PO Box A147
Sydney South
NSW 1235
Australia

5 June 2003


Dear Senator,
Pregnancy discrimination reforms
Australian Lawyers for Human Rights Inc (ALHR) is a network of Australian lawyers active in practising and promoting furthering awareness of human rights in Australia. The ALHR membership of over 600 is national, with active National, State and Territory committees.
Through training, information, submissions and networking, ALHR promotes the practice of human rights law in Australia, and works with Australian and international human rights organisations to increase awareness of human rights in Australia. ALHR has extensive experience and expertise in the principles and practice of international law, and human rights in Australia.
You would be aware of amendments to the Sex Discrimination Act proposed by the Sex Discrimination Amendment (Pregnancy and Work) Bill 2002 (‘the Bill’).
ALHR supports the provisions in the Bill in its current form. But for the reasons set out below, the Bill is an inadequate measure to comply with Australia’s international human rights obligations, and fails to fully implement the recommendations of the Human Rights and Equal Opportunity Commission.
ALHR calls for the Bill to be amended so that it implements those recommendations, and ensures that Australia better complies with its international human rights treaty obligations.
The Bill
The purpose of the Bill is to amend the Sex Discrimination Act 1984. In doing so it implements three of the Recommendations of the Human Rights and Equal Opportunity Commission’s 1999 report, Pregnant and Productive: It’s a Right not a Privilege to Work while Pregnant (‘the HREOC Report’).
The Bill

• clarifies s 27 of the SDA by inserting a specific provision that prohibits the asking of questions (whether orally or in writing) which might reasonably be understood as intended to elicit information about whether or when a woman intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities (Rec 36);
  
• amends the SDA to clarify that it is unlawful to discriminate in medical examinations of pregnant women during recruitment processes (Rec 37); and
  
• amends the SDA to specifically cover breastfeeding as a ground of unlawful discrimination (Rec 43).
  

• empower HREOC to publish enforceable standards in relation to pregnancy and potential pregnancy (Rec 1);
  
• ensure coverage of unpaid workers (Rec 8);
  
• remove the exemption of employment by an instrumentality of a State (Rec 10);
  
• remove the exemption for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy (Rec 11);
  
• allow the Sex Discrimination Commissioner to refer discriminatory awards or agreements to the Australian Industrial Relations Commission (‘AIRC’) of her own initiative without the requirement to receive a written complaint (Rec 19);
  
• make clear that a complaint about a discriminatory advertisement may be made under s14(1)(a) of the SDA notwithstanding that the complainant is not a person directly affected by the advertisement (Rec 35);
  
• include protection for employees who intend to, or are in the process of, adopting a child, from discrimination on that basis (Rec 39); and
  
• amend the provisions in relation to the award of compensatory damages to enable the award of punitive damages (Rec 42).
  

any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
Article 2 of CEDAW provides that States Parties agree to pursue—by all appropriate means and without delay—a policy of eliminating discrimination against women. States Parties undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;
(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;
(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;
(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women …

Article 11(1) of CEDAW provides that States Parties shall take appropriate measures to eliminate discrimination against women in employment in order to ensure equal rights with men. This includes the right to work as an alienable right of all human beings, and the right to the same employment opportunities etc.
Article 11(2) of CEDAW provides that to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances;

(c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child care facilities;

(d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.
When ratifying CEDAW 20 years ago Australia entered a reservation noting the extent of unpaid maternity leaver provisions in Australia, and stating that “it is not at present [ie 1983] in a position to take the measures required by Article 11(2)”.
The International Covenant on Economic Social and Cultural Rights, to which Australia is a party, provides that States Parties:

• undertake to guarantee that all rights enunciated in the Covenant will be exercised without discrimination of any kind, including as to sex (Art 2(2));
  
• recognise the right to work, and take appropriate steps to safeguard this right (Art 6(1));
  
• recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject only to considerations of seniority and competence, etc (Art 7); and
  
• recognise that special protection should be accorded to mothers during a reasonable period before and after childbirth. During these periods working mothers should be accorded paid leave or leave with adequate social security benefits (Art 10(2)).
  

A number of International Labour Organisation (‘ILO’) Conventions to which Australia is a party refer to women’s rights in employment in relation to pregnancy and maternity leave.
ILO Conventions ratified by Australia

The Termination of Employment Convention, 1982 (No. 158) provides that sex, marital status, family responsibilities, pregnancy or absence from work during maternity leave shall not constitute valid reasons for termination.¹
The Workers with Family Responsibilities Convention, 1981 (No. 156) applies to male and female workers with responsibilities in relation to their dependent children or other members of the immediate family, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. The Convention obliges Australia to promote equality of opportunity and treatment for workers with family responsibilities, to must make this an element of national policy. Family responsibilities are not to be a valid reason for termination of employment.²
The Employment Policy Convention, 1964 (No. 122) requires Australia to declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. This policy must aim at ensuring, among other things, that there is work for all who are available for and seeking work; and there is freedom of choice of employment and the fullest possible opportunity for each worker to qualify for, and to use his or her skills and endowments in, a job for which he or she is well suited, irrespective of specified matters including sex.³
The Discrimination (Employment and Occupation) Convention, 1958 (No. 111) requires Australia to declare and pursue a national policy designed to promote equality of opportunity and treatment in respect of employment and occupation—including access to vocational training, access to employment and to particular occupations, and terms and conditions of employment—in order to eliminate discrimination on specified grounds, including sex.
Australia has undertaken, among other things, to: repeal statutory provisions and modify administrative instructions or practices that are inconsistent with this policy; pursue the policy in respect of employment under the direct control of a national authority; and enact legislation and promote educational programs that favour its acceptance and implementation in co-operation with employers’ and workers’ organisations.⁴

ILO Conventions not ratified by Australia

The Maternity Protection Convention, 2000 (No. 183)⁵ requires States that ratify the Convention to adopt appropriate measures to ensure that maternity does not constitute a source of discrimination in employment. It shall be unlawful for an employer to terminate a woman’s employment during her pregnancy or absence on related leave or during a prescribed period following her return to work; and a woman is guaranteed the right to return to the same position or an equivalent position paid at the same rate at the end of maternity leave. Women should be entitled to maternity leave of not less than 14 weeks, and should be entitled to cash benefits during this period.

The Social Policy (Basic Aims and Standards) Convention, 1962 (No. 117) provides that it must be an aim of policy to abolish all discrimination among workers on specified grounds including sex in respect of: labour legislation and agreements; admission to public or private employment; conditions of engagement and promotion; opportunities for vocational training; conditions of work; health, safety and welfare measures; discipline; participation in the negotiation of collective agreements; and wage rates.

The Social Security (Minimum Standards) Convention, 1952 (No. 102) provides that each State for which Part VIII of the Convention is in force shall secure to the persons protected the provision of maternity benefit in accordance with the Convention. The contingencies covered include pregnancy and confinement and their consequences, and suspension of earnings, as defined by national laws and regulations, resulting from these circumstances.
ALHR position on the Bill
The Bill implements the HREOC Report’s recommendations 36, 37 and 43. These recommendations are generally consistent with the principles contained in article 11(2) of the CEDAW, articles 6 and 7 of the ICESCR and article 23(1) of the UDHR.
ALHR supports these provisions of the Bill.

The recommended amendments to the SDA that have not been included in the Bill would reduce the occurrence of employment discrimination in practice. For example, enforceable standards would provide employers and employees with greater guidance regarding the difference between lawful and unlawful discrimination in this context; and HREOC could assist in addressing discriminatory awards by referring these to the Australian Industrial Relations Commission.

These further HREOC Report recommendations are consistent with international human rights principles, and Australia’s international human rights treaty obligations.

ALHR’s position is that the extent of the Bill in its current form is an inadequate measure to comply with Australia’s international human rights obligations.

ALHR calls for the Bill to be amended to give effect to the full range of recommendations in the HREOC Report so that Australia better complies with its international human rights treaty obligations.

The Bill should be amended to:

• enable HREOC to publish enforceable standards in relation to pregnancy and potential pregnancy (Rec 1);
  
• ensure that the provisions cover unpaid workers (Rec 8);
  
• remove the exemption of employment by an instrumentality of a State (Rec 10);
  
• remove the exemption for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy (Rec 11);
  
• allow the Sex Discrimination Commissioner to refer discriminatory awards or agreements to the Australian Industrial Relations Commission (‘AIRC’) of her own initiative without the requirement to receive a written complaint (Rec 19);
  
• make clear that a complaint about a discriminatory advertisement may be made under s14(1)(a) of the SDA notwithstanding that the complainant is not a person directly affected by the advertisement (Rec 35);
  
• include protection for employees who intend to, or are in the process of, adopting a child, from discrimination on that basis (Rec 39).
  

¹ Australia ratified this Convention on 26 February 1993.

² Australia ratified this Convention on 30 March 1990.

³ Australia ratified this Convention on 12 November 1969.

⁴ Australia ratified the Convention on 15 June 1973.

⁵ This Convention revises and updates the Maternity Protection Convention (Revised), 1952 (No. 103) and Maternity Protection Recommendation 1952.

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Australian Lawyers for Human Rights
this page last updated 11 September, 2003