Queensland University of Technology Law and Justice Journal
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Beth
Gaze[*]
Although
biology is no longer destiny for women, social arrangements continue to impose
many of the costs of having children on women.
While recent research has
documented the decline in fertility of Australian
women[1], many women do nevertheless
choose to have children, despite the evidence that shows it is likely to
exacerbate their disadvantage
in both the public sphere of work, and, for many,
the private sphere of the family. Women who have children are faced with the
huge
range of unsatisfactory choices concerning work and childcare which are
usually referred to as the “work-family problem”.
No longer can
they attempt to conform to the male model of the ideal worker who is available
for work with no limits and no domestic
responsibilities.
For a variety
of reasons, many parents do not choose to move in the long term to the
traditional female role model of the full time
home maker, financially dependent
on someone else. This might come from their expectations of equality and what
that might mean,
as it is likely that few young women would be aware of the
difficulties women face in re-entering the workforce later if they withdraw
altogether while their children are young. So a common choice is to work part
time, to maintain some workforce connection and financial
independence while
also allowing time for the vitally important nurture of children. This is known
as “having it all”.
What it does not have is any paradigm, social
model or established pattern which is protected by social and legal policy in
our
society.
This article considers some aspects of the work-family
dilemma. First, the dimensions of the experience are teased out. Women in
this
position, being part time workers and mothers, are usually short of time, so
their experience is not well documented. Then
different ways to understand part
time work and explain the position of those who do it are examined. Developing
a legitimate paradigm
for part time work has the potential to undermine the male
stereotype of the ideal worker (the worker who does not have domestic
responsibilities to distract them from 100% commitment to their job), which is
currently the measure of success and commitment for
a worker. Finally, the
recent Australian cases concerning access to part time work are considered to
see what role exists for law
in protecting the parent who works and balances
their caring responsibilities.
This paper is about “practicing” the work family juggling act
in two senses: first, it is my everyday practice as a part
time legal academic;
second, it is something that needs practice: the balance is never quite stable
and needs constant attention.
Because the system of employment is premised on
the full time “ideal worker”, virtually all aspects of part time
work
have to be negotiated afresh. This reinforces that there is no existing
paradigm or model, even within relatively benign employment
such as university
employment, on which part time work can comfortably rest. The choice faced by
the part time worker in a position
with a full time paradigm is either to keep a
low profile and not draw attention to their distance from the full time ideal
worker,
or to accept the visibility of needing to continually resolve issues of
obligations and entitlements which arise because they do
not fit the full time
ideal for which all procedures and entitlements are
designed.
Experiencing this tension led me to reflect on how the part
time worker is understood. My own view is that it has taken significant
effort
to maintain my connection with the workplace, and that I have frequently felt
that my parenting responsibilities have suffered
as a result of my commitment to
maintaining my work. Women face contradictory imperatives and expectations,
which are exacerbated
when they become parents. But my view may not be shared
by others, who may see me as uncommitted to work, as “dabbling”
in
the workplace. They may see the glass of workplace commitment as half empty,
instead of what I see, the effort it takes to maintain
the glass half (or more)
full. Which of these views applies may well depend on what preconception of a
working mother or parent
is in the observer’s mind. An important goal for
feminism is to ensure that space is made for an understanding of part time
work
which permits living a woman’s life without
disadvantage.
Paradoxically, women who have first hand experience of the
juggling act, who are engaged in trying to work out a work/family balance
in
their own lives, have least uncommitted time, and are the least likely to be
able to reflect on and explore their experience.
Full time workers, even those
who are parents, have in general not undertaken the compromises involving
departure from the ideal
worker norm which are essential to develop
understanding. Given their inability to resemble the ideal worker, part time
working
parents may have difficulty being taken seriously in the work place. If
they fear career disadvantage, they may be reluctant to
draw attention to their
part time position. Most of us will be able to think of examples of colleagues
who, although working part
time, happily attend meetings at any time of the
week, even outside normal hours, in order not to expose themselves as non-ideal
workers.
The majority of mothers in part time work are, like the majority
of women workers, in part time, casual or insecure positions without
access to
training or a career structure.[2]
There are two main roles for part time work. One is to permit women and men in
professional positions to reconcile their work and
family commitments. Access
to this opportunity may well be restricted by employers to those whom the
employer is specifically interested
in retaining in the workforce. The second,
and much more common role of part time work is to maintain the reserve workforce
available
at the convenience of the employer. Questions about whether women are
constrained into these positions, or whether they “freely
choose”
them, were explored in some depth by Joan Scott and Vicki Schultz in articles
reflecting on the Sears litigation in the
USA.[3] Ultimately Schultz argued for
seeing “choices” within the context of constraints which are
continually recreated and
re-enforced. This would include workforce practices
including sex discrimination, unequal pay and the maintenance of the ideal
worker
paradigm, and social policies such as a lack of non-parental sources of
support for families.
This article, because it reflects on my
experience, is concerned with professional women working in positions with a
career structure.
The university law school is my workplace; and has been
relatively benign in relation to my decision to work part time after having
children, which was a departure from the pattern of earlier women academics, who
(both before and after the advent of maternity leave)
virtually all returned to
full time work within weeks or months of having children. After having
children, I worked half time for
six years, and recently returned to 75%.
While this has allowed me the luxury of work time long enough to do more than
the absolute
minimum of commitments, it unfortunately coincided with a
significant increase in teaching loads, which confronted me quite starkly
with
questions about the overall workload required for the job, and how, if at all,
expectations and load were adjusted for someone
working part time. In workplace
experiences and conversations, I found that things I expected to be understood
were not clear, and
that many things were not very clear at all, to me or
others. I realised that the part time worker is not so easily understood, in
theory or in practice.
Among the core issues are workload, entry to
part time work, the limits of part time work, and what equality of opportunity
might
mean in assessing part time and full time workers. In the context of
ever-increasing demands on workers in today’s workforce,
what does it mean
to be a part time worker in a job which is modelled on the ideal worker, where
there is no limit to the number
of hours which could be put in, or are expected
to be put in, to show commitment or merit? This is a major issue in academic
and
professional work.
Secondly, for professional or senior positions,
why are career track jobs only offered full time, so that the only way in which
part
time working parents can get a part time position is to convert an existing
full time position? Not only does this limit mobility
for part time workers, it
rests on a pervasive underlying assumption that “real” jobs are full
time, and employers should
be reluctant to employ part timers (except where they
need the flexibility of peak time only staffing). Is the assumption that senior
positions cannot be undertaken part time based on fact, or is it pursued out of
habit and because it serves the useful function (for
some) of reserving good
jobs for ideal workers? The assumptions that real work is full time and real
commitment is virtually unlimited
suggest that, despite lip service to the idea
of merit, assessing work contribution has been measured more by quantity (or the
gender
or race of the worker) than quality of outputs.
When assumptions
about full and part time work are challenged and deconstructed, it is less clear
whether there are jobs which can
only be done full time, and how they are
to be identified. When is it unreasonable to refuse someone a part time
position, either through
converting an existing full time position, or at an
entry position? Clearly employer preference is important, but for those arguing
for a social system which takes account of families and the private lives of
workers, it cannot be the only consideration, as the
cases on access to part
time work confirm. To move forward requires challenging the model of the ideal
worker as the only worker
who should be sought and rewarded, the only one who
can make a worthwhile contribution to the workplace. We need new understandings
of the contributions different types of workers make.
Finally, what does
equal opportunity mean in this context? How does the ideal worker stereotype
relate to career progression or,
to put it negatively, career stagnation and the
glass ceiling? Is the part time working mother inevitably on the mummy track,
where
it is assumed that she is not committed to work, gives it a low priority,
and can be sidelined and bypassed for any challenging or
developmental tasks?
Is she just marking time until (if?) she returns to full time work? Is the
ideal full time worker (male or
female) the only one who has merit which
deserves reward in the workplace?
In the next section, I look at some
discussions by writers on work-family balance/conflict, and gender roles in
Australia, which provide
a vocabulary for analysis. Their work establishes that
the requirement to work full time and excess hours in order to demonstrate
commitment to the job or professionalism reflects and reinforces the male
workforce norm of the ideal worker without domestic distractions
or limitations,
which most of us unquestioningly accept. It continues the privileging of the
public sphere of work modelled on a
(male) full time worker who is fully
committed to work, excluding time for domestic commitment or a balanced life.
It overlooks
the fact that this is usually enabled by someone else’s
domestic efforts, especially where there are children. To continue
these
patterns is to reinforce the male model and to impede change.
To
progress, feminists need to challenge both male and female paradigms under
patriarchy, and to work out a new direction, one which
allows for workers who
have families as well as responsibilities to others in their lives, such as
aging parents and family members
with disabilities.
Virginia Held has noted that birth and death are central events of human
experience,[4] but that they have been
“misconceptualised” from a male perspective, where birth is seen as
merely a natural process
similar to animals whereas death is a distinctively
human event. But while men and women all die, only women give birth. From the
perspective of those who give birth, she claims, birth is a distinctive event
which should lead to a world organised to be hospitable
to and nurture
children.[5] This reminds us that
changing the paradigm of the worker is essential in the interests of children,
not just of parents. But our
society does not accept that areas such as
employment policy should be designed around the needs of children. Instead, we
banish
children to the private sphere of the family, seeing them as only an
issue for or responsibility of their parents.
In our society
women’s decision whether or not to have children carries a great deal of
baggage which constrains choices. Many
women may (quite realistically) conclude
that they will only be able to succeed in the workforce/society/politics when
they, like
men, are not constrained by responsibility towards children, and they
may decide that success is more important than having children,
a choice few men
confront. The unfortunate result of women making realistic choices on this
basis is to reinforce the existing male
and female paradigms. The paradigms are
explained in slightly different ways in recent work on work/family by Juliet
Bourke and
Joan Williams, and some important threads have been identified by
Belinda Probert.
Because part time work for mothers does not follow
either of the traditional male or female paradigms (although it happens to be
the
most common work pattern for mothers in our society), it is undertheorised,
especially in relation to the work force, the public
sphere. Juliet Bourke has
suggested that discrimination against women based on marital status, which began
to lose influence with
removal of the marriage bar on women’s permanency
in the public service, has transmuted in the modern world into discrimination
based on family responsibilities. [6]
While only the religious right care these days whether parents are married, many
people still see mothers (but not fathers!) with
children as marginal in the
public sphere, unreliable, not serious about their work, and uncommitted.
Alternatively, they may be
seen as imposing costs on their fellow workers where
they cannot themselves meet the excessive hours demanded in many
jobs.
Feminists argue that the condition for women’s emancipation
is the demise of the male norm in every area of activity, so that
difference
from men should not translate into disadvantage. Equality, or freedom from
discrimination requires the right to live
a woman’s life without
disadvantage. In a workplace context this must allow for participation by
parents with domestic responsibilities
as one of the primary models of workforce
engagement. But change is uneven and very slow, especially in the work force
and other
sites of public power such as the media, the boardroom and politics.
Each individual living in this system has to make their decisions
in relation to
work and children in their own context and according to their own values. The
accepted path of value in our society
is to opt for achievement in the public
sphere of work. This offers autonomy, visible achievement and material rewards,
all of which
are valued and celebrated. By contrast, engagement in the private
sphere of the family may offer emotional rewards, but little sense
of public
value or achievement.
This is the result of the relative social
valuation of paid work and child care, which feminists must challenge. For
women to join
the men in sole pursuit of the rewards of the public sphere of
work is to accept the existing lack of balance in what is socially
valued.
There can be no equality unless the differential valuation of public and
private, as well as male and female, is challenged.
The valuation by society as
a whole of the private sphere equally with the public must be a central element
of feminist challenge.
This is not of course to suggest that women should be
confined to the private, or even necessarily associated with it. But it is
essential to challenge the devaluation of the private as well as women’s
exclusion from the public, because both are foundations
of women’s
disempowerment.
When women themselves continue to attach primary value
to the public sphere because that is what is valued in our society, they
reinforce
the norm designed by and around men. I do not underestimate how
difficult it is to avoid this in a society that so pervasively devalues
the
caring and domestic work normally done by women. Where women fail to value the
private sphere equally if differently, they also
devalue the unique and
important capacities they have in relation to creating new life and nurturing
children.
If the private and public were more equally valued (and by
equally I do not mean “the same”) then women’s choices
about
having children would be less affected by the exposure to disadvantage and
devaluation which is attached to becoming a mother,
and they would be free to
consider the rewards and benefits which it can provide, without having to
sacrifice or postpone their position
in the public sphere. Many suspect this
will only begin to happen when men also seek the ability to balance their public
and private
lives, and that men’s requirements will pave the way for
establishment of the rights women currently need.
In her recent study of work and family practices in the legal and finance
industries in Australia, Juliet Bourke used a three part
typology to describe
the stages of struggle over the last century by women for workforce equality,
relating each to the position
of family and market as gendered and
hierarchically segregated locations. The story began with “honorary
men” who were
the exceptional women who sought access to senior
“male” positions by conforming to male career patterns, and had no
children as the price of their commitment to the
workforce.[7] They were followed by
“superwomen” who had both children and workforce success, but still
achieved this by following
male patterns of workforce commitment, remaining in
full time employment. These are the women who were still completing work in
hospital at the birth of their child. For both groups, the challenge was to
achieve workforce success despite the prejudice against
women, making
compromises on other aspects of life along the way.
While the superwomen
challenged the hierarchical segregation of the workforce, neither
“honorary men” nor “superwomen”
challenged the normative
and gendered separation of the market and the
family.[8] This challenge falls to
the third group, the “neo-superwoman” of today who is trying to
dismantle “male designed
work structures which separate responsibility for
the family and the market, and serve to disadvantage
women”[9] by insisting that
she can have both family and market (work), through the use of family friendly
policies such as part time work.
Bourke pointed out that taskforces
looking at professional employment in law and the finance industry relied
heavily on a male-defined
concept of “professionalism” which
involves full time commitment and availability for work. Thus working part time
is
seen as unprofessional, and is rare for lawyers and usually only achieved by
renegotiation of a full time position by the incumbent.
This is the pattern in
all the important cases on part time work: Holmes v Home
Office,[10] Hickie v Hunt and
Hunt,[11] and Bogle v
Metropolitan Health Service
Board.[12] Bourke points out
that part time work is assumed to be unavailable at senior levels, often leads
to marginalised work being allocated
to the holder, and the holder must return
to full time work to progress their
career.[13] Clearly, such
male-serving definitions of professionalism need to be challenged as their
effect is to mark the user of flexible
work practices as unprofessional and not
to be taken seriously.[14] This
explains the concern of many workers with not using flexible work practices, or
if they use them, concealing the fact. Bourke
concludes that “the
conflation of full time work with professionalism has obscured the importance of
a gendered glass ceiling
for neo-superwomen who take up flexible work practices
to balance careers and family
responsibilities”.[15]
Bourke’s
framework does not deal with competition in the workforce, or how part time work
is to be understood, and I think she
is too optimistic about the chances for
workforce change, given the threat to patriarchy that it would involve and
men’s reluctance
to lose their advantages. However, if men begin to adopt
flexible work practices like part time work, then her optimism may be more
justified.[16] Her work provides a
vocabulary for discussing women’s different models of workforce
attachment. I disagree with the term
“neo-superwomen” which seems
to me to be exactly what this group is trying to avoid: it suggests superhuman
levels of
effort, which is not the aim of most women who choose part time work
in an effort to balance their lives and maintain a manageable
commitment to both
family and work. But it does highlight the fact that however we see ourselves,
social stereotypes are still applied
to mothers who work part time, and a
decision to work part time for a period of time while her children are young and
need more of
her time, often still seems to disqualify a woman from being taken
seriously at work.
In her book Unbending
Gender[17] Joan Williams
discusses these issues in a way which contributes further to understanding.
She begins by identifying two separate
but mutually interdependent paradigms:
the ideal worker and the domestic caretaker. Domesticity is “a gender
system, comprised
most centrally of both the particular organization of market
work and family work that arose around 1870, and the gender norms that
justify,
sustain and reproduce that
organization”.[18] The ideal
worker and the domestic caretaker are constructed as both mutually exclusive and
essentially interdependent: one the full
time worker with no external limits on
their commitment, the other the fully flexible parent who ensures the running of
the family,
the socialisation of children, and the domestic resourcing of both
children and the ideal worker. No one who wants to have children
can carry out
both of these functions. The ideal worker must rely on someone else to caretake
for him, and the domestic caretaker
does not have time or flexibility to compete
in the workplace, so she must rely on someone else for financial support. This
normative
structure clearly has no place for the working parent who has limited
flexibility and no “wife” (domestic support worker
at home).
Williams argues for the eradication of both norms. She argues that
destabilising the ideal worker paradigm will lead to the fall
of this
interdependent structure. The role of the ideal worker is well summarised as
follows:
the ideal worker can contribute financially to the family, but
cannot make substantial time commitments to children or other family
members
without endangering his or her career. Pay and promotion systems, rules around
working time, and the beliefs of those from
previous generations who have
succeeded as ideal workers and currently manage our organizations, are all built
upon the presumption
that only ideal workers should be hired, retained, and
rewarded.[19]
The tendency to
reward only the ideal worker in the workplace leads to a fear of discrimination
by those who do not match up to it,
and to discrimination-avoidance behaviour.
This includes such features as delayed childbearing among professional women, as
they
seek to gain tenure, promotion or partnership before having children, and
part time workers making themselves available for meetings
at any time of the
week to avoid drawing attention to the limits of their workforce participation,
and so on. The Pregnancy
Report[20] documents the
reluctance of women to use maternity leave in their workplaces, to avoid being
labelled uncommitted to their jobs.
For each individual a path must be
chosen between the challenge they present in their own workplace to the ideal
worker paradigm,
and the extent to which they seek to conform to it despite the
limitations of their position. On the one hand, family friendly policies
may be
shunned by the ambitious as signalling lack of commitment, while on the other
hand if they are effective and men still refuse
to change, they risk cementing
women into the double shift with full responsibility for children, and allowing
men off the hook.
Removing career disadvantage from part time work would make
it much more attractive to both men and women. Perhaps this is only
likely to
occur when more men decide to take up the option, as male employers may be more
able to understand the choices that men
make, than those of women who will
merely be understood as conforming to some element of the domestic caretaker
paradigm.
Finally, Belinda Probert has recently pointed out that aspects of
Australia’s gender culture are contradictory and place women
in a no-win
situation.[21] She examined
attitudes to three major elements of Australia’s gender culture: ideas
concerning the appropriate social spheres
for men and women, and how these
spheres are related to each other; the way relationships between women and men
are constructed and
legitimated (for example, is there an expectation of
financial dependency?) and finally how society determines the legitimate social
spheres for carrying out caring
work.[22] The current social
expectation of women is that mothers should be moving back into the
workforce,[23] and this is broadly
accepted by women and throughout society. But at the same time:
Other
critical elements of the gender culture are relatively unchanged. ... the care
of pre-school children remains a matter of parental
choice except for the very
poor. In reality we still marginalize the care of children. In our interviews
men expressed a stronger
interest in forging closer emotional ties with their
children, and many described their households as more symmetrical than the male
breadwinner model. Yet hardly any worked hours or developed careers in ways
that made any allowance for the presence of children.
The revolution in
expectations about women’s labour market participation seems to have
occurred without any corresponding
revolution in the care of children and the
domestic sphere.[24]
The
contradictions flowing from current expectations that women should work, but men
should still operate as ideal workers lead to
a conflict faced by women trying
to maintain both family commitments and work, to conform with social
expectations. Probert notes
the conflict between expectations that mothers
should be employed, while at the same time they will act altruistically in the
family
in caring for children. They are then open to criticism for pursuing
their own “selfish” interests through workforce
participation,
sacrificing the interests of their children (unlike men for whom this is
acceptable). She concludes that gender equity
in the workplace depends on the
development of a coherent family policy across the traditionally
separate portfolios of industrial relations and social security,
which removes
the conflicting pressures on women and sets up incentives and structures to
acknowledge the care of children and
others.[25]
Work-family
choices are very often discussed as, and assumed to be, the result of
women’s own private choices and preferences.
Much of the debate about how
non-parents are disadvantaged by family-friendly work practices treats children
as no more than a lifestyle
choice, the price of which should be paid by those
who choose it. Constructing work/family as a question of individual choice
attempts
to put responsibility on the individual, and to undermine claims for
justice on the basis that those who choose to have children
should not complain,
but should just accept the consequences of it, for example through
discrimination avoidance behaviour. But
arrangements around children should not
be faced as an individual dilemma by each parent. Women cannot avoid having to
make their
choices about caring for their children in the context of the current
organisation of the workforce and the current ideologies of
gender,
women’s role, and the pre-eminence of the ideal worker which create unfair
structures as a result of contradictory,
incompatible expectations. Although
individuals have to make choices, the results of those choices are constrained
and conditioned
by the social and policy framework within which the choices must
be made. The continuance and maintenance of that framework is not
neutral. An
effective solution to the problem is unlikely to be found while the ideology of
individual choice conceals the use of
male paradigms, and inconsistent
incompatible expectations of women, to limit their opportunities.
This article does not aim to comprehensively state the legal position on
part time work.[26] Instead,
several recent cases concerning claims of discrimination relating to part time
work or work-family conflict are examined
to identify implicit understandings
about part time work.
Although there have been several decided cases on
access to part time work, the law provides only limited protection to mothers
working
part time.[27] In Western
Australia it has been held that requiring a period of full time work to convert
a temporary teaching position into a
permanent one was indirectly
discriminatory.[28] In several
cases it has been decided that a refusal to allow a woman to work part time
after return from maternity leave was discrimination,
as the refusal had not
been adequately justified according to the applicable statutory standard. The
1985 English case Holmes v Home
Office[29] led the way when the
refusal of the Home Office to allow Ms Holmes to return to work part time after
the birth of her child was held
to amount to indirect sex discrimination because
no adequate justification for it had been provided. In Australia, it was held
in
Hickie v Hunt and Hunt[30]
in 1999 that a requirement that a contract partner in a law firm work full time
(when she returned to work after maternity leave)
amounted to indirect
discrimination. Despite its impact, this decision is disappointing as a
precedent because Commissioner Elizabeth
Evatt, acting as a hearing commissioner
of the Human Rights and Equal Opportunity Commission, reached her conclusion on
the facts
of the particular case, and gave very little guidance on what
principles might guide courts or tribunals in future. Although no
appeal was
brought against the decision, and the Hearing Commissioner’s reputation
gives it some authority, as a decision of
an administrative tribunal it has no
specific legal precedent value.
Perhaps more valuable is the decision of
the WA Equal Opportunity Tribunal in Bogle v Metropolitan Health Service
Board,[31] in which the issues
were more fully discussed. Mrs Bogle held a full time supervisory dental nurse
position, and sought to return
to it part time in a job share arrangement after
her return from adoption leave. While Hickie was decided on the basis of
indirect discrimination under the Sex Discrimination Act 1984 (Cth) (SDA)
prior to the 1995 amendments,[32]
Bogle relied on the family responsibilities ground in the WA Equal
Opportunity Act 1984. The decision contains a lengthy and useful discussion
of the reasons given by the Metropolitan Health Service Board as to why part
time employment was not suitable for Mrs Bogle’s supervisory position.
Ultimately however, the Tribunal found that the Board
had made its decision on
the basis of belief and intuition, which did not provide an adequate
justification for concluding the job
could not be done effectively through a job
share arrangement. While this is only a tribunal decision, it is fully reasoned
and
a useful guide to dealing with prejudices or beliefs concerning the need for
supervisory, managerial or high level jobs to be undertaken
full
time.[33]
Two other
decisions on related work-family issues also throw light on this area. Laz v
Downer[34] concerned
availability for overtime without notice, a big problem for anyone responsible
for child care, while Schou v
Victoria[35] dealt with
availability of home-based work. In Laz, the Federal Court upheld a
claim of unlawful termination under s.170CK(2)(f) of the Workplace Relations
Act 1996 brought by Ms Laz, a personal assistant to the managing director of
a company. Disputes had arisen over her obligation to work overtime
at short
notice. She worked overtime when it was arranged in advance, but on certain
days could not do so without advance notice
as her husband was studying and was
not available to care for their 18 month old. Moore J held after examining her
employment contract
and arrangements, that a requirement to work overtime
without notice was not an inherent requirement of her job, and that the
constructive
termination of her position was unlawful. The remedy sought, and
granted, was reinstatement.
In Schou v State of Victoria the
Victorian Civil and Administrative Tribunal (VCAT) upheld a complaint of
indirect discrimination on the ground of parental status
when the State failed
to implement an agreement it had made with Ms Schou, an experienced Hansard
sub-editor, that she could continue
to work full time but undertake two of her
full time days at home using a modem it would provide. She had sought this
arrangement
to help reconcile her work with the needs of her younger son who
suffered asthma and separation anxiety, which was expected to pass
over time. Ms
Schou had tried to request part time work on two earlier occasions but had been
told that it was not possible. These
occasions were found not to involve
discrimination because the Tribunal decided that she had dropped her request for
part time work,
it had not been refused. Thus the decision concerned home-based
work as part of a full time job, rather than access to part time
work. Ms Schou
resigned when the modem was not provided over the following months.
The
VCAT decision was set aside by the Supreme
Court,[36] which held that the
Tribunal had erred in law when it failed to consider the reasonableness of the
“attendance” requirement,
that Hansard employees should attend the
office for all their working time. Harper J’s judgment was unsympathetic
to the use
of the indirect discrimination provisions to seek adjustment, even
temporarily, to what he regarded as the justifiable terms of the
contract of
employment, to meet the domestic needs of an employee. He pointed out that that
employee would be receiving a “favour”
which other employees might
also want, and questioned where the limits of such a requirement might be set,
for example where an employee
has a chronically sick child. He quoted with
apparent approval the dissenting judgment of Brennan J in Waters v Public
Transport Corporation[37]
disapproving the potential breadth of impact of the indirect discrimination
provisions of the Equal Opportunity
Act.[38] Harper J commented
that social changes “should nevertheless not be made by forcing the Equal
Opportunity Act to do that which the democratically elected Parliament did not
intend it to do”.[39] However
it is hard to see how Harper J knew or suspected that this use of the Act would
be beyond what the democratically-elected
Parliament might have intended, as he
did not discuss in detail the interpretation of the indirect discrimination
provisions of the
Act. In statutory interpretation, parliament is usually taken
to have intended the consequences which a legal interpretation of
its language
leads to. Nor did the judgment refer to any of the relevant case law on
interpreting indirect discrimination: neither
the decision of the majority of
the High Court in Waters (which upheld the broad potential of the
indirect discrimination provisions), nor any of the cases where its application
to similar
circumstances has been explored (including Holmes,
Hickie, and Bogle’s cases. However, many of the rather
unsympathetic statements in the judgment are not part of the ratio, which merely
required VCAT
to rehear the case and make a finding of fact on the
reasonableness of the full time attendance requirement.
The case
highlights the contradiction between the State as policy setter advocating
family friendly measures generally and in its
own workforce, and the reality of
the State as employer, acting tenaciously in defence as a litigant. In
Bogle, the WA Tribunal noted the existence of state government policy and
publications designed to facilitate flexible work practices including
part time
work, while the Victorian Tribunal did not mention these at all. The major
challenge in the work-family area is to ensure
not only that policies are
adopted which allow progress, but that those policies can be actually taken up,
and used without disadvantaging
workers, thereby moving into the reality of
people’s working arrangements.
None of the Australian decisions on
part time work or job share has been directly affirmed by a court, and doubts
about their precedent
value must remain. Ultimately this series of cases may
provide some entitlement for women already in a position to convert that
position to permanent part time. But rights provided in this way are provided
negatively and do not necessarily contribute to the
development of new paradigms
of work or new understandings of what the worker contributes. Whether law can
prevent exclusion of
part time workers from career progression has not yet been
explored. Nor does current law provide any basis for challenging the practice
of
offering professional career track jobs only full time. While a complaint of
discrimination could be brought, there is so little
guidance on the law that it
may be very difficult to combat the underlying assumptions in favour of
traditional practices, such as
that responsible, authoritative or powerful jobs
can only be done full time, and that part timers are not suitable for senior
positions.
Some help may be gained from section 7C of the Sex Discrimination
Act (SDA) which puts on the respondent in an indirect discrimination case
the onus of showing the reasonableness of a challenged practice
which has a
disproportionate effect on a protected group. On the other hand, a case which
is not conciliated under the SDA now has
to go for adjudication in the Federal
Court or Federal Magistrates Court, where the loser will have to pay the
winner’s costs.
In cases against large employers like large companies and
governments, it is common for an expensive legal team to be used, increasing
the
size of the risk of losing and paying costs that a complainant must confront.
This is a disincentive to test the law in areas
of uncertainty or where
recognition of social change is sought and promotes use of state
anti-discrimination systems where costs
are rarely awarded.
The use of
sex discrimination law is a very limited avenue for development of the law.
What is needed is to develop policy and the
legal framework for family friendly
measures, as well as mechanisms to encourage their use and challenge prejudices.
While there
are sources at the international level, such as the ILO Convention
156 on the Workers with Family Responsibilities (ratified by Australia
in 1990),
which could provide a basis for developing policy, implementation has been
limited and slow, perhaps because many in positions
of power can see no reason
to disturb existing workforce ideologies, which serve their needs well.
It has been said that there has been a “massive social revolution,
with women working outside the home in unprecedented numbers.
Women’s and
children’s lives have altered enormously. Astoundingly, men’s lives
have barely altered at
all”.[40] If full time work
and dealing with a work overload are elements of the male paradigm, it is easy
to see how they can be used to
exclude the majority of women who have children
from positions of seniority or power in the workforce. Limited offerings of
part
time positions results in women concentrating in casual and insecure badly
paid work which further reinforces their lack of bargaining
power within the
family. When women follow either of these patterns the male norm is cemented.
The challenge is to increase the
spread and acceptability of part time work for
men and women, and to increase the acceptability of caring for children for both
men
and women. Developing a better model of part time work and its rationale is
an important step along the way.
[*] B Sc (Melb) LLB (Hons) (Monash) LLM (UC Berkeley) Senior Lecturer, Law Faculty, Monash University.
[1] P McDonald, ‘Contemporary fertility patterns in Australia: first data from the 1996 Census’ (1998) Vol 16 No 1 People and Place; ‘Low fertility in Australia : evidence, causes and policy responses’ (2000) Vol 8 No 2 People and Place at 6.
[2] See Equal Opportunity for Women in the Workplace Agency, Equity Statistics (compiled from December 2000 ABS data) at <http://www.eeo.gov.au/resources_centre/statistics/ statistics_index.html> , which show that 43% of employed women work part time, 32% of female employees are casual, and that 67% of part time casual employees are female: Work Organisation at 6.
[3] J Scott, ‘Deconstructing Equality versus Difference: or, the uses of Poststructuralist Theory for Feminism’ (1988) Feminist Studies 33; V Schultz, ‘Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases raising the Lack of Interest Argument’ (1990) 103 Harvard Law Review 1749.
[4] V Held, ‘Feminist
interpretations of liberty and equality’ in Feminist Morality:
Transforming Culture, Society and Politics University of Chicago Press
Chicago 1993 at 171.
[5]
Ibid at 172-173.
[6] J
Bourke, Corporate Women, Children, Careers and Workplace Culture: The
Integration of Flexible Work Practices into the Legal and Finance
Professions, Industrial Relations Research Centre, University of NSW Sydney
2000 at 20.
[7] Bourke,
ibid at 48 gives as examples of “honorary men” the cases of
Price-Waterhouse v Hopkins [1989] USSC 85; (1989) 490 US 228 and Dunn-Dyer v ANZ
Banking Group Ltd [1997] HREOCA 52 (29 August 1997).
[8] Bourke, supra n 6 at
50-51.
[9] Ibid at
51.
[10] [1984] 3 All ER
449.
[11] Human Rights and Equal
Opportunity Commission [1998] HREOCA 8 (9 March 1998), digest reported (1999)
EOC 92-910.
[12] Equal
Opportunity Tribunal WA (2000) EOC 93-069 (7 January
2000).
[13] Bourke, supra
n 6 at 52.
[14] Ibid at
42.
[15] Ibid at
54.
[16] Change will also depend
on the reduction of unequal pay, since people deciding about workforce
participation are likely to seek to
retain maximum income with the lower income
earner (at present most often the woman) more likely to leave or reduce their
work.
[17] J Williams,
Unbending Gender: Why Work and Family Conflict and What to do about
it, Oxford University Press New York
1999.
[18] Ibid at
2.
[19] R Drago, A Crouter, M
Wardell and B Willits, Final Report to the Alfred P Sloan Foundation for the
Faculty and Families Project, Pennsylvania State University, 14 March 2001
at 3. The report is available at:
<http://lsir.la.psu.edu/workfam/faculty&families.htm>.
[20]
Human Rights and Equal Opportunity Commission, Pregnant and Productive:
It’s a right not a privilege to work when pregnant, HREOC Sydney
1999.
[21] B Probert,
‘‘‘Grateful slaves” or “self-made women”: a
matter of choice or policy?’ Clare Burton Memorial Lecture 2001,
RMIT University, 2 August
2001.
[22] Ibid at
4.
[23] Ibid at
7.
[24] Ibid at
10-11.
[25] Ibid at
12.
[26] In 1990 Australia
ratified ILO Convention 156 on Workers with Family Responsibilities 1981,
which requires governments to “make it an aim of national policy to enable
persons with family responsibilities who are
engaged or wish to engage in
employment to exercise their right to do so without discrimination and, to the
extent possible, without
conflict between their employment and family
responsibilities”. But legal implementation has been limited. A ground
prohibiting
termination of employment on the ground of family responsibilities
was added to the Sex Discrimination Act 1984: s.14(3A) and the
Workplace Relations Act 1996: s. 170CK(2)(f), and see s.93. State equal
opportunity legislation prohibits discrimination on the basis of family
responsibilities (WA), parental or carer status
(Victoria, Queensland, Tasmania,
ACT, NT) or carer’s responsibilities (NSW), but few indirect
discrimination cases have tested
these provisions.
[27] R Hunter in
‘Part-time work and indirect discrimination’ (1996) 21
Alternative L J 220 outlined early cases in Australia, eg where
advancement depended on full time
work.
[28] Speering v
Ministry of Education (1993) EOC 92-513; Nicholls v Ministry of
Education (1994) EOC
92-573.
[29] [1984] 3 All ER
449.
[30] [1998] HREOCA 8 (9
March 1998), digest reported at (1988) EOC
92-910.
[31] Equal Opportunity
Tribunal WA, 7 January 2000, (2000) EOC
93-069.
[32] Among the 1995
amendments to the Sex Discrimination Act 1984 was the introduction of ss
7B and 7C according to which the onus of (dis)proving reasonableness as a
defence to indirect discrimination was moved from the complainant
to the
respondent.
[33] The rationale
that part time workers will be insufficiently available to clients or colleagues
can be seen to be based on prejudice
or stereotype when it is raised only in
against part timers, even though full time staff are also frequently unavailable
through
travel, meetings with clients, attendances at court or other
commitments, holidays and many other reasons. See eg. P Hutton Raabe,
‘Pluralistic Work and Career arrangements’ in S Lewis and J Lewis
(eds), The Work-Family Challenge; rethinking employment Sage London 1996
128 at 134.
[34] [2000] FCA 1390; (2000) EOC
93-111.
[35] (2000) EOC 93-100
(20 April 2000, liability) and (2000) EOC 93-101 (20 July 2000,
damages).
[36] The State of
Victoria v Shou [2001] VSC (Unreported, Harper J, 31 August 2001)
321.
[37] [1991] HCA 49; (1991) 173 CLR 349.
[38] Ibid at
372.
[39] [2001] VSC 321 at para
15.
[40] C Sherry, ‘Men at
work leave women holding the baby’ Sydney Morning Herald, 9 March
1998, 17, quoted by Bourke, supra n 4 at 39.
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