Academic journal article Australian Journal of Social Issues

Access to Parental Leave in Australia Evidence from Negotiating the Life Course *

Academic journal article Australian Journal of Social Issues

Access to Parental Leave in Australia Evidence from Negotiating the Life Course *

Article excerpt

Introduction: formal provisions for parental leave

Australia is notable as one of two remaining OECD countries in the early twenty-first century without a national paid maternity leave scheme--the other being the United States. Nevertheless, relatively comprehensive arrangements for unpaid maternity leave date back to the 1970s, and public sector legislative provisions for paid maternity leave have a similarly long history. A brief overview of the emergence of formal provisions for maternity and paternity leave serves to illustrate idiosyncrasies of the Australian parental leave system and identify criteria for access.

Maternity leave was first introduced in the federal public sector with the Maternity Leave (Commonwealth Government Employees) Act of 1973, which provided a total of 52 weeks leave, of which 12 were to be paid. Paid maternity leave was subsequently introduced for public sector employees by most state governments, although in several cases for shorter periods than 12 weeks. Extension of leave provisions to the private sector was achieved not through legislation but through the industrial tribunals, initially in a Maternity Leave test case brought before the federal industrial tribunal in 1979 by the Australian Council of Trade Unions (ACTU). This case established the right to a maximum of 52 weeks unpaid maternity leave for full-time and part-time permanent employees with at least 12 months continuous employment prior to the birth. It also established a right to return to work after taking leave, preserving continuity of employment and proscribing termination of employment on the grounds of pregnancy or absence on maternity leave. Unsurprisingly, paid maternity leave was not on the agenda in a case held before an industrial tribunal where employer resistance was clearly evident (see Whitehouse 2004).

Subsequent test cases extended unpaid parental leave provisions for private sector employees. Unpaid adoption leave was made available to women in the 1985 Adoption Leave test case, and in 1990 the Parental Leave test case added unpaid paternity leave. This decision allowed parents to share a total of 52 weeks unpaid 'parental' leave (a term inclusive of 'maternity' and 'paternity' leave) up to the child's first birthday. Apart from one week at the time of the birth, or up to three weeks at the time of adoption, parents could not take leave simultaneously; rather the intention was to enable either parent to adopt a 'primary carer' role. More recently, a test case in 2001 delivered an extension of unpaid parental leave to employees on casual contracts, and in 2004 the Family Provisions test case (ongoing at the time of writing) is seeking extension of the period of leave that parents can take simultaneously.

While unpaid parental leave for private sector employees was initially won, and subsequently extended, through the industrial tribunals, Australia's ratification of international conventions, including International Labour Organisation (ILO) Convention 156 (Workers with Family Responsibilities) in 1990, enabled the federal government to ensure universal access to these benefits by including them in the federal Industrial Relations Reform Act of 1993. Although the subject of some debate, they were retained in the revised industrial relations legislation introduced after a change of government in 1996, and the Workplace Relations Act of 1996 continues to provide for 52 weeks unpaid parental leave with a guaranteed right of return to work, accessible to full-time and part-time employees with 12 months continuous employment with the same employer. Several states have also encoded these entitlements in industrial relations legislation, in some cases (Queensland and NSW) formally extending unpaid parental leave to 'long-term' or 'regular' casuals.

Most employees in Australia thus have a formal right to unpaid parental leave, with the only groups explicitly outside the eligibility criteria being those with less than 12 months tenure with their employer prior to the birth of a child, and (before 2001) those employed on a casual basis. …

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