situation of adoptive parents.

A paid parental leave scheme fails to acknowledge the distinct experience of women and the particular disadvantage that they experience as a result of maternity.

Making a period of fourteen weeks available to either parent will also potentially undermine the ability of a paid leave system to guarantee women a period of leave from paid work. It will mean that some women are still faced with financial pressure to return to work, particularly where a family will receive higher government payments or greater weekly income from doing so. Making a system transferable will not overcome this issue.

HREOC is not convinced that making paid parental leave available to the primary caregiver, male or female, will, on its own, encourage men to be the primary carers of newborn babies. International experience has demonstrated that there is a very low take up rate by men where paid parental leave is available to either parent, particularly where this leave is paid at a rate below full income replacement. [810]

HREOC acknowledges the role of fathers in families and the importance of encouraging and supporting men to participate in caring for children. However, HREOC does not consider that reducing women's access to the initial short period of paid maternity leave is the best way to acknowledge this role. HREOC considers that a better approach would be to provide a separate entitlement to be taken concurrently as a supporting parents' benefit in addition to paid maternity leave.

HREOC notes the difference between a short period of paid maternity leave and the longer existing provision of twelve months unpaid parental leave. The primary objective of unpaid parental leave is to provide for the needs of the child, and to enable one parent to provide full time care for a child while retaining a right to return to the same employment position following leave. This leave, which is focused primarily on the care of a child, should remain available to either parent.

Should the Government decide to introduce a longer period of paid leave than recommended, HREOC would support this additional period being for the primary carer. However, in HREOC's view the initial period would still need to be reserved exclusively for the mother. [811]

HREOC recommends that the proposed period of paid leave be limited to women only, with the entitlement transferable to a woman's partner only in exceptional circumstances (such as death or incapacity of the mother). An exception to this general rule is adoptive parents, where, due to the fact that adoptive parents do not give birth to their children, the primary caregiver of the adopted child is eligible for paid leave at the time of placement of the adopted child with his or her adopted family. The situation of adoptions is discussed at 14.5.

RECOMMENDATION 2

That a national scheme of paid leave at the time of the birth of a child be provided for women. The exceptions to this, where payment can be made to a woman's partner, should 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 where the child has been adopted.

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14.3 Supporting parents' leave

There was strong support in many submissions for at least two weeks paid leave that could be taken concurrently with, and in addition to, maternity leave. [812] Such leave would allow a father or same sex partner to support the mother, care for other children and bond with the infant.

The Finance Sector Union of Australia conducted a survey of its members and reported that:

... taking time off after their baby is born is important for both parents. Almost all respondents (91.8%) agreed or strongly agreed, "It is important to find ways to extend the period of leave both parents can take together after their baby is born." [813]

The National Pay Equity Coalition considered that:

[t]here are strong arguments in favour of providing a period of paid parental leave for partners of women giving birth. Women now stay in hospital for quite brief periods after birth and do require care in the immediate post-birth period. There are many household accommodations to be made particularly in relation to establishing breastfeeding, sleeping, baby-care and looking after other family members. [814]

The Australian Council of Trade Unions recommended that:

... HREOC should examine the case for additional paid leave for the father or alternative supporter (eg grandparent) to care for the mother and any siblings. Two weeks concurrent paid leave is not uncommon. [815]

The Queensland Working Women's Service submitted that:

[i]n addition to a period of paid leave available for women, we consider that paid leave for the woman's partner would be essential. This would enable both partners to spend time together as a family and adjust to the new routine. The Employment Bill recently introduced by the United Kingdom, provides for two weeks of paid paternity leave for working fathers. [816]

The Community and Public Sector Union, State Public Services Federation Group recommended that:

… in order to encourage partner support and the balancing of family responsibilities that a period of two weeks paid parental leave be available to partners to be taken at the time of the birth. [817]

The importance of a father bonding with his child was often presented as an argument for the provision of the additional period of paid leave for the non-birth parent.

The Australian Federation of University Women (South Australia) noted that:

[t]here is evidence from Sweden for example, indicating that when fathers are included in the early bonding process the level of child abuse, and the consequent socially and economically costly impact on the child's emotional, physical and educational growth declines. Such paid maternity/parenting support is a valuable form of social insurance. [818]

Workplace safety for supporting parents was also raised as an important consideration by another submission. The Ethnic Communities' Council of Victoria submitted that:

[t]he provision of paid paternal or supporting parental leave of at least two weeks to be taken at the time of the child first being in the home would reduce family pressure, have health and safety benefits for the supporting parent and his/her workplace and build and consolidate family support at a critical time. [819]

A number of submissions suggested eligibility criteria for paid supporting parent leave as well as level of payment. For example, the Australian Education Union proposed "… 15 days paid paternity leave, for each child, with no service requirement for eligibility". [820] The Centre for Applied Social Research suggested "… 2 weeks paid parental leave for the partner of the birthmother or adoptive parent at replacement income up to average weekly earnings". [821] The Community and Public Sector Union, State Public Services Federation Group proposed that the same eligibility criteria should apply to both forms of leave. [822]

HREOC strongly urges the Government to consider introducing two weeks supporting parent leave in addition to, and to be taken concurrently with, the fourteen weeks of paid maternity leave. The same eligibility criteria as apply to maternity leave should apply, and be based on the supporting parent income. Such leave would allow bonding between that parent and their child, and would provide an important support to the mother and other children in the family. It would also provide community recognition of the role of fathers.

While HREOC considers that such leave would have significant benefits, it is a second order issue to that of a national paid maternity leave scheme. [823]

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14.4 Women in paid work versus all women

14.4.1 Introduction

An area of contention in the submissions and public debate was whether paid maternity leave should be limited to women in paid work or made available to all women. Opinion on this issue largely depended on the objectives that paid maternity leave was considered to meet and judgment about the adequacy of existing payments at the time of birth of a child.

An online maternity leave poll conducted by motherInc is illustrative of the spread of views on this issue. The poll found that 37 per cent considered "all mums" should receive maternity leave, 49 per cent believed that the payment should be for "paid working mums", three per cent supported the payment being for "non-paid mums [only]" and 10 per cent were unsure. [824]

14.4.2 International standards and practices

The Maternity Protection Convention

The Maternity Protection Convention identifies paid maternity leave as a measure specifically aimed at supporting women in paid work.

Article 2

1 This Convention applies to all employed women, including those in atypical forms of dependent work. [825]

United Kingdom

The United Kingdom has three schemes, covering:

women with a strong labour force attachment;
self-employed women and women in intermittent paid work; and
women not in paid work or with minimal recent paid work history.

Women who have been employed by the same employer for 26 continuous weeks up to the week which is 15 weeks prior to the expected birth date (qualifying week) are eligible for Statutory Maternity Pay, provided their average weekly earnings are more than the minimum earnings requirement (£75 per week). [826]

The Maternity Allowance is available to women who are employed or self-employed, earn a minimum weekly requirement (£30) and who are not entitled to Statutory Maternity Pay. [827] A woman must have been employed or self-employed in at least 26 weeks in the 66 week period until the expected week of childbirth. [828]

The Incapacity Benefit is available to women who cannot access Statutory Maternity Pay or the Maternity Allowance and have paid National Insurance contributions and have been incapable of work for a minimum period. [829]

New Zealand

The New Zealand Paid Parental Leave scheme is for parents in paid work.

[Y]ou are eligible for the payment if you have been employed by the same employer for more than 12 months and you worked an average of 10 hours per week, including at least 1 hour per week or 40 hours per month, for that employer during that period. [830]

14.4.3 Payment for all women

It was strongly argued by a significant proportion of individuals and organisations that payment should go to all women on the basis of equity. [831] This was based on the view that all births, and not just those to women in paid employment, should be supported by society.

In particular, it was argued that including women who are not in paid work would provide recognition of women's unpaid work and the sacrifices that these women are making in choosing to care full time for children rather than undertake paid work. [832]

Some submissions considered that all mothers should receive paid maternity leave due to the community benefits of women having children. [833] For example, the Shop, Distributive and Allied Employees' Association considered that:

[p]aid maternity leave should recognise the contribution to the overall development of the nation's human capital which the having and raising of children brings. As all women contribute in this regard, subject to a means test, the payment should go to all women. [834]

The social benefits of motherhood were also emphasised by the Australian Chamber of Commerce and Industry as the basis on which payment should be made. "Any payment should not be employment based. Maternity is a societal not an employment issue." [835]

The Festival of Light considered that:

[m]aternity support systems should support all families with children and should be funded by the taxpayer, since they benefit the whole community. Maternity support should not be based on employment, since many mothers are not in the paid workforce. [836]

Making paid maternity leave available to women in paid and unpaid work was seen as a means of recognising and valuing the unpaid work undertaken by women at home caring for children.

The [Australian Family Association (New South Wales)] believes that paid maternity benefit 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. [837]

The Catholic Women's League Australia drew attention to the undervaluing of unpaid care undertaken by parents in the home.

The illusion that stay at home parents are having a holiday when they care for their children would be compounded by paid maternity leave. A universal payment however recognizes all stay at home primary care givers, regardless of which parent chooses to stay at home or go back to employed work. [838]

Some submissions considered that making paid maternity leave available to all new mothers better supported the range of choices that women make about family and work. The Endeavour Forum argued that "[t]he Government should be helping women, especially mothers, to exercise genuine choice, instead of funnelling women into a predetermined end". [839] An individual submittor argued that, if women are able to choose:

… whether or not to have paid employment, the government has a duty to equitably support either role. Mothers who choose to stay at home need to receive as much support and financial incentives for this choice, as those who do not. To do otherwise would be to further discriminate against and punish the women who are already among the most financially vulnerable in today's society. [840]

A number of submissions noted that all families face increased costs at the time of the birth of a child, and so considered that all new mothers should receive paid maternity leave. [841] The Shop, Distributive and Allied Employees' Association suggested that such a payment for women should be means tested.

[W]here the mother has not been in paid employment prior to childbirth this may still be a time of financial impost on her family. This in turn may lead to financial hardship. Consequently the SDA [Shop, Distributive and Allied Employees' Association] believes that paid maternity leave should be made available to all mothers, subject to a means test. [842]

The Australian Family Association asked:

[w]hy cannot stay at home mothers also be entitled to some financial relief? Not only do babies cost a lot of money for all women, whether working or not, but the stay at home mum chooses to forgo the income for the sake of the baby and its well being. Thus the woman in the paid work force is getting a double set of financial benefits, while the stay at home mum receives none. [843]

An individual argued that:

[f]inancial assistance at the time of birth is no doubt beneficial to a family, if not specifically to a woman's career. However, all babies cost the same amount of money, whether their mother works or not. Further, the cost of a baby, relative to total family income, is likely to be greater in families where there has already been, or will be, only one income for a longer period of time. [844]

Some submissions saw the need to treat all new mothers in the same way as a reason for making paid maternity leave available to all mothers. [845] Limiting paid maternity leave to women in paid work was considered to discriminate against women who were not in the workforce, as well as some other groups of women.

The Australian Family Association (New South Wales) drew attention to the women who would miss out under a work based scheme.

To implement a scheme which is only to provide paid maternity leave for mothers who elect to return to the workforce would be to create a scheme not to the benefit of most mothers. [846]

The YWCA of Australia compared the position of mothers receiving government assistance before the birth of a child with that of employed women.

Having examined the current payments available, the accessibility requirements and the means testing associated with the various payments, the YWCA fails to see a compelling reason why we would create a system that pays less in benefits for parent(s) of newborn children, who have been dependent on the limited benefits that are available from Centrelink than we are proposing to pay to people who have a recent history of employment.

…

We fail to see the validity of an argument that creates greater inequality between women in and out of the workforce by paying a higher government funded payment to parents of newborns who have 12 months continuous workforce attachment and those who do not have 12 months continuous workforce attachment. [847]

The Women's Action Alliance expressed concern that:

… a system of maternity leave that excludes women because they choose not to be in paid work when their children are young would compound this discrimination and we could not support it. It would set up a system of haves and have nots. It would also be poorly targeted, being likely to advantage the wealthy over the poor. [848]

A payment to all women was supported by some submissions on the ground that this would have a greater impact on Australia's fertility rate. One individual argued that women not in paid work also face financial disincentives in having children.

Relieving the financial stresses of having a baby for women not in paid employment would remove barriers from them having more children, just as it would for women in paid employment. This is also true for women in part-time, casual, or self-employed paid employment. [849]

Several submissions drew attention to the fact that certain groups of women are disadvantaged in relation to paid employment. Limiting paid maternity leave to women in employment was considered to further entrench this disadvantage. [850] For example, the Australian Federation of University Women (South Australia) noted that:

[o]ur market-driven society has a major impact on women who are mostly employed in casual or part-time positions. Women may conceive while in paid employment and be sacked or retrenched six months into the pregnancy. There is no such thing as "non-working women". All women should receive maternity support with educational, social and financial assistance available to help achieve successful, anxiety free, bonding or attachment with their newborn child. Anxiety has been correlated with many health and social problems, for both the mother and child. [851]

Similarly, the YWCA of Australia considered:

… that a new system must not exclude significant numbers of young women excluded because of the changing nature of the workforce and entrench poverty for parent(s) of newborns. [852]

An individual noted that unemployment may not be a matter of choice and recommended that "… students, already full time parents, carers of aged parents and unemployed … should not be discriminated against". [853]

14.4.4 Women in paid work

In its traditional construction, paid maternity leave is a workforce entitlement that is directed to women in paid work. Both the Maternity Protection Convention and CEDAW position paid maternity leave as a right for women who must take leave from paid work at the time of birth. This view was advocated by a broad range of groups. [854]

Some submissions considered that paid maternity leave ought to be a workforce entitlement, and as such should be limited to women in paid work. One union considered that:

… it is important that a national paid maternity leave scheme is viewed as an entitlement for workers … [T]he objectives of a paid maternity leave scheme are different to those for family support payments for women outside the workforce. [855]

Another union, the United Trades and Labor Council of South Australia, strongly recommended that "… paid maternity leave is acknowledged as a workers' entitlement and provided as a national scheme in this context". [856]

A submission from two academics argued that:

[p]aid maternity leave relates to the position of women in paid employment and needs to be considered separately from the needs of non-working mothers. The question of a family's financial needs at the time of the birth of a new child is a separate issue affecting all parents and is not the primary objective of paid maternity leave. Paid maternity leave is not a welfare issue, it is a right for women in paid employment. [857]

A significant number of submissions proposing that paid maternity leave be limited to women in paid work, did so on the grounds that the purpose of such leave was to provide income replacement at the time of the birth. For example, Coles Myer argued that:

… making a payment to women who are not employed would in fact advantage this group over those who are employed as a payment to this group would increase their income whereas a payment to those who forego salary in order to have a child will at best ensure their income level is not reduced as a result of child birth. [858]

The Women's Economic Policy Analysis Unit pointed out that paid maternity leave:

… is designed specifically to provide income maintenance for the 14-week maternity leave period. It is not a policy designed to compensate for the subsequent financial disadvantage that women providing un-paid care face beyond this period. [859]

An individual pointed out that:

[i]ndividuals not in paid work have already adjusted to living off whatever income is available to them, be it a social security benefit, or the income of a partner. They are presumably not about to lose it as a result of having a baby. Having a baby is not going to change their immediate income situation in a way that is not already acknowledged by existing Family Assistance and ChildCare Benefit provisions. [860]

Those submissions that considered that one of the objectives of paid maternity leave was to address women's workforce disadvantage also saw this as a payment specifically to women in paid work. [861]

The New South Wales Working Women's Centre agreed.

It will also offset the disadvantages in employment experienced by women needing to take time off to have children. A national scheme which enjoys broad community support would also make a substantial contribution to other workplace pressures experienced by women at this time, particularly in relation to employment security, assisting the difficulties faced by women returning to work after maternity leave.

As outlined in the objectives, a paid maternity leave scheme recognises the economic and career disruption caused by childbirth to women in paid employment. This is the rationale we submit as the basis for a work-related paid maternity leave scheme. [862]

Some submissions considered that paid maternity leave for women in paid work would assist women's labour force attachment. [863] For example, the Australian Industry Group considered that:

[i]t is appropriate to provide a specific payment for women in employment as a means of recognising the opportunity costs they face when having children, as well as encouraging them to return to the workforce. [864]

The Women's Studies Research Unit, School of Social Work, University of Melbourne suggested that:

[l]imiting paid maternity leave only to those women in the paid workforce encourages women to take up their citizenship rights within the public sphere, and is an incentive towards women's autonomy. [865]

The Council for Equal Opportunity in Employment collected responses from its corporate members.

Responses on questions relating to the structure of the scheme were divided on whether it should be paid exclusively to employed mothers or universally to all women becoming mothers. In general, responses indicated that if the objective of the scheme were to encourage labour force attachment, then such payments should be made to women who were in paid employment prior to the pregnancy or birth. [866]

Paid maternity leave was seen in some submissions as addressing health and wellbeing issues specifically relating to women in paid work. The Australian Retailers Association submission, for example, supported:

… the entitlement being work related on the basis that the primary objective of a paid maternity leave scheme should be to provide women with a genuine opportunity to take time out of the work force to fully recover from childbirth. [867]

The New South Wales Working Women's Centre advocated:

… a scheme that provides for paid leave from such employment in order to give birth, establish breast feeding pattern where desired and recover from the birth without undue financial pressure to return to work earlier than the time needed. [868]

Coles Myer noted that improving women's and babies health would also have financial benefits.

The primary impact of a paid maternity leave scheme will be to provide women with a genuine opportunity to take time out of the work force to fully recover from child birth. This would assist a reduction in health care expenditure. [869]

A number of submissions considered that there was a gap in existing provisions by Government in relation to women in paid work. [870]

One respondent to the motherInc maternity leave poll said bluntly that she could not:

… see why dole bludgers and single mums with 2 & 3 kids to different partners should be getting my hard earned tax dollars and when I as a WORKING woman wish to have a family don't get any support from the government.

Give back a little to the women who help support all those who choose not to work and stop penalising us for trying to create a better future for our family. [871]

An additional benefit of limiting paid maternity leave to women in paid work was that this would limit the cost of the scheme to the Government. The National Pay Equity Coalition pointed out "… that extending PML [paid maternity leave] to all births would double the number of eligible births and significantly increase the costs of a PML [paid maternity leave] scheme ... " [872]

14.4.5 Dual track

Introduction

Amongst those groups who saw paid maternity leave as a work related payment, there was widespread recognition of the need to provide support for women outside the labour force. [873] For example, a respondent to the motherInc maternity leave poll asserted that:

[w]omen who are not "working" (that is in the paid workforce) should also be compensated for their work in raising children but the forum for that is not under the umbrella of maternity leave. [874]

An individual submission noted that:

[t]here is no reason why there cannot be a range of options, including paid maternity leave available to suit a number of circumstances. Much of the Australian debate about policy initiatives is divided between those arguing for policy measures making it easier for mothers to be employed, and those arguing for measures to support mothers who leave the workforce for significant periods or do not participate in the paid workforce. However there is obviously the potential to implement policy, which supports mothers and families in a variety of ways to complement individual circumstances. [875]

In contrast to those who considered that paid maternity leave should be structured as a universal payment to all women at the birth of a child, there was a view expressed that there should be more than one type of payment to suit women's different circumstances. This would mean that paid maternity leave would be introduced for women in paid employment, accompanied by one or more payments to women not in paid work. Of those who supported this dual track approach, opinion varied as to whether current payments were adequate, whether a new payment for women not in paid work should be introduced, and whether a review of existing benefits was required. A review of current arrangements is discussed at 3.4.4.

Retain existing payments for women not in paid work

Some submissions considered that the existing system of payments for women with children should continue. For example, the Australian Industry Group considered that:

[i]n addition to the establishment of a paid maternity leave scheme for working women, it is equitable to provide social welfare assistance to those who would be unable to access the scheme. Ai Group proposes that assistance to non-working women and eligible men take the form of various existing benefits such as Maternity Allowance and Maternity Immunisation Allowance. [876]

Similarly, the National Pay Equity Coalition noted that:

[o]ther social security payments are appropriate and are paid for compensating families for additional costs associated with having children. Parenting payments are paid to low income earners who are taking care of children, whether they are partnered or not and there are also family tax benefits to assist with the costs of raising children. [877]

The Community and Public Sector Union, State Public Services Federation Group noted that:

Women who are not in the workforce do not derive their income from employment and should not be covered by the scheme. Women who are not in the workforce are covered by various forms of Federal government allowances and taxation arrangements. [878]

A new payment for women not in paid work

Some submissions considered that the Government should introduce a new payment for women not in paid work that was of equivalent value to the paid maternity leave entitlement for women in paid work. [879] Such a payment implies that there would be a flat rate of payment to all women, either through paid maternity leave or the alternative payment system. [880]

The Association of Independent Schools of Victoria argued that:

… payments, in some form, should be available to women, and thus to families, who are not in the workforce at the time of giving birth to, or adopting, a child. Such an approach supports the view that assisting women and men, and thus families, with their parenting responsibilities has an overall benefit to society. That is, if paid parental leave is introduced for women and men in the workforce, then a similar system of payments needs to be available to men and women who are not in paid work through the social security system. [881]

The Australian Nursing Federation suggested that:

[w]omen outside the workforce should also have access to financial support to the equivalent value of any maternity leave payment. The means of payment could be through the social security system. [882]

The Australian Council of Trade Unions pointed out that a dual track system:

… recognises different family choice, and allows tailoring of both schemes to best meet their purposes, and ensures that no woman is excluded from societal support due to the nature of her employment, paid or unpaid, formal or informal. [883]

Other submissions supported the introduction of a new payment for women who were not in paid work, but considered that this payment should be paid at a lower rate than the maximum rate of government funded paid maternity leave. [884] For example, two academics suggested that:

[m]others outside the paid labour market should also have access to a basic payment on the birth of a new baby, to assist with the financial pressures of a new child. This should be set at about $2000 - the basic level of paid maternity leave available to working women. [885]

The Women's Economic Think Tank proposed that women who are not eligible for paid maternity leave should receive a basic payment of 50 per cent of the full rate of paid maternity leave. This would also be a minimum payment for women in paid work. The submission proposed that this payment be named Family Tax Benefit Part C and that it be available for 14 weeks on a non means tested basis. It would replace most of the existing payments such as Parenting Payment, Youth Allowance and the Baby Bonus. [886]

The Anti-Discrimination Board of New South Wales proposed a safety net for women who did not qualify for paid maternity leave.

In the interests of equity and fairness, consideration must be given to the provision of an income safety net for those women workers who do not meet the qualifying employment eligibility criteria … [887]

14.4.6 HREOC's position

HREOC considers that paid maternity leave should be a payment to women in paid work. The objectives identified in Part C specifically relate to women in paid work. In particular, the loss of income as a result of childbirth and workplace discrimination based on maternity are issues that specifically relate to women in paid work.

As set out in Chapter 3, HREOC considers that there is a gap in current government payments and workplace entitlements that mean that many women in paid work do not get adequate support to enable them to stay home for an extended period at the birth of a child. A government funded paid maternity leave scheme would address this gap.

While the Maternity Allowance, Family Tax Benefit Parts A and B and the Baby Bonus do not meet the objectives of paid maternity leave in their own right, there is clearly some overlap between these payments. HREOC considers that if government funded paid maternity leave were introduced, it should replace these family assistance payments during the period of paid maternity leave. This would better equate the level of government payments to women in paid work and those not in paid work.

Limiting paid maternity leave to women in the paid workforce does not rule out the need for financial support of women outside the paid workforce at the time of the birth of a child. HREOC strongly supports the role of Government in providing support for all families at the birth of a child. However, the need of those women not in paid work at the birth of a child is not one for income replacement or a period out of the workforce.

HREOC is not in a position to comment on the adequacy of existing payments to women outside the paid workforce. HREOC does note that these payments have been extended in recent years by the government, through the introduction of Family Tax Benefit Part B and the Baby Bonus, which are both targeted at single income families. [888] However, many submissions argued that these payments should be reviewed to ensure their adequacy.

HREOC acknowledges that should the Government decide to make paid maternity leave available to all women, the objectives set out in Part C will still be met. However this would be at a greater cost than otherwise and may not be in a form that best meets the needs of women not in the paid workforce.

HREOC is firmly of the view that the different circumstances in which women live mean that a single government payment for all families, whatever their circumstances is not good policy. HREOC recommends that the Government ensure that all women and families with new babies receive adequate assistance for their needs. This may or may not mean that payments to women in different circumstances are equivalent, and may require a review of the government assistance package for families. HREOC's primary recommendation, however, is that an adequate government assistance package should include a paid maternity leave scheme for women in paid work as a central component.

RECOMMENDATION 3

That a government funded national scheme of paid maternity leave be available for women in paid work.

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14.5 Adoptive parents

14.5.1 Introduction

While not all submissions received discussed the issue of paid leave for adoptive parents, only one submission opposed the provision of paid leave to adoptive parents. [889] Those who did address the issue of adoptive parents were strongly of the view that these parents should be eligible for paid parental leave in order to care for their children at the time that the child enters the household. This section sets out the grounds on which submissions considered that adoptive parents and children should be included in a national scheme of paid parental leave.

In 2000-2001 there were 514 adoptions of children in Australia. This consisted of 377 placement adoptions and 137 known child adoptions. Of the 377 placement adoptions, 88 were adoptions of local children and 289 (or 77 per cent) were intercountry adoptions. [890]

Not all the submissions received on adoption drew a distinction between local and intercountry placement adoptions, however a number explicitly argued that paid leave be made available in either case. [891]

One submission suggested that known adoptions may constitute an exception to the requirement for paid leave.

I accept that it may be arguable that "known" adoptions may be a special case as the child may already be part of the family and the adoption is merely legalizing the status of the child as a member of that family. [892]

14.5.2 Equity for adoptive parents and adopted children

Many submissions supported the inclusion of adoptive parents into a paid maternity leave scheme for equity reasons. [893]

The Tasmanian Branch of the Australian Society for Intercountry Aid for Children submitted that:

[w]e strongly believe that a paid parental leave scheme should include adoptive parents on the same basis as biological parents and that eligibility should not be limited to adopted children of a particular age. It would be discriminatory and unfair to exclude adoptive families from any scheme of paid parental leave. [894]

Some submissions outlined the costs of adoption and the inequities in financial support provided for biological and adoptive parents. Many felt strongly that current arrangements often disadvantage adoptive parents. [895] This included the fees that are charged for adoption in Australia and overseas, as well as the qualifying conditions for existing government payments. The International Adoptive Parents Association submitted that:

[i]ntercountry adoption is usually more expensive than having biological children. The fees charged by the Australian Government adoption agencies and the overseas countries impose a severe financial burden on adopting families. In addition, the requirement that one parent stay home with the child for the first 12 months adds to this financial pressure. Adoptive parents should therefore be entitled to the same paid leave arrangements as biological parents. [896]

One individual recounted the cost involved in their adoption.

Adoption is already more expensive than having a child in the biological way. It cost our family approximately $26,000 to adopt our Chinese daughter ... An additional expense is the requisite 12 months one parent is obliged to spend away from the workforce. The small gesture of providing … paid leave would cost little in terms of numbers of applicants involved but would be one way of making it easier for adoptive families. [897]

14.5.3 Health and wellbeing of adoptive children

Clearly the health and wellbeing issues differ between adoptive parents and children and women giving birth and newborn babies. However, submissions were still strongly of the view that adoptive children had significant health and wellbeing issues that warranted ensuring a primary carer was financially supported to spend time with them as they adjusted to their new home.

At a consultation with adoptive parents the point was made that most, if not all, adopted children suffer from sleeping problems, either as a result of the trauma they have suffered in institutions or as a result of the adoption process. Sometimes these problems can be quite severe. [898]

Submissions noted that most adopted children, particularly intercountry adoptees, are special needs children. Adopted children, especially intercountry adoptions, have frequently been institutionalised, often resulting in mental and emotional development delays. This means that health costs may be particularly high. [899]

One individual noted that:

[s]ince returning to Australia [from Ethiopia] we have faced the same financial burdens as any other young family. However, on top of these we have encountered significant medical and pharmaceutical bills, as both of our children had chronic health problems when we adopted them, and one of them still has. These medical conditions have been caused by a combination of malaria, malnutrition, poor past medical treatment and various infections that are part and parcel of being orphans in a third world country. [900]

Many submissions also considered that, to overcome these developmental problems, adoptive parents require time to bond effectively with their children, particularly older children. [901]

Sandra Wills considered that a period of bonding between parent and adopted child was important to "… address issues of post-institutionalisation and attachment ... [and] to assist them with a new language". [902]

14.5.4 Government requirements for adoption

State and Territory Government departments responsible for administering adoption processes require that one adoptive parent remain at home with the child, usually for a period of six or 12 months after the placement. This enforced period away from paid work was considered by some as a reason for providing adoptive parents with paid leave. For example, an individual submitted that:

[t]he State government community service departments recognise the need for newly adopted children to have consistent, intensive parental care ... It should be inconceivable that adoptive parents be compelled both by the needs of their child but also by their state government to spend considerable time absent from work and at home with their child and not be supported as biological parents in provision of maternity leave. [903]

14.5.5 Age of adopted child

The Workplace Relations Act 1996 (Cth) provides access to unpaid maternity leave for parents of adoptive children who are under five years of age. [904]

According to the most current information available, of the 377 placement adoptions in 2000-2001, 64 children (17 percent) were over the age of five years at the time of placement. Of these 377 adopted children, 289 were intercountry adoptees, and 88 local adoptees. [905] Only 130 children of the 377 placement adoptions were aged under one year. [906]

Of those submissions received which referred to adoptive parents, only a limited number of submissions suggested that paid leave for adoptive parents be restricted to cases where the adopted child was under the age of five years. [907] One submission advocated restricting paid leave to cases where the adopted child was under one year of age. [908] One submission, while arguing that there was a requirement for an age limit to be set, advocated making room for exceptions.

Care needs to be exercised in the setting of such age limits. In principle, there are arguments for a limit to be imposed - such as under school aged children. However, there must be ability for exceptional circumstances to be considered. (Eg overseas adoptions or children with disabilities, ie those requiring a period of adjustment). [909]

However, the majority of submissions advocated no age restrictions. [910] The reasons for this related to the additional disadvantage faced by older adopted children. The Equal Opportunity Commission Victoria considered that:

[i]mposing an age restriction in relation to older children may in fact compound the potential disadvantages already faced by these children. [911]

Tasmanian Branch of the Australian Society for Intercountry Aid for Children submitted that:

[c]hildren being adopted at 5 years of age or older have generally lived in one of two situations (sometimes a combination of both). These situations are: having lived in an institution in a 3rd world country where it is likely they experienced emotional and physical deprivation, or having lived in an abusive family environment and been removed from the care of that family. In addition, most older children have been adopted from overseas and need to adjust to a new language and culture when they come to Australia. [912]

14.5.6 HREOC's position

There are compelling reasons for making paid leave available to parents of adoptive children. These include equity with biological parents, the needs of adoptive parents and adopted children to bond and sometimes establish breastfeeding, and the State and Territory Governments' requirement for intercountry adoptions that at least one adoptive parent take between six and twelve months out of the paid workforce following the placement of a child. As such, HREOC strongly recommends that paid maternity leave be available to adoptive parents.

HREOC supports the view presented in submissions that older adoptive children require a period of adjustment and, particularly in the case of intercountry adoptions, may have significant health and wellbeing concerns that would be assisted by their parent having access to a period of paid leave. As such, HREOC is of the view that no age limit should apply. HREOC would also urge the Government to review applying an age limit to access unpaid adoptive leave as provided for under the Workplace Relations Act 1996 (Cth).

HREOC recommends that paid leave be available for the primary carer of adopted children in placement adoptions (both local and intercountry adoptions) but not for known child adoptions as there are not the same concerns in relation to family adjustment when a known child is adopted.

The objectives of paid adoptive leave all relate to ensuring that an adopted child has access to a primary carer at the point of placement with a new family. In light of this fact, and that maternal recovery from birth is not an issue in adoption, HREOC supports the payment being made to the primary carer. This would be established as a limited exception to paid maternity leave.

RECOMMENDATION 4

That paid maternity leave be available to the primary carer of an adopted child irrespective of the age of the child.

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15. Eligibility

15.1 Introduction

Any scheme available only to women in paid work will need to establish a standard or definition for paid work. HREOC considers that any eligibility criteria should aim to ensure as many women in paid work as possible are covered, that the distinction between women in paid and unpaid work is justified and that the criteria are simple to administer.

Possible eligibility criteria could include:

limiting eligibility to women in particular types of work;
requiring a certain duration of work with one or multiple employers;
requiring a certain amount of work, such as a minimum number of hours per week;
requiring a certain level of earnings from work; and/or
limiting eligibility on the basis of family income (means testing).

For example, the Workplace Relations Act 1996 (Cth) provides for unpaid parental leave subject to certain eligibility criteria. That leave is restricted to "employees" with 12 months continuous service with a single employer. "Employees" are defined as not including casual and seasonal workers. This provision also does not include independent contractors and self-employed persons.

This Chapter covers:

international standards and practices;
'the possible link between paid maternity leave and unpaid parental leave eligibility criteria;
length of service for eligibility;
forms of work that are eligible; and
means testing.

A strong theme from unions and women's groups was the need to ensure that any eligibility criteria enabled broad coverage and reflected the nature of the labour market and women's employment.

It is also important to note that the need for eligibility criteria is only relevant to a system of paid maternity leave that is limited to women in paid work such as HREOC proposes. [913] Eligibility criteria relating to length and type of employment would not apply should the Government choose to implement a system of paid maternity leave available to all women.

The difficulty in defining eligibility so that women in precarious employment did not miss out on income replacement at the time of birth [914] and the administrative costs in establishing eligibility, led some to support a scheme for all women. For example, the Shop, Distributive and Allied Employees' Association supported a scheme for all women. It considered that difficulties with a scheme for women in paid work included that:

[t]here would be significantly increased administrative costs for government … in establishing and monitoring that the women have met the eligibility criteria.

There would also be additional and possibly onerous costs for women to prove they have met the eligibility criteria, if they have had a number of employers in the previous 12 months. [915]

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15.2 International standards and practices

15.2.1 Maternity Protection Convention

The Maternity Protection Convention states that paid maternity leave should be available to all women in paid employment; however, it does permit Member States to apply eligibility criteria for access to such payment. Article 6(6) of the Convention provides that women who are not eligible for paid maternity leave should, subject to any relevant means test, have access to social security payments.

Article 2

1. This Convention applies to all employed women, including those in atypical forms of dependent work.

2. However, each Member which ratifies this Convention may, after consulting the representatives of organizations of employer and workers concerned, exclude wholly or partly from the scope of the Convention limited categories of workers when its application to them would raise special problems of a substantial nature.

3. Each Member which avails itself of the possibility afforded in the preceding paragraph shall, in its first report on the application of the Convention under article 22 of the Constitution of the International Labour Organization, list the categories of workers thus excluded and the reasons for their exclusion. In its subsequent reports, the Member shall describe the measures taken with a view to progressively extending the provisions of the Convention to these categories. [916]

15.2.2 United Kingdom

The United Kingdom's Statutory Maternity Pay is available to women who have been employed by the same employer for 26 continuous weeks up to the week which is 15 weeks prior to the expected birth date (qualifying week), provided their average weekly earnings are more than the minimum earnings requirement (£75 per week). [917]

Women who are not eligible for Statutory Maternity Pay may be entitled to the Maternity Allowance if they are employed or self-employed and earn a minimum weekly requirement (£30). [918] A woman must have been employed or self-employed in at least 26 weeks in the 66 week period until the expected week of childbirth. [919]

Women who cannot access Statutory Maternity Pay or the Maternity Allowance may be eligible for Incapacity Benefit. [920] This requires that the woman has paid National Insurance contributions and has "… been incapable of work because of sickness or disability for at least 4 days in a row including weekends and public holidays". [921]

15.2.3 New Zealand

The New Zealand Paid Parental Leave scheme limits access to the scheme on the basis of length of employment and amount of work undertaken.

Specifically, the New Zealand scheme provides that:

[y]ou are eligible for the payment if you have been employed by the same employer for more than 12 months and you worked an average of 10 hours per week, including at least 1 hour per week or 40 hours per month, for that employer during that period. [922]

For employees on fixed term agreements, your rights to leave and payment end when your fixed term ends. For example, if a fixed term agreement is completed six weeks after the date of birth and the mother takes leave commencing two weeks before the birth, the entitlement is eight weeks leave and payment.

If a genuine redundancy situation arises during your period of leave, you must be advised. The redundancy should be handled in terms of your employment agreement. Your parental leave payment would continue unchanged if you are made redundant. [923]

Women are not entitled to leave or payment if they are:

self-employed;
not in paid employment; or
fail the eligibility test of 12 months employment at an average of 10 hours work per week. [924]

The New Zealand scheme will be reviewed after 12 months of operation. This review will include consideration of the eligibility criteria.

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15.3 Eligibility criteria for unpaid leave and paid leave

As noted above, the Workplace Relations Act 1996 (Cth) provides for 12 months unpaid parental leave for "employees" with 12 months continuous service with a single employer.

The Workplace Relations Amendment (Paid Maternity Leave) Bill 2002, provided that the existing eligibility criteria for unpaid parental leave would apply to paid maternity leave. The Democrats have since indicated that they intend to amend this Bill in order to relax the eligibility criteria for both unpaid and paid maternity leave. [925] The proposed amendments will have the effect of creating different eligibility criteria for paid and unpaid leave.

There was some support in submissions for the view that the same eligibility criteria should apply for unpaid and paid maternity leave. [926]

The Australian Chamber of Commerce and Industry considered that a qualifying period was an appropriate approach for employment related maternity leave.

The need for a proper qualifying period is recognised in those agreements which do provide for paid maternity leave. ACCI [Australian Chamber of Commerce and Industry] understands that most, if not all such agreements provide paid maternity leave based on the 12 month qualifying period which underpins the universal unpaid entitlement.

….

This remains a relevant approach to this issue and the correct approach to eligibility to all forms of employment linked maternity leave, either paid or unpaid. [927]

That submission cited a number of agreements that include a 12 month qualifying period for employer provided paid maternity leave. [928]

Immigrant Women's Speakout proposed a single eligibility requirement.

Eligibility requirements for paid and unpaid maternity leave should be the same. Eligibility criteria must be made explicit for both paid and unpaid maternity leave so as to ensure transparency of process and outcomes in the maternity scheme. [929]

The Queensland Working Women's Service supported a 12 month qualifying period.

We consider that women should have 12-months' service with the same employer to be eligible for paid maternity leave - that is, the same eligibility requirements that currently exist for unpaid parental leave. [930]

While a number of groups felt that paid and unpaid maternity leave eligibility requirements should be the same, for some this meant changing the eligibility criteria for unpaid leave.

The Australian Council of Trade Unions acknowledged that a single set of eligibility criteria would be administratively simple. However, it argued:

… that such a scheme would entrench already discriminatory practices. Instead, the ACTU [Australian Council of Trade Unions] would support amendments to existing provisions to reflect a more equitable outcome. [931]

The Women's Economic Think Tank considered that:

[t]here needs to be some more flexible options fed into both eligibility for paid and unpaid leave. The Maternity Leave Legislation [Workplace Relations Act 1996 (Cth)] at present can present problems for those who are not eligible for the twelve months many women would prefer to take. [932]

Other submissions also emphasised that government funded paid maternity leave, without a right to return to work, was essentially different to current unpaid parental leave provisions and would not need to have the same eligibility criteria. For example, Coles Myer wrote that it:

… considers the eligibility criteria for paid and unpaid maternity leave should not necessarily be the same. As one of the critical features of a paid maternity leave system is to ensure women have the right to a period of rest following the birth of a child this right should be respected regardless of length of service, for example. On the other hand, extended periods of unpaid maternity leave have eligibility requirements attached which take into account the issues facing both women and employers with regard to such leave. For example, it may be unduly onerous to require an employer to ensure a position is available for an employee who is absent from the workplace for 12 months after only working with the employer for a matter of weeks. [933]

The Australian Retailers Association drew attention to the difference between unpaid and paid maternity leave as a reason that there was not a need for a single eligibility criterion.

The existing unpaid leave provisions require … eligibility criteria based on pre existing service with the same employer and takes into consideration the employer's obligation to ensure that the women's previous position is available to her should she choose to return to work.

This leave can be distinguished from a scheme that has financial considerations with an objective of allowing an adequate period of rest following the birth of a child.

Eligibility criteria for payment under this scheme need not be dependent upon the right to return to the workplace. [934]

One submission, from the Work + Family Policy Research Group at the University of Sydney, suggested that the components of any leave scheme be disentangled.

Under current law we note that the eligibility criteria for the twelve months unpaid parental leave and the guaranteed return to work entitlement are one and the same. We submit that the entitlement to leave and the entitlement to return to work are separate issues, with both being significant aspects of a paid maternity/parental leave scheme. We thus seek to differentiate them and their eligibility criteria more clearly. [935]

That submission recommended that eligibility for paid maternity leave require six months employment in the previous 12 months [936] and that "eligibility for guaranteed return to work … remain at the current 12 months service requirement". [937]

HREOC considers that the same eligibility criteria should not apply to unpaid and paid maternity leave

The Union Research Centre on Organisation and Technology argued that:

[i]f paid maternity leave is implemented with the current eligibility requirements it may apply only to those women already benefiting from existing maternity leave arrangements. It may be seen as a regressive measure if casual and other marginal workers are not taken into account. This would be likely for two reasons. Firstly, women in high skilled, full-time employment are in stronger bargaining positions, thus many already have access to paid maternity leave. Secondly, it could increase the attractiveness of casual labour to employers, thus further marginalising women workers. [938]

The 12 month qualifying period for unpaid parental leave is based on a balancing of obligations and benefits between employers and employees. The obligation on the employer to hold a position open for an employee is balanced by an established relationship with the employee. The benefits to the employer of retaining a staff member with 12 months employment history in the organisation are also much more direct. In contrast, a paid maternity leave scheme funded by Government and without a right to return to the same position imposes minimal to no cost on employers and hence does not require the same level of balancing of the interest of employers and employees. [939]

As outlined at 6.3, paid maternity leave is designed to replace income when women take a break from the workforce for childbirth. It focuses on the loss of income that women experience due to maternity, not the employment relationship with a specific employer.

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15.4 Forms of work

As previously noted, Australia's existing unpaid parental leave arrangements do not apply to parents undertaking certain forms of paid work, such as seasonal workers, many casuals and self-employed. Similarly, the New Zealand paid parental leave scheme excludes certain categories of workers, and in particular, the self-employed.

There was significant concern expressed in submissions that eligibility for paid maternity leave should not depend on the type or form of work that women undertake. This was seen to be significant due to the changing nature of the labour force, including increasing casualisation.

An individual noted the decreasing numbers of long term, permanent jobs.

I think it is important that women in short-term, non-permanent jobs also have access to paid maternity leave. These days it is a rare privilege to have a long-term, permanent job. Many women are self-employed in micro-businesses or work in a series of fixed-term contracts. If the government is paying for maternity leave, I believe that all tax-paying women should be eligible. [940]

The National Pay Equity Coalition drew attention to the situation of contract workers, casuals and seasonal workers.

An increasing proportion of the workforce is employed on a succession of contracts. Currently they do not meet eligibility criteria for unpaid maternity leave. While casuals do have entitlements that is only if they are employed on a continuous basis by a single employer. Workers who may have been employed for many years can miss out where they are seasonal workers - working non-continuous periods but with the same employer - or where they are contract workers. These workers are contributing to the national economy through their labour productivity and through their tax payments and consumption. Their capacity to continue in paid work clearly affects their lifetime earnings, economic opportunities, their families' economic wellbeing, their retirement incomes and the national economy, in various ways. [941]

The Australian Education Union considered that any scheme should include women in atypical work.

The recognition of emerging employment relationships is significant. This development along with the adoption of the ILO [International Labour Organization] Convention No.177 on Homework and the ILO [International Labour Organization] Convention No.175 on Part-time Work means that ILO [International Labour Organization] standards are beginning to recognise atypical forms of work organisation.

Thus, we believe that any paid maternity leave scheme should apply to all employed women, including those in atypical forms of dependent work such as home workers, part-time, temporary and casual workers. [942]

A number of submissions also pointed out that gender segregation in the workforce meant that women were often concentrated in more precarious forms of employment, outside the traditional model of permanent full time employee. The result is that restricting paid maternity leave to women in particular forms of employment would disadvantage a large proportion of women. [943]

Submissions noted the need to ensure that women who are casuals, contract workers and self-employed had access to paid maternity leave, with particular emphasis placed on self-employed women. [944]

A smaller number of organisations also considered that women undertaking work related activities, such as education and training, should be eligible for paid maternity leave. For example, the YWCA of Australia argued:

… for a position that included study whether secondary or tertiary as a form of workforce participation, educational attainment being a leading indicator of workforce attachment ... [945]

Similarly, the Women's Economic Policy Analysis Unit considered that "[s]tudents in qualification or work related courses should also have access to PML [paid maternity leave] (provided they meet the 12 months eligibility criteria)". [946] The Women's Economic Think Tank considered that:

[s]tudents in qualification or work related courses should still be covered with their Austudy or other form of income support being counted as if it were part time work income. [947]

HREOC considers that the form of a woman's employment should not affect her eligibility for paid maternity leave. This would mean that women in casual work, on contract and the self-employed should have access to a government funded system of paid maternity leave. The relevant point is that the woman has been required to forego regular income due to the birth of a child. This applies equally to women in paid work regardless of their form of employment.

HREOC acknowledges that women in education and training are undertaking work related activities and that these women are likely to enter the labour force at some future stage. However, this situation is not considered equivalent to women in paid work as income is not foregone. Women who take a break from or cease education and training due to the birth of a child should have access to social security payments. HREOC has not assessed the adequacy of social security payments for students and trainees as this was considered beyond the scope of this paper. [948]

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15.5 Length of service

15.5.1 Introduction

The key proposals put forward for length of service as an eligibility criterion were:

12 months employment with a single employer;
a portable length of service requirement;
a length of service requirement within a longer period of time; and
no minimum.

With the exception of those submissions that considered there should be no minimum length of service for qualification, there was a considerable level of support for the principle that there be a minimum qualifying period of employment for paid maternity leave. For example, the Labor Council of New South Wales:

… believes that eligibility should be as wide as possible but that there is a need to demonstrate some attachment to the labour force prior to giving birth. This would allow women who have changed jobs or who are casual or work less than full time hours to access paid maternity leave. [949]

15.5.2 Twelve months with a single employer

As noted at 15.3 on eligibility criteria for unpaid leave and paid leave, a number of submissions considered that 12 months employment with a single employer should be required for eligibility for paid maternity leave. [950] The arguments in favour of this included that it was in line with eligibility criteria for unpaid parental leave, that it demonstrated workforce attachment, and that it already had widespread community acceptance.

These were the grounds on which the Victorian Women Lawyers supported a 12 month qualifying period.

Currently there is a requirement that a woman have worked for their employer for at least 12 months in order to be legally entitled to unpaid maternity leave. This period of time has gained community acceptance as demonstrating that the woman is in a genuine working arrangement, and therefore the employer should accommodate her family needs. VWL [Victorian Women Lawyers] acknowledges that to be entitled to paid or unpaid maternity leave there should be a genuine working arrangement in place. VWL [Victorian Women Lawyers] believes that the requirement of 12 months continuous service should apply in order to be entitled to paid or unpaid maternity leave by law. [951]

A submission by an individual stated that:

[w]hilst some may argue a qualifying period is discriminatory - I do believe that a minimum length of employment should be set. This would prevent the primary care givers seeking out employment whilst the woman is pregnant to secure a reasonable income whilst on maternity leave. A reasonable period would be 12 months before the leave is to be taken. [952]

However, as outlined at 15.3 in this Chapter, a significant number of groups have argued against an eligibility criterion of 12 months employment with a single employer. Those opposing this proposal considered that this requirement was too rigid, that it excluded large numbers of women in paid employment and that it did not reflect the changing nature of the labour force and women's experience in paid employment.

The Ethnic Communities' Council of Victoria considered that requiring 12 months continuous employment would be problematic.

It has the potential to exclude those whose hours may have been variable and those in long term but intermittent and or casual working relationships with their employers, low income contractors and/or subcontractors and other seasonal workers and outworkers, whether or not they are described as working for wages. [953]

The Australian Council of Trade Unions noted that a 12 month qualifying period would disadvantage women relative to men, and in particular would exclude many young women. [954] See 3.2.2 for further discussion.

Similarly, the Labor Council of New South Wales was concerned about the number of women that such a condition would exclude.

[A]lmost one third of women are casual workers and … 25% of women have been in their current jobs for less than 12 months. If such limits were to be included then significant numbers of working women would not benefit from the scheme. [955]

The Shop, Distributive and Allied Employees' Association considered that "[t]his option also discriminates against those in precarious employment because it is unlikely that they will have had continuous employment in the previous 12 months". [956]

15.5.3 A portable length of service requirement

A number of groups considered that the required period of employment for eligibility for paid maternity leave could be worked with more than one employer. [957]

This is based on the fact that a government funded scheme is concerned with labour force attachment rather than a relationship with a single employer. It means that women who change employment whilst pregnant will not be disadvantaged. The greater use of contract and casual work means that it is now more likely that women will change employment within a 12 month period. [958]

Portability will also mean that those women who change jobs, such as those who move for a promotion or pay increase, will not be penalised. It is possible that the current system of qualification for unpaid maternity leave could create labour market inefficiencies through inhibiting the movement of labour. HREOC has not done closer analysis or modeling of any labour market effect of qualifying periods. However, it is also clear that for a government funded scheme such a criterion would not create unfairness to any particular employer.

The YWCA of Victoria noted that the changing nature of work means that many women change jobs during a year.

The reality of the job market for an increasing number of workers, particularly young women and ethnic women (particularly in the hospitality, service and manufacturing sectors) is the necessity to move between a number of employers during a twelve-month period. [959]

The Australian Education Union considered that " ... the eligibility should be based upon the work history and not the employer/employee relationship". [960]

The Illawarra Forum and Illawarra Women's Health Centre considered that the fact that the scheme would be government funded influenced this decision concluding that "… therefore individual employers would not be disadvantaged if employing a worker who takes maternity leave during their first twelve months of employment …" [961]

At the Third Annual Victorian Women's Summit:

[t]he view was expressed that women in non-continuous employment should be eligible for paid maternity leave. The idea was put forward of carrying credit for time at work from one job to the next. It was felt that this would be particularly beneficial to young women and those with diverse employment forms who may change jobs quite frequently due to the nature of work available. This type of initiative would work if the national scheme is paid by government. [962]

While the Australian Retailers Association did consider that a minimum length of employment may be appropriate, it noted that this should not be with a particular employer.

Given the primary objective of a paid maternity leave scheme is to ensure women have the ability to have a period of rest at the time of the birth of a child it is not appropriate to impose any minimum length of service with a particular employer in order to be eligible to receive the government payment. [963]

On the other hand, the Australian Chamber of Commerce and Industry considered that portability would be impractical and increase the possibility of discrimination against women.

Any government funded scheme linked to employment would need to determine eligibility based on employment with a single employer. Portability is impractical in this area (as in almost all areas of employment). It would appear to only serve to multiply and maximise the scope for discrimination against women. [964]

The specific models proposed, based on a portable length of service criterion, required six to 12 months employment prior to accessing paid maternity leave. [965] Such a scheme would require continuous employment but would allow movement between employers and positions. For example, the Australian Retailers Association proposed that:

[a] minimum period of eight to twelve months in the workforce, prior to full term birth, may be appropriate as the payment of maternity leave is a work related payment. [966]

The Union of Australian Women recommended that a national paid maternity leave scheme:

… be paid to all women who have 26 weeks in paid employment, not necessarily with the same employer. Increasingly, work is available in 6 month contracts, whether for young academics or public service work, for example. Casual work is often precarious. [967]

The Immigrant Women's Speakout considered that:

... the current 12 months eligibility requirement for unpaid leave is too onerous and disadvantages new labour market entrants and women at risk of job insecurity, such as immigrant and refugee women. Six months is a more reasonable period in the context of today's labour market. [968]

BPW New South Wales proposed that eligibility be based on having paid tax, as opposed to being in a particular job, arguing that eligibility should be established "… after 12 months of paying tax (this would allow for permanent, part-time and casual employees to access payments)". [969]

15.5.4 A length of service requirement within a longer period of time

A number of submissions proposed extending the concept of portability to permit breaks in employment. These proposals would require a woman to have worked for between six and 12 months within a longer period of time and with any number of employers. [970] This would allow for short spells of unemployment, short breaks between positions and contracts, and/or time out of the workforce due to family and caring responsibilities. This may more closely resemble the reality of many women's working lives, while still establishing that eligible women have significant labour force attachment. For example, the National Pay Equity Coalition argued that paid maternity leave should be:

[p]aid to employees with 12 months continuous service and self-employed in business for 52 of the last 104 weeks and employees in employment in 52 of the last 104 weeks. [971]

The Western Australian Government considered that:

[f]or casual employees and any other employees who have had a break between contracts of employment, the Government would support the extension of this criterion to employees who have been employed on a regular or systematic basis for at least 12 months of the preceding 18 months. [972]

The Hawke Institute also recommended a system that permitted breaks in employment.

To be inclusive of freelance workers, short-term contract workers, seasonal workers, and those workers who have had to take off periods of time for caring duties, eligible parents would be those who have accumulated a total of the twelve months of work related activities. These activities need not be continuous but should be restricted to the past five years. [973]

The Women's Electoral Lobby proposed the following eligibility criteria.

Women who are the birth or adoptive mother and who are:

employed full time with 52 weeks of continuous employment with one or a series of employers;

employed part time or on a casual basis with 52 weeks of employment with one or a series of employers;

employed part time or on a casual basis with the equivalent of 52 weeks of employment over 2 years with one or a series of employers; and

self employed with 52 weeks of continuous employment (or the equivalent over 2 years);

women working in the private sector, including small businesses; and

public sector employees. [974]

The Women's Economic Think Tank suggested that the eligibility requirement should be "… 12 months labour force attachment with at least 6 months employment within this time including at least three months at the time that leave was applied for". [975]

15.5.5 No minimum

A significant number of submissions preferred that there be no minimum length of employment required to be eligible for paid maternity leave. [976] For example, the Independent Education Union considered that:

[t]his payment should be available to all working women who take leave to give birth or adopt a baby, with no artificially imposed qualifying periods. The IEU [Independent Education Union] believes that a woman's entitlement to paid maternity leave should rely only on evidence of the existence of an employment relationship. [977]

The Australian Council of Trade Unions considered that its proposal for government funding and a dual system of equivalent payment to women in paid and unpaid work meant that a minimum length of employment was not necessary.

Those who support exclusions based on length of employment argue that without such qualifications, women will abuse the system by getting a job and claiming benefits, without having made a contribution to the workplace to "earn" their entitlement. This argument has some weight where the employer funds the entitlement. It has little weight in the context of a taxpayer-funded scheme, where the fact that a woman changed employer within the qualifying period is irrelevant, as entitlement doesn't attach to a particular employer.

Similarly, the argument that women will enter the labour force to claim the benefit is discounted if the family support measure available to women outside the labour force is of equivalent value to paid maternity leave. [978]

A qualifying period for paid maternity leave was seen by some to restrict women's reproductive choices. As one individual noted "… sometimes being pregnant isn't always planned". [979]

As noted above, there was concern that a qualifying period of employment would reinforce the structural disadvantage that women experience in the workforce.

The [Australian Services Union] MEU/Private Sector Victorian Branch submit that no qualifying period or minimum service ought to apply to a national paid maternity leave scheme as this would create a form of discrimination. Women are more likely to have breaks in paid employment as a result of family responsibilities. Applying a qualifying period would further disadvantage those women. [980]

This was supported by the New South Wales Working Women's Centre, which considered that:

[b]ecause of the high incidence of temporary and casual employment among women, particularly young women and women from rural and regional areas, as well as women in certain occupational groups where employment patterns are irregular, the Working Women's Centre submits that the scheme needs to be available to all working women. [981]

A strong argument in favour of having no qualifying period for paid maternity leave relates to the health and wellbeing objectives of paid maternity leave. [982] Ensuring that women are not forced back to work for financial reasons before they and their babies are physically recovered from childbirth was considered by some to be an objective that should apply to all women, and not just those who have been in paid work for a certain period of time. For example, Coles Myer stated that:

[g]iven the primary objective of a paid maternity leave scheme is to ensure women have the ability to have a period of rest at the time of the birth of a child it is not appropriate to impose any minimum length of service in order to be eligible to receive the government payment. A minimum length of employment criterion would not deliver any foreseeable additional benefit to the government or community at large other than limiting the availability of the payment somewhat arbitrarily. To apply such a restriction may result in women continuing to be compelled to return to work without having the period of rest they require in order to recover from the birth. [983]

A system that had no minimum length of employment for eligibility would also better reflect the International Labour Organization's preferred position. While the Maternity Protection Convention does permit eligibility criteria to be applied, the International Labour Organization's preferred position is that no such limits be placed on access by women in paid work to paid maternity leave.

15.5.6 HREOC's position

On balance, HREOC considers that requiring women to have undertaken a certain length of employment in order to be eligible for paid maternity leave is reasonable, even for a government funded scheme.

The proposed national paid maternity leave scheme will only be available to women in paid work. As such it is important to establish a standard for what constitutes paid work. This standard should be sufficient to justify the different treatment of women in paid work and those in unpaid work. In HREOC's view, requiring no minimum length of employment would create a system where women in very similar circumstance would be treated in very different ways, with no justification for this difference.

In addition, eligibility criteria will assist in establishing that a woman has been receiving regular income from employment. This is important if the objective of paid maternity leave is to provide income replacement. The eligibility criteria will establish that the woman is foregoing a particular level of income due to the birth of her child.

HREOC does not consider that the same eligibility criteria should apply to unpaid parental leave and paid maternity leave. HREOC is of the view that the difference between these two types of leave warrants different eligibility criteria. In particular, HREOC considers that the fact that paid leave would be funded by the government and would not place additional obligations on individual employers means that eligibility for paid maternity leave should not depend on the employment relationship between a woman and a specific employer.

HREOC strongly supports eligibility criteria for paid maternity leave that allow portability between employers and also permit short breaks in a woman's employment history. HREOC considers that this better reflects the reality of the Australian labour market and women's employment. It also means that the focus is on the income that the woman is foregoing rather than the employment relationship with a single employer.

An additional factor to consider in establishing eligibility criteria is to ensure that it is a standard which has public support and is seen as a legitimate standard. On this basis, HREOC has leaned towards more conservative eligibility criteria.

HREOC recommends that women be required to have worked 40 weeks in the past 52 weeks, with any number of employers. HREOC considers that this standards strikes a balance between the need to reflect the circumstances of women's work and the need to maintain public confidence in the system.

Forty weeks is a longer period than the usual gestation of 38 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, this principle was one which was important to employer groups. [984]

The other benefit of a 40 week within 52 weeks qualifying period is that it will provide 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, will still receive the 14 weeks of government funded maternity leave payments. 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 complaint, has not been able to prove a complaint, or where a complaint has not yet been decided.

In light of the fact that these eligibility criteria are a compromise position, it may be appropriate to review the criteria once the system has commenced operating. 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. [985]

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15.6 Means testing

A number of submissions proposed that any system of paid maternity leave be means tested. [986] These submissions considered that means testing was a way to limit the cost of a paid maternity leave scheme to Government and to better target assistance to those most in need.

The Shop, Distributive and Allied Employees' Association supported means testing.

This payment should be means tested. There is no argument that can be mounted which, on the grounds of fairness and equity, justify making this payment to the wealthy. However such a means test should be fair and equitable. The current regime of means tests applicable to family support payments are unduly harsh and deny many families access to them, in full or part. A more relaxed means test than those currently in place needs to be established. There is, nevertheless no grounds for justifying such a payment to high income earners. [987]

The Women's Action Alliance recommended that "[i]f our social justice commitment is to assist the poor first then targeting via a means test should be adopted". [988]

An individual submission emphasised the importance of targeting a government payment.

Financial assistance should be provided to all women who have babies, regardless of their work status. Payments should be means-tested. The alternative, of government funded maternity leave, will result in some low to middle income families receiving appropriate assistance, some middle to high income families receiving inappropriate assistance and many low to middle income families missing out. Of course this could be rectified by payments to women at home, (such as the Baby Bonus), but a simplified form of means-tested payments to all women, working or not, would seem preferable. [989]

Those who have argued against a means test [990] do so on the grounds that a means test could mean that significant numbers of women in paid work are excluded from accessing paid maternity leave, that it will penalise higher paid women, and that it will undermine the principle that paid maternity leave is designed to replace the income of women who are currently forced to forego income on the basis of maternity. The Women's Electoral Lobby noted that:

[w]omen on leave from the workplace due to child-birth are expected to work in the future, are able to work and are employed - therefore a social security system of payment is not appropriate. Means testing and a flat rate of payment do not uphold a principle of income replacement recognising women's foregone earnings. [991]

The Australian Industry Group considered that "[t]o provide a means tested payment would effectively penalise women in higher paying occupations (who already face higher opportunity costs)". [992] The National Pay Equity Coalition drew attention to the number of women who would miss out if a means test were applied.

If a means test were set at limiting entitlement to those who earn less than the federal minimum wage, with no payment for those who earn above $431, around six in ten women would not receive PML [paid maternity leave]. Similarly if a means test limited entitlement to those earning below average weekly earnings, more than 30% of women would not receive any payment. [993]

The National Diversity Think Tank stressed the importance for economic security for women in their own right.

[P]aid maternity leave should be provided to an individual woman in her own right, the only criteria being that she is removing herself from the workplace in order to have a child (i.e. from wage-earner with economic independence to non-wage-earner) hence the existence of a partner / the gender of a partner / or if the partner is earning, is irrelevant. [994]

The Victorian Government noted that not all government family assistance payments are currently means tested. It considered that this approach should extend to government funded paid maternity leave.

The Victorian Government believes that a paid maternity leave scheme involving a payment of $431.40 per week, or approximately $6,040 over 14 weeks, is a very modest scheme and … should not be means tested. [995]

The Hawke Institute considered that "[i]t is important that parenting leave be a right rather than a welfare entitlement". [996]

One of the benefits of paid maternity leave is that it may influence workplaces to be more accepting of the need for employees to be able to combine work and family. If the Government chose to means test paid maternity leave, it would be sending a message that women who are successful in gaining higher paid positions should not expect to be supported by the Government and the community in combining work and family.

HREOC does not support means testing of paid maternity leave. Paid maternity leave is concerned with addressing the workplace disadvantage faced by women due to their childbearing role, and to ensure that women are not financially penalised through a forced absence from the workforce on the birth of a child. These are different to the goals of social security payments which are designed to assist those in the community who are "… not expected to work (retired people, lone parents and carers), unable to work (people with disabilities and the sick) or unable to find work (the unemployed)". [997]

The non-means testing of paid maternity leave recognises that a primary goal of such a scheme is to provide all women and children with the opportunity to stay at home together for the first few months after birth. For this reason, paid maternity leave is conditional on taking leave from paid employment. The goal is time out of the workforce by means of income replacement rather than income supplementation for low income families.

RECOMMENDATION 5

That in order to be eligible for paid maternity 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. Access to this payment should not be means tested.

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16. Duration

16.1 Introduction

While there was debate in submissions about the duration of any paid leave, it is clear that the International Labour Organization standard of a 14 week minimum is influential. Submissions also recognised that many of the international comparator countries have or are in the process of extending their paid leave. However most submissions preferred to advocate for an acceptable, achievable minimum standard.

This Chapter reviews the range of recommendations for the duration of paid maternity leave, referring to various international standards and practices. Proposals in submissions for the duration of paid maternity leave varied from six weeks [998] to five years. [999] The key proposals are outlined below.

It should be noted that the period of paid maternity leave would overlay existing unpaid maternity leave provisions, which provide eligible employees with access to twelve months unpaid leave. [1000] Access to 12 months unpaid parental leave available under awards and legislation would continue according to existing provisions. This Chapter focuses on the length of time for which a maternity leave payment should be made. The proposal would not bestow any additional or new rights to unpaid leave.

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16.2 International standards and practices

Under the Maternity Protection Convention, the International Labour Organization requires Member States who have ratified the Convention to provide no less than 14 weeks of paid maternity leave. [1001] Recommendation 191 recommends that Member States extend this period to at least 18 weeks of paid leave. [1002]

New Zealand provides "… up to 12 weeks paid parental leave, which is taxpayer funded". [1003]

Subject to Parliamentary approval, the United Kingdom will extend the duration of Statutory Maternity Pay and the Maternity Allowance from 18 to 26 weeks in April 2003. [1004]

In Canada, maternity benefits are available for up to 15 weeks. [1005]

Denmark provides up to 28 weeks paid maternity leave to mothers, the last 10 weeks of those may be in favour of the father. [1006]

France provides a basic rate of 16 weeks of paid maternity leave, with longer periods available in the event of multiple births and 26 weeks available in the case of the birth of a third or subsequent child. Paid leave commences six weeks before the expected week of birth, or eight weeks if the woman already has two or more children. [1007]

Ireland provides 18 weeks paid maternity leave. [1008]

In Japan, 14 weeks paid maternity leave is available. [1009]

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16.3 Twelve weeks/three months

A number of submissions proposed a period of 12 weeks or three months for paid maternity leave. [1010] Some submissions considered that three months was an absolute minimum length of paid leave to ensure the health and wellbeing of the mother and her baby. [1011] For example, one respondent to the maternity leave poll conducted by motherInc commented that:

... I don't think paid maternity leave needs to be for a year. I think at least for the first 3 months - until you get yourself back on your feet and back into a sensible sleep pattern - otherwise you just don't cope with the stresses. [1012]

The Australian Breastfeeding Association considered that:

[t]he first 12-14 weeks are critical in establishing breastfeeding, and we believe that ensuring adequate financial support for all mothers during the first months of a baby's life should be the priority for policy in this area. [1013]

Twelve weeks was also argued on the ground that it would be consistent with the 12 weeks provided for federal public servants through the Maternity Leave (Commonwealth Employees) Act 1973 (Cth). For example, the Women's Action Alliance noted that:

[i]t could be argued that as the Commonwealth government provides its own employees with 12 weeks paid leave that a Maternity Payment equal to 12 weeks of the basic rate of pension OR of the minimum wage OR of women's average weekly earnings would constitute a comparable social benefit [for the purposes of complying with Article 11 of CEDAW]. If this were put in place Australia could then withdraw its reservation to CEDAW on these grounds. [1014]

Twelve weeks was considered a minimum to ensure that Australia's provision was comparable to overseas schemes, and particularly the New Zealand scheme. The Women in the Department of Education and Children's Services Reference Committee, South Australia noted that:

[i]deally there is an expectation that a period of between 12 and 16 weeks would be appropriate so that Australian policies are comparable to those of other countries. [1015]

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16.4 Fourteen weeks

A significant majority of submissions in favour of paid maternity leave supported the provision of 14 weeks paid leave. [1016] This length of leave was supported by a broad range of groups, including unions, employers, employer groups, women's groups and academics.

The Maternity Protection Convention requires that Member States provide 14 weeks paid maternity leave, which can be taken immediately prior to and following the birth of a child. This includes a compulsory period of six weeks following the birth of a child.

Article 4

1 On production of a medical certificate or other appropriate certification, as determined by national law and practice, stating the presumed date of childbirth, a woman to whom this Convention applies shall be entitled to a period of maternity leave not less than 14 weeks.

…

4 With due regard to the protection of the health of the mother and that of the child, maternity leave shall include a period of six week's compulsory leave after childbirth, unless otherwise agreed at the national level by the government and the representative organizations of employers and workers. [1017]

A considerable number of submissions favoured 14 weeks of paid leave on the ground that this was the duration of leave advocated by the International Labour Organization. [1018]

The Australian Women Lawyers supported 14 weeks paid leave on the grounds that "[t]his is the ILO [International Labour Organization] Standard and is internationally recognized as an appropriate period". [1019] The Victorian Government supported 14 weeks paid leave on similar grounds.

Fourteen weeks paid maternity leave is the International Labour Organization (ILO) minimum standard. The majority of countries that provide for paid maternity leave, including the United Kingdom, the Netherlands, Germany, Canada and Japan provide for 14 or more weeks. The Victorian Government believes that 14 weeks is therefore the preferred starting point for the introduction of a paid maternity leave scheme in Australia. [1020]

The New South Wales Working Women's Centre submitted that:

… the grounds for requiring the length of this period have been firmly established in the international arena, based on those put forward by the ILO [International Labour Organization], WHO [World Health Organization] and the rationale for the CEDAW. [1021]

Fourteen weeks was also supported on the grounds of the health and wellbeing of the mother and the child. [1022] The Shop, Distributive and Allied Employees Association supported a minimum of 14 weeks paid leave, to be extended over time, arguing that this period "… is a minimum time to satisfy the objectives with due regard to the health of the mother and child, establishing a breast feeding regime and care arrangements for the baby". [1023]

The Australian Council of Trade Unions considered that:

[f]ourteen weeks would at least protect the health of the mother, give her the best chance of establishing breast-feeding, and reflect the limited availability of formal childcare for babies under 13 weeks. [1024]

Some employer groups, in favour of paid maternity leave, supported the provision of 14 weeks paid leave, including Coles Myer [1025] and the Australian Hotels Association. [1026]

The Australian Manufacturing Workers' Union Vehicle Division noted that a guaranteed period of time out of the workforce is particularly important for women who work in physically demanding positions and the union "… strongly advocates for a minimum of 14 weeks paid maternity leave". [1027]

The Australian Family Association (Queensland) opposed a 14 week period of paid maternity leave on the following grounds.

Full pay for a very limited time (14 weeks?) would not alleviate current reliance on dual incomes and may be perceived as tokenism only.
New mothers may mistakenly be led to believe that the first 14 weeks is the only essential time needed to nurture a child. "Bonding" is a process that requires longer than the first 14 weeks of a child's life and, by remaining in the workforce, mothers and their children are denied this opportunity.
An "officially" recognised short absence from work may erroneously promote a perception that having a child represents no more than a brief interruption in a career. [1028]

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16.5 Sixteen weeks

A number of submissions considered that 16 weeks was a more appropriate length of time for paid maternity leave, on the ground of the health and wellbeing of the mother and child. [1029] A health expert submitted that:

[t]he minimum duration of breastfeeding for optimal benefits is controversial, but is most likely four months. This reinforces the suggestion that 16-weeks paid maternity leave would be appropriate. [1030]

One individual at the Katherine community consultation noted that at 16 weeks babies have more regular feeding patterns. In particular, "[b]abies can only get on to solids at four months. Having your baby on solids is what enables you to go back to work". [1031]

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16.6 Eighteen weeks

A small number of submissions recommended 18 weeks of paid maternity leave, in light of the International Labour Organization recommendation that Member States extend paid maternity leave to this duration. [1032]

International Labour Organization Recommendation 191 states that:

Paragraph 1

1. Members should endeavor to extend the period of maternity leave referred to in Article 4 of the Convention to at least 18 weeks.

2. Provision should be made for an extension of the maternity leave in the event of multiple births.

3. To the extent possible, measures should be taken to ensure that the woman is entitled to choose freely the time at which she takes any non-compulsory portion of her maternity leave, before or after childbirth. [1033]

A small number of submissions recommended that 18 weeks of paid leave be available to each parent, meaning the Government would fund 36 weeks paid leave in relation to each birth. [1034] These submissions recommended that single parents be eligible for 27 weeks of paid leave to minimise discrimination against single parents.

In line with International Labour Organization Recommendation 191, Paragraph 1(1), the Public Service Association of New South Wales recommended additional paid leave for multiple births.

Additional leave available in event of multiple births - one week's paid leave for every extra child, i.e. 19 weeks for twins, 20 weeks for triplets, etc (if 18 weeks maternity leave). A multiple birth can be a great emotional and financial strain on the family. Increasing the leave entitlement by just a few weeks goes someway to relieving the strain. Extra leave provides limited recognition of the fact that had the children been born separately the mother would have been entitled to two (or more) lots of maternity leave. [1035]

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16.7 Six months

A number of submissions considered that six months, or 26 weeks, should be provided as paid maternity leave, [1036] particularly on the basis of promoting the health and wellbeing of the mother and child. For example, Women's Health in the North asserted that:

… six months is a better period of time to take leave after the birth of a baby before returning to paid employment to allow for parent-child bonding and establishment of breastfeeding. The World Health Organization recommends full breastfeeding for six months. [1037]

Similarly, the Union of Australian Women emphasised the health concerns of women up to six months after giving birth and argued that "[l]ess than 6 months is too short a time". [1038]

The World Health Assembly, the governing body of the World Health Organization, encourages Member States to take measures to enable women to breastfeed for six months. Providing six months paid maternity leave would be one possible means of achieving this. The Fifty-fourth World Health Assembly urged member states to:

… set up or strengthen interinstitutional and intersectoral discussion forums with all stakeholders in order to reach national consensus on strategies and policies including reinforcing, in collaboration with ILO [International Labour Organization], policies that support breastfeeding by working women, in order substantially to improve infant and young child feeding and to develop participatory mechanisms for establishing and implementing specific nutrition programmes and projects aimed at new initiatives and innovative approaches;

… strengthen activities and develop new approaches to protect, promote and support exclusive breastfeeding for six months as a global public health recommendation, taking into account the findings of the WHO [World Health Organization] expert consultation on optimal duration of exclusive breastfeeding. [1039]

In comments provided to the motherInc maternity leave poll, an individual commented that six months is more likely to influence a woman's decision to have a child.

The Government should pay for at least 6 months maternity leave to encourage women to have children. I plan on being a mum one day but am working full time and the thought of being away from the workforce unpaid does not appeal to me thus I keep putting it off. [1040]

Another individual submission considered that six months of paid maternity leave would better support women's labour force participation.

Being paid for the first six months (rather than adhering to a bare minimum) won't make most women less tired but will go a long way to relieving family financial pressures at a time which is one of the most stressful in a woman's life. It is clear that the community supports paid maternity leave … and I believe that making it six months long, in step with other leading industrial countries, will ensure a much greater retention of women in the workforce and a workforce of women who are happy to return to work. [1041]

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16.8 Twelve months

A full year of paid maternity leave was seen as ideal by some submissions. [1042] One individual commented that:

I think a year's paid maternity leave would be a welcome relief to all families and an incentive for women to return to work happier, healthier and knowing they have done the right thing by themselves and their child. [1043]

One employer at the Brisbane employer consultation considered that 12 months paid leave was necessary if a scheme were to affect the fertility rate.

I think it is a social issue. Fourteen weeks paid isn't going to make a difference to the mortgage, pay the bills etc. If we want women to make a difference to society, pay 12 months! If that is the social agenda. If population stats are troublesome and we need to keep producing … lets be serious if that is the agenda. Fourteen weeks won't make a difference. [1044]

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16.9 HREOC's position

HREOC considers that a national paid maternity leave scheme should provide 14 weeks of paid leave, able to be taken immediately prior to and following the birth of a child.

Fourteen weeks of paid leave is consistent with the International Labour Organization's view on the minimum period of paid leave a woman should have access to at the time of childbirth. Based on current medical evidence, a guaranteed 14 week period of paid leave would appear to be sufficient time for the majority of women to recover from childbirth and to establish breastfeeding. [1045] A period of 14 weeks paid maternity leave also has considerable community support, being the preferred option in the majority of submissions.

It may be appropriate to limit the period of paid leave available prior to the birth to six weeks, to ensure that a period of paid leave is available following the birth. However, HREOC would not condone any compulsory period of leave, whether paid or unpaid, being mandated for either the period before or after the birth of a child. [1046]

Given that 14 weeks is a basic length of paid leave, and to ensure that the health and wellbeing objectives of paid maternity leave are met, the leave should be taken as a continuous block.

HREOC considers that this is a minimum entitlement, and that the Government should consider extending this period over time. As proposed at 14.2, this minimum period ought to be the entitlement of birth mothers only, with some limited exceptions. [1047] However, should a period longer than 14 weeks paid leave be set, the additional period should also be made available to the primary caregiver, whether or not they are the birth mother.

RECOMMENDATION 6

That a national scheme of paid maternity leave provide for up to 14 weeks of paid leave to be taken immediately prior to and/or following the birth of a child.

The paid leave must 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.

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17. Payment level

17.1 Introduction

The level of payment provided under a paid maternity leave scheme depends on the objectives of such a scheme. As discussed in Part C, HREOC considers that a government funded paid maternity leave scheme would provide a level of income replacement for women to assist in addressing their workforce disadvantage and to ensure that they are not forced for financial reasons to return to the workforce before they have physically recovered from childbirth.

In her work on paid maternity leave, Marian Baird has highlighted the importance of the underlying objectives of any scheme to its design.

A guiding philosophy for paid maternity leave is required if a rational decision is to be made. If providing women with paid maternity leave is regarded as a welfare measure provided by the state, then a small amount comparable with other welfare payments may be justified. If the philosophy is to satisfy women's demands for some income, then an amount equivalent to average weekly earnings or minimum weekly earnings may suffice. However, if paid maternity leave is driven by the desire to improve women's economic independence and to redress the cost of career interruptions, then full income replacement is warranted. [1048]

This Chapter examines issues relating to the structure of the payment level for paid maternity leave as well as the actual dollar amount to be paid.

The international standard for paid maternity leave established by the International Labour Organization and the interpretation of this standard is discussed. Establishing a level of payment for a national scheme that complies with the standard and is simple to understand and apply to Australian conditions is surprisingly complex and contested.

The key proposals in submissions for a payment level in an Australian paid maternity leave scheme were: a social security level payment; Federal Minimum Wage; Average Weekly Earnings; or full wage replacement. Each of these options is considered in this Chapter.

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17.2 International standards and practices

17.2.1 Maternity Protection Convention

A key principle identified under the Maternity Protection Convention is the adequacy of payments to ensure the standard of living for a woman and her child.

Article 6

2. 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. [1049]

The Maternity Protection Convention 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. [1050]

The International Labour Organization, through Recommendation 191, considers that Member States should aspire to a system of paid maternity leave that provides full wage replacement. [1051]

17.2.2 United Kingdom

As noted previously, the United Kingdom provides Statutory Maternity Pay to women who have been employed for a continuous period of 26 weeks and Maternity Allowance to women who are self-employed or have been employed but do not qualify for Statutory Maternity Pay. [1052]

Subject to Parliamentary approval, from April 2003, the Statutory Maternity Pay Scheme will provide an eligible woman with 90 per cent of her average weekly earnings for the first six weeks of leave (or at the flat rate of £100 if this is higher), and then for the remainder of leave (up to 20 weeks), the lesser of the flat-rate weekly payment (£100) or 90 per cent of her average weekly earnings, calculated as an average of the woman's weekly earnings within a particular eight week period. [1053]

In addition, from April 2003, the Maternity Allowance will be increased to £100 per week, or 90 per cent of the woman's average weekly earnings if this is less than £100 per week, for 26 weeks. [1054]

17.2.3 New Zealand

The New Zealand scheme was introduced in legislation that came into effect in 2002. Parents receive either their previous earnings or NZ$325 per week, whichever is the lesser amount. Previous earnings are the greater of the employee's ordinary pay prior to taking leave or the employee's average weekly earnings. [1055]

The payment replaces 100% of previous earnings up to a maximum of $325 per week, for jobs that the parent takes (qualifying) parental leave from. If you have more than one job, you are entitled to up to $325 in total, not on a job-by-job basis. [1056]

The New Zealand Paid Parental Leave Scheme provides 46.7 per cent of New Zealand's Average Weekly Ordinary Time Earnings (full time employees). [1057]

$325 rate means approx 50% of eligible women will get 80% of their earnings, and approx a third will get 100%. [1058]

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17.3 Structure of the payment level

17.3.1 Introduction

There are a number of basic decisions about the payment level that significantly influence the cost of any system for Government. These structural elements apply, regardless of the actual dollar level of payment that is decided upon. These include:

whether the payment is to be capped;
whether the payment is to be paid at a flat or variable rate;
whether there is to be a floor for the payment; and
how previous earnings are to be calculated, if they are the basis for payment.

17.3.2 Capping

Capping payments has the effect of limiting the cost of a paid maternity leave scheme to Government.

Although the Maternity Protection Convention does not expressly provide for an upper limit or ceiling on maternity leave payments, the view of the International Labour Organization is that this is implicit in the Convention. Specifically the International Labour Office has stated that:

[i]n the view of the Office, the possibility for a Member to set an upper limit for benefits is implicit in the phrase "or of such of those earnings as are taken into account for the purpose of computing benefits". The two-thirds replacement rate would have to be met only for the portion of earnings thus taken into account. [1059]

In effect, all of those submissions that proposed a maternity leave payment at a rate less than full income replacement are placing some sort of limit on the level of maternity leave payments. The various views on what constitutes an appropriate cap on maternity payments are discussed below at 17.4.

The National Pay Equity Coalition noted that government funding of a scheme may influence the decision to cap payments available under the scheme.

It may be considered undesirable for a full income replacement scheme to be funded through taxation. Internationally, full income replacement schemes are largely contribution-based. [1060]

The YWCA of Australia supported placing an upper limit on payments, submitting that:

[t]he YWCA is ... happy to advocate for the government to fund a minimum level of parental payment in order to ensure that this does not become a scheme where people on higher incomes receive more benefits than people on lower incomes. [1061]

HREOC supports a cap for government funded paid maternity leave. HREOC sees the role of government funded paid maternity leave as providing a minimum income replacement entitlement for women in paid work around the time of childbirth. The ideal payment level is full income replacement in order to ensure all of the objectives of paid maternity leave are met. However, HREOC does not necessarily consider that it is the role of government to provide full income replacement. In particular, given that a range of benefits of paid maternity leave can accrue directly to employers, there may be a role for employers to top up the government payment to the level of full wages. [1062] Most employers currently providing paid maternity leave do so at full wage level.

HREOC also notes the importance of ensuring that the cap for paid maternity leave is linked to an externally set rate that reflects changes in market wages. This will ensure the maintenance of the real value of the payment over time. In contrast to this approach, the National Pay Equity Coalition noted that:

... Australia's experience on this matter has been that twice before a maternity payment has been introduced, stagnated and over time its real value has decreased. [1063]

17.3.3 Flat or variable rate

Flat rate payment

A flat rate payment would mean that all women would receive the same level of maternity leave payment, regardless of their previous earnings. [1064] This approach was supported by those who considered that payments should be made to all women and not just limited to those in paid work. This approach would be easier to administer as there would be no need to calculate or establish a woman's previous earnings. Supporters of this approach also considered that it provides a more equitable outcome between women.

The Shop, Distributive and Allied Employees' Association argued that:

[a] flat fixed payment eliminates the potential to make arbitrary, discriminatory decisions about who should receive the payment and who should not, and about the level of the payment because it would not be related to previous wages, length of service, or hours worked and on what basis. [1065]

The Australian Chamber of Commerce and Industry considered that:

[i]t is also difficult to reconcile the proposed basis of payment based on previous earnings with any general notion of equity or supporting the meeting of costs. A single rate, capped approach would appear more appropriate. [1066]

Coles Myer supported a flat rate in order to ensure that women received an adequate level of payment.

Coles Myer Ltd. considers paid maternity leave should be paid as a fixed amount reflective of the minimum amount of money on which a woman could expect to support herself and her new child to a reasonable standard of living. [1067]

A flat rate payment would also mean that women with lower or no earnings would receive proportionately more than women in higher paid positions. One of the criticisms of the Government's Baby Bonus was that those who had higher earnings received higher payments. [1068] This criticism would equally apply to a paid maternity leave scheme that linked previous earnings with payment level. The higher the payment cap, the greater is this criticism. As one individual pointed out:

[i]f [payment level] is calculated against weekly earnings women on lower wages, who really need financial assistance, will receive a smaller amount than those in highly paid positions. [1069]

The Women's Action Alliance suggested another approach.

The payment should be a flat rate rather than tied to income level. If it were to be tied to income level then it should be inversely so - so that lower income households receive more than higher income ones. [1070]

Variable rate payment

The alternative to a flat rate is a variable rate linked either to a woman's previous earnings or some other objective variable or method of calculation. The Australian Capital Territory Ministerial Advisory Council on Women considered that:

[p]aid maternity leave should be paid as a proportion of income. If, as was discussed earlier, paid maternity is a work place condition, then it needs to be linked into the level of income that the woman was earning when leave was taken. Paid maternity leave in this way is not a reward for having a child, but a necessary condition of employment similar to other types of leave.

It is a concern that if a fixed rate were paid, then it would in effect be a lowest common denominator payment, disadvantaging those women in higher paid employment. [1071]

BPW Australia argued that payments should be available:

… at 100% of wages/salary for those earning under the AWE [Average Weekly Earnings] rate - it would be a mistake to encourage women to have babies for a pay rise. [1072]

HREOC supports the introduction of a variable rate of payment for paid maternity leave. HREOC opposes a flat rate payment on the basis that it would see some women receive more than they had previously earned. This is inconsistent with the concept of income replacement - that paid maternity leave should replace the income that a woman must forego due to maternity.

17.3.4 A floor for payment

It is possible to structure a paid maternity leave system such that there is a lowest amount that women receive as payment. This would ensure that women with particularly low earnings would receive a guaranteed level of payment. For example, Barbara Pocock and Lyn Collins suggested that "[a] minimum payment of about $2000 should be paid to any working woman whose entitlement would otherwise be less than this, based on their normal earnings". [1073] Another individual suggested that payment:

… could be staggered so that non-employed women receive an acceptable minimum wage or the average working wage and employed women receive their regular working wage. [1074]

The New South Wales Working Women's Centre submitted that:

… in order to address the discriminatory effects of labour market inequities, and the potential of compound discrimination experienced by women who are dismissed or disadvantaged in their employment while pregnant, a floor should be set for the income replacement program. The Centre proposes that this be set at minimum weekly earnings. [1075]

HREOC does not support a floor for payment as part of a paid maternity leave system. HREOC considers a better approach would be for women to receive family assistance and income support payments where this would provide a greater level of financial support. Existing family assistance and income support payments are designed to provide a safety net payment for all women, particularly where they have not previously been in paid work. [1076] This represents an alternative to a floor to the paid maternity leave scheme.

These other family assistance payments would consist of the Maternity Allowance ($811.44 lump sum payment), [1077] Family Tax Benefit Part A ($126.70 maximum per fortnight), [1078] and Family Tax Benefit Part B ($108.78 maximum per fortnight). [1079] A woman receiving maximum Family Tax Benefit payments and the Maternity Allowance would receive $2 459.80 in the first 14 weeks of her baby's life. This is equivalent to $175.70 per week for fourteen weeks. In addition to this, the woman may also be eligible for Parenting Payment, [1080] Rent Assistance, [1081] Large Family Supplement, [1082] Multiple Birth Allowance [1083] and a Health Care Card, [1084] as well as the Baby Bonus. [1085] Depending on family income, a woman who earns less than $175.70 per week may be better off electing to take family assistance payments than paid maternity leave. [1086]

The Government should ensure that women are provided with adequate information and guidance to be able to choose between paid maternity leave and other government payments.

17.3.5 Assessing previous earnings

A system of paid maternity leave that provides income replacement must determine what income or previous earnings are to be replaced. It is also necessary to determine whether payment is based on a woman's primary source of income or whether previous earnings will take into account the situation where a woman has had earnings from more than one position. This is important given the increasing incidence of multiple job holding, in particular for lower income workers.

The Women's Economic Policy Analysis Unit considered that:

[d]espite the overwhelming benefits to both women and the broader community in such a [paid maternity leave] proposal, the greatest challenge will be in determining the eligibility rule - particularly for women who may reduce their hours in the last few months prior to their child's birth, women as casual workers and women holding more than one job. As a means of addressing the level of [paid maternity leave] for women who may decrease their hours of work prior to the birth of their child, WEPAU [Women's Economic Policy Analysis Unit] proposes that the rate of remuneration (the minimum wage) for [paid maternity leave] is calculated as a proportion of the employee's working hours/earnings over the previous 12 months. [1087]

A branch of the Australian Services Union suggested that:

[p]ayments should be based on women's salary immediately prior to taking maternity leave or in the case of a woman who has transferred to part time hours, based on the average wage over the previous 12 month period. [1088]

The New South Wales Working Women's Centre drew attention to the issue of over-award payment and variations of salary packaging. Its submission noted that:

[w]hilst there are solid grounds for determining the rate of pay at ordinary earnings, there are also particular occupational groups who might be disadvantaged by this - particularly women working in Award-free employment, working multiple jobs, working on rolling and/or short-term and varied contracts, independent contractors and women who derive their income primarily on commission or piece-rates. [1089]

The Australian Council of Trade Unions argued that:

[w]here a woman holds multiple jobs her entitlement should be based on her cumulative income. Multiple job holding is more common amongst females … reflecting women's concentration in casual employment.

As the Australian Council of Trade Unions' model spreads funding responsibility across employers, there is no rationale to tie eligibility to a particular employer. [1090]

As noted at 17.2.3 above, the New Zealand scheme provides parents with the lesser of a capped rate, or previous earnings. The scheme includes two methods for calculating previous earnings, being the greater of earnings immediately prior to taking leave or an average of earnings over the preceding 12 months. The New Zealand scheme also takes account of earnings from multiple jobs.

HREOC agrees with the New Zealand approach and considers that previous earnings should be calculated as either a woman's earnings immediately prior to taking leave or an average of earnings over the previous twelve months, whichever is the greater, and should take account of earnings from multiple jobs.

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17.4 Amount of payment

17.4.1 Submissions on the Maternity Protection Convention

The Maternity Protection Convention sets out a series of criteria for establishing the level of payment for paid maternity leave.

Article 6

1. Cash benefits shall be provided, in accordance with national laws and regulations, or in any other manner consistent with national practice, to women who are absent from work on leave referred to in Articles 4 or 5.

2. 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.

3. Where, under national law or practice, cash benefits paid with respect to leave referred to in Article 4 are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the woman's previous earnings or of such of those earnings as are taken into account for the purpose of computing benefits.

4. Where, under national law or practice, other methods are used to determine the cash benefits paid with respect to leave referred to in Article 4, the amount of such benefits shall be comparable to the amount resulting on average from the application of the preceding paragraph. [1091]

There was disagreement amongst submissions on the interpretation of the International Labour Organization standard, and in particular the dollar amount of the minimum entitlement based on the calculation spelt out in Article 6(4).

Some submissions argued that payment capped at the rate of the Federal Minimum Wage would satisfy the requirement in its own right, or that it came close enough to this standard to be acceptable. [1092] For example, the Flight Attendants' Association of Australia contended that:

[i]t is essential that such a scheme [ie paid maternity leave] must be based on achieving 14 weeks paid maternity leave at Living Wage level as a minimum standard, which is in line with the International Labour Organization recommendations. [1093]

The Western Australian Government considered that, while Australia was not yet obliged to comply with the Maternity Protection Convention, this Convention provided a useful guide on what constituted an acceptable minimum payment. It considered that the Federal Minimum Wage met this standard.

The average weekly ordinary time earnings for females in Western Australia as at February 2002, was $730.20. Two thirds of this is $486.80. The Federal minimum weekly wage is currently $431.40.

The Western Australian Government supports the proposal that the Federal Government pays 14 weeks paid maternity leave at the level of the federal minimum wage, with employers having the option to top this up to the level of the employee's previous earnings or part thereof, through an agreement negotiated with their employees. [1094]

The Women's Economic Policy Analysis Unit stated that:

[w]hilst the proposed minimum payment of $431.40 (linked to movements in the federal minimum wage) to women in full time employment would, for many women, fail to meet minimum paid maternity leave standards as specified by Article 6 of ILO [International Labour Organization] convention 183 [Maternity Protection Convention] (which specifies income replacement at two-thirds of previous earnings), we do see this as a minimum amount to be topped up by the employer subject to workplace/enterprise based negotiations. [1095]

Others considered that payment up to Average Weekly Earnings was required to meet the Maternity Protection Convention. [1096]

The National Pay Equity Coalition disputed that the Federal Minimum Wage met the standard set by the Maternity Protection Convention. [1097] Its interpretation of the Convention was that:

[t]he test required by [the Maternity Protection Convention] is that women should receive at least two thirds of their previous income. Ideally this test would be addressed if the payment was tailored to meet the two thirds requirement for the earnings that each women eligible for paid maternity leave receives. [1098]

The National Pay Equity Coalition contended that Average Weekly Earnings was a better measure "… to capture the full distribution of women's earnings". [1099] This submission calculated that:

[a] scheme capped at average weekly earnings would provide at least two thirds of previous income (in keeping with [the Maternity Protection Convention] article 6) for around 95% of women and would provide income replacement for around 75%. [1100]

17.4.2 Social security payment

A very limited number of submissions proposed making payment at a rate equivalent to existing social security payments. The Women's Action Alliance pointed out that:

[a]s politics is the art of the possible we believe it would be more likely in the short term that the Government would agree to a payment equal to 12 or 14 weeks of Newstart or the Parenting Payment. [1101]

The Festival of Light suggested that the maximum parenting benefit "… would be a good start". [1102]

As noted at 6.3, the purpose of paid maternity leave is quite different to that of social security. HREOC concurs with the National Pay Equity Coalition that:

[paid maternity leave] is far more analogous to workers compensation than to social security since it is a provision for a temporary absence required for the worker to be able to return to paid workforce participation and economic self-sufficiency. Some argue that low levels of social security payments and general availability without a specified duration while people meet eligibility requirements (including stringent means testing) mean that recipients must cut their expenses in line with their incomes. [Paid maternity leave] is an entirely different type of benefit. It provides a bridge to continuing participation in paid work and ongoing economic self-sufficiency rather than requiring an ongoing downgrading of standard of living and/or entering into income support arrangements. [1103]

17.4.3 Federal Minimum Wage

A significant proportion of submissions supported government funded paid maternity leave at a rate of up to the Federal Minimum Wage. [1104] In addition, those groups that proposed a two tier model of government funding topped up by an employer levy considered that the Federal Minimum Wage was an appropriate contribution by Government. [1105] As such, the Federal Minimum Wage was the most widely supported payment level for government funding of paid maternity leave.

The Federal Minimum Wage was seen by many as a minimum standard for paid maternity leave. A key provision of the Maternity Protection Convention is that payment should ensure that a woman and her child can maintain a suitable standard of living. The Australian Council of Trade Unions suggested that "… the national minimum wage represents a modest claim for an adequate income to maintain a mother and her child at a reasonable standard of living". [1106]

The Shop, Distributive and Allied Employees' Association noted that:

[t]he Federal Minimum wage has been determined as the bare minimum income for working people at which they can have a chance to make ends meet. As such it is the lowest acceptable rate for a paid maternity leave scheme. [1107]

The Federal Minimum Wage has the benefit of being externally set through negotiations between representatives of Government, employers and employees. It also has wide community recognition and a reasonable level of support as representing a minimum level of payment for work. HREOC agrees with the Australian Council of Trade Unions' position on this.

The rate of payment should be benchmarked against an appropriate external rate, to avoid erosion of its value over time. The minimum wage is an appropriate benchmark because it is an independently assessed rate, which is varied from time to time, reflecting the needs of employees in the context of living standards generally.

…

The minimum wage is also appropriate because it is independently set, with the industrial parties and governments having opportunities to present their case to the AIRC [Australian Industrial Relations Commission]. [1108]

The Victorian Government recommended that:

... a national maternity leave scheme should be paid at the level of the federal minimum wage at a minimum with pro rata payment for those in part time and casual employment. It is consistent with the ILO [International Labour Organization] standard, provides a level of payment that is comparable to New Zealand, and is based on an annual assessment by the AIRC [Australian Industrial Relations Commission] of the level of wages required "to maintain a safety net of fair minimum wages for all award reliant employees". The Victorian Government also believes that it is more likely to have a broad base of support in the community as a level of payment that the community can reasonably sustain. [1109]

Limiting payment level to the Federal Minimum Wage was also seen as an acceptable means of limiting the cost of any scheme to Government, and ensuring that government funding is appropriately targeted. The Association of Independent Schools of Victoria pointed to the fact that "… salaries differ significantly throughout society ... " [1110] and suggested that:

… the maximum payment should be equivalent to the federal minimum award wage, except where the carer was earning less than the federal minimum award wage during the 12 months preceding the period of leave as the primary carer of the newborn or adopted child. [1111]

The Australian Council of Trade Unions called for:

... the Commonwealth to assume responsibility for funding paid maternity leave for 14 weeks up to the level of the federal minimum wage (currently $431pw) … [F]orty-eight percent (48%) of women workers earn less than $500pw, and 35% earn less than $400pw. Payment to the federal minimum wage would ensure full income replacement for the lowest paid women. Almost half of the Commonwealth's contribution to the paid maternity leave scheme (excluding its contribution as employer) would be paid to women earning less than the federal minimum wage. The cap therefore allows an appropriate level of targeting of taxpayer funding to lower-paid women. [1112]

Limiting payment to the level of the Federal Minimum Wage was also seen to provide employers with the flexibility to top up payments and hence retain their position as employer of choice. Employer top ups are further discussed at 19.4. Immigrant Women's Speakout considered that the Federal Minimum Wage should be preferred "… as this amount allows employers, unions and employees to bargain above this amount. Such a framework ensures a level of flexibility in the system." [1113]

Some groups did argue against a cap at the Federal Minimum Wage on the basis that this did not provide income replacement for the majority of women and would not address the inequities between those women who may or may not receive employer funded paid maternity leave. The United Trades and Labor Council of South Australia asserted that:

[a] national scheme which provided paid maternity leave for all, funded by the Federal Government at the minimum Federal wage level or at a social security pension rate would continue to create a big difference between those who currently have paid leave and those who don't. It would also mean that many women workers may have their conditions undermined or removed in the next round of bargaining. [1114]

17.4.4 Average Weekly Earnings

A significant proportion of groups thought that paid maternity leave should be paid up to the level of Average Weekly Earnings. [1115] As noted at 17.4.3 above, some, in particular unions, thought that this should be funded through a government payment to Federal Minimum Wage level plus an employer levy.

It should be noted that while there was support for payment at the rate of "average weekly earnings", there was no consistency between organisations in terms of which measure of Average Weekly Earnings was being used. For example, the Women's Electoral Lobby [1116] and the National Pay Equity Coalition [1117] referred to Average Weekly Earnings based on all employees total earnings ($684.70), [1118] while the Australian Council of Trade Unions [1119] and the Australian Manufacturing Workers' Union [1120] referred to Average Weekly Earnings based on full time adult total earnings ($897.30) [1121] and the YWCA of Victoria [1122] referred to public sector full time adult total earnings ($981.10). [1123]

The key reason given for preferring a form of Average Weekly Earnings to the Federal Minimum Wage was that it would ensure a greater proportion of women would receive full income replacement.

The [Anti-Discrimination Board of New South Wales] considers that payment up to a maximum level of AWE [Average Weekly Earnings] would best achieve the goal of providing full income replacement for as many women workers as possible. [1124]

The National Pay Equity Coalition recommended:

[a] scheme with a cap at average weekly earnings [$684.70] so that income replacement is provided for women earning below average weekly earnings and those who earn more are paid at average weekly earnings would provide income replacement for around 75% of women and would provide some benefit to those who earn more in recognition of the drop in their and their household earnings. [1125]

The Australian Council of Trade Unions calculated that 87 per cent of women would receive full income replacement under a paid maternity leave scheme that paid up to Average Weekly Earnings for full time adult total earnings ($897.30). [1126]

Some organisations considered that payment at the level of Average Weekly Earnings was needed to ensure an adequate standard of living for women and their children. The National Women's Council of South Australia suggested that the appropriate rate of payment for a scheme "… should be commensurate with average earnings and which could be seen to sustain the needs of mother and child for the prescribed period." [1127] Australian Business Industrial submitted that it:

[did] not object to this payment being made at the average weekly rate of pay. This would provide most women with a suitable income for this 14 week period to be able to support themselves and child while they are not earning. This would also provide opportunity for employers who wanted to create or maintain a competitive advantage in the labour market to provide for higher levels of payment or additional weeks of payment for their employees. [1128]

Some groups considered that payment up to Average Weekly Earnings represented a reasonable cost to Government and ensured that government payments were targeted at those who currently missed out on employer funded paid maternity leave. [1129]

17.4.5 Full wage replacement

A number of submissions proposed that paid maternity leave should be paid at the level of a woman's previous earnings. [1130]

Many of those who proposed that paid maternity leave be capped at a rate below some women's earnings still considered that the ideal would be full wage replacement. However these submissions proposed that this should be negotiated between employers and employees. [1131]

Those in favour of full wage replacement noted that this was consistent with the definition and purpose of paid maternity leave. As the Australian Council of Trade Unions declared:

[i]n view of the purpose of paid maternity leave; to provide income security for working women; we call for a scheme that provides 100% of the women's pre-leave income during the period of leave. [1132]

The New South Wales Working Women's Centre submitted that:

... the maternity leave entitlement should ensure income replacement, paid at a rate equivalent to income foregone for the period of leave. This is in keeping with the objectives and logic of a paid maternity leave scheme ... [1133]

The New South Wales EEO Practitioners' Association supported full wage replacement.

As the intention behind a paid maternity leave scheme is to compensate women for lost earnings, maternity leave should not be means tested and should be paid at a replacement level of earnings, rather than average weekly earnings (with a discretionary "top-up" by employers).

…

Payment at replacement level earnings … has a practical impact given the high cost of living, the necessity for dual incomes (particularly in capital cities), and the growing number of women primary breadwinners. [1134]

Comparisons were also drawn with other forms of leave from paid work. Paid maternity leave was considered to be of equal value to these other forms of leave, and it was therefore claimed that paid maternity leave should be equally paid. The Queensland Council of Unions emphasised that:

[a]s a work related entitlement, maternity leave is no different to sick, long service leave, jury service leave and defence forces leave which are funded at 100% income replacement. [1135]

A submission from two academics considered that:

[a]s a right, maternity leave should be paid in full as are other forms of leave such as sick leave, annual leave, long service leave. Why should it be any different? Nobody raises the question of what can be afforded when it comes to paying sick leave, nor should this stance be adopted in relation to maternity leave. [1136]

Paying maternity leave payments at full wage replacement was considered important by some submissions if this payment were to address the workforce disadvantage experienced by women as a result of maternity. An academic submitted that:

[t]his idea of participating while bringing about change provides a basis for thinking about how to structure paid maternity leave for employed women. Some women may want to change employment in the long run to reduce or eliminate inequality, but in the meantime participating equally with men in the existing system is a worthy goal. This equal participation means increasing the rewards in financial, career and status terms for women in employment. According to this principle, we should ensure that women in employment receive full replacement of wages while on paid maternity leave. [1137]

Some submissions considered that paid maternity leave at the level of full wage replacement was a means of recognising and valuing the achievements of women who are in higher paid positions. For example, the New South Wales EEO Practitioners' Association submitted that:

[p]ayment at replacement level earnings places a higher symbolic value on women's earnings, in particular the contribution of women at senior levels to positive economic outcomes for business and the community. [1138]

One individual noted that "[s]ome have worked hard to get where they are in the work place and if they are on $30k a year then that should be the amount they are paid while on leave". [1139]

There was also a view that maternity leave payments for public servants, which are paid at full wage replacement level, should be used as a benchmark for a broader system of paid maternity leave. One individual suggested maternity leave paid, "… if possible equivalent to what government employees are receiving now". [1140]

Opposition to a government funded paid maternity leave scheme at full wage replacement largely related to a concern to limit the cost to Government of such a scheme and to incorporate a level of targeting within the scheme. The Women's Action Alliance stated that they would not support "… 'an individual's full pay or a proportion of it' - for equity reasons". [1141]

The position of the Australian Chamber of Commerce and Industry was that:

[w]hether a scheme is designed to supplement financial support while absent from the workplace, or to replace income is a fundamental issue to be determined prior to being able to further consider this issue. The first approach seems the more appropriate basis for government policy and expenditure. Equity and budgetary considerations would appear to discard full pre-maternity earnings, and mitigate in favour of some form of targeted single rate approach, with capping and/or means testing. [1142]

17.4.6 Levels of income replacement of various caps

As noted at 17.2.1 above, International Labour Organization Recommendation 191 sets full income replacement as a standard to which Member States should aspire. Article 6(3) of the Maternity Protection Convention provides that an individual woman shall receive two-thirds of her previous earnings or such earnings as are taken into account in computing benefits. Both of these standards can be used as a basis on which to assess the various possible caps for paid maternity leave. HREOC notes that these two standards provide guidance on payment level but, as discussed further at 17.5, is of the firm view that the Maternity Protection Convention does not mandate payment at this level.

As shown at Table 17.1 below, a payment up to the level of the Federal Minimum Wage would provide full wage replacement for between 35 per cent and 48 per cent of women and will replace two-thirds of previous earnings for between 62 and 73 per cent of women. [1143] More precise figures are not able to be given as women's earnings are only collected in $100 bands, as opposed to actual earnings.

Table 17.1: Distribution of women's earnings relative to the Federal Minimum Wage in August 2001 [1144]

Table 17.1: Distribution of women's earnings relative to the Federal Minimum Wage in August 2001

Source: ABS 6310.0 Employee Earnings, Benefits and Trade Union Membership August 2001, p9.

(a) Excludes 203,300 women whose earnings could not be determined.

(b) Based on Federal Minimum Wage of $408 in 2001. While the current Federal Minimum Wage is $431, the 2001 rate has been used to ensure consistency with the data on women's earnings, for which 2001 figures are the most recent.

(c) Assumes actual earnings at midpoint of range in column 1 (except for "2,000 and over" where earnings are assumed to be $2,000).

The table below repeats this calculation for each of the various proposed caps. Clearly, the greater the level of the cap, the greater the proportion of women who receive two-thirds of their previous income and the greater the proportion who receive full income replacement.

Table 17.2: Level of income replacement of various paid maternity leave caps in August 2001

Table 17.2: Level of income replacement of various paid maternity leave caps in August 2001

Source: ABS 6302.0 Average Weekly Earnings August 2001, p4 and ABS 6310.0 Employee Earnings, Benefits and Trade Union Membership August 2001, p9.

(a) August 2001 figures are used for the Federal Minimum Wage and the various AWE measures to ensure consistency with the data on women's earnings at Table 17.1.

(b) Earnings were assumed to be at the midpoint of the earnings range (except for "2,000 and over" where earnings are assumed to $2,000). The calculation in Table 17.1 was repeated for each of the possible PML caps. A summary is presented here.

A government funded scheme will extend coverage beyond those already entitled to employer provided paid maternity leave. The most recent data on paid leave arrangements found that 38 per cent of female employees reported that they were entitled to paid maternity leave. [1147] Access to existing employer provided paid maternity leave schemes is concentrated amongst higher income earners.

For example, women in full time work have greater access to paid maternity leave than women in more marginal employment, with lower skills, and who are in part time or casual work. Fifty-one per cent of women in full time work, 21 per cent of women in part time work and 0.4 per cent of women in casual employment reported that they had access to paid maternity leave. [1148]

Similarly women in higher skilled positions have greater access to existing employer provided paid maternity leave. Sixty-five per cent of managers and administrators and 54 per cent of professionals had access to paid maternity leave. In contrast only 18 per cent of elementary clerical, sales and service workers and 21 per cent of labourers and related workers had access to paid maternity leave. [1149]

The National Pay Equity Coalition compared existing access to paid maternity leave and the level of income replacement provided by the Federal Minimum Wage and Average Weekly Earnings (all women) by occupational group (Table 17.3 and 17.4 below). Such a calculation highlights that there is significantly different access to paid maternity leave by occupational group under the existing arrangements. It also demonstrates that a government funded scheme would provide a significantly different level of income replacement to women according to their occupational group.

Table 17.3: Occupational distribution of earnings and the level of income replacement of the Federal Minimum Wage [1150]

Table 17.3: Occupational distribution of earnings and the level of income replacement of the Federal Minimum Wage

* Calculated from ABS Cat. no. 6306.0 Employee Earnings and Hours, May 2000 Table 6 Distribution of all employees, occupation, females, May 2000.

# Unpublished data ABS Cat. no. 6361.0 Employment Arrangements and Superannuation, Australia, April to June 2000 (M2).

Table 17.4: Occupational distribution of earnings and the level of income replacement of Average Weekly Earnings (persons) [1151]

Table 17.4: Occupational distribution of earnings and the level of income replacement of Average Weekly Earnings (persons)

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17.5 A two tiered system

HREOC considers that the appropriate level of payment is the Federal Minimum Wage. Article 6(4) of the Maternity Protection Convention sets the minimum entitlement by reference to two-thirds of the Average Weekly Earnings for all women, [1152] a measure which is significantly lower than Average Weekly Earnings for all employees. HREOC is concerned that this entrenches systemic discrimination inherent in pay differentials between men and women. As such, HREOC considers it is preferable that this rate be based on an average weekly wage for all employees. Based on the May 2002 rate of the Average Weekly Earnings for all employees of $689.00, [1153] two-thirds of this rate would be $459.33. The weekly Federal Minimum Wage is $431.40. These two levels are sufficiently comparable to justify payment at Federal Minimum Wage level. In addition, the Federal Minimum Wage is more than two-thirds of Average Weekly Earnings for all women, which, as noted at 17.4.6, provides strict compliance with the Maternity Protection Convention. However, as discussed, the Federal Minimum Wage is to be preferred in that regard.

The Federal Minimum Wage also provides a safety net of fair minimum wages, [1154] is regarded by many in the community as providing a reasonable standard of living, is set annually by an independent organisation and has a reasonable level of community support.

HREOC notes that any government funded national paid maternity leave scheme should be considered in conjunction with employer funded paid maternity leave provided through awards, agreements and company policy. If the Government were to introduce a national scheme of paid maternity leave, this would create a two tier system of paid maternity leave consisting of the government minimum payment with an optional or negotiated employer top up.

It is HREOC's view that a government provided paid maternity leave scheme up to the level of the Federal Minimum Wage, in conjunction with existing employer provided paid maternity leave would mean that a significant majority of women in paid work would receive full wage replacement during a period of paid maternity leave. As discussed at 19.4, HREOC encourages employers to top up the government funded minimum payment in order to extend full income replacement to all women.

It is important that these two tiers of the system be considered together in determining the level of income replacement that women in paid work will receive through maternity leave payments.

HREOC acknowledges that a national system of paid maternity leave up to Federal Minimum Wage would fall short of the aspiration of full income replacement provided for under ILO Recommendation 191. Similarly, as pointed out by the National Pay Equity Coalition, at the Federal Minimum Wage level there would be certain occupational categories where significant numbers of individuals did not receive two-thirds of their previous income. As highlighted by the National Pay Equity Coalition:

43 per cent of advanced clerical and sales workers would not receive two-thirds of their previous income;
54 per cent of associate professionals would not receive two-thirds of their previous income;
34 per cent of elementary clerical, sales and service workers would not receive two-thirds of their previous income. [1155]

This result reflects the fact that these women are generally higher income earners, and hence the Federal Minimum Wage represents a smaller proportion of their current earnings. However, provided they met the eligibility criteria, all of these women would receive a payment of over $400 per week from the Government.

HREOC considers that it is disingenuous to view a Government scheme in isolation from negotiated employer funded paid maternity leave. Tables 17.3 and 17.4 show that, to a large extent, the occupations that receive lower levels of income replacement under a government scheme are those occupations that are more likely to receive employer funded paid maternity leave.

It is not possible to determine the level of income replacement available to women under the two tier system. This would be an important piece of information to collect following the introduction of a government funded scheme, in order to fully evaluate the level of income replacement that women on paid maternity leave are actually receiving. [1156]

HREOC considers that it is appropriate for a government funded scheme to provide the greatest proportional benefit to lower income women. This is consistent with the redistributive role of Governments and is a principle that is widely supported in the community. Those occupations where the government funded scheme will provide the highest levels of income replacement are also largely those occupations in which women are least likely to be able to bargain with their employer to gain paid maternity leave.

A government scheme of paid maternity leave at the Federal Minimum Wage would provide two-thirds income replacement for:

10.6 per cent of managers (78 per cent currently receive employer funded paid maternity leave);
35.1 per cent of professionals (60 per cent currently receive employer funded paid maternity leave);
88.4 per cent of labourers (31 per cent currently receive employer funded paid maternity leave);
81.5 per cent of tradespeople (26 per cent currently receive employer funded paid maternity leave); and
66 per cent of elementary clerical, sales and service workers (16 per cent currently receive employer funded paid maternity leave). [1157]

The employer funded paid maternity leave component for each occupational group would mean that significantly more women actually receive two-thirds of their income.

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17.6 HREOC's position

As outlined in Part C of the paper, HREOC recognises that the purpose of paid maternity leave is to replace the income that women forego due to a period of absence from the paid workforce at the time of the birth of a child. Thus the ideal level of payment for such a scheme should be 100 per cent of a woman's previous earnings. HREOC considers that this is a goal that the community should work towards. International Labour Organization Recommendation 191 sets full income replacement as a standard to which Member States should aspire.

However, HREOC acknowledges that a minimum compliance scheme may be needed in order to be accepted by Government and the community. HREOC also recognises concern at the regressive nature of a full income replacement scheme if funded solely by Government. HREOC considers that the appropriate role for a Government funded scheme, particularly as a first step, is to provide a minimum entitlement.

The Federal Minimum Wage represents an appropriate minimum entitlement. It provides a safety net of fair minimum wages, [1158] is regarded by many in the community as providing a reasonable standard of living, is set annually by an independent organisation and has a reasonable level of community support.

HREOC supports a paid maternity leave scheme that combines a capped amount and an earnings-related component. HREOC supports maternity leave payments at the rate of the Federal Minimum Wage or a woman's previous earnings, whichever is less. HREOC considers that this rate of payment meets the level of payment established under Article 6 of the Maternity Protection Convention.

RECOMMENDATION 7

That government funded paid maternity leave 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.

Previous weekly earnings are to 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 in employment over the previous twelve months.

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18. Payment mechanism

18.1 Introduction

The payment mechanism refers to the way in which payments are made to eligible women. The key options are a payment made directly from the Government to mothers, or a payment made indirectly from Government through employers to mothers. Both of these options and issues relating to the timing of maternity leave payments are discussed in this Chapter.

The payment mechanism is important in ensuring the efficient operation of the scheme, minimising the administrative impost on employers, women and the Government and ensuring that women are able to access the scheme. [1159]

The cost and complexity of administering a paid maternity leave scheme were seen by one individual as a reason for not introducing such a scheme.

The cost of establishing, administering and maintaining another Government body will not benefit the community … This nation will be poorer as the administering of this body will be top-heavy. It will be inflationary. It will require more heads of the public service. There are already many well paid public servants involved in family assistance. [1160]

HREOC agrees that administration of government benefits presents challenges and care must be taken to ensure that a new scheme, such as paid maternity leave, does not duplicate existing structures or become too cumbersome. However, these challenges can be addressed and should not defeat a proposal for a national scheme.

The discussion of payment mechanisms included in this chapter is based on the view that the national scheme of paid maternity leave should be government funded. [1161] On this basis, information from submissions on payment mechanisms for other forms of funding has not been included. [1162]

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18.2 International practices

Under the Statutory Maternity Pay scheme in the United Kingdom, employers make the payment to the employee, usually on the normal pay day, unless otherwise agreed. The employer is then reimbursed by the Department of Inland Revenue for an amount equal to 92 per cent of the Statutory Maternity Payments they have made in the previous tax period. This amount can be deducted from the employer's PAYE (Pay As You Earn) tax installments and National Insurance contributions. Small employers can deduct 100 per cent of the Statutory Maternity Payments they have paid out, plus 4.5 per cent to cover costs. [1163]

Under the New Zealand scheme, payments are made directly from the Government to eligible parents. Payments are made fortnightly by the Inland Revenue Department [1164] directly to eligible parents' bank accounts. [1165]

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18.3 Direct and indirect payment

18.3.1 Direct payment from the Government to mothers

A number of submissions supported the payment being made by Government, through an agency such as the Family Assistance Office, Centrelink or the Taxation Office. [1166] The main reason given for this approach was a view that employers should not have to take on the costs of administering the payment. For example, the Western Australian Government pointed out that:

[i]t is important that a national paid maternity leave scheme does not impose a significant additional administrative or cost burden upon employers. This could be circumvented if the Federal Government administered the paid maternity leave scheme and paid the women direct through its own agencies. [1167]

Employer organisations were also concerned about administering a government payment. The Australian Chamber of Commerce and Industry submitted that:

[g]overnment payments should be paid by the government. Employers are not a substitute for Centrelink for the payment of government benefits. Employers would have a preference to only return employees to their payroll when they return to work.

There is also scope for considerable confusion in the administration, taxation etc of any payments by employers on behalf of government, and major bureaucratic and transfer costs. [1168]

This concern was also recognised in other submissions. The Queensland Working Women's Service suggested:

… that [maternity leave payments] be paid through Centrelink together with other family payments which will relieve the employer of any administrative costs associated with the provision of paid maternity leave. [1169]

Some submissions also noted that an additional benefit of direct payment by Government was that it would improve women's access to the payment. Government payment would address the concern, particularly amongst unions, that certain employers may not pass the payment on to eligible women. The New South Wales EEO Practitioners' Association proposed that the Government administer the payment "… to ensure ease of access …" [1170] and the Australian Council of Trade Unions considered that:

[p]ayment via the Family Assistance Office (FAO) or alternative levy collection/administration agency would ensure that all women claiming their leave entitlement would be paid. [1171]

A number of submissions noted that the eligibility criteria for the scheme may mean that it is more desirable, and in some cases necessary, for the Government to make direct maternity leave payments. [1172] HREOC agrees that, based on the proposed eligibility criteria, [1173] a government payment may be more appropriate for the self-employed and where there is not a well-established employment relationship.

18.3.2 Indirect payment from Government through employer to mothers

The alternative to direct payment by the Government is for employers to make the payment to eligible employees. Employers could either claim the payment in advance from Government, or seek reimbursement once they have made the maternity leave payments. A number of submissions, particularly from unions and women's groups, supported this approach. [1174]

Some submissions considered that paid maternity leave, as a work related entitlement, should be paid through employers. [1175] The Centre for Applied Social Research agreed with the National Pay Equity Coalition that:

[b]ecause maternity leave is a work-related entitlement … [the] entitlement for employees should be administered through the employer in the same way as regular wage or salary payments, for the duration of the leave and that entitlement for those who are self employed, or who do not have continuity with a single employer should be paid through a central government agency in a lump sum in advance. [1176]

The National Pay Equity Coalition [1177] and the Public Service Association of New South Wales [1178] considered that payment should be made in the same way as wages. The Women's Electoral Lobby noted that this would be consistent with the way that other forms of leave are paid. [1179]

Some submissions noted that payment through the employer had the benefit of maintaining the connection between the employer and the woman. For example, the Work + Family Policy Research Group, University of Sydney, considered that:

[m]aternity and parental leave represent a continuation of the employment relationship and, for this reason, payments should be made by the employer directly to the employee. [1180]

The New South Wales Working Women's Centre supported payment through the employer on the grounds that this maintained the status gained through paid employment and the connection between the woman and her employer. Further, that submission contended that:

... payment through the employer (reimbursed by the government through the administration of the scheme) ensures that the employer maintains some responsibility and connection with the employee, thereby improving workplace culture and expectation of a smooth return to work after the maternity leave, if so desired by the employee. [1181]

The Australian Services Union MEU Private Sector Victorian Branch proposed payment through the employer in order to "… maintain a woman's connection with her employer ... " [1182] The union also submitted that "… the employer is in the best position to know exactly when maternity leave commences and ends …" [1183]

However, as noted at 18.3.1, there was some concern that payment through employers would involve an additional administrative cost for employers. [1184] The Australian Industry Group opposed payment through the employer on the grounds that such a system "… results in double-handling of the payment and imposes administrative costs on employers". [1185] The Shop, Distributive and Allied Employees' Association discussed this concern from the employees' perspective.

There is no doubt that there would be significant administration costs to employers, which could generate ill will and annoyance from employers, which may be reflected in the way they treat pregnant employees. [1186]

Women's Economic Policy Analysis Unit disputed that these costs would be significant.

Given the benefits accruing to employers from the implementation of PML [paid maternity leave] (e.g. impact on turnover, skills atrophy etc.) and the fact that, at any one time, less than two per cent of the workforce is on maternity leave, we believe that employers will not be unduly burdened by an arrangement which vests responsibility for administration of the PML [Paid Maternity Leave] scheme in them. [1187]

A number of submissions proposed that the Government could compensate business for this additional administrative cost, particularly in the case of small business. The Work + Family Policy Research Group, University of Sydney, suggested that:

[c]onsideration should be given to the UK model which distinguishes between large and small employers and reimburses the latter 104% of the payment, in order to compensate for administration costs. Further research will need to determine the most appropriate way of distinguishing businesses and of determining an appropriate level of reimbursement. [1188]

The National Pay Equity Coalition considered that these costs could be minimised by building on the existing workers compensation system.

One mechanism to significantly reduce the administrative cost of PML [paid maternity leave] to the employer would be for employers to claim the entitlement through the existing workers compensation system. The requisite claiming machinery is already in place. State jurisdictions could claim the costs back though the Commonwealth. [1189]

As noted at 18.3.1 above, a number of unions raised concerns that payment through employers could result in some women having difficulty receiving payments, or not receiving them at all. [1190]

While payment as wages has merit, the ACTU [Australian Council of Trade Unions] also has concerns about payment by employers, if this might result in some women not accessing payment, for example where the employer is unaware of their obligations to pay, or where the employer is unscrupulous. [1191]

There is also the possibility of the woman having difficulty receiving the payment from her employer and so being financially disadvantaged and stressed if she has to pursue receiving the payment. [1192]

Not only would double handling of payment through employers carry the risk of greater administrative costs to employers, it may also increase cost to Government. The Shop, Distributive and Allied Employees' Association considered that payment through the employer would be a more costly option for Government.

There would be significantly increased administrative costs for government in this option both in regard to reimbursing employers and in establishing and monitoring that the women have met the eligibility criteria. [1193]

18.3.3 HREOC's position

HREOC considers that the ideal payment mechanism would be for payments to be made through employers. This would establish paid maternity leave as a work related entitlement, more directly impact on workplace cultures and assist in maintaining the link between employees on maternity leave and their employers.

Such an approach is likely to be preferred by employers who currently make maternity leave payments. It would avoid the need to adjust current payroll systems or to change existing certified agreements or company policy to take account of the government policy. It may also be possible for legislation to be drafted in such a way that those employers already paying some form of paid maternity leave could take account of the government funded payment in meeting their existing obligations. This would allow those best practice employers to make a saving on their current expenditure on paid maternity leave.

In reviewing their payment system, the United Kingdom decided to continue with payment through the employer. This was the preference of large employers who topped up government payments. In order to facilitate the system for small business, the United Kingdom Government has enabled these employers to claim payments up front and also reimburses administration costs. [1194] This means that cash flow issues for small business are addressed. [1195]

However, given the cost and additional administrative burden that payment through employers may impose on some businesses, HREOC is persuaded that any Australian system should not mandate employer payments on behalf of Government. Imposing such a role on unwilling employers may increase employment discrimination against women despite the fact that such discrimination is unlawful. Some employers may also not pass the maternity leave payments on to eligible employees.

In addition, as noted above, the eligibility criteria that have been proposed mean that there would not be an employer to make the payments in every situation, especially in the case of self-employed women. Even where a woman was in paid employment when beginning the leave, eligibility requirements may mean that in some circumstances the employer may not be required to reserve her position under unpaid maternity leave provisions. [1196] In other cases, a woman may have clearly decided to resign prior to birth. In that case, requiring employers to administer payments could arguably place an unfair burden on employers who would not have an ongoing employment relationship with the woman.

HREOC therefore recommends that the Government provide for dual payment mechanisms. Women would be able to choose to take their payments as a direct payment from Government or as a payment through their employer, subject to their employer agreeing to provide this option.

Employers would be given the choice to offer to make payments to employees as part of their suite of family friendly policies. This arrangement ought to be reviewed to consider efficiency, access for employees and ease of administration for employers and Government. The HREOC proposal for review of any scheme is discussed at 22.4.

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18.4 Timing of payment

18.4.1 Payment at time of leave

Some existing employer provided paid maternity leave schemes pay a proportion of the payment at the time of leave and the remainder on return to work. These employers justify this on the grounds that the payment relates to a direct link between the employer and the employee and acts as an incentive for the employee to return to work.

Some submissions stated that payment under any future scheme should be made at the time of leave, as this was when additional expenses were faced. The Association of Independent Schools of Victoria considered that payment should be made "… at the time that the person is caring for the child". [1197] Similarly, the Australian Retailers Association considered that payment should be made at the time that expenses are incurred. [1198]

Submissions were also received that specifically argued against deferring payment until a woman had returned to work or requiring return to work as a condition of payment. [1199] The Australian Council of Trade Unions considered that such a condition:

is inappropriate in a scheme where funding is not tied to a particular employer;
is inconsistent with the aim of income security for women;
is inconsistent with the aim of assisting families with costs associated with the birth of the child;
pays inadequate regard to the difficulty (particularly for first-time mothers) of accurately stating their return to work plans. [1200]

One argument against a requirement that a woman return to work before she receives paid maternity leave was that such a requirement would place pressure on some women to return to work before they are ready. [1201] For example, the Women's Action Alliance considered that:

[t]he scheme should not bring pressure to bear upon mothers of infants and young children to return to paid work before they feel ready. The current provision of only 12 months unpaid leave is already doing this in many instances. Therefore eligibility for the payment should not be dependent upon the mother being in paid work prior to the birth or returning to paid work afterwards. [1202]

A requirement to return to work following paid maternity leave was also considered not to take into account the unforeseen circumstances that may arise following the birth of a child. For example, the Illawarra Forum and the Illawarra Women's Health Centre wrote that they:

... oppose any condition that requires a written commitment of "intention to return to work". There are considerable variables after the birth/adoption of a child that could influence these intentions and are unforeseen. [1203]

The Government could choose to link the payment to return to work if the primary objective of paid maternity leave was to increase the rate of women's return to work. However, while it is acknowledged that paid maternity leave may have an effect on the rate of women's return to work, HREOC does not see this as the most compelling reason for introducing paid maternity leave in Australia. [1204]

In addition, while employers may be justified in contracting with individual employees that any discretionary maternity leave payment is contingent on the employees' return to work, such a condition imposed by Government would be an inappropriate limitation on women's choice.

In particular, the scheme that HREOC has proposed is considered to be a minimum entitlement to enable women to take a guaranteed period of time out of the workforce. Reserving part of this payment until the woman has returned to work would result in some women being unable to take the full 14 weeks leave. This would undermine the health and wellbeing objectives of paid maternity leave. This hardship would be compounded if, as envisaged, many women take a longer period of unpaid leave after the first 14 weeks. As such, HREOC is strongly of the view that payments should be made at the time at which leave is taken.

18.4.2 Ability to alter timing of maternity leave payment

A number of submissions proposed that women be able to elect to receive their maternity leave payments at a lower rate over a longer period of time, and in particular that they may choose to take the payments at half pay for twice as many weeks or payment as a lump sum at the beginning of the leave period. [1205] This was seen to be a more flexible approach. For example, the New South Wales Working Women's Centre recommended that "… the scheme should provide flexible application of this payment of the equivalent of 14 weeks payment across an extended period of time". [1206]

One individual suggested that the payment be offered in a range of options, including "… a 3 month period of leave on full pay, or 6 months on half pay, or 12 months on ¼ pay". [1207] The Australian Council of Trade Unions also noted that an option to take the leave at half pay would assist with family budgeting. [1208] In addition, the Australian Council of Trade Unions noted that there may be health and wellbeing benefits from allowing women to spread their paid leave over a longer period of time.

The ACTU [Australian Council of Trade Unions] also draws HREOC's attention to recent literature on post-partum recovery and the benefits of longer term breast-feeding. To facilitate longer periods of leave, where this is the families' choice, recipients should be able to elect to take the payment at half pay over double the period. [1209]

HREOC acknowledges that some women may prefer to be able to spread their paid leave over a longer period of time or to take the full amount up front. However, such an approach would add another dimension of complexity to administering the system. In addition, both of these approaches are inconsistent with the idea of providing a minimum entitlement as income replacement at the time of leave. HREOC considers that the Government payment should be a fortnightly payment to eligible women. This arrangement could be negotiable between an employer and an eligible woman where payment is made through the employer, to allow for existing wage systems.

RECOMMENDATION 8

That paid maternity leave be paid as a fortnightly payment during the period of leave, administered by the federal Government and available through dual payment mechanisms.

Specifically, an individual may elect to receive payment as either:

a fortnightly direct payment from Government to the individual; or

a payment from the employer to the individual with the employer reimbursed by Government (subject to the employer agreeing to offer this option).

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19. Role of employers

19.1 Introduction

As noted at 13.3, there was strong support throughout the consultation process for a government funded paid maternity leave scheme and HREOC has recommended that such a scheme be implemented. HREOC also recommended that any scheme be limited to women in paid employment.

There will inevitably be an interaction between the provision of payment under any such scheme and a woman's place of employment. Particular consideration must be given to managing payments where a woman already has access to employer funded leave, whether it is a discretionary payment or mandated under an award or agreement. Employers must also be able to introduce paid maternity leave or enhance existing systems in order to attract the best staff, retain valued employees and implement appropriate family friendly policies. [1210]

This Chapter discusses these issues and further considers the role of employers in assisting to administer a government funded scheme.

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19.2 International practices

The New Zealand Paid Parental Leave scheme prevents reduction of existing employer provided paid maternity leave provisions unless there is agreement between the employer and the employee.

The New Zealand Parental Leave and Employment Protection Act 1987 provides:

71P Amount of payment not affected by other non-statutory entitlements

1 An entitlement to a parental leave payment under this Part is not affected or reduced by any other entitlement that the employee may have under the terms of any employment agreement.

2 An employer must not, without the agreement of the employee, reduce any other entitlement that the employee may have under the terms of any employment agreement because of the employee's entitlement to a payment under this Part.

3 An employer who fails to comply with this section is liable to a penalty imposed by the Employment Relations Authority under the Employment Relations Act 2000 in respect of each employee to whom the purported reduction applies. [1211]

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19.3 Existing provisions

19.3.1 Introduction

In introducing a government funded paid maternity leave scheme, consideration needs to be given to how this interacts with existing employer provided paid maternity leave.

19.3.2 Possible reduction in existing provisions

There was some concern that women who currently receive employer provided paid maternity leave may be disadvantaged under a government scheme. In particular, the concern was that employers may withdraw existing paid maternity leave provisions if there is a government provided scheme. For those women who currently receive full wage replacement, [1212] this may mean that they actually receive lower payments and so are financially worse off under a government scheme.

The Work + Family Policy Research Group, University of Sydney, wrote that those women who are currently entitled to paid maternity leave "… should not suffer disadvantage …" in payment or other employment benefits under the implementation of a future scheme. [1213]

Several unions stressed that employee entitlements should not be undermined under a paid maternity leave scheme. The Australian Education Union argued that a future scheme "… should not be seen to replace what already exists with a government payment but to complement and extend it". [1214] The State Public Services Federation Group of the Community and Public Sector Union submitted that:

[w]here the employee is entitled to an existing paid maternity leave arrangement provided by an employer through existing legislation, awards or agreements and which provide greater entitlements than those proposed in a national scheme then those existing arrangements must continue and must not be placed under threat. [1215]

The Queensland Nurses' Union submitted that:

[s]ome women already receive paid maternity leave via an industrial instrument and this existing entitlement could be worth more than 14 weeks at AWE [Average Weekly Earnings]. These workers should not be disadvantaged as a result of the introduction of a 14-week entitlement at AWE [Average Weekly Earnings] - i.e. they should maintain their higher entitlement. [1216]

Some submissions noted that employers should be bound to continue to provide existing levels of paid maternity leave. The Australian Nursing Federation argued that:

[p]rovision would need to be made to ensure that employers continue to be bound by existing agreements or awards that provide better outcomes for women already entitled to paid maternity leave. [1217]

In addition, the Australian Council of Trade Unions considered that a dispute resolution mechanism was needed to resolve disagreements over existing paid maternity leave provisions.

Any legislation should provide disincentives to reductions of existing entitlements and should provide a dispute resolution process where employers seek to reduce entitlements as a result of the introduction of a national scheme. Any jurisdictional impediments to the AIRC [Australian Industrial Relations Commission] hearing such disputes should be considered and addressed in the legislation. [1218]

The Australian Chamber of Commerce and Industry considered that reduction of current employer provided paid maternity leave was unlikely.

To date, the efforts of those who have agreed to paid leave have been lauded by proponents of additional benefits. It is difficult to comprehend that such employers would reverse the human resource rationale for creating paid leave in the first place. [1219]

HREOC agrees that it would be unlikely that employers who currently provide paid maternity leave would seek to remove this entitlement if the Government introduced a national paid maternity leave scheme that provided a minimum entitlement for women in paid work. Those employers that currently provide paid maternity leave do so on the basis of the business case for paid maternity leave in their workplace and in order to be an employer of choice as well as to do what they consider to be the right thing. Providing a payment above the government minimum entitlement will continue to benefit these businesses.

In addition, it would be difficult for the Government to force employers to continue to pay for maternity leave in some cases. Where this provision is made through awards, certified agreements or Australian Workplace Agreements, the legal obligation to provide such payments will continue. However, where payments are made through company policy or at the discretion of management, there may not be a clear entitlement for the Government to enforce. [1220]

19.3.3 Possible exclusion of current recipients from a government scheme

The Women's Action Alliance proposed that women be eligible for either government funded paid maternity leave or employer provided paid maternity leave.

Paid maternity leave should be funded by the government. However where an employer provides paid leave for the employee she should have the choice of applying for either paid maternity leave or the government Maternity Payment, not both. Then as employer provided maternity leave becomes more common we would have an inclusive system whereby every mother would receive twelve (or fourteen) weeks pay either from the Commonwealth government (unless she is disqualified by a means test) or from her employer. [1221]

The Australian Council of Trade Unions argued against such an approach on the ground of the wide variation in existing paid maternity leave provisions.

Where employees are currently entitled to paid maternity leave, they should continue to receive full payment. The ACTU [Australian Council of Trade Unions] notes that some commentators have called for the exclusion of public sector employees, or workers currently entitled to paid maternity leave. While such a proposal would alleviate the burden on the national scheme, it ignores the different levels of payment currently available between the States and private sector employers. [1222]

The Council for Equal Opportunity in Employment pointed out that this approach would effectively penalise those employers who had been delivering good practice by providing their employees with paid maternity leave. It was argued that those employers who currently do not pay for maternity leave would not be obliged to do so, while those who do would be required to continue to pay without receiving the rewards that currently accrue to them over their competitors.

Some [members] indicated that they did not believe that those organisations who already provided such leave should be penalised for "leading the field". A system of credits which recognised that the organisation provided paid leave was regarded as necessary to ensure that such a benefit was not withdrawn by the employer. [1223]

HREOC considers that women who currently receive paid maternity leave should not be excluded from a government funded national paid maternity leave scheme. Very few women currently receive 14 weeks of paid maternity leave; [1224] women should not be disadvantaged by being prevented from accessing this basic level of support.

HREOC also agrees that excluding women who receive employer provided paid maternity leave would penalise those employers who had been actively supporting their employees to better combine work and family. Those employers who do not provide paid maternity leave would receive a financial advantage if the Government met the cost of paid maternity leave for their employees.

Such a step would be likely to discourage employers from implementing further work and family measures. Employers may become fearful that if they lead best practice by introducing such measures, that they will be financially penalised by the Government in future years.

19.3.4 Public servants

A related issue is the treatment of public servants under any national paid maternity leave scheme. The issue here is whether State Governments, as the employer, should be responsible for funding paid maternity leave for State public servants.

The Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 excludes Commonwealth, State and Territory Government employees from its proposed national paid maternity leave scheme.

This Bill will provide a payment to eligible women employees other than employees of Federal, State and Territory governments, on the expectation and belief that these governments should (and in many cases already do) provide at least equivalent paid maternity leave for their employees … It is anticipated that establishment of the Maternity Payment will create pressure on the State and Territory governments to improve their paid maternity leave provisions where they are less than 14 weeks at full pay, and this is to be positively encouraged. [1225]

This issue was raised in the Senate Employment, Workplace Relations and Education Legislation Committee inquiry into the Bill. In their report on this inquiry, the Democrats signalled their intention to retain this provision.

My concern with including public sector employees in the proposed scheme is that this would effectively shift the burden of providing paid maternity leave to State Government employees from State Governments to the Commonwealth, and that laggard states - most notably Western Australia and South Australia - will then avoid any responsibility. [1226]

HREOC did not specifically ask for submissions on this issue, however a number of submissions were received that discussed the treatment of public servants under a national paid maternity leave scheme.

Submissions in relation to State and Territory public servants considered that these women should be covered by a national paid maternity leave scheme, but that it would be reasonable for the federal Government to recover some or all of this cost from the State and Territory Governments. For example, the Australian Council of Trade Unions stated that:

[t]he situation with the State public sector employees is more complex, due to differential entitlements, and different sources of those rights. HREOC should explore with the parties the options including appropriate adjustments to States' grants in recognition of the Commonwealth assuming partial responsibility for payments currently borne by the States. Governments, as employers, should lead by example and provide 14 weeks at 100% income replacement. [1227]

The National Pay Equity Coalition submitted that:

[i]n the case of public sector employers, the reimbursement should be offset by the existing expenditure on paid maternity leave in that jurisdiction, so the introduction of the scheme would be cost and revenue neutral. The existing expenditure would be held constant … It may be desirable for jurisdictions providing lower entitlements to be required to increase entitlements progressively to a point where public sector maternity costs are met by each jurisdiction. [1228]

Submissions were also received in relation to the treatment of federal public servants, calling, for example, for continuation of current legislated rights to paid maternity leave at an improved rate of 14 weeks of full income replacement. [1229] The Public Sector Union Group of the Community and Public Sector Union noted that the introduction of a national scheme of paid maternity leave should not disadvantage federal public servants who currently receive employer provided paid maternity leave. [1230]

HREOC agrees that women should not be excluded from a national scheme of paid maternity leave on the basis that they are government employees with a current entitlement. This is consistent with the view outlined above for the treatment of women who currently have access to employer provided paid maternity leave.

HREOC does consider that it would be reasonable for the federal Government to seek to reclaim the costs of paid maternity leave for State and Territory Government employees from State and Territory Governments. However, this is more appropriately an issue for negotiation between these two levels of Government.

HREOC considers there is a strong argument against pegging State and Territory Government contributions at current levels as this would penalise those States and Territories that had been supporting their employees through the provision of paid maternity leave entitlements. It would effectively reward those States that had been providing little or no paid maternity leave. This approach is consistent with the case outlined above in relation to employers who currently provide paid maternity leave.

Federal public servants are currently entitled to 12 weeks paid maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973 (Cth), subject to a 12 month qualifying period. This is part of their conditions of employment, in the same way that employer funded paid maternity leave is a condition of employment in other workplaces with employer provided paid maternity leave. HREOC considers that the introduction of a national scheme should not reduce these existing employment conditions and, as such, the legislative provisions should remain.

In addition, HREOC is of the view that federal public servants should be eligible for the national paid maternity leave scheme in the same way that has been recommended for other employees who have employer provided paid maternity leave (in this case the employer is the Government). The net effect of this would be that women who had been employed by the Commonwealth for 12 months would be entitled to an additional two weeks of paid leave at up to the Federal Minimum Wage. For those federal public servants who did not have 12 months employment, they may still qualify for 14 weeks paid maternity leave subject to the qualifying conditions of the national scheme.

RECOMMENDATION 9

That employers be encouraged to continue existing provisions for paid maternity leave and that women, including public servants, should not be excluded from any government funded national scheme on the basis of receiving employer provided paid maternity leave.

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19.4 Employer provided top ups

A number of submissions considered that there was a role for employers in topping up any minimum paid maternity leave entitlement provided by the Government. [1231] Employers could top up the weekly amount of paid maternity leave to full income replacement, extend the period of paid leave, make payment available to women who do not meet eligibility criteria for the government scheme and make contributions to women's superannuation for the period of paid or unpaid maternity leave. [1232]

The Australian Industry Group proposed that employers and employees should retain the capacity to negotiate benefits in excess of those provided in a future scheme. [1233] The Work + Family Policy Research Group, University of Sydney, recommended that employers be encouraged to top up or supplement a government maternity leave payment.

We recommend … that employers be encouraged to supplement the foundation entitlement to be provided by the government, by ways which may include increasing the pay for females on maternity leave to an amount equivalent to full income replacement, extending the period of paid leave, continuing to pay superannuation etc. [1234]

The Western Australian Government suggested that employers could offer more than 14 weeks paid maternity leave, reduce or eliminate the eligibility criteria for their employees and offer a paid paternity leave entitlement. [1235]

A number of submissions considered that bargaining was the appropriate mechanism for achieving any employer top ups. For example, Immigrant Women's Speakout submitted that:

[a]s in the case of current injury compensation payments, this amount [of paid maternity leave] can be topped up by employers in the course of collective bargaining between workers and unions or in the case of other informal or formal agreements. [1236]

Some employer groups stressed that any top up should be voluntary, confined to individual workplaces and should not be progressed through the award system. [1237] For example, the Australian Hotels Association stated that it " … do[es] not consider that any case for 'top up' should be progressed through the award system". [1238]

The New South Wales State Chamber of Commerce argued that:

[e]mployers and employees should be free at the enterprise level to agree to whatever additional parental leave benefits suit them. The State Chamber supports the voluntary nature of this approach. [1239]

Some submissions considered that employers would be keen to provide such a top up, given the benefits this would bring them.

The Council for Equal Opportunity in Employment wrote that a number of employers saw a capped paid maternity leave payment as an opportunity to demonstrate commitment to employees by topping up the amount provided. [1240] Similarly, the Independent Education Union wrote that:

[s]ome employing authorities have told the IEU [Independent Education Union] that the provision of a government funded component would enable them to consider enhancing their current provisions at a time when teacher shortages are making the attraction and retention of staff a key priority. For example, Sydney Catholic Education Office, Australia's largest non-government education employer, has told the IEU [Independent Education Union] that while it has concerns about its capacity to pay 14 weeks on full salary, it would consider increasing its current nine weeks if there were a national scheme which included a government funded component. [1241]

The Australian Retailers Association wrote that "[e]mployers could provide above minimum entitlements according to Company ability and policy as a means of attracting and retaining employees", [1242] and Coles Myer agreed that employers could enhance minimum benefits "… in order to obtain commercial benefits for themselves which will have flow on benefits to society in general". [1243]

In contrast, others considered that the federal Government should provide incentives for employers to top up a government funded paid maternity leave scheme. [1244] The National Diversity Think Tank submitted that:

[e]mployers (irrespective of size) who choose to top up payments should be entitled to tax deductions or to do so without incurring fringe benefits tax. [1245]

The Australian Council of Trade Unions agreed that tax incentives were one means of encouraging further payments from employers.

For private sector employers, HREOC should consider recommending incentives to employers to maintain and improve existing schemes. The Victorian Government's offer of payroll tax concessions should be further explored. [1246]

HREOC considers that the business benefits to employers and their interest in supporting their employees would be sufficient incentive to motivate them to provide top ups or extensions of the scheme.

RECOMMENDATION 10

That employer top ups to government funded paid maternity leave be provided for and encouraged. Such top ups should be negotiated through standard bargaining mechanisms.

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19.5 Administration

As discussed in Chapter 18, the level of administration required of employers will depend on the payment mechanism used to deliver paid maternity leave. HREOC has recommended that the federal Government introduce a dual payment mechanism where individuals may elect to receive payment as either:

a fortnightly direct payment from Government to the individual; or
a payment from the employer to the individual with the employer reimbursed by Government (subject to the employer agreeing to offer this option).

In the event that an employer agreed to make payments to their employees and seek reimbursement from Government, they would take on the role of administering payments. Employers may agree to do this on the basis that it may make it simpler to administer top up payments. It could also be part of a suite of work and family initiatives that an employer agrees to offer its employees. Employers would in addition have the benefit of maintaining a stronger link with their employees during the paid leave period.

In the case of direct payments from Government to eligible women, some submissions noted that employers could be required to verify a woman's eligibility for payment. [1247]

HREOC has not investigated the best mechanism for validating a woman's eligibility for payment. As noted in Recommendation 5, Chapter 15, HREOC has recommended that the eligibility criteria allow women to accrue work with multiple employers. Making women obtain proof of employment from multiple employers may prove onerous. As such, HREOC suggests that the Australian Taxation Office may be required to determine whether a woman has undertaken sufficient work to qualify for paid maternity leave.

RECOMMENDATION 11

That employers may agree to take on the administration of paid maternity leave payments on behalf of the Government and may be required to play a role in validating entitlement to government funded paid maternity leave entitlements.

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20. Interaction with the industrial relations system

20.1 Introduction

A number of employer groups were concerned about the interaction of a government funded paid maternity leave scheme with the industrial relations system. In particular, there was concern that paid maternity leave, even when funded by Government, would lead to enforced top up payments by employers. This Chapter considers those concerns.

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20.2 An industrial claim for top up

Several employer groups expressed the concern that the introduction of a government funded paid maternity scheme would lead to pressure by the unions through the industrial relations system for employers to provide a top up payment. [1248] For example, the Australian Chamber of Commerce and Industry submitted that:

[t]he very real prospect for flow on into industrial claims by trade unions , including claims for top up to some union calculated "standard" of payment, must be properly taken into account ... [1249]

The Motor Trade Association of South Australia also wrote that it was "… extremely concerned …" that any form of paid maternity leave would invite union claims for further payments by test case. [1250]

Australian Business Industrial elaborated by arguing that:

… given the debate is already shaped by the notion of paid maternity leave, the gap between the weekly amount of a benefit and ordinary pay becomes important. The wider this is the greater the invitation to improve on it industrially. A similar point can be made about the length of the entitlement. To the extent that the length of benefit falls short of the "standard" of 14 weeks minimum in [the Maternity Protection Convention] unions will feel some obligation to pursue make-up in the award system. [1251]

The National Farmers' Federation was concerned about an industrial claim for paid maternity leave in the event that the Government introduced employment related paid maternity leave or that it took no action.

The NFF's [National Farmers' Federation's] concern is based on the opportunity for unions to force paid maternity leave upon employers through applications in the Australian Industrial Relations Commission to implement paid maternity leave in its entirety or as a "top-up" to the Government payment. [1252]

These employer groups cited precedents where the introduction of a benefit by Government led to mandated employer funding.

There have been numerous examples during the past two decades of supposed broad community wide solutions to issues merely serving as springboards for industry and sectoral "top up" industrial claims by trade unions. These include issues such as: employee entitlements on insolvency, workers compensation, superannuation, standard working hours etc. [1253]

These concerns require closer examination. Unfortunately no submissions were received that provided detail on how the situation of employee entitlement on insolvency, workers compensation, superannuation and standards working hours corresponded to that of a government funded paid maternity leave scheme. [1254]

The National Farmers' Federation did provide detail on the case of jury service.

There is precedent already established requiring employers to pay a "top up" of government payments even though there is no corresponding benefit to the employer. The precedent is in respect to jury service clauses within federal awards. [1255]

The inclusion of jury service clauses in awards by consent between the parties dates back to 1971 [1256] in the federal industrial relations system. It was only in 1996 that such a top up provision was included in an award without the consent of both parties. [1257] Prior to that case, tribunals refused to grant such claims in the absence of consent by both parties. [1258]

The inclusion of a top up payment for jury service in the Accommodation, Hotels, Resorts and Gaming Award 1995 [1259] was not the result of a test case whereby standards can be established that are applicable to other awards. The union's application to refer the matter to the Full Bench of the Australian Industrial Relations Commission for determination in order to give the case test case status was refused by the President of the Australian Industrial Relations Commission. However, the jury service clause adopted in the Accommodation, Hotels, Resorts and Gaming Award 1995 was selected as a standard clause with minor modifications in the Re Award Simplification Decision. [1260]

While an allowable award matter, [1261] by 1999 only about one-third of all federal awards contained a jury service provision. [1262] As such, the extension of employer top up payments for jury service across federal awards can hardly claim to be widespread.

A claim for a top up payment in relation to paid maternity leave funded by the Government would be treated as an application to vary an award above the safety net. According to the Australian Industrial Relations Commission's Statement of Principles, [1263] such an application must be referred to the President of the Australian Industrial Relations Commission for consideration as a special case pursuant to section 107 of the Workplace Relations Act 1996 (Cth). This requires that a "public interest" requirement is met in order to have an application referred to the Full Bench for determination under section 107(2). Determination by a Full Bench would give the decision the stature of a "test case", in that standards applicable to other Awards would be established. This has not occurred in relation to jury service clauses.

HREOC concludes that employer concerns are only borne out by evidence to a limited degree. While these concerns warrant further consideration by Government they do not provide - as they have not provided in the case of other government entitlements - sufficient reason for denying Australian women and their children a maternity leave payment.

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20.3 Quarantining paid maternity leave

Two possible solutions to this concern were proposed. First, it was considered by some that if the federal Government introduced a maternity payment for all women that this would ensure the social issue was addressed without linking the payment to paid employment. [1264]

Secondly, if the federal Government chose to introduce a work related entitlement to paid maternity leave, some employer groups considered that this should be quarantined from the industrial relations system. The key proposal to achieve this was by making paid maternity leave a non-allowable matter under the Workplace Relations Act 1996 (Cth). The Australian Chamber of Commerce and Industry submitted that:

… any national policy changes must quarantine industry against the potential for compulsory top-up of a government funded scheme by employers through the industrial system. [1265]

Similarly, the Australian Retailers Association argued that:

[i]n light of Australia's unique industrial relations system it is imperative that any scheme be quarantined from this system to ensure that the burden of achieving the social objective is not one that is ultimately borne by employers as a group. [1266]

The Australian Mines and Metals Association also argued in favour of quarantining paid maternity leave through amendments to the Workplace Relations Act 1996 (Cth) that would:

… remove the capacity of the Australian Industrial Relations Commission to arbitrate on matters relating to paid maternity leave including claims for "top up" payment during a period of maternity leave and prohibiting the taking of "protected action" in respect of claims relating to paid maternity leave. [1267]

It should be noted that the potential for industrial claims for paid maternity leave in awards will not be overcome by making paid maternity leave a non-allowable matter under the Workplace Relations Act 1996 (Cth). Such claims could still be made in State industrial relations commissions. However, Australian Business Industrial considered that such a move at the federal level would still reduce the possibility of claims in State based awards.

It is not typical that state tribunal award making powers are restricted in the same way as the federal Commission is by the use of non-allowable matters. Nonetheless, a constraint on the federal Commission should assist stay the exercise of discretion on the part of state tribunals so its effect would be wider than first appears. [1268]

HREOC's interim paper did not specifically ask about the possibility of making paid maternity leave a non-allowable matter. As a result submissions were not received on this specific issue from unions and women's groups.

However, it is clear that many union submissions premised their support of a government funded capped model on the assumption of continued ability to negotiate employer top ups. For example, the submission from a branch of the Australian Services Union stated that unions should retain the right to undertake industry based bargaining.

The ASU [Australian Services Union] MEU Private Sector Victorian Branch supports the right of unions to bargain for … maternity leave payments above and beyond the 14 weeks through enterprise or industry based bargaining. [1269]

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20.4 HREOC's position

HREOC does not agree that the introduction of a government funded payment should reduce women's industrial rights. Such a reduction would be deeply resented by Australian women and their families. It would further confirm to Australian women the difficulty of combining work and family responsibilities. HREOC is strongly of the view that existing industrial arrangements should continue.

While leaving maternity leave as an allowable matter under the Workplace Relations Act 1996 (Cth) would allow unions to take a test case to the Australian Industrial Relations Commission, it is not a foregone conclusion that employers would be required to provide top up payments as an industrial standard. The Australian Industrial Relations Commission, as an independent body, would deliberate on the evidence presented to it. Employers would have the opportunity to present their arguments against employer top up. The claim would need to be argued against the requirement that awards provide a safety net of minimum wages and conditions. As such, the claim would need to establish that the safety net level should be full income replacement and not the level provided by Government under a paid maternity leave scheme.

Paid maternity leave paid to the Federal Minimum Wage would provide full income replacement to between 35 per cent and 48 per cent of women. [1270] Added to this is the fact that 38 per cent of women already receive some form of paid maternity leave through existing employer provided paid maternity leave provisions. [1271] While the current arrangements on their own do not meet the international standards for paid maternity leave, in conjunction with a government funded scheme as proposed by HREOC, Australia would comply with those standards. [1272]

This is not to suggest that employers should not negotiate with employees to top up paid maternity leave through industrial processes. In fact, HREOC urges employers to do so through the enterprise bargaining process. [1273] Leaving room for negotiation of such a provision in the enterprise bargaining process allows employers to maintain a business case for provision of top ups of paid leave, and to receive the benefits of being a best practice employer.

RECOMMENDATION 12

That current industrial arrangements in relation to maternity leave continue.

21. Interaction with existing government payments

21.1 Introduction

As described at 3.4, the federal Government provides a range of family assistance and income support payments. HREOC considers that none of these existing payments meet the objectives of paid maternity leave. However, the introduction of a maternity leave payment may overlap with some of these payments. This Chapter considers the interaction of existing payments with a government funded paid maternity leave scheme.

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21.2 International standards and practices

21.2.1 Maternity Protection Convention

The Maternity Protection Convention provides that women who do not have access to paid maternity leave should be eligible for other social security payments.

Article 6

6 Where a woman does not meet the conditions to qualify for cash benefits under national laws and regulations or in any other manner consistent with national practice, she shall be entitled to adequate benefits out of social assistance funds, subject to the means test required for such assistance. [1274]

21.2.2 Legislative provisions

In the United Kingdom, women receiving Statutory Maternity Pay and the Maternity Allowance may also be eligible for the Child Tax Credit and Working Tax Credit schemes to be introduced in April 2003, depending on their overall income. These credits are designed to assist single parents as well as low and middle-income couple families. [1275] Women who are not eligible for the Statutory Maternity Pay and the Maternity Allowance may be able to claim the Incapacity Benefit. [1276]

The New Zealand scheme requires that people choose between taking Paid Parental Leave and the Parental Tax Credit. [1277] The Parental Tax Credit provides up to NZ $1 200 for each baby. [1278] It is paid for the first eight weeks following the birth of a child, and can be taken as fortnightly payments or a lump sum at the end of the tax year. [1279] It is a means tested payment for low income families and does not require the recipient to have been in paid work prior to the birth of a child. [1280]

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21.3 Existing government payments

21.3.1 Income support payments

Subject to meeting income, assets and activity tests, a woman may be eligible for Parenting Payment, Newstart Allowance and/or Sickness Benefits immediately prior to and following the birth of a child.

A woman receiving paid maternity leave would be likely to lose eligibility for these income support payments during the period of paid leave as a result of the income test.

21.3.2 Family assistance payments

As noted at 14.4.5, there was strong support in submissions for the continuation, and possible improvement, of existing payments for women not in paid work or who did not meet the eligibility criteria for paid maternity leave. For example, one individual noted the importance of existing payments to some families.

On no account should programs such as the Maternity Allowance and the Family Tax Benefits be stopped, unless they are replaced with programs of equal or greater value, benefiting at least the women and families they benefit now, if not more. These programs do a great deal of good in families and, hence, communities. To stop these programs would disadvantage all families and increase the struggles of having a family. This would further discourage having more children, and for those choosing to have children, increase the disparity between rich and poor. [1281]

The National Women's Council of South Australia considered that:

[a]s paid parental leave is only one element of a comprehensive family policy mandate, it should in no way detract from current programs which support parents, particularly those programs which are means tested. [1282]

A number of submissions considered that receipt of paid maternity leave should cancel eligibility for other family assistance payments. This would mean that a woman would either receive paid maternity leave or other family assistance payments during the 14 week period, but not both. Women who were not eligible for paid maternity leave would continue to receive existing family assistance payments.

The Women's Electoral Lobby [1283] and the National Pay Equity Coalition [1284] both proposed that women who receive paid maternity leave should not be eligible for the Maternity Allowance and the Maternity Immunisation Allowance. The Women's Economic Think Tank considered that paid maternity leave:

... should replace all other payments except family tax payment part A. This may be slightly reduced because of the means test, and also will generate some savings in parenting payments, baby bonus and maternity allowances. [1285]

Some submissions considered that paid maternity leave should replace the Baby Bonus. For example, the National Women's Council of South Australia submitted that:

[i]f a family program is required to be cut in order to fund parental leave, it is recommended that the proposed "Baby-Bonus" worth $AUS 510 million be forfeited, as its objectives and eligibility criteria are more closely comparable to a parental leave arrangement, than any of the current means tested programs. [1286]

The Australian Industry Group recommended that:

... the Baby Bonus scheme should be abolished. The estimated full year Budget cost of the Baby Bonus (by 2005-2006) is $510 million. Ai Group estimates that its proposed paid maternity leave scheme would cost significantly less than this. [1287]

As discussed at 3.4.4 and 13.3.4, a number of submissions considered that funding for paid maternity leave should be made available through review of existing family assistance payments. This would require changes and cuts to existing family assistance payments.

Paid maternity leave could also be a taxable payment, [1288] as are Parenting Payment and Newstart Allowance. [1289] The Women's Economic Think Tank supported taxing the payment.

The payments should be taxable as income but it needs to be recognised that it is unlikely that much will be clawed back as many women will not return to work until much later reducing their annual income levels below the tax threshold. [1290]

The State Public Services Federation Group of the Community and Public Sector Union also considered that "[a]s this scheme is a work-related leave entitlement existing taxation, superannuation and other laws relevant to employment should apply". [1291]

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21.4 HREOC's position

HREOC agrees that paid maternity leave should be introduced in addition to, rather than in place of, existing family assistance payments. Existing family assistance payments are aimed at a range of specific policy objectives, such as supporting low income families and single income families. These objectives are separate from the objectives of paid maternity leave and continue regardless of the introduction of paid maternity leave.

HREOC considers that women who receive paid maternity leave should not be eligible for the Maternity Allowance, the first 14 weeks of Family Tax Benefit Part A and Family Tax Benefit Part B and the first 12 months of payment of the Baby Bonus. Women who receive paid maternity leave should be eligible for the Maternity Immunisation Allowance and the Baby Bonus in later years. This would ensure a reasonable level of parity between government support for women who are eligible for paid maternity leave and those who are not eligible, particularly women who are not in paid work.

HREOC considers that women who receive paid maternity leave should remain eligible for existing family assistance payments beyond this 14 week period, subject to existing income tests. In particular, HREOC believes that women should retain eligibility for the Maternity Immunisation Allowance. This payment is structured to promote child immunisation and providing paid maternity leave will not deliver on this objective.

Depending on a family's financial situation, there will be situations in which a family will be financially better off receiving family assistance payments and income support payments rather than paid maternity leave. This will particularly be the case where a woman had relatively low earnings in paid work, for example due to working a limited number of hours per week. In these cases, the woman should have the option of taking other available social security payments where this would result in higher payments. The Government should ensure that women are provided with adequate information to make this choice.

RECOMMENDATION 13

That a woman who receives paid maternity leave will not be eligible for the Maternity Allowance, the first 14 weeks of Family Tax Benefit Part A and Family Tax Benefit Part B, and the first 12 months of payment of the Baby Bonus. The maternity leave payment will be taxable.

Individuals will have the option of taking other available social security payments where this would result in higher payments.

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22. Data collection and review of the scheme

22.1 Introduction

HREOC's interim paper, Valuing Parenthood, noted concerns about available data relating to patterns of work and maternity in Australia.

[T]here is a serious lack of statistical information available about maternity, family responsibilities and work arrangements. In addition, much of the available information is outdated and limited in scope. This means that it is difficult to get a clear picture of current arrangements for maternity leave in Australia. It also places significant limitations on what can accurately be predicted about future provisions for paid maternity leave. [1292]

As outlined below, this need to improve data collections in relation to maternity, family responsibilities and work arrangements remains. [1293] This Chapter also considers the need for a review of government support for families and a review of a national paid maternity leave scheme following its implementation.

However, it is clear that there is an immediate need for the introduction of a national scheme of paid maternity leave. Data collection should not delay the introduction of a national scheme.

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22.2 Statistics on maternity leave

The need to collect better information about the use and availability of both unpaid and paid maternity leave was supported by a number of submissions. For example, the Union Research Centre on Organisation and Technology suggested that:

[a]n analysis of usage rates of both paid and unpaid maternity leave is essential to determine the effectiveness of the provision of paid maternity leave. Though there is no comprehensive data on the rate at which women take maternity leave, research that has been conducted indicates that it is relatively low. [1294]

The Queensland Working Women's Service expressed concern that "… the Federal Government has not made available the necessary funds to research trends in maternity leave taken, and eligibility levels in Australia ..." [1295]

A number of submissions stated that there needed to be costing of paid maternity leave, as well as modelling of the behavioural and economic impacts of such a scheme. The Australian Retailers Association argued that:

[a] proper actuarial study needs to be conducted by government to ascertain the true cost of funding any paid parental leave proposal with the objective of funding through a review and re-targeting of some of the existing payment schemes. [1296]

The Work/Life Association Australia strongly recommended "… that attention be given to research and economic modelling to illuminate (but not prolong) the debate". [1297]

Both the Australian Chamber of Commerce and Industry and the Australian Retailers Association considered that further research was required before modelling of the impact of paid maternity leave could be undertaken. The Australian Chamber of Commerce and Industry wrote that:

[t]here are some important dimensions to the data limitations:

a) Data appears too limited to support necessary macro economic costing required to progress any particular policy approach to this issue.

b) Proper data and research on behavioural reactions to the stimuli of additional benefits also appears essential. It cannot simply be assumed that the creation of an additional entitlement will have the benefits outlined, and will create the social changes alluded to. [1298]

The Australian Retailers Association similarly argued that:

[t]here is a need for sound research on which to base assumptions of the effect that the provision of any benefit may have on choices made by families. The implementation of a paid maternity leave scheme based on the benefits to society of increased fertility rate or an increased rate of return to work are not properly founded and require much further detailed research and data. [1299]

The Western Australian Government noted the need for collection of data on the changes in patterns of maternity leave use.

Consideration may need to be given to further research and data collection on any changes in the pattern of the take-up of maternity leave, and of parental leave taken by male employees. [1300]

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22.3 HREOC's position

HREOC supports the need for better data collection on both unpaid and paid maternity leave. As noted in HREOC's interim paper, "[s]ignificant gaps in data collection for arrangements and the availability of paid maternity leave remain". [1301]

For example, data are not available on the number of women who are actually eligible for paid maternity leave. The majority of primary research that is available collects information on the availability of paid maternity leave in a workplace, and then assumes that all women in these workplaces meet the eligibility criteria. The Survey of Employment Arrangements and Superannuation [1302] does collect information directly from women, however there are concerns that it is not an objective assessment of the availability of paid maternity leave.

There is no national data collection of take-up rates for paid and unpaid maternity leave, meaning that it is not possible to know precisely how many women actually take unpaid or paid maternity leave.

At a more basic level, there is no recording of the number of women in paid work prior to the birth of a child. As part of the Report of the National Pregnancy and Work Inquiry, HREOC recommended:

[t]hat the Department of Employment, Workplace Relations and Small Business ensure that the AWIRS [Australian Workplace Industrial Relations Survey] survey is conducted on a regular five year basis and include questions covering pregnancy and potential pregnancy. Useful questions could include

The number of women who work during pregnancy,

The distribution of pregnant employees by industry … [1303]

There is also a paucity of statistical information on the number of women who return to work following the birth of a child. The Australian Bureau of Statistics Census collects information on the number of women with a child under one year who are in paid work, however this information is only collected every five years and does not provide information on how quickly within the year women returned to work. A 1998 Australian Bureau of Statistics survey did however find that 69 per cent of female employees with children under the age of six years who took a break from the workforce (using paid and/or unpaid leave) or ceased working at the time of the birth of their youngest child returned to work within a year of the birth of this child. [1304]

HREOC recommended in Pregnant and Productive:

… that the Minister for Employment, Workplace Relations and Small Business provide funding to the Sex Discrimination Commissioner to undertake economic modelling and analysis of possible paid maternity leave options. The project, to be conducted in consultation with the Department of Employment, Workplace Relations and Small Business, would also involve extensive and close consultation with all relevant and interested parties. [1305]

As part of the preparation of this paper, HREOC has commissioned the National Centre for Social and Economic Modelling (NATSEM) to undertake a costing of a national paid maternity leave scheme as recommended in Pregnant and Productive. This costing makes assumptions based on available data and addresses many of the concerns raised above. The report of that costing is at the Appendix.

The Government should move to implement a national paid maternity leave scheme immediately. As set out in this paper, HREOC considers that the case for implementing a national scheme of government funded paid maternity leave in Australia has been established.

However, there remains a need to improve statistical collections in relation to both unpaid and paid maternity leave. Such data will be important for reviewing the effectiveness of a paid maternity leave scheme and identifying any changing needs for support in the future.

RECOMMENDATION 14

That the Government review existing data collections to ensure that adequate information is collected on:

the number of women in paid work during their pregnancy and immediately prior to the birth of a child;

the number of women who are eligible for unpaid maternity leave, employer provided paid maternity leave and government funded paid maternity leave;

the take-up rates of paid and unpaid maternity leave;

the pattern of women's return to work following the birth of a child;

factors affecting women's decisions to have children; and

issues relating to combining work and family responsibilities.

The establishment of these additional data collections should not delay the introduction of a national scheme of paid maternity leave.

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22.4 Review of a national paid maternity leave scheme

A number of submissions proposed that a national scheme of paid maternity leave should be reviewed following either 12 months or two years of operation. The Centre for Applied Social Research argued that:

[w]hatever the structure of the scheme that is introduced, there will be inevitable anomalies and issues that arise in implementation. Thus in the legislation that introduces the paid maternity leave scheme, there should be provision for a review of the effects and implementation of the operation of the scheme after 12 months as provided for in the New Zealand legislation for Paid Parental Leave. [1306]

EMILY's List also submitted:

… that the paid maternity leave scheme must include a provision for review - the New Zealand National Paid Maternity Leave Scheme will be reviewed 12 months after implementation - this ensures that the scheme can be adjusted to work to the advantage of all. [1307]

The Australian Industry Group agreed.

The scheme would be reviewed after a period of 12 months.
All relevant parties should be given an opportunity to make submissions on the operation of the scheme. [1308]

Catholic Women's League of Western Australia suggested a two year period before:

… a major public review … with no implied guarantee that the system will continue. Such a review should encompass

collection of comprehensive data on the use of the scheme by working/non working women (including age, marital status, socioeconomic background).

collection of data on fertility changes, including family size.

sample surveys, public hearings etc, to provide data on perception of scheme by interest groups.

collection of full data on use of maternity allowance over survey period including government funding, other (employer/employee) funding and payment of replacement staff.

collection of data on unpaid maternity/parental leave over this period. [1309]

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22.5 HREOC's position

HREOC agrees that it would be useful for the Government to undertake a review of the effectiveness of any paid maternity leave scheme that it introduces. Such a review should aim to assess the adequacy of and eligibility for paid maternity leave.

In particular, the review should consider:

the number of women who are receiving payment under the scheme;
the impact of paid maternity leave on the total period of maternity leave that women take from paid work;
the number of women who are not receiving payment under the scheme, including both those in paid and unpaid work;
the number of women who are eligible for payment but are not taking the payment;
the level of income replacement that a government scheme is actually providing;
changes in the level of employer provided paid maternity leave;
the proportion of women who are receiving full income replacement through the combination of government and employer provided paid maternity leave;
the impact of government funded paid maternity leave on business, including costs and benefits; and
the effectiveness of each of the payment mechanisms, being payment made directly by Government and payment by Government through employers.

Depending on the outcome of that review, it may be necessary to reconsider the eligibility criteria or payment levels. The Government may also wish to revisit some of the more contested aspects of the scheme as part of the review, including whether existing payments to women who are not in paid work are adequate and whether the payment should continue to be for mothers or whether it should be paid to the primary carer.

In order to assess this range of issues, the scheme will need to have been in operation for some time. As such HREOC considers a national scheme of paid maternity leave be reviewed three years after implementation.

RECOMMENDATION 15

That the effectiveness, adequacy and coverage of a national scheme of paid maternity leave be reviewed three years after the scheme's implementation.

Depending on the outcome of that review, it may be necessary to reconsider the eligibility criteria and/or payment levels. The Government may also wish to revisit some of the more contested aspects of the scheme as part of the review, including whether existing payments to women who are not in paid work are adequate and whether the payment should continue to be for mothers or whether it should be paid to the primary carer.

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644. International Labour Organization Maternity Protection Convention 2000 (No 183).

645. Australian Council of Trade Unions, Submission 208, p2.

646. National Farmers' Federation, Submission 160, p3.

647. National Farmers' Federation, Submission 160, p15.

648. The Centre for Business and Industry Pty Ltd, Submission 61, p8.

649. Local Government Association of Queensland Inc., Submission 156, p3.

650. The Australia Institute "Maternity leave: Affordable HECS alternative, or top up" News Release, 23 September 2002.

651. National Pay Equity Coalition, Submission 224, p31. See also Women's Electoral Lobby, Submission 248, p24.

652. The Centre for Independent Studies "Tax breaks and stable marriages more important than maternity leave" Media Release 16 September 2002.

653. Women's Economic Think Tank, Submission 256, p4.

654. Underemployed People's Union of Western Australia, Submission 54, p1.

655. Graham Evans, Submission 15, p1.

656. New South Wales State Chamber of Commerce, Submission 231, p1.

657. Human Rights and Equal Opportunity Commission Valuing Parenthood: Options for paid maternity leave, interim paper 2002 HREOC Sydney 2002, pp76-82.

658. International Labour Organization Maternity Protection Convention 2000 (No 183).

659. International Labour Organization Maternity Protection Recommendation 2000 (No 191).

660. United Kingdom Department for Work and Pensions, Regulatory Impact Assessment The Statutory Maternity Pay (Compensation of Employers) Amendment Regulations 2002, www.dwp.gov.uk/publications/2002/index.htm.

661. Parental Leave and Employment Protection Act 1987 (NZ).

662. See, for example, National Pay Equity Coalition, Submission 224, pp4, 26; Australian Federation of University Women - Victoria, Submission 101, p1; Australian Family Association (New South Wales), Submission103, p4; Coles Myer Ltd, Submission 107, p12; Association of Independent Schools of Victoria, Submission 108, p4; New South Wales Public Service Association, Submission 110, p5; National Tertiary Education Union, Submission 169, p7; Australian Hotels Association, Submission 199, p3; Work/Life Association, Submission 171, p9; Shop, Distributive and Allied Employees' Association, Submission 173, p18; Hawke Institute, Submission 174, p2; Patricia Todd and Judy Skene, Submission 176, p2; Australian Services Union South Australia and Northern Territory, Submission 189, p7; Catholic Women's League Australia Inc., Submission 195, p3; Australian Federation of University Women (Inc.), Submission 202, p2; Lisa Park, Submission 212, p1; Recruitment and Consulting Services Association, Submission 220, p4; Centre for Applied Social Research, RMIT University, Submission 234, p10; Isobel Gawler, Submission 235, p1; Ethnic Communities' Council of Victoria, Submission 242, p6; Hunter Business Chamber, Submission 243, p1; New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p2; Law Council of Australia, Submission 247, p1; Victorian Government, Submission 250, p11; Women's Electoral Lobby, Submission 248, p19; National Diversity Think Tank, Submission 221, p2; Queensland Working Women's Service, Submission 219, p12; Women's Economic Think Tank, Submission 125, p5; Australian Industry Group, Submission 121, pp17,22,26; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, pp17,18; Carrie Parsons, Submission 25, p1; Rosemary Freney, Submission 80, p1; Lena Dimech, Submission 6, p1; Australian Retailers Association, Submission 165, pp2,3,27; EMILY's List, Submission 159, p3; BPW Australia, Submission 148, p2; Local Government Association of Queensland Inc., Submission 156, p3; Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p2; Marty Grace, Submission 151, p3; YWCA of Australia, Submission 228, p19; Australian Women Lawyers, Submission 140, p2; Karen Bijkersma, Submission 150, p2; Women's Action Alliance (Australia) Inc., Submission 146, p8; Motor Traders' Association of New South Wales, Submission 141, p4; Australian Mines and Metals Association, Submission 130, p2; Joan Cross, Submission 138, p1; Victorian Women Lawyers, Submission 137, pp3,4; National Council of Women - Western Australia provided through the National Women's Council of South Australia, Submission 128D, p1; Eleanor Wilson, Submission 133, p7; BPW New South Wales, Submission 118, p1; Aboriginal and Torres Strait Islander Commission, Submission 116C, pp3-4; Work + Family Policy Research Group University of Sydney, Submission 251, p12; Catholic Women's League Australia Inc., Submission 195, p3; BPW International, Submission 82, p1; Union of Australian Women, Submission 89, p2; New South Wales EEO Practitioners' Association, Submission 77, p4.

663. See, for example, Lena Dimech, Submission 6, p1; Australian Industry Group, Submission 121, p17; Isobel Gawler, Submission 235, p1; Coles Myer Ltd, Submission 107, p12; Centre for Applied Social Research, RMIT University, Submission 234, p10; Work + Family Policy Research Group University of Sydney, Submission 251, p12; National Diversity Think Tank, Submission 221, p3; YWCA of Australia, Submission 228, p19; National Pay Equity Coalition, Submission 224, p26; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p17; Australian Industry Group, Submission 121, p26; Presbyterian Women's Association of Australia in New South Wales, Submission 126, p2.

664. Australian Industry Group, Submission 121, p26.

665. Presbyterian Women's Association of Australia in New South Wales, Submission 126, p2.

666. Australian Family Association (New South Wales), Submission 103, p4.

667. Karen Bijkersma, Submission 150, p2. See also Victorian Government, Submission 250, p11; Australian Retailers Association, Submission 165, p27; Ethnic Communities' Council of Victoria, Submission 242, p6; Australian Catholic Commission for Employment Relations, Submission 194, p2; New South Wales Working Women's Centre, Submission 225, p17; Rosemary Freney, Submission 80, p1; Marty Grace, Submission 151, p3.

668. Work + Family Policy Research Group University of Sydney, Submission 251, p12.

669. National Pay Equity Coalition, Submission 224, p26.

670. Centre for Applied Social Research, RMIT University, Submission 234, p10.

671. Australian Business Industrial, Submission 119, p16.

672. See, for example, BPW International, Submission 82, p1; Victorian Women Lawyers, Submission 137, p4; BPW New South Wales, Submission 118, p1.

673. See 13.4.6 below.

674. Work/Life Association, Submission 171, p9.

675. Kimberley Meyer, Submission 105, p4.

676. Susan Tucker, Submission 187, p1.

677. See, for example, Australian Mines and Metals Association, Submission 130, p2; See also Australian Hotels Association, Submission 199, p3; Australian Retailers Association, Submission 165, p3; Australian Industry Group, Submission 121, p26.

678. Hunter Business Chamber, Submission 243, p1.

679. Australian Mines and Metals Association, Submission 255, p15.

680. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p18.

681. Australian Family Association (New South Wales), Submission 103, p5.

682. Australian Institute of Company Directors, Submission 53, p2.

683. See, for example, Council of Small Business Organisations of Australia Ltd, Submission 117, p1; Beryl Byrne, Submission 157, p1; Australian Chamber of Commerce and Industry, Submission 197, p6; Alex Robson, Submission 106, p1; The Centre for Business and Industry Pty Ltd, Submission 61, p6; Kolan Shire Council, Submission 81, p1; Salt Shakers, Submission 109, p5.

684. Kolan Shire Council, Submission 81, p1.

685. The Centre for Business and Industry Pty Ltd, Submission 61, p6.

686. Alex Robson, Submission 106, p1 (emphasis in original).

687. Catherine Matson, Submission 12, p2.

688. See, for example, Australian Industry Group, Submission 121, p3; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p5; EMILY's List Australia, Submission 159, p3; Marty Grace, Submission 151, p3; Australian Business Industrial, Submission 119, p9; Australian Institute of Company Directors, Submission 53, p1; South Australian Equal Opportunity Commissioner, Submission 71, p3; New South Wales EEO Practitioners' Association, Submission 77, p4; Hawke Institute, Submission 174, p5; Australian Catholic Commission for Employment Relations, Submission 194, pp2-3; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Council of Small Business Organisations of Australia Ltd, Submission 117, p1; BPW New South Wales, Submission 118, p1; Motor Traders' Association of New South Wales, Submission 141, p4; National Farmers' Federation, Submission 160, p13; BPW Australia, Submission 148, p11; Australian Retailers Association, Submission 165, p28; Australian Chamber of Commerce and Industry, Submission 197, p7; Lena Dimech, Submission 6, p1; Catherine Matson, Submission 12, p2; Carrie Parsons, Submission 25, p1; Christine Rau, Submission 36, p1; Alex Robson, Submission 106, p1; Victorian Government, Submission 250, p11; Queensland Working Women's Service, Submission 219, p7; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p2; Australian Family Association, Submission 114, p1; YWCA of Australia, Submission 228, p19; Work + Family Policy Research Group University of Sydney, Submission 251, p12; The Centre for Business and Industry Pty Ltd, Submission 61, pp2-3; Shop, Distributive and Allied Employees' Association, Submission 173, p27.

689. Australian Business Industrial, Submission 119, p9.

690. Coles Myer Ltd, Submission 107, p1.

691. Australian Institute of Company Directors, Submission 53, p1. See also Australian Catholic Commission for Employment Relations, Submission 194, p2.

692. Christine Rau, Submission 36, p1.

693. Australian Chamber of Commerce and Industry, Submission 197, p7.

694. Alex Robson, Submission 106, p1 (emphasis in original).

695. New South Wales State Chamber of Commerce, Submission 231, p9.

696. Rita Bentley, Submission 73, p1.

697. Australian Council of Trade Unions, Submission 208, p16.

698. See, for example, The Centre for Business and Industry Pty Ltd, Submission 61, pp3-4; Victorian Automobile Chamber of Commerce, Submission 112, p16; Jacqui Christian, Submission 11, p1; Australian Chamber of Commerce and Industry, Submission 197, p6.

699. New South Wales State Chamber of Commerce, Submission 231, p8.

700. National Farmers' Federation, Submission 160, p13.

701. Catherine Matson, Submission 12, p2.

702. Australian Industry Group, Submission 121, p17.

703. Australian Chamber of Commerce and Industry, Submission 197, piv. See also Australian Mines and Metals Association, Submission 130, p3.

704. The Centre for Business and Industry Pty Ltd, Submission 61, p4. See also Australian Hotels Association, Submission 199, p8; Jacqui Christian, Submission 11, p1; Australian Industry Group, Submission 121, p3; Soft Furnishings Industry Association of Australia Inc., Submission 132, p1.

705. M H Dale, Submission 1, p1 (emphasis in original).

706. See, for example, The Centre for Business and Industry Pty Ltd, Submission 61, p5; Australian Mines and Metals Association, Submission 130, p3; Women's Electoral Lobby, Submission 248, p23; Australian Hotels Association, Submission 199, p8; Australian Retailers Association, Submission 165, p2.

707. Victorian Government, Submission 250, p11.

708. See 13.3.2 for further discussion.

709. Festival of Light, Submission 102, p5.

710. See 13.3.4 above.

711. Josie Oldroyd, Submission 7, p1.

712. The Centre for Business and Industry Pty Ltd, Submission 61, p5.

713. See 13.5 for a discussion of an employer levy.

714. Women's Electoral Lobby, Submission 248, p22. See also Australian Council of Trade Unions, Submission 208, p16.

715. BPW New South Wales, Submission 118, p1.

716. See, for example, Australian Institute of Company Directors, Submission 53, p1; Kay Channer, Submission 52, p1; Catherine Barnett, Submission 32, p1; Local Government Association of Queensland Inc., Submission 156, p2; Karen Bijkersma, Submission 150, p2; Queensland Nurses' Union, Submission 134, p10; C Harvey, Submission 238, p1; Recruitment and Consulting Services Association, Submission 220, p4; Australian Hotels Association, Submission 199, p9; Labor Council of New South Wales, Submission 218, pp6-7; motherInc, Submission 196, p6; Western Australian Government, Submission 245, p6; Hunter Business Chamber, Submission 243, p1.

717. Council of Small Business Organisations of Australia Ltd, Submission 117, p1.

718. Sandra Skelton, Submission 13, p1.

719. BPW Australia, Submission 148, p11.

720. See, for example, National Pay Equity Coalition, Submission 224, p29.

721. Melissa Austin, Submission 149, p7.

722. See, for example, Australian Manufacturing Workers' Union, Submission 237, p2; Australian Federation of University Women Inc., Submission 202, p2; Australian Council of Trade Unions, Submission 208, pp15-16; Equal Opportunity Commission Victoria, Submission 240, p3; New South Wales Working Women's Centre, Submission 225, p17; Melissa Austin, Submission 149, p6; Australian Capital Territory Ministerial Advisory Committee on Women, Submission 120, pp9-10; Labor Council of New South Wales, Submission 218, p5.

723. Australian Manufacturing Workers' Union, Submission 237, p2.

724. Australian Federation of University Women (Inc.), Submission 202, p2 (emphasis in original).

725. Australian Council of Trade Unions, Submission 208, pp15-16. See also Equal Opportunity Commission Victoria, Submission 240, p3.

726. Melissa Austin, Submission 149, p6.

727. See, for example, Northern Territory Trades and Labor Council, Submission 84, p1; New South Wales Public Service Association, Submission 110, p5; Independent Education Union of Australia, Submission 204, pp6-7; United Trades and Labor Council of South Australia, Submission 211, p4; Labor Council of New South Wales, Submission 218, p5; Australian Manufacturing Workers' Union, Submission 237, pp10-11; Australian Manufacturing Workers' Union Vehicle Division Statement in Australian Manufacturing Workers' Union, Submission 237, p19; National Entitlement Security Trust in Australian Manufacturing Workers' Union, Submission 237, Appendix Three, p2; Australian Nursing Federation, Submission 123, p10; YWCA of Victoria, Submission 127, p18; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, pp3,4; Australian Council of Trade Unions, Submission 208, p22; Finance Sector Union, Submission 161, cover letter; Australian Education Union, Submission 122, p2; Victorian Independent Education Union, Submission 163, pp2-3; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p1; Queensland Nurses' Union, Submission 134, pp9-10; Community and Public Sector Union (PSU Group), Submission 227, p3; CSIRO Staff Association, Submission 226, p3; Job Watch Inc., Submission 191, p13.

728. Australian Council of Trade Unions, Submission 208, p25.

729. Australian Council of Trade Unions, Submission 208, p24.

730. See 13.4.2 for further discussion. See also Queensland Council of Unions, Submission 239, p14.

731. Australian Manufacturing Workers Union Vehicle Division Statement in Australian Manufacturing Workers Union, Submission 237, p19.

732. CSIRO Staff Association, Submission 226, p3; United Trades and Labor Council of South Australia, Submission 211, p3.

733. See 13.3.3 and 13.4.6 above for further discussion.

734. Victorian Automobile Chamber of Commerce, Submission 112, p16. See also Australian Chamber of Commerce and Industry, Submission 197, p57; New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p2; Women's Electoral Lobby, Submission 248, p22; Women's Health in the North, Submission 60, p5; Motor Traders' Association of New South Wales, Submission 141, p4; Shop, Distributive and Allied Employees' Association, Submission 173, pp29-30.

735. Australian Chamber of Commerce and Industry, Submission 197, pp56, 57.

736. National Pay Equity Coalition, Submission 224, p29.

737. New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p2.

738. Shop, Distributive and Allied Employees' Association, Submission 173, pp29-30.

739. See 19.4 for further discussion.

740. International Labour Organization "Beyond childbirth: Parental, paternity and adoption leave" Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) Report V(1) International Labour Conference 87th Session Geneva 1999 www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-v-1.htm.

741. International Labour Organization "Beyond childbirth: Parental, paternity and adoption leave" Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) Report V(1) International Labour Conference 87th Session Geneva 1999 www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-v-1.htm.

742. The 1952 Maternity Protection Convention was revised and became open for signature as International Labour Organization Maternity Protection Convention 2000 (No 183).

743. International Labour Organization Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) Report V(1) International Labour Conference 87th Session Geneva 1999

www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-v-1.htm.

744. Convention on the Elimination of All Forms of Discrimination Against Women GA Res 180 (XXXIV 1970), 19 ILM 33 (1980), Article 11(2).

745. Lars Adam Rehof Guide to the Travaux Preparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women Martinus Nijhoff Publishers Dordrecht 1993, p139.

746. The following information on provisions in various countries is drawn from Columbia University, Clearinghouse on International Developments in Child, Youth and Family Policies Issue Brief Spring 2002 www.childpolicyintl.org/issuebrief/issuebrief5.htm and the Mutual Information System on Social Protection in the EU Member States and the EEA (MISSOC) Maternity Leave: Prior to and after confinement www.europa.eu.int/comm/employment_social/missoc/2002/missoc_87_en.htm.

747. International Labour Organization "Beyond childbirth: Parental, paternity and adoption leave" Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) Report V(1) International Labour Conference 87th Session Geneva 1999 www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-v-1.htm.

748. Parental Leave and Employment Protection Act 1987 (NZ).

749. See, for example, National Tertiary Education Union, Submission 169, p4; Patricia Todd and Judy Skene, Submission 176, p1; Women's Action Alliance (Australia) Inc., Submission 146, p7; Australian Hotels Association, Submission 199, p5; Labor Council of New South Wales, Submission 218, p6; Centre for Applied Social Research RMIT University, Submission 234, pp9,10; Victorian Government, Submission 250, Attachment pp3-4; New South Wales Working Women's Centre, Submission 225, p12; Local Government Association of Queensland Inc., Submission 156, p2; National Council of Women - Western Australia provided through the National Women's Council of South Australia, Submission 128D, p1; Australian Mines and Metals Association, Submission 130, p2; BPW Adelaide East, Submission 178A, p1; Women's Health in the North, Submission 60, p3; Karen Simmer, Submission 72, pp2-3.

750. See Chapter 5 for further discussion of the health and wellbeing benefits of paid maternity leave.

751. See, for example, BPW Adelaide East, Submission 178A, p1; Women's Action Alliance (Australia) Inc., Submission 146, p7; Centre for Applied Social Research RMIT University, Submission 234, p10.

752. Australian Hotels Association, Submission 199, p5.

753. Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, pp4 5. See also Women's Health in the North, Submission 60, p3.

754. New South Wales Working Women's Centre, Submission 225, p12. See also Victorian Government, Submission 250, Attachment pp3-4; Patricia Todd and Judy Skene, Submission 176, p1; BPW Adelaide East, Submission 178A, p1; Karen Simmer, Submission 72, pp2-3.

755. Coles Myer Ltd, Submission 107, p10.

756. Australian Education Union, Submission 122, p24.

757. Victorian Government, Submission 250, Attachment p4.

758. Work + Family Policy Research Group University of Sydney, Submission 251, p11 (emphasis in original).

759. Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 (Cth) Explanatory Memorandum, p2.

760. New South Wales Working Women's Centre, Submission 225, p12.

761. See Chapter 7 for further discussion of the benefits of paid maternity leave in addressing women's workplace disadvantage.

762. Labor Council of New South Wales, Submission 218, p6.

763. Centre for Applied Social Research RMIT University, Submission 234, p10.

764. Coles Myer Ltd, Submission 107, p10.

765. See, for example, New South Wales Working Women's Centre, Submission 225, p12; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, ppv,16; Carrie Parsons, Submission 25, p1; Karen Simmer, Submission 72, pp2-3.

766. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p16 (emphasis in original).

767. Women's Action Alliance (Australia) Inc., Submission 146, p7.

768. See, for example, union consultation, Hobart, 27 June 2002; women's groups and community consultation, Hobart, 25 June 2002.

769. BPW Australia, Submission 148, p8. See also New South Wales Public Service Association, Submission 110, p4; Australian Education Union, Submission 122, p24.

770. Australian Retailers Association, Submission 165, p21.

771. International Labour Organization Maternity Protection Recommendation 2000 (No 191).

772. See, for example, National Pay Equity Coalition, Submission 224, p4; YWCA of Australia, Submission 228, p16; Association of Independent Schools of Victoria, Submission 108, p3; Shop, Distributive and Allied Employees' Association, Submission 173, p18; Hawke Institute, Submission 174, p3; Job Watch Inc., Submission 191, p14; Catholic Women's League Australia Inc., Submission 195, p2; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Law Institute of Victoria, Submission 215, p3; Equal Opportunity for Women in the Workplace Agency, Submission 217, p2; Equal Opportunity Commission Victoria, Submission 240, p2; New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p1; Law Council of Australia, Submission 247, p3; Queensland Working Women's Service, Submission 219, p10; Adoptive Families Association of the Australian Capital Territory Inc., Submission 115, pp1-2; Northern Territory Trades and Labor Council, Submission 84, p1; Jason Corney, Submission 164, p1; Mothers of In(ter)vention, Submission 104, p2; Chris Van Der Wijngaart, Submission 35, p1; Kay Channer, Submission 52, p2; Penny Stewart, Submission 31, p1; EMILY's List, Submission 159, p3; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, pp12-13; Men's Confraternity (Western Australia) Inc., Submission 249, p1.

773. See, for example, BPW Australia, Submission 148, p8; International Adoptive Parents Association, Submission 145, p1.

774. Australian Society for Intercountry Aid for Children (New South Wales) Inc., Submission 51, p1.

775. Kate Purcell and Tim O'Reilly, Submission 20, p1.

776. Melissa Austin, Submission 149, p4.

777. Catholic Women's League Australia Inc., Submission 195, p2.

778. BPW Australia, Submission 148, p8. See also Joan Cross, Submission 138, p1; Kay Channer, Submission 52, p2; Victorian Women Lawyers, Submission 137, p3; Aboriginal and Torres Strait Islander Commission, Submission 116A, p2; National Pay Equity Coalition, Submission 224, p19; YWCA of Australia, Submission 228, p16; Queensland Working Women's Service, Submission 219, p10; Equal Opportunity Commission Victoria, Submission 240, p2. See also Australian Council of Trade Unions, Submission 208, p36; Equal Opportunity for Women in the Workplace Agency, Submission 217, p6; Anti-Discrimination Board of New South Wales, Submission 214, p18; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Association of Independent Schools of Victoria, Submission 108, p3; Council for Equal Opportunity in Employment Ltd, Submission 252, p4.

779. Victorian Women Lawyers, Submission 137, p2.

780. Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p7. See also Patricia May, Submission 70, pp1-2; Joan Cross, Submission 138, p1; Equal Opportunity Commission Victoria, Submission 240, p2; Anti-Discrimination Board of New South Wales, Submission 214, p18; Job Watch Inc., Submission 191, p14; New South Wales EEO Practitioners' Association, Submission 77, p2.

781. Patricia May, Submission 70, p2.

782. Kimberley Meyer, Submission 105, p3.

783. Marty Grace, Submission 151, p2.

784. Melissa Austin, Submission 149, pp3-4.

785. See, for example, Australian Women Lawyers, Submission 140, p2; Australian Council of Trade Unions, Submission 208, p36; Aboriginal and Torres Strait Islander Commission, Submission 116F, p1 and 116E, p1; R and N Cornhill, Submission131, pp5-6; Adoptive Families Association of the Australian Capital Territory Inc., Submission 115, p1; Equal Opportunity for Women in the Workplace Agency, Submission 217, p6; Job Watch Inc., Submission 191, p14; Guy Whitcomb, Submission 5, p1; Hawke Institute, Submission 174, p3; Kate Purcell and Tim O'Reilly, Submission 20, p1.

786. Cameron Paroz, Submission 147, p1. See also BPW Australia, Submission 148, p8; Victorian Automobile Chamber of Commerce, Submission 121, p8; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, pp12-13; Joan Cross, Submission 138, p1; National Pay Equity Coalition, Submission 224, p19; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p7.

787. Kate Purcell and Tim O'Reilly, Submission 20, p1. See also Patricia May, Submission 70, pp1-2; Penny Stewart, Submission 31, p1.

788. Men's Confraternity (Western Australia) Inc., Submission 249, p1.

789. Women's Council, Liberal Party of Australia (South Australia), Submission 100, p1.

790. Anti-Discrimination Board of New South Wales, Submission 214, p18 (emphasis in original).

791. See, for example, Australian Services Union South Australia and Northern Territory, Submission 189, p5.

792. Patricia May, Submission 70, p2.

793. National Women's Council of South Australia, Submission 68, p1. See also Victorian Women Lawyers, Submission 137, p3.

794. Equal Opportunity for Women in the Workplace Agency, Submission 217, p6.

795. See 8.3 and 13.4.2 for further discussion.

796. Patricia May, Submission 70, p2. See also Penny Stewart, Submission 31, p1; Melissa Austin, Submission 149, pp3-4; R and N Cornhill, Submission131, pp5-6.

797. Equal Opportunity Commission Victoria, Submission 240, p2.

798. Equal Opportunity for Women in the Workplace Agency, Submission 217, p6.

799. See, for example, Community and Public Sector Union (PSU Group), Submission 227, p18; Australian Council of Trade Unions, Submission 208, p36; National Pay Equity Coalition, Submission 224, p4; Women's Electoral Lobby, Submission 248, p20; Job Watch Inc., Submission 191, p14; Victorian Independent Education Union, Submission 163, p3; EMILY's List, Submission 159, p3; Karen Bijkersma, Submission 150, p1; Australian Women Lawyers, Submission 140, p2; Aboriginal and Torres Strait Islander Commission, Submission 116 Part E, p1; R and N Cornhill, Submission 131, p5; Adoptive Parents Association of the Australian Capital Territory Inc., Submission 115, p1; BPW Australia, Submission 148, p8; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p3; Queensland Nurses' Union, Submission 134, p8; Australian Nursing Federation, Submission 123, p9; Labor Council of New South Wales, Submission 218, p6; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9; Women's Electoral Lobby, Submission 248, p27.

800. Australian Council of Trade Unions, Submission 208, p36.

801. National Pay Equity Coalition, Submission 224, p19.

802. Independent Education Union of Australia, Submission 204, p8.

803. YWCA of Australia, Submission 228, p16.

804. Note that this requirement is not included in the Workplace Relations Act 1996 (Cth) and therefore could potentially be challenged on the grounds of being disadvantageous compared to the Act.

805. Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p2.

806. Women's Electoral Lobby, Submission 248, p20.

807. Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p2.

808. BPW Australia, Submission 148, p8. See also New South Wales Public Service Association, Submission 110, p4.

809. International Labour Organization "Beyond childbirth: Parental, paternity and adoption leave" Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103) and Recommendation, 1952 (No. 95) Report V(1) International Labour Conference 87th Session Geneva 1999 www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-v-1.htm.

810. See Chapter 17 for a discussion of payment level.

811. Duration of leave proposed is discussed in Chapter 16.

812. See, for example, YWCA of Australia, Submission 228, p18; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8; Centre for Applied Social Research RMIT University, Submission 234, p10; Women's Electoral Lobby, Submission 248, pp20,27; National Pay Equity Coalition, Submission 224, p4; Union of Australian Women, Submission 89, p2; Lyn Collins and Barbara Pocock, Submission 232, p8. One submission was steadfastly against paid paternity leave: Stefan Slucki, Submission 63, p1.

813. Finance Sector Union, Submission 161, p8.

814. National Pay Equity Coalition, Submission 224, p20.

815. Australian Council of Trade Unions, Submission 208, p36. See also Women's Health in the North, Submission 60, p3; Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, pp4 5; New South Wales Working Women's Centre, Submission 225, p12; motherInc, Submission 196, p2; Australian Education Union, Submission 122, pp2-3; Community and Public Sector Union (PSU Group), Submission 227, p19.

816. Queensland Working Women's Service, Submission 219, p10. See also Marty Grace, Submission 151, pp4-5; Australian Services Union South Australia and Northern Territory, Submission 189, p6; National Women's Council of South Australia, Submission 128B, p2.

817. Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8.

818. Australian Federation of University Women (South Australia) Inc., Submission 179, p2. See also Eleanor Wilson, Submission 133, p7; Confidential, Submission 216, p5.

819. Ethnic Communities' Council of Victoria, Submission 242, p7 (emphasis in original).

820. Australian Education Union, Submission 122, p23.

821. Centre for Applied Social Research RMIT University, Submission 234, p9.

822. Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9.

823. This has not been costed in the model in the Appendix.

824. motherInc, Submission 196, p3. Note that respondents to this poll were self selected so the results should be treated with care. See 1.3.4 for details of this poll.

825. International Labour Organization Maternity Protection Convention 2000 (No 183).

826. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p29 www.dti.gov.uk/er/individual/maternity/pdf.

827. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p31www.dti.gov.uk/er/individual/maternity/pdf.

828. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p31www.dti.gov.uk/er/individual/maternity/pdf.

829. United Kingdom Department for Work and Pensions October 2002 www.dwp.gov.uk.

830. New Zealand Department of Labour Parental Leave 1: General entitlements Fact Sheet www.ers.dol.govt.nz/bin/fact.asp.

831. See, for example, Australian Chamber of Commerce and Industry, Submission 197, p55; Rosemary Freney, Submission 80, p1; Kay Channer, Submission 52, p1; Marty Grace, Submission 151, p1; Melissa Austin, Submission 149, p5; Karen Bijkersma, Submission 150, p1; Women's Action Alliance (Australia) Inc., Submission 146, p4; Endeavour Forum, Submission 144, p1; Motor Traders' Association of New South Wales, Submission 141, p5; Eleanor Wilson, Submission 133, p3; Presbyterian Women's Association of Australia in New South Wales, Submission 126, p1; Australian Business Industrial, Submission 119, p4; Greg Byrne, Submission 124, p1; Aboriginal and Torres Strait Islander Commission, Submission 116E, p1, 116F, p2, 116G, p1; A Rolfe, Submission 111, p2; Equal Opportunity Commission Victoria, Submission 240, p3; Catholic Women's League Tasmania Inc., Submission 236, p2; Isobel Gawler, Submission 235, p1; YWCA of Australia, Submission 228, p17; Cathy Sherry, Submission 205, p5; Graeme Cray, Submission 186, p1; Australian Family Association (New South Wales), Submission 103, p1; Australian Federation of University Women (South Australia) Inc., Submission 179, p3.

832. See 11.3.2 for further discussion of this issue.

833. See 9.2 for further discussion of this issue.

834. Shop, Distributive and Allied Employees' Association, Submission 173, p12. See also Eleanor Wilson, Submission 133, p3.

835. Australian Chamber of Commerce and Industry, Submission 197, p55.

836. Festival of Light, Submission 102, p5.

837. Australian Family Association (New South Wales), Submission 103, p1.

838. Catholic Women's League Australia Inc., Submission 195, p2. See also Catholic Women's League Western Australia, Submission 129, p1; Equal Opportunity Commission Victoria, Submission 240, p3; Salt Shakers, Submission 109, pp4-5.

839. Endeavour Forum, Submission 144, p1.

840. Eleanor Wilson, Submission 133, p3.

841. See also Victorian Automobile Chamber of Commerce, Submission 112, p15.

842. Shop, Distributive and Allied Employees' Association, Submission 173, p12.

843. Australian Family Association, Submission 92, p1.

844. Cathy Sherry, Submission 205, p5. See also Catholic Women's League Tasmania Inc., Submission 236, p2; Equal Opportunity Commission Victoria, Submission 240, p3; Eleanor Wilson, Submission 133, p3.

845. See, for example, Kolan Shire Council, Submission 81, p1; Monica Naughton, Submission 155, p1; Motor Traders' Association of New South Wales, Submission 141, p5; Victorian Automobile Chamber of Commerce, Submission 112, p15; Salt Shakers, Submission 109, pp4-5.

846. Australian Family Association (New South Wales), Submission 103, p1.

847. YWCA of Australia, Submission 228, p17.

848. Women's Action Alliance (Australia) Inc., Submission 146, p2. See also Graeme Cray, Submission 186, p1; Endeavour Forum, Submission 144, p1; Motor Traders' Association of New South Wales, Submission 141, p5.

849. Eleanor Wilson, Submission 133, p3. See also Motor Traders' Association of New South Wales, Submission 141, p5; Karen Bijkersma, Submission 150, p1.

850. See, for example, Victorian Automobile Chamber of Commerce, Submission 112, p15; Beryl Byrne, Submission 157, p1.

851. Australian Federation of University Women (South Australia) Inc., Submission 179, p3 (emphasis in original).

852. YWCA of Australia, Submission 228, p17.

853. Rosemary Freney, Submission 80, p1. See also Isobel Gawler, Submission 235, p1; Marty Grace, Submission 151, p3; Catholic Women's League Australia Inc., Submission 195, p3.

854. See, for example, Australian Hotels Association, Submission 199; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Independent Education Union of Australia, Submission 204, p6; United Trades and Labor Council of South Australia, Submission 211, p3; Centre for Applied Social Research RMIT University, Submission 234, p10; Ethnic Communities' Council of Victoria, Submission 242, p6; Victorian Government, Submission 250, p7; Women's Electoral Lobby, Submission 248, p23; New South Wales Working Women's Centre, Submission 225, p7; Queensland Working Women's Service, Submission 219, p11; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p15; National Pay Equity Coalition, Submission 224, p16; Karen Wakely, Submission 30, p2; Women's Economic Think Tank, Submission 256, pp4-5; Women's Health in the North, Submission 60, p4; Penny Stewart, Submission 31, p1; Carrie Parsons, Submission 25, p1; Australian Industry Group, Submission 121, p19; Australian Retailers Association, Submission 165, p22; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p13; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p4; Union Research Centre on Organisation and Technology, Submission 254, p7; Aboriginal and Torres Strait Islander Commission, Submission 116A, p2, 116C, p2, 116G, p1; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9; Western Australian Government, Submission 245, p2; Patricia Todd and Judy Skene, Submission 176, p1; New South Wales Public Service Association, Submission 110, p5; Council for Equal Opportunity in Employment Ltd, Submission 252, p3; Job Watch Inc., Submission 191, p14; Coles Myer Ltd, Submission 107, pp10-11; Labor Council of New South Wales, Submission 218, p6; Work + Family Policy Research Group University of Sydney, Submission 251, p10; Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, p5; New South Wales EEO Practitioners' Association, Submission 77, p2; National Tertiary Education Union, Submission 169, p3; BPW Australia, Submission 148, p8; Australian Council of Trade Unions, Submission 208, p17.

855. New South Wales Public Service Association, Submission 110, p5.

856. United Trades and Labor Council of South Australia, Submission 211, p3.

857. Patricia Todd and Judy Skene, Submission 176, p1.

858. Coles Myer Ltd, Submission 107, pp10-11.

859. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p15.

860. Karen Wakely, Submission 30, pp2-3. See also Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p15; New South Wales EEO Practitioners' Association, Submission 77, p2; Carrie Parsons, Submission 25, p1; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9; Labor Council of New South Wales, Submission 218, p6; Queensland Working Women's Service, Submission 219, p11; National Pay Equity Coalition, Submission 224, p16; Penny Stewart, Submission 31, p1.

861. See Chapter 7 for a discussion of women's workforce disadvantage.

862. New South Wales Working Women's Centre, Submission 225, p13 (emphasis in original). See also Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9; Union Research Centre on Organisation and Technology, Submission 254, p7.

863. See also 6.7 and 10.4 for a discussion of women's labour force attachment.

864. Australian Industry Group, Submission 121, p19. See also Centre for Applied Social Research RMIT University, Submission 234, p10; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p13.

865. Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, p5. See also Women's Health in the North, Submission 60, p4.

866. Council for Equal Opportunity in Employment Ltd, Submission 252, p3.

867. Australian Retailers Association, Submission 165, p22.

868. New South Wales Working Women's Centre, Submission 225, p13. See 5.2 for a full discussion of health and wellbeing issues for women.

869. Coles Myer Ltd, Submission 107, p10. See also National Pay Equity Coalition, Submission 224, p16; United Trades and Labor Council of South Australia, Submission 211, p3; Queensland Working Women's Service, Submission 219, p11. See also 10.4 for a discussion of economic benefits to society from a paid maternity leave scheme.

870. See 3.4.2.

871. motherInc, Submission 196, p4.

872. National Pay Equity Coalition, Submission 224, p16. See also Women's Economic Think Tank, Submission 256, p4.

873. See, for example, Job Watch Inc., Submission 191, p15; New South Wales EEO Practitioners' Association, Submission 77, p2; New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p2; United Trades and Labor Council of South Australia, Submission 211, p3.

874. motherInc, Submission 196, p18.

875. Kimberley Meyer, Submission 105, p3. The submission referred to B Probert and J Murphy "Majority opinion or divided selves? Researching work and family experiences" (2001) 9(4) People and Place 25.

876. Australian Industry Group, Submission 121, p19.

877. National Pay Equity Coalition, Submission 224, p16.

878. Community and Public Sector Union - State Public Services Federation Group, Submission 230, p9. See also Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p4; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p13.

879. See, for example, Australian Education Union, Submission 122, pp2,11.

880. See 17.3.3 for discussion of flat rate payments.

881. Association of Independent Schools of Victoria, Submission 108, p4.

882. Australian Nursing Federation, Submission 123, p9.

883. Australian Council of Trade Unions, Submission 208, p17. See also Queensland Nurses' Union, Submission 134, pp8,16; Queensland Council of Unions, Submission 239, p12.

884. See, for example, Aboriginal and Torres Strait Islander Commission, Submission 116F, p2; Melissa Austin, Submission 149, p5.

885. Lyn Collins and Barbara Pocock, Submission 232, p8.

886. Women's Economic Think Tank, Submission 125, p7.

887. Anti-Discrimination Board of New South Wales Submission 214, p17.

888. See 3.4 for a discussion of the provisions and their adequacy, and calls for a review.

889. Local Government Association of Queensland Inc., Submission 156, p2.

890. Australian Institute of Health and Welfare Adoptions Australia 2000-01 AIHW Canberra 2002, p3. See also International Adoptive Parents Association, Submission 145, p1-2; Kate Purcell and Tim O'Reilly, Submission 20, p2; P and M Marshall, Submission 45, p2.

891. Women's Electoral Lobby, Submission 248, p27; Northern Territory Trades and Labor Council, Submission 84, p1.

892. Anne Sheehan, Submission 40, p1.

893. See, for example, Queensland Nurses' Union, Submission 134, p9; Australian Nursing Federation, Submission 123, p9; Aboriginal and Torres Strait Islander Commission, Submission 116C, p4; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10; YWCA of Australia, Submission 228, p16; Queensland Council of Unions, Submission 239, p17; Job Watch Inc., Submission 191, p14; Victorian Government, Submission 250, p7; Ethnic Communities' Council of Victoria, Submission 242, p7; New South Wales Public Service Association, Submission 110, p5; Hawke Institute, Submission 174, p4; National Women's Council of South Australia, Submission 68, p4; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p15; Union of Australian Women, Submission 89, p3; Narelle Wasley, Submission 69, p1; Lisa Dibb, Submission 28, p1; Sandra Wills, Submission 29, p1; Angelo Zanatta, Submission 180, p1; Work + Family Policy Research Group University of Sydney, Submission 251, Women's Studies Research Unit School of Social Work, University of Melbourne, Submission 48, p5; International Adoptive Parents Association, Submission 145, pp1-2; Kate Purcell and Tim O'Reilly, Submission 20, p2; Australian Society for Intercountry Aid for Children (New South Wales) Inc., Submission 51, p2; Australian Services Union South Australia and Northern Territory, Submission 189, p7; Queensland Working Women's Service, Submission 219, p10; Australian African Children's Aid and Support Association Inc., Submission 22, p1; Australian Education Union, Submission 122, p2; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p3; EMILY's List, Submission 159, p3; Independent Education Union of Australia, Submission 204, p6; Adoptive Families Association of the Australian Capital Territory Inc., Submission 115, pp2-7; R and N Cornhill, Submission 131, pp6-8; Centre for Applied Social Research RMIT University, Submission 234, p9; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p8.

894. Tasmanian Branch of the Australian Society for Intercountry Aid for Children, Submission 209, p1. See also Susanna Lobez, Submission 47, pp1-3.

895. See, for example, Tasmanian Branch of the Australian Society for Intercountry Aid for Children, Submission 209, p2; Confidential, Submission 170, p1.

896. International Adoptive Parents Association, Submission 145, p2.

897. Susanna Lobez, Submission 47, p2. See also Australian Retailers Association, Submission 165, p22.

898. Adoptive parents consultation, Sydney, 19 June 2002.

899. Adoptive parents consultation, Sydney, 19 June 2002.

900. L Hayes, Submission 43, p2.

901. See, for example, Tasmanian Branch of the Australian Society for Intercountry Aid for Children, Submission 209, p3; Susanna Lobez, Submission 47, p1-3; and Khristine and Michael Ryan-Wilson, Submission 41, p1.

902. Sandra Wills, Submission 29, p1. See also International Adoptive Parents Association, Submission 145, pp1-2; Kate Purcell and Tim O'Reilly, Submission 20, p2; P and M Marshall, Submission 45, p2; Adoptive parents consultation, Sydney, 19 June 2002; Australian Adoption Campaign, Submission 44, p5; Confidential, Submission 67, p1.

903. P and M Marshall, Submission 45, p2. See also International Adoptive Parents Association, Submission 145, pp1-2 and Susanna Lobez, Submission 47, pp1-3: "The [Victorian] Department of Human Services or their interstate equivalents strictly require one adoptive parent to spend 12 months being the primary carer -being a condition of the adoption assessment, it is not optional. This requirement necessitates enormous juggling of time in the family if the carer parent wants to resume even a part-time career. Compare this with a born child where many mothers can and do return to work within days of the child's birth. This is simply not an option for adoptive mothers". For information on State adoption processes and requirements see, for example, New South Wales Department of Community Services, Adoptions and Permanent Care Services www.community.nsw.gov.au/adoptions/adoptachild.htm; Queensland Department of Families www.families.qld.gov.au/department/reviews/documents/consultpaperCh10.pdf; Victoria Department of Human Services, Community Care Division www.hnb.dhs.vic.gov.au/commcare/yafsinte.nsf/frameset/Community+Care?OpenDocument.

904. Schedule 1A Workplace Relations Act 1996 (Cth).

905. Australian Institute of Health and Welfare Adoptions Australia 2000-2001 AIHW Canberra 2002, p4.

906. Australian Institute of Health and Welfare Adoptions Australia 2000-2001 AIHW Canberra 2002, pp7-9.

907. Shop, Distributive and Allied Employees' Association, Submission 173, p24; Association of Independent Schools of Victoria, Submission 108, p3; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p13.

908. Western Australian Government, Submission 245, p5.

909. Queensland Nurses' Union, Submission 134, p15.

910. See, for example, Women's Electoral Lobby, Submission 248, p27; New South Wales EEO Practitioners' Association, Submission 77, p2; Equal Opportunity Commission Victoria, Submission 240, p3; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p8; Coles Myer Ltd, Submission 107, p10; New South Wales Public Service Association, Submission 110, p5; Paul Webb, Submission 42, p1; Narelle Wasley, Submission 69, p1; Patricia Todd and Judy Skene, Submission 176, p1; International Adoptive Parents Association, Submission 145, pp1-2.

911. Equal Opportunity Commission Victoria, Submission 240, p3.

912. Tasmanian Branch of the Australian Society for Intercountry Aid for Children, Submission 209, p4. See also P and M Marshall, Submission 45, p4; Confidential, Submission 49, p7.

913. See 14.4 for a discussion of whether a paid maternity leave scheme should be available to all women or limited to those in paid work.

914. See 15.4.

915. Shop, Distributive and Allied Employees' Association, Submission 173, p26.

916. International Labour Organization Maternity Protection Convention 2000 (No 183).

917. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p29 www.dti.gov.uk/er/individual/maternity/pdf.

918. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p31 www.dti.gov.uk/er/individual/maternity/pdf.

919. United Kingdom Department of Trade and Industry Maternity Rights: A guide for employers and employees May 2002, p31 www.dti.gov.uk/er/individual/maternity/pdf.

920. United Kingdom Department for Work and Pensions Maternity Allowance, p2 www.dwp.gov.uk/lifeevent/benefits/maternity_allowance.htm.

921. United Kingdom Department for Work and Pensions Incapacity Benefit, p2 www.dwp.gov.uk/lifeevent/benefits/incapacity_benefit.htm.

922. New Zealand Department of Labour Parental Leave 1: General Entitlements Fact Sheet, p2 www.ers.dol.govt.nz/bin/fact.asp.

923. New Zealand Department of Labour Parental Leave 1: General Entitlements Fact Sheet, p2 www.ers.dol.govt.nz/bin/fact.asp.

924. New Zealand Department of Labour Parental Leave 4: Parental Leave FAQs Fact Sheet, p1 www.ers.dol.govt.nz/bin/fact.asp.

925. Employment, Workplace Relations and Education Legislation Committee Workplace Relations Amendment (Paid Maternity Leave) Bill 2002: Report of the Australian Democrats Commonwealth of Australia Canberra September 2002, pp35-37.

926. Additional support for this view is outlined below at 15.5.2.

927. Australian Chamber of Commerce and Industry, Submission 197, p50.

928. Hobart City Council Enterprise Agreement 2001; Southern Cross University Enterprise Bargaining Agreement 2000; Hanna Sports - SDA Doncaster Enterprise Agreement 1998; Zurich Enterprise Agreement 2001 cited in Australian Chamber of Commerce and Industry, Submission 197, p49.

929. Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p14.

930. Queensland Working Women's Service, Submission 219, p11.

931. Australian Council of Trade Unions, Submission 208, p18.

932. Women's Economic Think Tank, Submission 125, p6.

933. Coles Myer Ltd, Submission 107, p11.

934. Australian Retailers Association, Submission 165, p24.

935. Work + Family Policy Research Group University of Sydney, Submission 251, p11.

936. Work + Family Policy Research Group University of Sydney, Submission 251, p11.

937. Work + Family Policy Research Group University of Sydney, Submission 251, p11.

938. Union Research Centre on Organisation and Technology, Submission 254, p8.

939. See Chapter 19 for a discussion of employers' role.

940. Confidential, Submission 216, p5.

941. National Pay Equity Coalition, Submission 224, p17.

942. Australian Education Union, Submission 122, p22.

943. See also 7.4 for discussion on this issue.

944. See, for example, YWCA of Australia, Submission 228, p18; Australian Council of Trade Unions, Submission 208, pp18-21; National Pay Equity Coalition, Submission 224, p17; Job Watch Inc., Submission 191, p14; Hawke Institute, Submission 174, p4; Anti-Discrimination Board of NSW, Submission 214, p15; Australian Education Union, Submission 122, p22; EMILY's List, Submission 159, p2; Shop, Distributive and Allied Employees' Association, Submission 173, pp14-15, 27; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, pp7-8; Ethnic Communities' Council of Victoria, Submission 242, p5; Janette Denison, Submission 79, p1; BPW Australia, Submission 148, p6; Australian Retailers Association, Submission 165, p14; BPW New South Wales, Submission 118, p1; National Diversity Think Tank, Submission 221, p3; BPW International, Submission 82, p1; National Tertiary Education Union, Submission 169, p8.

945. YWCA of Australia, Submission 228, p18.

946. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p20.

947. Women's Economic Think Tank, Submission 125, p7.

948. However see 3.4 for a discussion generally of the adequacy of current arrangements.

949. Labor Council of New South Wales, Submission 218, p6. See also Jason Corney, Submission 164, p1.

950. See, for example, Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p17; Australian Industry Group, Submission 121, p24; Local Government Association of Queensland Inc., Submission 156, p2; Australian Hotels Association, Submission 199, p6; Australian Chamber of Commerce and Industry, Submission 197, p49; Karen Wakely, Submission 30, p3; Melissa Austin, Submission 149, p5; Victorian Women Lawyers, Submission 137, p2; Victorian Government, Submission 250, p9; Recruitment and Consulting Services Association, Submission 220, p4.

951. Victorian Women Lawyers, Submission 137, p2.

952. Melissa Austin, Submission 149, p5.

953. Ethnic Communities' Council of Victoria, Submission 242, p5.

954. Australian Council of Trade Unions, Submission 208, p19.

955. Labor Council of New South Wales, Submission 218, p6.

956. Shop, Distributive and Allied Employees' Association, Submission 173, p26.

957. See, for example, YWCA of Victoria, Submission 127, p19; Australian Education Union, Submission 122, p25; Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, pp3,6; Victorian Government, Submission 250, Attachment p4; BPW Australia, Submission 148, p9; Australian Retailers Association, Submission 165, p23.

958. See 2.4.4 for further discussion.

959. YWCA of Victoria, Submission 127, p19.

960. Australian Education Union, Submission 122, p25.

961. Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p6.

962. Victorian Government, Submission 250, Attachment p4.

963. Australian Retailers Association, Submission 165, p23.

964. Australian Chamber of Commerce and Industry, Submission 197, p50.

965. See, for example, Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p6; Australian Women Lawyers, Submission 140, p3; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p8; Aboriginal and Torres Strait Islander Commission, Submission 116H, p1; New South Wales Young Lawyers Employment and Industrial Law Committee, Submission 246, p2; Western Australian Government, Submission 245, p3; Lisa Park, Submission 212, p1; BPW International, Submission 82, p1; Karen Bijkersma, Submission 150, p2; BPW New South Wales, Submission 118, p1; Australian Retailers Association, Submission 165, p23.

966. Australian Retailers Association, Submission 165, p23.

967. Union of Australian Women, Submission 89, p2.

968. Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p13.

969. BPW New South Wales, Submission 118, p1.

970. See, for example, Western Australian Government, Submission 245, p3; Hawke Institute, Submission 174, pp1,4; National Pay Equity Coalition, Submission 224, p4; Women's Health in the North, Submission 60, p4; Women's Electoral Lobby, Submission 248, p19; Anti-Discrimination Board of New South Wales, Submission 214, p16; Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, p6; Women's Economic Think Tank, Submission 125, pp6-7; Work + Family Policy Research Group University of Sydney, Submission 251, p11.

971. National Pay Equity Coalition, Submission 224, p4.

972. Western Australian Government, Submission 245, p3.

973. Hawke Institute, Submission 174, p4.

974. Women's Electoral Lobby, Submission 248, p19.

975. Women's Economic Think Tank, Submission 125, p6.

976. See, for example, Australian Council of Trade Unions, Submission 208, p19; Victorian Independent Education Union, Submission 163, p2; Australian Education Union, Submission 122, p25; Kay Channer, Submission 52, p2; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, pp3-4; Queensland Nurses' Union, Submission 134, p8; Australian Nursing Federation, Submission 123, p9; Aboriginal and Torres Strait Islander Commission, Submission 116E, p1, 116F, p2; New South Wales Working Women's Centre, Submission 225, p14; Queensland Council of Unions, Submission 239, p13; Centre for Applied Social Research RMIT University, Submission 234, p10; Independent Education Union of Australia, Submission 204, p6; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Coles Myer Ltd, Submission 107, p11; New South Wales Public Service Association, Submission 110, p5; New South Wales EEO Practitioners' Association, Submission 77, p2.

977. Independent Education Union of Australia, Submission 204, p6.

978. Australian Council of Trade Unions, Submission 208, p19.

979. Aboriginal and Torres Strait Islander Commission, Submission 116E, p1. See also Aboriginal and Torres Strait Islander Commission, Submission 116F, p2.

980. Australian Services Union MEU Private Sector Victorian, Submission 154, pp3-4.

981. New South Wales Working Women's Centre, Submission 225, p14 (emphasis in original).

982. See Chapter 5.

983. Coles Myer Ltd, Submission 107, p11.

984. Employer groups, unions and women's organisations roundtable, Melbourne, 27 August 2002.

985. See 22.4 for further discussion on review of the scheme.

986. See, for example, Joan Larsen, Submission 85, p1; Australian Mines and Metals Association, Submission 255, p15; New South Wales State Chamber of Commerce, Submission 231, p4; Cathy Sherry, Submission 205, p5.

987. Shop, Distributive and Allied Employees' Association, Submission 173, p16.

988. Women's Action Alliance (Australia) Inc., Submission 146, pp5-6.

989. Cathy Sherry, Submission 205, p5.

990. See, for example, Women's Economic Think Tank, Submission 125, p6; National Diversity Think Tank, Submission 221, p3; Law Council of Australia, Submission 247, p3; Australian Women Lawyers, Submission 140, p2.

991. Women's Electoral Lobby, Submission 248, p23.

992. Australian Industry Group, Submission 121, p19.

993. National Pay Equity Coalition, Submission 224, p24.

994. National Diversity Think Tank, Submission 221, p3.

995. Victorian Government, Submission 250, p12. See also 3.4.1 for a description of existing government family assistance payments and means tests.

996. Hawke Institute, Submission 174, p5.

997. P Whiteford and G Angenent The Australian System of Social Protection - An overview Department of Family and Community Services Occasional Paper No 6 Second Edition Commonwealth of Australia Canberra 2001, p7.

998. Local Government Association of Queensland Inc., Submission 156, p3.

999. See, for example, Festival of Light, Submission 102, p4; Presbyterian Women's Association of Australia in New South Wales, Submission 126, p1; Endeavour Forum, Submission 144, p1.

1000. See 3.2 for a discussion of the availability of unpaid parental leave.

1001. International Labour Organization Maternity Protection Convention 2000 (No 183), article 4(1).

1002. International Labour Organization Maternity Protection Recommendation 2000 (No 191).

1003. New Zealand Department of Labour Parental Leave 1: General Entitlements Fact Sheet, p1 www.ers.dol.govt.nz/bin/fact.asp.

1004. United Kingdom Department of Trade and Industry Work and Parents: Competitiveness and Choice www.dti.gov.uk/er/review.htm.

1005. Human Rights Development Centre Maternity, Parental and Sickness Benefits

/www.hrdc-drhc.gc.ca/ae-ei/pubs/special_e.shtml#How.

1006. Mutual Information System on Social Protection in the EU Member States and the EEA (MISSOC) Maternity Leave: Prior to and after confinement europa.eu.int/comm/employment_social/missoc/2002/missoc_87_en.htm.

1007. Mutual Information System on Social Protection in the EU Member States and the EEA (MISSOC) Maternity Leave: Prior to and after confinement europa.eu.int/comm/employment_social/missoc/2002/missoc_87_en.htm.

1008. Mutual Information System on Social Protection in the EU Member States and the EEA (MISSOC) Maternity Leave: Prior to and after confinement europa.eu.int/comm/employment_social/missoc/2002/missoc_87_en.htm.

1009. Columbia University, Clearinghouse on International Developments in Child, Youth and Family Policies "Maternity, Paternity and Parental Leave in the OECD Countries 1998-2002" Issue Brief www.childpolicyintl.org/issuebrief/issuebrief5table1.pdf.

1010. See, for example, Recruitment and Consulting Services Association, Submission 220, p4; Women's Action Alliance (Australia) Inc., Submission 146, pp5,8; Aboriginal and Torres Strait Islander Commission, Submission 116A, p2, 116F, p2; Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1; Australian Breastfeeding Association, Submission 222, pp6-7,8; Jason Corney, Submission 164, p1; motherInc, Submission 196, p20; Australian Industry Group, Submission 121, p23.

1011. For a discussion of the benefits of paid maternity leave for the health and wellbeing of the mother and child see Chapter 5.

1012. motherInc, Submission 196, p20.

1013. Australian Breastfeeding Association, Submission 222, p8; see also pp6-7.

1014. Women's Action Alliance (Australia) Inc., Submission 146, p5. See also Aboriginal and Torres Strait Islander Commission, Submission 116F, p2.

1015. Women in the Department of Education and Children's Services Reference Committee, South Australia, Submission 201, p1. See also Recruitment and Consulting Services Association, Submission 220, p4; Jason Corney, Submission 164, p1.

1016. See, for example, Australian Federation of University Women - Victoria, Submission 101, pp1,2; Coles Myer Ltd, Submission 107, p11; National Tertiary Education Union, Submission 169, p7; Work/Life Association, Submission, 171, p4; Shop, Distributive and Allied Employees' Association, Submission 173, p19; Job Watch Inc., Submission 191, p13; Australian Hotels Association, Submission 199, p7; United Trades and Labor Council of South Australia, Submission 211, p4; Anti-Discrimination Board of New South Wales, Submission 214, p9; Law Institute of Victoria, Submission 215, p3; Labor Council of New South Wales, Submission 218, p5; Lyn Collins and Barbara Pocock , Submission 232, p7; Centre for Applied Social Research, RMIT University, Submission 234, p9; Western Australian Government, Submission 245, p3; Law Council of Australia, Submission 247, p3; Victorian Government, Submission 250, p9; Queensland Council of Unions, Submission 239, p13; Women's Electoral Lobby, Submission 248, p18; Australian Manufacturing Workers' Union Vehicle Division Statement in Australian Manufacturing Workers' Union, Submission 237, pp18-19; Australian Manufacturing Workers' Union, Submission 237, p2; New South Wales Working Women's Centre, Submission 225, p16; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8; YWCA of Australia, Submission 228, p18; National Pay Equity Coalition, Submission 224, p4; Women's Economic Think Tank, Submission 125, p5; Queensland Nurses' Union, Submission 134, p9; Australian Education Union, Submission 122, p2; Australian Retailers Association, Submission 165, p24; Australian Council of Trade Unions, Submission 208, p21; New South Wales EEO Practitioners' Association, Submission 77, p4; Warwick Giles, Submission 97, p1; Northern Territory Trades and Labor Council, Submission 84, p1; BPW Australia, Submission 148, pp9-10; Victorian Independent Education Union, Submission 163, p2; Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p2; Immigrant Women's Speakout Association NSW Inc., Submission 158, p14; EMILY's List, Submission 159, p2; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, pp2,3; Melissa Austin, Submission 149, p5; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p1; Australian Women Lawyers, Submission 140, p2; Flight Attendants' Association of Australia, Submission 139, p1; BPW New South Wales, Submission 118, p2.

1017. International Labour Organization Maternity Protection Convention 2000 (No 183).

1018. See, for example, Australian Education Union, Submission 122, p23; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p14; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p2; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p1; Flight Attendants' Association of Australia, Submission 139, p1; YWCA of Australia, Submission 228, p18; Coles Myer Ltd, Submission 107, p11; Western Australian Government, Submission 245, p3; Melissa Austin, Submission 149, p5; Australian Retailers Association, Submission 165, p24; Australian Council of Trade Unions, Submission 208, p21.

1019. Australian Women Lawyers, Submission 140, p2.

1020. Victorian Government, Submission 250, p9.

1021. New South Wales Working Women's Centre, Submission 225, p16.

1022. See Chapter 5 for further discussion of the health and wellbeing objectives of paid maternity leave.

1023. Shop, Distributive and Allied Employees Association, Submission 173, p19.

1024. Australian Council of Trade Unions, Submission 208, p21. See also Queensland Council of Unions, Submission 239, p13.

1025. Coles Myer Ltd, Submission 107, p11.

1026. Australian Hotels Association, Submission 199, p7.

1027. Australian Manufacturing Workers' Union Vehicle Division Statement in Australian Manufacturing Workers' Union, Submission 237, pp18-19.

1028. Australian Family Association, Submission 114, p3. See also 6.7.

1029. See, for example, Karen Bijkersma, Submission 150, p2; Tresillian Family Care Centres, Submission 166, p2; Karen Simmer, Submission 72, pp1-2. See also Chapter 5.

1030. Karen Simmer, Submission 72, p1. See also Anna Edgelow, Submission 78, p1.

1031. Women's groups and community consultation, Katherine, 6 June 2002.

1032. See, for example, Queensland Working Women's Service, Submission 219, p11; Ethnic Communities' Council of Victoria, Submission 242, p6; New South Wales Public Service Association, Submission 110, p4.

1033. International Labour Organization Maternity Protection Recommendation 2000 (No 191).

1034. Australian Services Union South Australia and Northern Territory, Submission 189, p4; National Women's Council of South Australia, Submission 68, p2; Hawke Institute, Submission 174, p2.

1035. New South Wales Public Service Association, Submission 110, p4.

1036. See, for example, motherInc, Submission 196, p7; Victorian Government, Submission 250, Attachment p5; Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, p6. Michelle Falstein Coppola, Submission 38, p2; Work + Family Policy Research Group University of Sydney, Submission 251, pp10-11; Mothers of In(ter)vention, Submission 104, p2; Beverley Walker, Submission 192, p1; Australian Federation of University Women (South Australia) Inc., Submission 179, pp2-3.

1037. Women's Health in the North, Submission 60, p4.

1038. Union of Australian Women, Submission 89, p2. See also 5.2.

1039. Fifty-fourth World Health Assembly Infant and Young Child Nutrition World Health Assembly 54.2 Agenda Item 13.1, 18 May 2001, pp2-3.

1040. motherInc, Submission 196, p7.

1041. Michelle Falstein Coppola, Submission 38, p2.

1042. See, for example, Australian Family Association, Submission 92, p1; Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p8; Eleanor Wilson, Submission 133, p7.

1043. Carrie Parsons, Submission 25, p1.

1044. Employers consultation, Brisbane, 24 May 2002.

1045. See 5.2.

1046. Human Rights and Equal Opportunity Commission Pregnant and Productive: It's a right not a privilege to work while pregnant HREOC Sydney 1999, p178.

1047. Exceptions 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 where the child has been adopted.

1048. Marian Baird "Paid maternity leave in Australia: HREOC's Valuing Parenthood" The Drawing Board 14 June 2002 www.econ.usyd.edu.au/drawingboard/digest/0206/baird.html.

1049. International Labour Organization Maternity Protection Convention 2000 (No 183).

1050. International Labour Office Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) Report IV (2a) International Labour Conference 88th Session Geneva 2000, p76 www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/rep-iv2a.pdf.

1051. International Labour Organization Maternity Protection Recommendation 2000 (No 191).

1052. See 15.2.2 for a more detailed discussion of the eligibility criteria of these two schemes.

1053. United Kingdom Department of Trade and Industry Maternity Leave - Changes: A basic summary www.dti.gov.uk/er/matleafr.htm.

1054. United Kingdom Department of Trade and Industry Maternity Leave - Changes: A basic summary www.dti.gov.uk/er/matleafr.htm.

1055. Parental Leave and Employment Protection Act 1987 (NZ).

1056. New Zealand Department of Labour Parental Leave 1: General Entitlements Fact Sheet, p1 www.ers.dol.govt.nz/bin/fact.asp.

1057. NZ$695.50: Statistics New Zealand Quarterly Employment Survey: May 2002 Quarter, Table 7 www.stats.govt.nz/domino/external/pasfull/pasfull.nsf/7cf46ae26dcb6800cc256a6200a2248/

4c2567ef00247c6acc256c0d0072e309?OpenDocument.

1058. Trudie McNaughton Paid Parental Leave: The New Zealand Experience Speech to the 14th Women, Management and Employment Relations Conference Sydney 26 July 2002.

1059. International Labour Office Maternity Protection at Work: Revision of the Maternity Protection Convention (Revised), 1952 (No. 103), and Recommendation, 1952 (No. 95) Report IV (2a) International Labour Conference 88th Session Geneva 2000, p76 www.ilo.org/public/english/standards/relm/ilc/ilc88/pdf/rep-iv2a.pdf.

1060. National Pay Equity Coalition, Submission 224, p25.

1061. YWCA of Australia, Submission 228, p19.

1062. See Chapter 19 for a discussion of the role of employers.

1063. National Pay Equity Coalition, Submission 257, p7.

1064. Shop, Distributive and Allied Employees' Association, Submission 173, p18; Australian Chamber of Commerce and Industry, Submission 197, p56; Beryl Byrne, Submission 157, p1; Hawke Institute, Submission 174, p6; Australian Services Union South Australia and Northern Territory, Submission 189, p7; Women's Action Alliance (Australia) Inc., Submission 146, pp4,6,8.

1065. Shop, Distributive and Allied Employees' Association, Submission 173, p18.

1066. Australian Chamber of Commerce and Industry, Submission 197, p56.

1067. Coles Myer Ltd, Submission 107, p12. See also Women's Action Alliance (Australia) Inc., Submission 146, p8; Australian Retailers Association, Submission 165, p25.

1068. See 3.4.3.

1069. Beryl Byrne, Submission 157, p1.

1070. Women's Action Alliance (Australia) Inc., Submission 146, p6 (emphasis in original).

1071. Australian Capital Territory Ministerial Advisory Council on Women, Submission 120, p9.

1072. BPW Australia, Submission 148, p9.

1073. Lyn Collins and Barbara Pocock, Submission 232, p8.

1074. Karen Bijkersma, Submission 150, p1.

1075. New South Wales Working Women's Centre, Submission 225, p15 (emphasis in original).

1076. See 3.4 for a discussion of the adequacy of existing benefits and their possible review.

1077. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p4.

1078. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p2.

1079. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p4.

1080. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p6.

1081. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p3.

1082. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p3.

1083. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p3.

1084. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002, Commonwealth of Australia Canberra 2002, p5.

1085. Australian Taxation Office Baby Bonus 2002 www.ato.gov.au/scripts/axos/axos.asp?CONTEXT=&KBS=Baby001i.xra&go=ok.

1086. See Chapter 21 for a discussion of the interaction of a national system of paid maternity leave and existing government family assistance payments.

1087. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p19. This submission notes that "[w]hilst the figures on multiple-job holding are scarce, available evidence suggests that women's involvement in more than one-two jobs is a growing trend - symptomatic of the 'working poor'".

1088. Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p3.

1089. New South Wales Working Women's Centre, Submission 225, p15.

1090. Australian Council of Trade Unions, Submission 208, pp26-27. The submission refers to ABS 6361.0 Employment Arrangements and Superannuation April - June 2000, pp17-18 which indicates that "… 8.4% of females hold two or more jobs compared to only 6.5% of males".

1091. International Labour Organization Maternity Protection Convention 2000 (No 183).

1092. See, for example, Victorian Government, Submission 250, p10.

1093. Flight Attendants' Association of Australia, Submission 139, p1.

1094. Western Australian Government, Submission 245, p7.

1095. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p21.

1096. See, for example, Australian Manufacturing Workers' Union, Submission 237, pp9-10; YWCA of Victoria, Submission 127, p19; Women's Electoral Lobby, Submission 248, p18.

1097. National Pay Equity Coalition, Submission 257, p2.

1098. National Pay Equity Coalition, Submission 257, p4.

1099. National Pay Equity Coalition, Submission 257, p5.

1100. National Pay Equity Coalition, Submission 224, p25.

1101. Women's Action Alliance (Australia) Inc., Submission 146, p8.

1102. Festival of Light, Submission 102, p4. See also Chris Van Der Wijngaart, Submission 35, p1.

1103. National Pay Equity Coalition, Submission 224, p25.

1104. See, for example, Association of Independent Schools of Victoria, Submission 108, p5; Australian Hotels Association, Submission 199, p7; Recruitment and Consulting Services Association, Submission 220, p4; Western Australian Government, Submission 245, p7; Law Council of Australia, Submission 247, p3; Victorian Government, Submission 250, p10; Work + Family Policy Research Group University of Sydney, Submission 251, p12; Women's Economic Think Tank, Submission 125, p5; National Tertiary Education Union, Submission 169, p7; Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p15; Australian Industry Group, Submission 121, p23; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p21; Australian Mines and Metals Association, Submission 255, p15; Flight Attendants' Association of Australia, Submission 139, p1; Australian Women Lawyers, Submission 140, pp2-3; Women's Health in the North, Submission 60, p4; Eleanor Wilson, Submission 133, p6; Shop, Distributive and Allied Employees' Association, Submission 173, p17; Law Institute of Victoria, Submission 215, p3; Women's Studies Research Unit, School of Social Work, University of Melbourne, Submission 48, p6.

1105. See, for example, Australian Education Union, Submission 122, p2; Australian Liquor, Hospitality and Miscellaneous Workers Union, Submission 153, p1; YWCA of Victoria, Submission 127, p18.

1106. Australian Council of Trade Unions, Submission 208, p24.

1107. Shop, Distributive and Allied Employees' Association, Submission 173, p17.

1108. Australian Council of Trade Unions, Submission 208, pp23-24.

1109. Victorian Government, Submission 250, p10.

1110. Association of Independent Schools of Victoria, Submission 108, p5.

1111. Association of Independent Schools of Victoria, Submission 108, p5.

1112. Australian Council of Trade Unions, Submission 208, p22. See also YWCA of Victoria, Submission 127, p18.

1113. Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p15.

1114. United Trades and Labor Council of South Australia, Submission 211, p4. See also National Pay Equity Coalition, Submission 224, p25.

1115. See, for example, Australian Manufacturing Workers' Union, Submission 237, p2; Australian Education Union, Submission 122, p2; National Pay Equity Coalition, Submission 224, pp4,25; EMILY's List, Submission 159, p3; BPW Australia, Submission 148, p9; YWCA of Victoria, Submission 127, p18; Queensland Nurses' Union, Submission 134, p9; Australian Nursing Federation, Submission 123, p9; Australian Business Industrial, Submission 119, p16; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8; Women's Electoral Lobby, Submission 248, p18; Centre for Applied Social Research RMIT University, Submission 234, p9; Lyn Collins and Barbara Pocock, Submission 232, pp7-8; Anti-Discrimination Board of New South Wales, Submission 214, p15; Mothers of In(ter)vention, Submission 104, p2; Australian Federation of University Women - Victoria, Submission 101, p1; National Women's Council of South Australia, Submission 68, p7.

1116. Women's Electoral Lobby, Submission 248, p20.

1117. National Pay Equity Coalition, Submission 224, p22.

1118. ABS 6302.0 Average Weekly Earnings February 2002, p4.

1119. Australian Council of Trade Unions, Submission 208, p24.

1120. Australian Manufacturing Workers' Union, Submission 237, p2.

1121. ABS 6302.0 Average Weekly Earnings February 2002, p4.

1122. YWCA of Victoria, Submission 127, p19.

1123. ABS 6302.0 Average Weekly Earnings February 2002, p10.

1124. Anti-Discrimination Board of New South Wales, Submission 214, p15 (emphasis in original).

1125. National Pay Equity Coalition, Submission 224, p25. See also Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8.

1126. Australian Council of Trade Unions, Submission 208, p24.

1127. National Women's Council of South Australia, Submission 68, p7.

1128. Australian Business Industrial, Submission 119, p16.

1129. See, for example, Centre for Applied Social Research RMIT University, Submission 234, p10; National Pay Equity Coalition, Submission 224, p21.

1130. See, for example, Aboriginal and Torres Strait Islander Commission, Submission 116A, p2, 116C, p2, 116E, p1, 116F, p2, 116G, p1, 116H p1; New South Wales Working Women's Centre, Submission 225, p15; Carrie Parsons, Submission 25, p1; Australian Council of Trade Unions, Submission 208, p22; Job Watch Inc., Submission 191, p13; Public Service Association of South Australia Inc., Submission 198, p2; Northern Territory Trades and Labor Council, Submission 84, p1.

1131. See 19.4 for discussion of employer top ups.

1132. Australian Council of Trade Unions, Submission 208, p22. But see 17.4.3 and 17.4.4 - the Australian Council of Trade Unions proposed a minimum payment to Federal Minimum Wage by Government with an employer levy to fund payment to Average Weekly Earnings.

1133. New South Wales Working Women's Centre, Submission 225, p15.

1134. New South Wales EEO Practitioners' Association, Submission 77, p3.

1135. Queensland Council of Unions, Submission 239, p14. See also New South Wales EEO Practitioners' Association, Submission 77, p3.

1136. Patricia Todd and Judy Skene, Submission 176, p1.

1137. Marty Grace, Submission 151, p2.

1138. New South Wales EEO Practitioners' Association, Submission 77, p3.

1139. Carrie Parsons, Submission 25, p1.

1140. Aboriginal and Torres Strait Islander Commission, Submission 116G, p1. See also 116F, p2.

1141. Women's Action Alliance (Australia) Inc., Submission 146, p8.

1142. Australian Chamber of Commerce and Industry, Submission 197, p52.

1143. See also Australian Council of Trade Unions, Submission 208, pp22-23.

1144. The Australian Council of Trade Unions included a similar table in their submission. Australian Council of Trade Unions, Submission 208, p23.

1145. Department of Family and Community Services "Parenting Payment and Associated Rates - July 1995 to Present Date" Guide to Social Security Law www.facs.gov.au/guide/ssguide/52450.htm.

1146. Department of Family and Community Services "Parenting Payment and Associated Rates - July 1995 to Present Date" Guide to Social Security Law www.facs.gov.au/guide/ssguide/52450.htm.

1147. ABS 6361.0 Survey of Employment Arrangements and Superannuation April - June 2000, unpublished data. See also 3.3.

1148. ABS 6361.0 Survey of Employment Arrangements and Superannuation April - June 2000, unpublished data. See also 3.3.

1149. ABS 6361.0 Survey of Employment Arrangements and Superannuation April - June 2000, unpublished data. See also 3.3.

1150. National Pay Equity Coalition, Submission 257, p3.

1151. National Pay Equity Coalition, Submission 257, p4.

1152. As opposed to the suggested level of two-thirds of each woman's income as set out in Article 6(3). See 17.4.1 for further discussion.

1153. ABS 6302.0 Average Weekly Earnings May 2002, p4.

1154. The Workplace Relations Act 1996 (Cth) provides that "… the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained": section 88B(2).

1155. National Pay Equity Coalition, Submission 257, p3. See Table 17.3.

1156. See 22.2 for a discussion of the need for additional statistical collections.

1157. See Table 17.3.

1158. The Workplace Relations Act 1996 (Cth) provides that "… the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained": section 88B(2).

1159. See Australian Council of Trade Unions, Submission 208, p28 for a discussion of the principles that it considers should apply to the administration of a paid maternity leave scheme.

1160. Beryl Byrne, Submission 157, p2.

1161. For a discussion of funding options see Chapter 13.

1162. In particular, a number of submissions provided information on how payments could be made to and from an employer levy. See, for example, Australian Manufacturing Workers' Union, Submission 237, Appendix Three; Queensland Nurses' Union, Submission 134, p13.

1163. United Kingdom Department of Inland Revenue Statutory Maternity Pay Manual for Employers April 2002, p35 www.inlandrevenue.gov.uk/pdfs/emp2002/ca29(2).pdf.

1164. New Zealand Department of Labour Parental Leave 7: 2002 dates for paid parental leave payments by IRD Fact Sheet, p1 www.ers.dol.govt.nz/bin/fact.asp.

1165. Parental Leave and Employment Protection Act 1987 (NZ).

1166. See, for example, Australian Chamber of Commerce and Industry, Submission 197, p55; Australian Industry Group, Submission 121, p21; Australian Mines and Metals Association, Submission 255, p15; Western Australian Government, Submission 245, p8; Queensland Working Women's Service, Submission 219, p13; New South Wales EEO Practitioners' Association, Submission 77, p4; Association of Independent Schools of Victoria, Submission 108, p4; Australian Hotels Association, Submission 199, pp10-11.

1167. Western Australian Government, Submission 245, p8.

1168. Australian Chamber of Commerce and Industry, Submission 197, p55.

1169. Queensland Working Women's Service, Submission 219, p13.

1170. New South Wales EEO Practitioners' Association, Submission 77, p4.

1171. Australian Council of Trade Unions, Submission 208, p29. See also Queensland Nurses' Union, Submission 134, p10.

1172. See, for example, Women's Electoral Lobby, Submission 248, p21; National Pay Equity Coalition, Submission 224, p4; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10; Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p19; Women's Economic Think Tank, Submission 125, p6; New South Wales Public Service Association, Submission 110, p6.

1173. See Recommendation 5, Chapter 15.

1174. See, for example, Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p19; Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p5; BPW Australia, Submission 148, p9; Women's Economic Think Tank, Submission 125, p6; Queensland Nurses' Union, Submission 134, p13; Australian Nursing Federation, Submission 123, p10; Aboriginal and Torres Strait Islander Commission, Submission 116C, p4; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10; New South Wales Working Women's Centre, Submission 225, p17; National Pay Equity Coalition, Submission 224, p4; Women's Electoral Lobby, Submission 248, pp19,21; Work + Family Policy Research Group University of Sydney, Submission 251, pp12-13; Centre for Applied Social Research RMIT University, Submission 234, pp10-11; Union of Australian Women, Submission 89, p2; Australian Federation of University Women - Victoria, Submission 101, p1; New South Wales Public Service Association, Submission 110, pp4,6; Independent Education Union of Australia, Submission 204, pp7-8.

1175. See, for example, Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10.

1176. Centre for Applied Social Research RMIT University, Submission 234, p10.

1177. National Pay Equity Coalition, Submission 224, p4.

1178. New South Wales Public Service Association, Submission 110, p4.

1179. Women's Electoral Lobby, Submission 248, p19.

1180. Work + Family Policy Research Group University of Sydney, Submission 251, p12.

1181. New South Wales Working Women's Centre, Submission 225, p17.

1182. Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p5.

1183. Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p5.

1184. See, for example, Western Australian Government, Submission 245, p8; Australian Chamber of Commerce and Industry, Submission 197, p55; Australian Industry Group, Submission 121, p21; Queensland Working Women's Service, Submission 219, p13.

1185. Australian Industry Group, Submission 121, p21.

1186. Shop, Distributive and Allied Employees' Association, Submission 173, p26.

1187. Women's Economic Policy Analysis Unit, Curtin University of Technology, Submission 98, p19 (footnote omitted).

1188. Work + Family Policy Research Group University of Sydney, Submission 251, p13. See also Australian Council of Trade Unions, Submission 208, p28; Centre for Applied Social Research RMIT University, Submission 234, pp10-11.

1189. National Pay Equity Coalition, Submission 224, p28.

1190. See, for example, Australian Council of Trade Unions, Submission 208, p29; Queensland Nurses' Union, Submission 134, p10; Australian Nursing Federation, Submission 123, p10; Shop, Distributive and Allied Employees' Association, Submission 173, p26.

1191. Australian Council of Trade Unions, Submission 208, p29. The Australian Council of Trade Unions also saw merit in a payment as wages by employers, but did not come to a final conclusion: "… HREOC should balance these considerations": Australian Council of Trade Unions, Submission 208, p29.

1192. Shop, Distributive and Allied Employees' Association, Submission 173, p26.

1193. Shop, Distributive and Allied Employees' Association, Submission 173, p26.

1194. United Kingdom Department of Trade and Industry Work and Parents, Competitiveness and Choice: A Green Paper 2000, p39 www.dti.gov.uk/er/g_paper/pdfs/wpgreen.pdf.

1195. Small employers (those whose National Insurance Contributions for their employee is less than £40,000 in the qualifying tax year) are reimbursed 100 per cent of the Statutory Maternity Pay, plus 4.5 per cent compensation. Larger employers recover 92 per cent of the Statutory Maternity Pay: United Kingdom Department of Inland Revenue Statutory Maternity Pay Manual for Employers 2002, p35 www.inlandrevenue.gov.uk/pdfs/emp2002/ca29(2).pdf.

1196. This would be subject to the indirect discrimination provisions of the Sex Discrimination Act 1984 (Cth).

1197. Association of Independent Schools of Victoria, Submission 108, p4.

1198. Australian Retailers Association, Submission 165, p13.

1199. See, for example, Australian Council of Trade Unions, Submission 208, p35; Independent Education Union of Australia, Submission 204, p7; National Diversity Think Tank, Submission 221, p3; Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p7; E Flanagan, Submission 88, p1; Australian Education Union, Submission 122, p2; Marty Grace, Submission 151, p3; Women's Action Alliance (Australia) Inc., Submission 146, pp1,6; Salt Shakers, Submission 109, p3; New South Wales Working Women's Centre, Submission 225, p17.

1200. Australian Council of Trade Unions, Submission 208, p35.

1201. This issue is also discussed at 6.2 and 6.3.

1202. Women's Action Alliance (Australia) Inc., Submission 146, p6. See also Salt Shakers, Submission 109, p3.

1203. Illawarra Forum Inc. and Illawarra Women's Health Centre, Submission 162, p7. See also New South Wales Working Women's Centre, Submission 225, p17.

1204. See Part C.

1205. See, for example, Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10; Australian Education Union, Submission 122, p2; Melissa Austin, Submission 149, p5; Australian Nursing Federation, Submission 123, p10; Joan Cross, Submission 138, p1; Australian Council of Trade Unions, Submission 208, pp21,28; Queensland Nurses' Union, Submission 134, p14; Australian Nursing Federation, Submission 123, p10; New South Wales Working Women's Centre, Submission 225, p16.

1206. New South Wales Working Women's Centre, Submission 225, p16.

1207. Joan Cross, Submission 138, p1.

1208. Australian Council of Trade Unions, Submission 208, p28.

1209. Australian Council of Trade Unions, Submission 208, p21.

1210. This was also discussed at 10.2.

1211. Parental Leave and Employment Protection Act 1987 (NZ).

1212. See 3.3.

1213. Work + Family Policy Research Group University of Sydney, Submission 251, p12.

1214. Australian Education Union, Submission 122, p25. See also Public Service Association of South Australia Inc., Submission 198, p2.

1215. Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8. See also Marty Grace, Submission 151, p4; United Trades and Labor Council of South Australia, Submission 211, p5.

1216. Queensland Nurses' Union, Submission 134, p16.

1217. Australian Nursing Federation, Submission 123, p10. See also National Pay Equity Coalition, Submission 224, p4; Lyn Collins and Barbara Pocock, Submission 232, p8.

1218. Australian Council of Trade Unions, Submission 208, p28.

1219. Australian Chamber of Commerce and Industry, Submission 197, p56.

1220. See 3.3 for further discussion.

1221. Women's Action Alliance (Australia) Inc., Submission 146, p8.

1222. Australian Council of Trade Unions, Submission 208, p27.

1223. Council for Equal Opportunity in Employment Ltd, Submission 252, p3.

1224. See 3.3.

1225. Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 Explanatory Memorandum, p7.

1226. Employment, Workplace Relations and Education Legislation Committee Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 Commonwealth of Australia Canberra September 2002, p38.

1227. Australian Council of Trade Unions, Submission 208, p27. See also Community and Public Sector Union - (PSU Group), Submission 227, p3.

1228. National Pay Equity Coalition, Submission 224, p19.

1229. See, for example, Australian Council of Trade Unions, Submission 208, p27.

1230. Community and Public Sector Union - (PSU Group), Submission 227, p18.

1231. See, for example, Australian Women Lawyers, Submission 140, p3; BPW Australia, Submission 148, p10; Australian Council of Trade Unions, Submission 208, p26; Victorian Government, Submission 250, p7; Law Council of Australia, Submission 247, p4; Isobel Gawler, Submission 235, p1; Union of Australian Women, Submission 89, p2; Women's Economic Think Tank, Submission 125, p6.

1232. See 6.6 for further discussion of women's retirement income.

1233. Australian Industry Group, Submission 121, p20.

1234. Work + Family Policy Research Group University of Sydney, Submission 251, p12. See also YWCA of Australia, Submission 228, p19; Centre for Applied Social Research RMIT University, Submission 234, p10.

1235. Western Australian Government, Submission 245, pp3,6.

1236. Immigrant Women's Speakout Association New South Wales Inc., Submission 158, p14. See also Australian Business Industrial, Submission 119, p2; Centre for Applied Social Research RMIT University, Submission 234, p9; Anti-Discrimination Board of New South Wales, Submission 214, p17; Hawke Institute, Submission 174, p2; Australian Services Union South Australia and Northern Territory, Submission 189, p9; United Trades and Labor Council of South Australia, Submission 211, p5; New South Wales Working Women's Centre, Submission 225, p15; Ethnic Communities' Council of Victoria, Submission 242, p7; Community and Public Sector Union - State Public Services Federation Group, Submission 230, p8.

1237. See Chapter 20 for further discussion of the interaction of a national scheme of paid maternity leave with the industrial relations system.

1238. Australian Hotels Association, Submission 199, p10. See also Australian Chamber of Commerce and Industry, Submission 197, pii.

1239. New South Wales State Chamber of Commerce, Submission 231, p11.

1240. Council for Equal Opportunity in Employment Ltd, Submission 252, p3.

1241. Independent Education Union of Australia, Submission 204, p7.

1242. Australian Retailers Association, Submission 165, p17.

1243. Coles Myer Ltd, Submission 107, p12.

1244. See, for example, Queensland Working Women's Service, Submission 219, p13.

1245. National Diversity Think Tank, Submission 221, p3. See also Australian Services Union South Australia and Northern Territory, Submission 189, p8.

1246. Australian Council of Trade Unions, Submission 208, p27.

1247. See, for example, Australian Industry Group, Submission 121, p23; Western Australian Government, Submission 245, p8.

1248. See, for example, Australian Business Industrial, Submission 119, p5.

1249. Australian Chamber of Commerce and Industry, Submission 197, piv.

1250. Motor Trade Association of South Australia Inc., Submission 142, p2.

1251. Australian Business Industrial, Submission 119, p11. See also National Farmers' Federation, Submission 160, p9.

1252. National Farmers' Federation, Submission 160, p9; see also p3.

1253. Australian Chamber of Commerce and Industry, Submission 197, p8.

1254. But see Australian Business Industrial, Submission 119, p10 for a discussion of the interaction of legislation and awards in the case of workers compensation "top up".

1255. National Farmers' Federation, Submission 160, p10.

1256. Metal Industry Interim Award 1971 [Print B7470] and Metal Industry Award 1971 [Print B6934].

1257. Re Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 [Print N6098].

1258. Re Aluminium Industry Award 1969 AILR 84; Re Chemical Workers and CSR Chemicals (1972) IASCR 129 [T57]; Australian Workers Union v Chamber of Commerce and Industry (1973) IASCR 118 [U44].

1259. Re Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1995 [Print N6098].

1260. Award Simplification Decision [Print P7500] 23 December 1997.

1261. Section 89A(2)(q) Workplace Relations Act 1996 (Cth).

1262. Senate Employment, Workplace Relations, Small Business and Education Legislation Committee Consideration of the Provisions of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill 1999 Parliament House Canberra 29 November 1999, p93 www.aph.gov.au/senate/committee/EET_CTTE/wrkplace/wprkplace%20relations%20report.pdf.

1263. Australian Industrial Relations Commission Statement of Principles, Safety Net Review - Wages May 2002 www.airc.gov.au/fullbench/pr002002.htm.

1264. See 14.4.

1265. Australian Chamber of Commerce and Industry, Submission 197, piv.

1266. Australian Retailers Association, Submission 165, p3. See also Motor Trade Association of South Australia Inc., Submission 142, p2; Australian Business Industrial, Submission 119, p16.

1267. Australian Mines and Metals Association, Submission 255, p15.

1268. Australian Business Industrial, Submission 119, p11.

1269. Australian Services Union MEU Private Sector Victorian Branch, Submission 154, p3.

1270. See 17.4.6.

1271. ABS 6361.0 Survey of Employment Arrangements and Superannuation April - June 2000 unpublished data. See also 17.5.

1272. See discussion at 17.2.1, 17.4.1 and 17.6.

1273. See Recommendation 10, Chapter 19.

1274. International Labour Organization Maternity Protection Convention 2000 (No 183).

1275. United Kingdom Department of Inland Revenue Tax Credit Changes from April 2003 www.inlandrevenue.gov.uk/taxcredits/changes.htm.

1276. United Kingdom Department for Work and Pensions Incapacity Benefit

www.dwp.gov.uk/lifeevent/benefits/incapacity_benefit.htm.

1277. Parental Leave and Employment Protection Act 1987 (NZ).

1278. New Zealand Department of Inland Revenue What is Parental Tax Credit? www.ird.govt.nz/familyassistance/parenttaxcred/parenttaxcredpayment.html.

1279. New Zealand Department of Inland Revenue What is Parental Tax Credit? www.ird.govt.nz/familyassistance/parentaxcred/whatisparenttaxcred.html.

1280. New Zealand Department of Inland Revenue Who qualifies for Parental Tax Credit? www.ird.govt.nz/familyassistance/parenttaxcred/whoqualifiessparenttaxcred.html.

1281. Eleanor Wilson, Submission 133, p4.

1282. National Women's Council of South Australia, Submission 68, p6.

1283. Women's Electoral Lobby, Submission 248, p20.

1284. National Pay Equity Coalition, Submission 224, p4.

1285. Women's Economic Think Tank, Submission 125, p6.

1286. National Women's Council of South Australia, Submission 68, p6. See also Women's Economic Think Tank, Submission 125, p5; National Pay Equity Coalition, Submission 224, p4; Women's Electoral Lobby, Submission 248, p20. See also 3.4.1 and 3.4.3 for further discussion of the Baby Bonus.

1287. Australian Industry Group, Submission 121, p22 (footnote omitted).

1288. See, for example, National Pay Equity Coalition, Submission 224, p4; Women's Electoral Lobby, Submission 248, p19.

1289. Centrelink A Guide to Commonwealth Government Payments 20 September - 31 December 2002 Commonwealth of Australia Canberra 2002, p23.

1290. Women's Economic Think Tank, Submission 125, p6.

1291. Community and Public Sector Union - State Public Services Federation Group, Submission 230, p10.

1292. Human Rights and Equal Opportunity Commission Valuing Parenthood: Options for paid maternity leave, interim paper 2002 HREOC Sydney 2002, p26.

1293. See 11.4.4 and 11.8 for discussion of the need for further research on work and family issues and fertility choices.

1294. Union Research Centre on Organisation and Technology, Submission 254, p7.

1295. Queensland Working Women's Service, Submission 219, p13.

1296. Australian Retailers Association, Submission 165, p3.

1297. Work/Life Association, Submission 171, p10. See also Community and Public Sector Union - State Public Services Federation Group, Submission 230, p11; Women's Electoral Lobby, Submission 248, p31; Women's Action Alliance (Australia) Inc., Submission 146, p2.

1298. Australian Chamber of Commerce and Industry, Submission 197, p16.

1299. Australian Retailers Association, Submission 165, p19.

1300. Western Australian Government, Submission 245, p8.

1301. Human Rights and Equal Opportunity Commission Valuing Parenthood, options for paid maternity leave: Interim paper 2002 HREOC Sydney 2002, p23.

1302. ABS 6361.0 Survey of Employment Arrangements and Superannuation April - June 2000 unpublished data.

1303. Human Rights and Equal Opportunity Commission Pregnant and Productive: It's a right not a privilege to work while pregnant HREOC Sydney 1999 Recommendation 4, pxxii.

1304. ABS 6254.0 Career Experience 1998, p23.

1305. Human Rights and Equal Opportunity Commission Pregnant and Productive: It's a right not a privilege to work while pregnant HREOC Sydney 1999 Recommendation 46, pxxvii.

1306. Centre for Applied Social Research RMIT University, Submission 234, p11.

1307. EMILY's List, Submission 159, p3.

1308. Australian Industry Group, Submission 121, p24.

1309. Catholic Women's League Western Australia, Submission 129, p2.

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A Time to Value - Part D

Archived

A Time to Value - Proposal for a National Paid Maternity Leave Scheme

Part D: The Proposal

12. Overview

12.1 Introduction

12.2 Options for a national scheme

12.2.1 Introduction

12.2.2 The case for the status quo

12.2.3 Alternative approaches to a government funded national paid maternity leave scheme

12.3 Summary of the preferred scheme

Summary of HREOC's preferred model for a national paid maternity leave scheme

13. Funding

13.1 Introduction

13.2 International standards and practices

13.3 Government funding

13.3.1 Introduction

13.3.2 A social benefit

13.3.3 Ensuring access and spreading costs

13.3.4 Source of government funding

13.4 Direct employer funding

13.4.1 Introduction

13.4.2 Employer funding would increase discrimination

13.4.3 Business cannot afford to pay

13.4.4 As a social benefit, employers should not pay

13.4.5 Childbearing as a personal choice

13.4.6 Employer funding would affect industries disproportionately

13.4.7 Particular concerns for small business

13.5 An employer levy

13.6 HREOC's position

RECOMMENDATION 1

That a national paid maternity leave scheme be immediately implemented and funded by the federal Government.

14. Coverage

14.1 Introduction

14.2 Payment to women versus payment to both men and women

14.3 Supporting parents' leave

14.4 Women in paid work versus all women

RECOMMENDATION 3

That a government funded national scheme of paid maternity leave be available for women in paid work.

14.5 Adoptive parents

RECOMMENDATION 4

That paid maternity leave be available to the primary carer of an adopted child irrespective of the age of the child.

15. Eligibility

15.1 Introduction

15.2 International standards and practices

15.3 Eligibility criteria for unpaid leave and paid leave

15.4 Forms of work

15.5 Length of service

15.5.1 Introduction

15.5.2 Twelve months with a single employer

15.5.3 A portable length of service requirement

15.5.4 A length of service requirement within a longer period of time

15.5.5 No minimum

15.5.6 HREOC's position

15.6 Means testing

RECOMMENDATION 5

16. Duration

16.1 Introduction

16.2 International standards and practices

16.3 Twelve weeks/three months

16.4 Fourteen weeks

16.5 Sixteen weeks

16.6 Eighteen weeks

16.7 Six months

16.8 Twelve months

16.9 HREOC's position

RECOMMENDATION 6

That a national scheme of paid maternity leave provide for up to 14 weeks of paid leave to be taken immediately prior to and/or following the birth of a child.

The paid leave must 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.

17. Payment level

17.1 Introduction

17.2 International standards and practices

17.2.1 Maternity Protection Convention

17.2.2 United Kingdom

17.2.3 New Zealand

17.3 Structure of the payment level

17.3.1 Introduction

17.3.2 Capping