‘Client complaints to QWWS point to a continuing cultural resistance in workplaces today to the recognition that pregnant women have the right to work and to return to work after the birth of a child’.

Government, both at Federal and State level, is investing heavily these days in measures to encourage ‘balancing work and family’. Seminars, publications, awards for ‘family friendly’ workplace agreements have been developed, delivered and presented by Ministers and their Departments.

However, these programs often do not consider the most basic of all ‘work and family’ issues, the legislative protection currently available for pregnant working women and whether it is effective in meeting its objectives.

It is timely, therefore, that the Convention on Maternity Protection at Work (1952 No 103 & 95) which underpins the maternity leave entitlements in Australia, is currently being reviewed by International Labour Organisation. The documents attached to the review provide an interesting overview of the range of provisions and exclusions covering maternity protection adopted by different countries, who are signatories to the Convention. A concern expressed by the ILO was the relatively small proportion of countries which had ratified the Convention and one of the objectives of the review is to investigate ways in which the reluctance of countries to adopt the Convention can be overcome.

How does Australia rate as a signatory to the Convention? Our legislation is comprehensive in some areas but weak in others. For instance, it provides universal coverage across all enterprises, including small business, for women who are eligible. However, and here is the catch, to be eligible, a woman must be employed in a permanent capacity continuously for one year at the birth of a child. Given the expansion of casual employment, particularly in the traditional female industries of retail, child care, tourism and hospitality, many women are easily excluded from this entitlement despite the length of time they have been employed.

The Australian legislation is generous in allowing extensive unpaid leave (up to 52 weeks) at the birth of the child but makes no provision for paid leave during this period. In fact, in Australia, paid leave is at the discretion of employers rather than as part of a social insurance program as in Europe. Certainly paid leave for maternity purposes has become a common feature in salary packages at leading financial and insurance institutions but has not yet become a significant feature of Award negotiations or workplace bargaining.

How effective is our legislation in protecting women’s entitlements to maternity leave at the workplace level? Client complaints to QWWS point to a continuing cultural resistance in workplaces today to the recognition that pregnant women have the right to work and to return to work after the birth of a child.

QWWS statistics indicate growing evidence that women continue to face discrimination on the basis of pregnancy. Women are commonly informed, for instance, at some stage during their pregnancy, that their employment contract will be adjusted from permanent to casual, ‘to allow for flexibility on both sides’. Secondly, although the legislation states that women are entitled to return to their original job with the same status and pay after maternity leave, QWWS receive regular complaints from women that jobs have disappeared, that career options have reduced and that bogus resignations have been filed in their name.

Such actions on the part of employers are, of course, unlawful but taking action against the employer can result in loss of income, in compounding the stress of pregnancy and parenting, and in encountering a loss of reputation particularly in a small community or occupational sector.

The end result is that many women choose to accept rather than to fight their loss of entitlement. The ILO review provides an excellent opportunity for Government to re-examine its legislation, remove the exclusion of casuals and commit resources to educate employers on their obligations under the Act.