WORKPLACE RELATIONS lawyers will have further changes to contend with following the announcement by Federal Attorney-General Robert McClelland that he intends to begin national consultations on signing the Optional Protocol to the International Convention of the Elimination of All Forms of Discrimination against Women (CEDAW).
Federal Sex Discrimination Commissioner Elizabeth Broderick welcomed the announcement as “an encouraging sign of commitment by the Federal Government to re-enter the international stage as a leader in the promotion of women’s rights”.
However, Broderick expressed concern that the Australian Government retains its reservation under CEDAW regarding the right of working women to access paid maternity leave (the right to paid maternity leave is contained in article 11(2)(b) of CEDAW).
When Australia ratified CEDAW in 1983, it expressly refused to agree to provide paid maternity leave for Australian women and placed a reservation so that it would not be bound by article 11(2)(b).
“In this, the 25th anniversary of Australia’s ratification of CEDAW, it is time to remove this reservation,” Broderick said. “Paid maternity leave is a basic human right for working women.”
The issue of paid maternity leave remains contentious in Australia, and continued government resistance risks putting the nation out of step with international standards, Broderick cautioned.
“Really, we’re only one of two OECD countries that don’t have a national paid maternity leave scheme,” Broderick said. “The Scandinavian countries have extended — some of them up to three years — paid maternity leave but they have a very different social security system.
“Whereas you look at a country like the UK, they started with a scheme of 26 weeks and then they moved it to 39 weeks and now they’re looking to move it to 52 weeks,” she said. “I think the key point is that these schemes are built in a progressive manner and they’re really informed by experience over time.”
HREOC is advocating a comparatively modest paid maternity leave provision. Stage one of the scheme would carve out 14 weeks’ paid leave for the mother. There would also be a provision for two weeks’ paid supporting parent leave for partners. Stage two would move towards an extra 38 weeks of paid parental leave.
The leave would be paid at the national minimum wage. Broderick says that concerns about the costs of such a plan should be weighed against the need to resolve the skills shortage by making the most of an underutilised skills set — namely mothers.
The optional protocol will also give Australian women the option of seeking international redress for abuses of their rights under CEDAW. Currently, women can bring their complaints to HREOC, which has its own conciliation service. If they don’t get what they want there, then they have only the costly option of pursuing the claim in the Federal Court or Federal Magistrate’s Court.
“Once the government signs this optional protocol it will mean that women, even if they don’t get what they want through the court system, will be able to take their complaint into an international jurisdiction into the committee of CEDAW,” Broderick explained. “At that point it’s called bringing an individual communication to the CEDAW Committee.”
This doesn’t seem like the most efficient way to handle complaints, and Broderick admits it is not necessarily the most “expeditious” method. She envisions the CEDAW system as acting as a “back-up” to the domestic legislation,
“I suppose the thing for women is that sometimes governments bring into a place domestic laws which are meant to represent all the obligations under an international convention, [and] sometimes that doesn’t quite happen.
“This means that women will be able to move outside just the domestic forum. So if you look at the sex discrimination act, it embodies most of the rights of CEDAW with the reservation on paid maternity leave. But the optional protocol will provide a kind of back-up for the domestic laws …” she said.