Australian Women's Employment Discrimination
Women in the Workforce
In Australia, there are a wide variety of types of employment discrimination which are unlawful, especially towards women in the workforce. Discrimination in employment occurs when an employee is treated less favourably than another employee because of a particular characteristic of that employee. In general, there are two categories of discrimination – direct and indirect discrimination. Direct discrimination concerns the imposition or proposed imposition of a condition, requirement or practice in employment or denial of an entitlement of employment. Indirect discrimination occurs when an employer sets a requirement which substantially more employees of one status or class can comply with compared with the number or proportion of employees of another status or class. Women have suffered discrimination in many spheres as years passed by as the secondary status of women is manifest in many institutional locations, especially in the workforce. Women do not have good job opportunities due to sex discrimination and also the gender inequality. Therefore, in this research paper, I am going to explore whether or not Equal Employment Opportunity law in Australia adequately protect women in the workforce. The focuses of this paper are on discrimination related to pregnancy and maternity which are prohibited by the law.
The Affirmative Action (Equal Employment Opportunity for Women) Act 1986 establishes a framework for promoting women with equal employment opportunities in the workplace but does not confer any rights upon women of unlawful discriminatory behaviour. The Act expressly provides, however, nothing in it shall be taken to require an employee to take any action incompatible with the principle that employment matters should be dealt with on the basis of merit. It is not adequately protecting women in the workforce as women are still aware of the extent of the discrimination against them in the workforce. There is no doubt that pregnancy is a workplace issue. In 1997, forty-four percent of the Australian workforce was made up of working mothers. It is impossible to separate pregnancy and family responsibilities. Large numbers of women report significant difficulties when they return to work due to the lack of supportive policies and practices in workplace. Consequently, unlawful discrimination on the ground of pregnancy is an important provision which recognizes that a pregnant woman does not have to hide until her pregnancy is over, but is capable of continuing her usual activities.
The Sex Discrimination Act
The Sex Discrimination Act 1984 (Cth) has proven to be an effective way of resolving disputes concerning sex discrimination. Many women have been able to redress discriminatory practices and challenge the rules that govern the way in which employment opportunities are structured as a result of pregnancy because of the Act, yet the capacity of the Act to eliminate and prevent pregnancy discrimination in workplaces is limited. The Act has widened the legal definition of discrimination and made it easier to prove instances of unequal treatment than it was measures to accept women's equal right to jobs and job opportunities. This Commonwealth legislation prohibits the discrimination of a woman on the basis of her pregnancy or potential pregnancy or characteristics which generally pertain or are imputed to women who are pregnant. The Act has made it unlawful to deny women the same opportunities as those enjoyed by men on stereotyped assumption and to sought to outlaw the dismissal of pregnant woman. Employers are now prevented from terminating employment on the basis of a woman employee being pregnant or give birth or applying to adopt or adopting a child. Even though Section 7 recognized that pregnancy discrimination is a ground of unlawful discrimination against women, the aggrieved woman must be able to establish that she has been treated less favorably than someone who is not pregnant or potentially pregnant would be treated in similar circumstances. In addition, the Actrecognized under Section 14 that it is unlawful for an employer to discriminate against a person on the ground of person's sex, marital status, pregnancy or potential pregnancy in terms of employment.
Australian women are in an unprecedented position to continue working when they are pregnant and raising families. It has been deemed unlawful to pregnant women in a retrenchment policy for women employees being pregnant or potentially pregnant. In Erbs v Overseas Corporation Pty Ltd, it was shown that pregnancy was a substantial reason for selecting her rather than any other employee to be dismissed. Many women used to be dismissed as soon as they told their employer that they were pregnant. Often, the management believed that clients and customers are not keen to see a pregnant woman in the workplace. As a result, a pregnant woman can, at least in theory, challenge unfavourable treatment because of her pregnancy as an act of direct discrimination.
Rights of Female EmployeesThere are a plethora of cases relating to the impact of law on the rights of female employees in being discriminated in the workplace. Cases of direct discrimination, shown in Rispoli, where a woman is treated less favourably than a man would have been, depend on her proving the reason for the respondent's decision. The female employee must show that her sex has been the deciding factor. If the requirement is also unreasonable it is unlawful indirect sex discrimination. In Mayer's Case, where it was held that it was reasonable for the employer to insist upon the applicant's previous job being full time, the employer was held to have discriminated against the applicant by unreasonably refusing alternative part time employment. Moreover, to replace an employee on maternity leave with a permanent employee, knowing that the pregnant employee wanted to return to her post, amounted to less favourable treatment within Section 5 of Sex Discrimination Act 1984 (Cth). She was therefore disadvantaged in the circumstances in which she had to work.
The Workplace Relations Act 1996 prohibits discrimination in pregnancy in award and agreement making, and unfair/unlawful dismissal. This Act does not protect women from a range of discriminatory practices in the workplace, which is where the anti-discrimination laws are necessary. Although legislative and award reforms has given women increased opportunities and potential for fulfilling career and financial aspirations, not all Australian women are able to enjoy these opportunities and thus, too many women continue to experience discrimination associated with pregnancy. As a result of the difficulty in showing direct discrimination, attention turned to indirect discrimination, which allows practices to be challenged on the basis that they disadvantage women or other protected groups. In the case of Hickie v Hunt and Hunt, it shows that woman employee are more likely to be treated less favourably than other partners during and after her maternity leave, and in particular in the decision of not renewing their contracts. Moreover, set in same case, where a female solicitor, who was an equity partner in a firm for a fixed term, return from maternity leave to work part time but following a partnership in performance appraisal was refused further partnership in the practice, the negative partnership appraisal a result of the removal and reallocation of a large portion of her practice during her absence on maternity leave. By way of example of indirect discrimination, failure to accommodate a female employee with part-time work after returning to work after pregnancy has been found to be indirect discrimination. With that, men could comply with or satisfy a requirement to return to full-time work after an absence more easily than women.
Over the course of the past twenty years, women now make up almost half of the Australian workforce. Significantly, the onset of motherhood, once a turning point in a woman's working life, is increasingly being accommodated within the constraints of paid employment. It was through indirect discrimination law that in recent years, women returning from maternity leave have established a right to be taken seriously by their employers when they seek part time work to accommodate conflicting work and family obligations. In Australia, where most workers are entitled to expect access to paid leave on grounds of ill-health or long service or for the purposes of recreation or study, failure to guarantee pay during maternity leave must be seen as a sex discrimination issue. In the absence of paid maternity leave, women must routinely take unpaid time off work. Men are much more likely to receive their normal pay for any time off that they need or to which they are entitled. The loss of pay and benefits resulting from the time off work that women need to have babies is a significant contributor to the continuing pay inequality between women and men. Nevertheless, the loss of income during a woman's maternity leave is a significant contributor to family and child poverty. This is especially the case with single mothers, many of whom are in paid employment, thus the lack of access to paid maternity leave places them under financial strain.
The greatest hardships, however, are felt at the lower levels, where Australian women have still not won the right for paid maternity leave. Paid maternity leave is a fundamental human right, and is necessary to address the systemic discrimination and disadvantage that women suffer when they seek to combine their re-productive and productive roles. The failure to take account of women's differences, and to provide the same leave entitlements and work arrangements for women and men is a form of indirect discrimination. The reality is, though, that providing the same leave entitlements to men and women fails to take account of the fact that women have additional physical demands, such as sicknesses that are directly related to pregnancy, and may encounter complications during and after the pregnancy. At present most workplaces will offer the same leave entitlements to men and women (with the exception of maternity leave), which doesn't take account of the fact that a lot of women take more sick leave than men due to appointments associated with pregnancies, complications and post-birth visits and complications.
The current industrial relations environment poses some real problems for women. This is because the tendency in negotiating agreements for some unions and their members to trade off conditions, including particular leave provisions and shorter working days - which have benefited women - in return for pay increases, or to use conditions that benefit women as negotiable items. In general, though, unionised women are generally better off under a centralised wage fixing system - earning on average twenty-two percent more than non-unionised women are. Unfortunately, women who are employed on a casual or temporary basis, or are from an ethnic minority, are less likely to be unionised, and therefore covered by a certified agreement. Casual work has a particularly detrimental effect on women in terms of not having access to any form of maternity leave or a guarantee of return to work after pregnancy. The Australian government's encouragement of the Australian Workplace Agreement (AWAs) is likely to further weaken their negotiation position. This is because enterprise bargaining has not significantly increased women's access to paid maternity leave. The Human Rights and Equal Opportunity Commission (HREOC) concludes that current provisions for paid maternity leave in awards and agreements are inadequate. The process for making workplace agreements do not adequately allow for the consideration of the needs and rights of pregnant and potentially pregnant employees. This indicates that agreement and award making will not bring Australian women in employment a secure paid maternity leave benefit. This gives an impact on pregnant women, who may increase their use of sick leave if they experience morning sickness or complications with the pregnancy. Furthermore, HREOC believes that the industrial processes for negotiating benefits have inherent problems when it comes to securing paid maternity leave. For example, negotiating an entitlement to paid maternity leave as part of a workplace agreement generally requires employees to trade off other benefits, including wages, to secure the new entitlement. This means that female employees are in effect paying for their own maternity leave entitlement by relinquishing other benefits.
Yet, in the current Liberal Women's Conference, Prime Minister John Howard claimed that the extra costs of paid maternity leave will force employers to discriminate against women. One survey respondent stated that not having access to paid maternity leave was an issue for her, and she had to return to work much earlier than she wanted to due to her financial needs. In addition, working women who are casuals or seasonal workers, such polices are beyond their reach. The broad industrial relations framework does not even provide a minimum standard for casual workers in terms of maternity leave, a guaranteed job to return to, much less flexible working arrangements or paid leave to breastfeed. As stated in a recent article, “enterprise bargaining is only delivering paid maternity leave to a small proportion of Australian women". However, it is considered that paid maternity leave is not going to flow to women workers through workplace level bargaining negotiations. Enterprise bargaining has totally failed to provide adequate maternity leave conditions. It is also clear that those women in more vulnerable employment and less able to bargain for improved work standards are the most likely not to receive paid maternity leave under the current system. Women who work in smaller organisations, in particular those with small profit margins, or who are in part time or casual work, or who have lower skills, are far less likely to have access to employer funded paid maternity leave. To maximize its effectiveness in helping women move more easily in and out of the workforce, paid maternity leave must also come as part of a package with more flexible working hours and improved access to childcare.
Paid maternity leave is as important an entitlement as any other form of leave as agreement has been reached to insert the current provisions of 12 weeks paid leave into the next Enterprise Agreement after a long battle by the Community and Public Sector Union to secure paid maternity leave in Telstra. It will not only benefit their workers but also the company as Telstra will continue to retain a very high proportion of women returning from maternity leave. Thus, Telstra would indirectly discriminate against female employees through the removal of paid maternity leave. Fortunately, Anne-Marie, the Melbourne mum who was made redundant by Telstra within hours of returning to work from maternity leave, has won a job back, supported by the union which stand up for their rights. This case highlights the great difficulties many parents face in trying to balance their work and home life. Nevertheless, the Australian Council of Trade Unions is currently working with political parties to bring about the introduction of paid maternity leave for all Australian women in the workplace.
In a nutshell, I would still consider that legislations outlawing discrimination on ground of pregnancy and maternity leave for women is not successful and not quite adequately protecting women. Enacted in almost every industrial country, protective legislation directed toward women provoked bitter controversy. Even though the Acts stated in this research paper allow women to challenge the rules that govern the way in which employment opportunities are structured and recognized that a woman can be prevented from being discriminated at workplace under the pregnancy and maternity, the practical limitations of the legislations are obvious. More and more women are entering the paid workforce, but women are not being supported by policies that help them participate. Working women themselves were more concerned with their economic position and were increasingly aware that protective legislation was not delivering economic equality in the workplace. These advantages notwithstanding, most women workers continued to support protective legislation as a safeguard against further exploitation. The Australian union movement's crisis of representation of workers, especially females has needed and continues to need urgent attention.
- Atkins, S. and Hoggett, B., Women and the Law, Basil Blackwell, Oxford, 1984.
- Australian Council of Trade Unions, ‘Maternity Win for Telstra Staff' (2005)
- <http://www.actu.asn.au/public/campaigns/maternity/maternitynr.html> at 1 May 2005.
- Australian Council of Trade Unions, ‘Privatisation Threatens Maternity Leave For Telstra Staff' (2005)
- <http://www.actu.asn.au/public/campaigns/maternity/telstra_privatisatio.html> at 1 May 2005.
- Baird, M., Brennan, D., and Cutcher L., "A pregnant pause: Paid maternity leave in Australia" (2002) 13 (1) Labour and Industry 1 at 13-14.
- Charlesworth, S., ‘Contributions and Limitations of the Sex Discrimination Act at the Workplace Level' (2004)
- <http://www.hreoc.gov.au/sex_discrimination/20thanniversary/women_work_equity/speeches/charlesworth.html> at 20 April 2005.
- Cook, R.J., Human Rights of Women: National and International Perspectives, University of Pennsylvania Press, Philadelphia, 1994.
- Gaze, B., ‘The SDA after twenty years: Achievements, Disappointments, Disillusionment and Alternatives' (2004)
- <http://www.hreoc.gov.au/sex_discrimination/20thanniversary/women_work_equity/speeches/gaze.html> at 20 April 2005.
- Gollan, P.J., Markey, R., and Ross, I., Works Councils in Australia: Future Prospects and Possibilities, Federation Press, Sydney, 2002.
- Hemming, J., Mason, K. and Fisher, D., Discrimination in the Workplace, John Wiley & Sons, Chihester, 1997.
- Human Rights and Equal Opportunity Commission 2002, ‘Paid Maternity Leave' (2004)
- <http://www.hreoc.gov.au/info_for_teachers/pregnancy/index.html>at 19 April 2005.
- Human Rights and Equal Opportunity Commission 2002, ‘Proposal for a National Paid Maternity Leave Scheme' (2002)
- <http://www.hreoc.gov.au/sex_discrimination/pml2/partb.html#2intro> at 23 April 2005.
- Human Rights and Equal Opportunity Commission 2002, ‘Sex Discrimination' (2004)
- <http://www.hreoc.gov.au/sex_discrimination/pml_pregnancy.html> at 6 April 2005.
- Human Rights and Equal Opportunity Commission 2002, “The Sex Discrimination Act and the rights of pregnant workers” (2004)
- <http://www.hreoc.gov.au/sex_discrimination/guide/pregnancy.html> at 20 April 2005.
- Hunter, R., Indirect Discrimination in the Workplace, The Federation Press, Sydney, 1992.
- Price, R., Employment Law in Principle, Thomson Lawbook Co., Sydney, 2002.
- Ronald, C., Affirmative Action & Sex Discrimination, (2nd updated edn), Pluto Press Australia, Sydney, 1991.
- Ronald, C., and Pepper, R., Discrimination Law and Practice, (2nd edn), The Federation Press, New South Wales, 2004.
- Scutt, J.A., Women and the Law: Commentary and Materials, The Law Book Company Limited, Sydney, 1990.
- Selwyn, N.M., Law of Employment, (7th edn), Butterworths, Great Britain, 1991.
- Taylor, E., The Manager's Guide to Employment Law and Practice in Australia, The Business Library, Melbourne, 1991.
- ‘WEL Australia Submission to the Human Rights and Equal Opportunity Commission National Inquiry into Pregnancy and Work, May 1999' (2002)
- <http://www.wel.org.au/issues/pml/pregidx.shtml> at 23 April 2005.
- Wikander, U., Kessler-Harris, A. and Lewis, J., Protecting Women: Labour Legislation in Europe, the United States, and Australia, 1880-1920, Board of Trustee of the University of Illinois, United States of America, 1995.
- Williams, G., Human Rights under the Australian Constitution, (2nd edn), Oxford University Press, Melbourne, 2002.
- New South Wales Working Women Center,
- <http://www.workingwomenscentre.com.au/WORKWISE/whatis.htm> at 30 April 2005.