The Fatherhood Foundation

Kia mau koe ki te kupu a tou matua
Hold fast to the words your father gives you

Complaint to Human Rights Commission
regarding the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act

February, 2003

National Committee
Father and Child Society

The New Zealand Father and Child Society

The Father and Child Society was established in March 1998 and formally incorporated in November 1998. It was created to give local father groups / organisations support in setting up and running initiatives, as well as to improve access to information and improve communication between these groups. It was also formed to represent fathers on a national level through the government's ongoing consultation process with the community.

Our complaint

The Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act discriminates against fathers in heterosexual families. We believe this is in breach of Part II, section 21 of the Human Rights Act 1993 that renders discrimination on the basis of sex unlawful.

Background

When the first parental leave legislation was passed in the early 1980s (Maternity Leave and Employment Protection Act 1981) many groups opposed this legislation because it was only available to women. The then newly formed Human Rights Commission was amongst these groups. In the mid 1980s, this legislation became gender neutral (Parental Leave and Employment Protection Act 1987). Under this legislation job protection is available to both parents in heterosexual couples. However, the leave was still unpaid. In late 2001 legislation was introduced to amend the 1987 Act to make paid leave available. This legislation came into effect in July 2002.

The basis of our complaint

While progressive in its overall aim to support families in the first months of a child’s life New Zealand’s recently enacted paid parental leave legislation is openly discriminatory in nature. For biological parents, only the mother has the right to take paid leave (Part II, Section 71D, 23(a)). [1] However, if she wishes, she can transfer this to the father provided the father is also eligible for job protection in his own right. We recognise that Part II, Section 74 of the 1993 Human Rights Act allows “preferential treatment relating to pregnancy and childbirth, and family responsibility”. However, while pregnancy and childbirth are sex-specific functions, family responsibility is not. We also note that "measures to ensure equality" are not unlawful under the Human Rights Act (Part II, Section 73). While paid parental leave may, in itself, be a measure to ensure equality between parents and non-parents by compensating parents who take time out of paid work to look after their infants, not giving fathers equal rights to paid leave actually undermines the achievement of equality between women and men.

We assume that the term childbirth refers to both the actual act of giving birth and some subsequent recovery period. This period is not stated in the Act. Research provides little guide as to the time needed for recovery after childbirth. The length of time depends on a range of factors, including the birthing experience as well as a host of emotional, physiological, and socio-cultural factors (e.g. Gjerdingen, Froberg & Kochevar, 1991; McGovern, Dowd, Gjerdingen et al., 1997, 2000). For instance, maternal recovery is usually longer for women who have given birth by caesarean section and may require the women’s partner to take parental leave to care for her. U.S. research indicates that around 10 percent of women are back at work with a week of giving birth (Klerman and Leibowitz, 1994) while New Zealand research indicates that around a fifth of mothers may be back at work within the first month of a child’s life (Callister, 1995). While the availability of paid leave may change these figures, there will always be a group of mothers who need or wish to return to work shortly after giving birth.

Based on overseas experience we believe that if mothers and the fathers in heterosexual couples were given equal rights to take a period of paid leave, and the choice of who took the leave was left to these parents, then in most situations it would be the mother who took the leave (Moss & Deven, 1999). Research both in New Zealand and overseas nevertheless indicates that in a small number of families it will be the father rather than the mother who becomes the primary caregiver from the time of the birth (Callister, 1994). The following hypothetical examples illustrate the way in which the discriminatory nature of the New Zealand legislation can disadvantage not only fathers who wish to or need to take on the primary caregiver role, but also potentially their partners and children.

Case study 1

A mother has been at home looking after a first child. She has a difficult second birth and needs full-time support at home from her husband to look after her and the new baby. Her husband is in a low-income job but is eligible to take unpaid leave. However, because the mother is not eligible for job protection she cannot pass on her entitlement for paid leave. The father therefore cannot take a period of paid leave to look after the child and the mother. The mother struggles with caring for herself and the baby and, as a result, stops breastfeeding early.

Case study 2

The mother is self employed and therefore not eligible for paid leave. The father is eligible for job protection, but the mother cannot pass on her entitlement for paid leave. The mother wishes to return to work two weeks after giving birth. The father plans to look after the child at home for three months before the child can start attending a childcare centre. In this time, the mother wishes to exclusively breastfeed the child and this is made possible by the father bringing the baby to the workplace twice a day. However, this situation may not be possible due to the lack of income support.

Case Study 3

The mother is a full-time student during her pregnancy and wishes to return to her study two weeks after giving birth. She does not wish to breastfeed her baby. Her partner, who has been supporting her financially during her studies, is eligible for job protection. However, under the legislation he is not able to take a period of paid parental leave.

When this legislation was introduced one of the supporting arguments was that, on average, women have had lower lifetime earnings than men because they have tended traditionally to take time out of paid work to look after children. In addition, taking time out of paid work involves an immediate loss of income for the period of leave. There is research indicating that taking an extended period out of paid work can lower lifetime earnings for women (Blau et al., 2001; Joshi et al., 1999; Shapiro and Mott, 1994; Waldfogel, 1995, 1998) [2]. Providing a payment for leave helps reduce the financial penalty that can accrue from taking leave. However, other ways for women to attain gender equality would be for them to exhibit behaviour more typical of men and/or men to exhibit behaviour more typical of women. Research by New Zealand economist Keith Rankin (2002) into the pay gap between men and women indicates that unequal outcomes in the labour market will continue if we only focus on barriers to women in the workplace. Closing the pay gap also requires equality in the home. As already illustrated, the paid parental leave scheme provides barriers against fathers taking a period of leave and thus works against achieving equality in the home. It is therefore not legislation that could be considered as a measure to “ensure equality” (Human Rights Act 1993, Part II, Section 73).

In Sweden, a country which took an early lead in creating gender neutral parental leave, measures to ensure equality are, in fact, now primarily directed at encouraging fathers to increase the time they spend on leave relative to mothers (Galtry and Callister, 1995; Leira, 1999). While it is mothers who still take most of the paid leave in Sweden, fathers nevertheless take more leave than in any other country in the world (ibid). In a study of ways to encourage fathers to take more parental leave undertaken for the Nordic Council of Ministers Carlsen (1998: 10) notes:

If men are not granted independent rights to leave and are not entitled to the same level of economic compensation as women, this constitutes negative discrimination.

The eligibility criterion under the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act is an example of negative discrimination. Other Swedish research supports the benefits to both men and women of providing an independent nontransferable right to fathers to take leave (Haas, Allard and Hwang, 2002).

Finally, the paid parental leave scheme is contrary to the intent of Article 18 of the United Nations Convention on the Rights of the Child. Article 18 stresses the need for governments to support both parents in raising a child.

Conclusion

The Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act is a discriminatory piece of legislation. As such, we believe it is in breach of Part II, section 21 of the Human Rights Act 1993 that make discrimination on the basis of sex unlawful. While a short sex specific period of leave may be justified on the basis of pregnancy and childbirth, the primary eligibility to access the whole 12 week paid period for childcare should not be determined on a sex-specific basis. While producing breast milk is clearly a sex-specific activity, having 12 weeks sex-specific leave cannot be justified on this basis for two reasons. First, some women choose not to breastfeed or cannot breastfeed. Second, as outlined, there are some situations where fathers having independent rights to take paid leave will best support optimal breastfeeding. The legislation also does not meet the criteria for ensuring equality. Finally, while we are concerned about the discriminatory nature of the current legislation we are also worried that if the length of paid leave is extended in subsequent legislation the current eligibility criteria would apply to the extended period of leave as well.

 

References

Blau, F. D., Ferber, M. A. & Winkler, A. E. (2001) The economics of women, men, and work. Upper Saddle River, New Jersey: Prentice Hall (Fourth Edition).

Callister, P. (1994) Fathers as primary caregivers in two parent families, paper presented to the 1994 New Zealand Association for Research in Education, December 1-4, Christchurch.

Callister, P. (1995) Partnered mothers’ participation in paid work: New Zealand, Sweden, and the United States, in P. Callister et al (eds.), Striking a balance: Families, work and early childhood education (pp. 169-190), NZCER: Wellington.

Carlsen, S. (1998) Men on parental leave: How men use parental leave in the Nordic countries. Report prepared for the Nordic Council of Ministers.

Galtry, J and Callister, P. (1995) Birth and the early months: Parental leave and paid work, in P. Callister et al. (eds.), Striking a balance: Families, work and early childhood education (pp. 13-75), NZCER: Wellington.

Gjerdingen, D. K., Froberg, D. G. & Kochevar, L. (1991). Changes in women’s mental and physical health from pregnancy through six months postpartum. Journal of Family Practice, 32, 161-166.

Haas, L., Allard, K. and Hwang, P. (2002) The impact of organizational culture on men’s use of parental leave in Sweden, Community, Work & Family, 5(3): 319-342.

Joshi, H., Paci, P., Waldfogel, J. (1999) The wages of motherhood: Better or worse? Cambridge Journal of Economics, 23: 543-564.

Klerman, J. A. and Leibowitz, A. (1994) The work-employment distinction among new mothers, Journal of Himan Resources, XXIX(2): 277-303.

Leira, A. (1999) Cash-for-child care and daddy leave, in P. Moss and F. Deven (eds), Parental leave: Progress or pitfall? Research and policy issues in Europe (pp. 267-291), Brussels: Vlaamse Gemeenschap/CBGS.

McGovern, P., Dowd, B., Gjerdingen, D. K., Moscovice, I., Kochevar, L. & Lohman, W. (1997) Time off work and the postpartum health of employed women. Medical Care, 35: 507-521.

McGovern, P., Dowd, B., Gjerdingen, D. K., Moscovice, I., Kochevar, L. & Murphy, S. (2000) The determinants of time off work after childbirth. Journal of Health Politics, Policy and Law, 25: 527-564.

Moss, P. and Deven, F. (1999) Parental leave: Progress or pitfall? Research and policy issues in Europe (pp. 1-24), Brussels: Vlaamse Gemeenschap/CBGS.

Rankin, K. (2002) Equality as parents must be our focus, New Zealand Herald, 10th September.

Shapiro, D. and Mott, F. L. (1994) Long-term employment and earnings of women in relation to employment behavior surrounding the first birth. The Journal of Human Resources, 24: 249-275.

Stafford, F. P. and Sundström, M. (1994) Time out for childcare and career wages of men and women. Paper presented at the 6th Annual Conference of the European Association of Labour Economists, Warsaw, September 23-25.

Waldfogel, J. (1995) The price of motherhood: Family status and women's pay in a young British cohort. Oxford Economic Papers, 47(4), 584-610.

Waldfogel, J. (1998) The family gap for young women in the United States and Britain: Can maternity leave make a difference? Journal of Labor Economics, 16: 505-45.

 

Footnotes

[1] Section 71H of the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act covers joint adoptions with point 1 noting that “If 2 spouses assume the care of a child with a view to adoption by them both jointly (a) the spouses must jointly nominate which 1 of them is to be primarily entitled to the parental leave payment”

[2] The little research on the financial costs of men taking parental leave indicates that this is not a gender specific cost, with fathers also being penalised when they take time out (Stafford and Sundström, 1994).

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