Is it time for Australia to legislate on menstrual leave?

26 May 2022 By Shandel McAuliffe
legislate on menstrual leave

With Spain passing draft law reform that heralds the introduction of paid menstrual leave, the question arises: should Australia consider similar legislation?

According to the Spanish government’s website, a draft reform to their law that concerns “sexual and reproductive health and the voluntary interruption of pregnancy” has been approved by the Spanish Council of Ministers. On paid leave and free period products, the government states: “The main new developments are that a temporary incapacity paid in full by the state is regulated for women who have painful and disabling periods and that products related to menstrual hygiene and management will be dispensed free of charge in educational and social service centres and prisons.”

Lawyers Weekly reached out to Dr Gabrielle Golding, senior lecturer in law at The University of Adelaide, and Tom Hvala, research affiliate, global and women’s health unit, school of public health and preventive medicine, Monash University – the authors of Paid Period Leave for Australian Women: A Prerogative Not a Pain – for their insights following Spain’s announcement.

Dr Golding and Mr Hvala described Spain’s draft reform as “an ideal framework for Australia to follow”. They stated: “The recognition of a paid menstrual leave entitlement under federal statute — ideally under Australia’s National Employment Standards, which are contained within the Fair Work Act — would be the ‘gold standard’ for Australian employees.

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“We say this because the entitlement would be universal in its application to all Australian workplaces covered by the National Employment Standards, not just a select few who choose to implement a relevant workplace policy. Though, the continued implementation of menstrual leave policies is a promising step in the right direction.

“Having the entitlement mandated federally would give employers and employees a sense of certainty regarding its application, while also allowing a unique opportunity for the wider population to be educated about the entitlement’s purpose and importance.

“Federal Parliament is also in the unique position of being able to consider the costs and benefits associated with the entitlement’s recognition, taking a whole-of-society approach by subjecting it to the rigour of parliamentary debate.”

Kim Wiegand, partner at beaton, founder of Julip Advisory, and women’s rights advocate, shared in conversation with Lawyers Weekly: “Raising awareness of women’s health issues is an imperative and I am absolutely in favour of passing such a bill here in Australia. The challenge is not the legislation however, it is the stigma. It will take more than the passing of a bill to normalise women needing additional leave for what is considered a ‘women’s issue’.

“Women are already at a disadvantage in many ways due to primary care responsibilities competing with work commitments, not to mention the social expectation that women will take extended maternity leave, over that of their male colleagues.”

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However, this is changing, Ms Wiegand went on.

“More men are making the considered decision to share parenting responsibilities, and more organisations are encouraging and in some cases incentivising, their male employees to take a more involved role in parenting. The journey to true flexibility is a long one, but it starts with choice.

“The legislation will empower women and workplaces to make this choice. Passing this bill will empower women and workplaces to prioritise health and offer women who do need additional support due to a gender-specific physical condition, the time and space required to care for themselves,” she opined.

Dr Golding and Mr Hvala highlighted that “attitudes towards menstruation are rapidly evolving in a positive direction” in Australia, citing funds recently allocated to endometriosis by previous Australian prime minister Scott Morrison.

Commenting on endometriosis, Ms Wiegand shared: “The World Health Organisation (WHO) states that approximately one in 10 women and girls of reproductive age live with endometriosis, a chronic disease associated with life-impacting pain during periods. A recent report by Endometriosis Australia states that 70 per cent of respondents, made up of women living with endometriosis, have taken unpaid leave from work to manage their pain and symptoms. One in three respondents claim having been passed over for promotion, and one in six have lost their jobs due to endometriosis.”

In Paid Period Leave for Australian Women: A Prerogative Not a Pain, Dr Golding and Mr Hvala draw a distinction between endometriosis and periods in general, stating: “While menstruation may co-exist with medical conditions such as endometriosis, in most cases period pain, heavy bleeding, tiredness and impact on mood are part of many women’s normal experience of menstruation and should be recognised as a facet of female biology that needs to be accommodated by society.”

Addressing the question of whether sick leave should be used for the effects of menstruation, Dr Golding and Mr Hvala asserted: “As things currently stand, those who menstruate are not ‘ill’ or ‘injured’ for the purpose of taking sick leave under section 97 of Australia’s Fair Work Act. Rather, menstruation and its associated symptoms are a natural process.”

On this issue, they concluded: “While concerns around a menstrual leave scheme are legitimate for both individual women and the status of women more broadly, our view is that its introduction will carry just as many, if not more, positive outcomes. Putting it colloquially, the good will outweigh the bad.”

For those who may be concerned about “governance”, Ms Wiegand put forward: “The question of governance around this leave is a complex one. There will always be times that employees falsely take advantage of benefits on offer. If this is the case however, I would challenge that those employees are not engaged with their organisation and there are larger issues at play.”

She added: “Engaged employees and supportive and trusted employers don’t need to hide behind lies and deceit. If your employee is living with significant pain, account for and accommodate that openly and supportively. Whether that be additional WFH days or greater adhoc flexibility, uncapped time off for specialist appointments, care packages etc. We are all human and a personalised approach to health, mental and physical is a core part of today’s working environment.”

Is it time for Australia to legislate on menstrual leave?
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