Human Rights Commission Submission on the Paid Parental Leave Amendment Bill

 


Social Services Select Committee

                                                                                                                                                        
Introduction
 
The Human Rights Commission and Employment Rights

Thank you for the opportunity to comment on the Paid Parental Leave (PPL) Amendment Bill.  The Human Rights Commission supports paid parental leave as one of many measures necessary to:

 

  • improve women’s participation in and attachment to the labour market, 
  • improve economic well-being for women and their families, and to minimise the effects of poverty,
  • make further steps towards complying with international standards,
  • contribute to the many economic benefits for businesses by improving staff retention and productivity, and
  • contribute to the national economy by strengthening women’s participation in the labour market.
  •  

The Human Rights Act 1993 has been progressively amended to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants and Conventions on Human Rights. The primary functions of the Human Rights Commission are (a) to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society; and (b) to encourage the maintenance and development of harmonious relationships between individuals and among the diverse groups in New Zealand society. The Human Rights Commission has a broad interest in the promotion of parental leave provisions as a fundamental human right. 

 

The Human Rights Commission has a specific statutory responsibility in relation to discrimination in employment. The Human Rights Act prohibits discrimination on the grounds of sex and in relation to employment matters.   The Commission provides a disputes resolution service to help resolve complaints of discrimination, including those relating to government legislation and policy.  Parts of this submission draw on information obtained through the Commission’s disputes resolution service.

 

Additionally, the Human Rights Commission has been given an enlarged mandate for employment equity by the creation of an Equal Employment Opportunities (EEO) Commissioner which came into force on 1 July 2002.   Section 17 of the Human Rights Act provides for the EEO Commissioner to lead discussions and provide advice on EEO matters, and “to evaluate… the role that legislation…play[s] in facilitating and promoting best practice in equal employment opportunities.”

 


Submission Focus


In this submission, the Commission will comment on the following aspects of the PPL Amendment Bill:

 

  • Eligibility provisions;
  • The period of the PPL payment in weeks;
  • The provision of breast-feeding breaks and facilities for mothers returning to work.


1.  Eligibility provisions


The aim of the legislation is to recognise the significance of childbearing in our society and economy, and to contribute towards the wellness of parents, their families, and the communities in which they live.  Paid parental leave helps to minimise longer-term social and economic costs associated with poverty, such as poor health, low workforce participation, and family violence. The Commission supports universal eligibility of paid parental leave to all those who work whether that work is paid or unpaid, while acknowledging that unpaid work by parents is addressed as part of the wider government social assistance programme.  


The Commission’s submission to the 2003 review of the Parental Leave and Employment Protection (Paid Parental Leave) Act supported extending the current eligibility criteria for the PPL scheme to include the widest range of proposed groups as progress towards universal eligibility.  Eligibility for all workers, paid and unpaid, formal and informal, would recognise the central role that all biological and adoptive parents play in building strong, healthy communities.


While acknowledging that fiscal constraints and linking paid parental leave to employment entitlements are barriers to the achievement of universal eligibility, the Commission is nonetheless committed to ensuring the widest possible pool of workers are eligible for the paid parental leave entitlements as set out in the international standards.  One of the objectives of the Amendment Bill is to ensure that the scheme is accessible to a larger number of employees.  But the Bill appears to do little to substantially increase the numbers of eligible workers. 
The Bill’s Explanatory Note suggests that 6800 more employees will be eligible for paid parental leave due to the Bill’s new provisions.  In the past, under half of all women who had babies took up the scheme;  it appears to the Commission that the Bill has a limited potential to significantly increase the actual scope of the scheme.


The Amendment Bill specifically addresses the problem that teachers experience when they are employed by more than one Board of Trustees by treating their multiple employment arrangements as that of one employer. The logic that is used for teachers should also be extended to a range of contract workers who, for a variety of reasons, may not fall within the ambit of the scheme due to a succession of concurrent or consecutive employment agreements.  Anecdotal evidence  to the Commission suggests that this is likely to be the case for contract workers such as cleaners, carers, and growers, where successive seasonal or employment arrangements require shorter-term contracts even when their actual work is continuous throughout the year.


Recommendation:  Contract workers whose workforce attachment is continuous should be eligible regardless of multiple employment arrangements.


International standards relevant to eligibility


There is a long-standing principle in the ILO Maternity Protection Conventions (103 and the more recent 183) to ensure paid leave provisions for women employed in non-traditional, agricultural, and home-based occupations.   Women providing domestic support in private households are also protected in these Conventions.   ILO Maternity Protection Convention 183 (2000) applies to “all employed women, including those in atypical forms of dependent work.”  


New Zealand has not ratified Convention 183 due to, among other things, the length of the paid leave, which is being addressed in the Bill. Should the Government do so, as a Member State New Zealand would be required to list the categories of workers excluded in the legislation, and to explain the reasons for their exclusion. 

 

Subsequent reports require Members to describe the measures taken with a view to progressively extending the eligibility provisions.   The intention of the Convention is therefore to encourage States to be as inclusive as possible and to account for the reasons why they are not inclusive.  This requires having a principled approach for the progressive realisation of international human rights standards when resources are scarce.


Feedback to the Commission relating to eligibility


The Commission has received two formal complaints and several enquiries about a perceived lack of fairness of the scheme in relation to eligibility. The two major areas of concern are:

 

  • Situations where either, or both, parents are not eligible for PPL because they have not worked for the same employer for more than 12 months;
  • Partners of biological mothers not having direct access to the scheme because eligibility is based on the employment status of the mother.

 

One complaint was from a teacher who was not eligible for the scheme.  This issue has been addressed in this Bill. 


A second complaint alleged that PLEP Amendment Act discriminates against fathers in heterosexual families and breaches Part II, section 21 of the Human Rights Act 1993 on the ground of sex. Under s71D(2)(a) only the mother is eligible for paid leave.  If she wishes, she can transfer this to the father, provided the father is eligible for job protection in his own right.   However, if a father is eligible in his own right for paternity leave or extended leave, he is ineligible for paid parental leave unless the mother is eligible.  The proposition that parental leave is made up of three parts – pregnancy, childbirth and childcare – is put forward in this complaint. Obviously, pregnancy and childbirth are sex-specific, and any provision for them relates only to women.  But in denying fathers the right to paid parental leave, they argue, it is undermining the achievement of equality between men and women, thus perpetuating the status quo.

 

While the issues are not clear cut, the complaint advances an arguable case which if it proceeded to the Human Rights Tribunal, would require a determination on whether or not it is technically discriminatory under s.21 of the HRA 1993.  However, there is undoubtedly a sense of grievance that must be addressed for partners of biological mothers, usually the father of the child, because of the perception that they miss out on direct access to the scheme and possibly to a more involved role in the caregiving of their child.  The legislation has created an unintended anomaly which has left some groups of people feeling excluded from a role to which they ascribe strong emotional attachment.
 
The Department of Labour has noted  that concerns have been raised that focussing eligibility on the mother only is discriminatory, and that families may miss out on leave and payment if the mother is not eligible but the father is. The PLEP Act was “an Act to prescribe minimum entitlements with respect to parental leave for male and female employees and to protect the rights of employees during pregnancy and parental leave,…”.

 

The Commission believes the Amendment Bill provides New Zealand with an opportunity to affirm the role of both mothers and fathers in accordance with Article 18 of the Convention on the Rights of the Child, which states:

 

States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.


International Standards

 

There is an abundance of reference in international law about equitable access for men and women to parenting and paid parental leave provisions. Specific provisions in international instruments to which New Zealand is a party are detailed in Appendix 1.

 

Recommendation: In the best interests of the child, the Bill should address the anomaly in section 71D(2) with regard to eligibility of partners.

 

Wider human rights considerations with regard to eligibility

 

New Zealand is bound by Article 3 of the Convention on the Rights of the Child to ensure that all actions concerning children, including those undertaken by legislative bodies, hold the best interests of the child as a primary consideration.


Article 5 requires New Zealand to “respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognised in the present Convention.”


There is little argument that a child benefits from the active involvement of two adult caregivers.  Although in the majority of cases this involves two biological parents, there are a number of situations in modern family life where both parents are not providing the child with the necessary care, for example, in cases of divorce, separation, the death of a parent, sole parenting, whāngai arrangements, and non-traditional family groupings. Compliance with the Convention on the Rights of the Child suggests more flexible arrangements are necessary to address the best interests of the child. Paid parental leave entitlements should not be limited to those families that subscribe to a traditional model.  Entitlements should be able to be transferred to a range of nominated caregivers, regardless of family structure or relationships.


Recommendation: The Bill be amended to extend leave and payment provisions to include other caregivers, for example grandparents, other relatives, and those looking after children under whāngai arrangements.

 

2.  The period of paid parental leave in weeks


The Commission strongly commends the Government for working towards the achievement of a 14-week paid parental leave period.  In doing so, the Government is re-affirming its understanding of and commitment to the international standards that guide and inform the development of domestic policy. 


The next step for the further realisation of the international human rights standards is to extend the scheme to at least 18 weeks as set out in Recommendation 191 which accompanies ILO Convention 183. This step would again affirm the significance of international human rights standards and reinforce New Zealand’s role as an active leader in the international human rights system.


Recommendation: The Government works toward extending the scheme to at least 18 weeks in accordance with Recommendation 191 on ILO Convention 183.


3. The provision of breastfeeding breaks and facilities for mothers returning to work


In its 2003 review of the scheme, the DOL considered including provisions for breastfeeding breaks and facilities in this legislation.  The Commission is disappointed that the Bill does not include such provisions. A woman’s right to breastfeed (and a child’s right to be breastfed) is strongly supported by international law and non-binding international agreements  and specific provisions for breastfeeding are made in CEDAW and in  ILO Conventions 111, 183, and 186.


As the recent ILO global report, Time for Equality at Work, points out, “The workplace, be it a factory, an office, a plantation, a farm or the street, is a strategic entry point from which to combat discrimination in society. People that are denied equal opportunities, equal treatment and dignity at work often suffer discrimination in other spheres as well.”    The positive impact of breastfeeding at work provisions would not only be within workplaces, but for society at large.


Enhancements to breastfeeding provisions and facilities at work contribute to improving gender equity at work, increase and improve women’s participation in the labour market, and help support the long-term health and well-being benefits for both working women and their children.


An overseas example of the domestic policy which recognises the right to breastfeed at work can be found in Belgium where the National Labour Council, the “most important national bipartite negotiation and consultation body in Belgium”  developed a collective agreement which introduced a right to breastfeeding breaks at work for nursing mothers since 2002.  The agreement entitles the employee to interrupt her work in order to breastfeed or to express milk for babies up to seven months old.  The break is paid for through an allowance charged to health insurance funds.


Justification for this agreement was said to bring Belgian provisions into line with ILO Convention 183, which states breastfeeding breaks “shall be counted as working time and remunerated accordingly.” 


Feedback to the Commission


There are a range of activities that can promote and protect the right to breastfeed, one of which is legislation.  Unlike other countries  New Zealand has not enacted law to support breastfeeding in public or at work. However, the Human Rights Act and Employment Relations Act contain anti-discrimination provisions which in theory apply to breastfeeding women.  To what extent these provisions protect breastfeeding women has never been tested in New Zealand courts.  The Employment Relations Service has no record of handling breastfeeding complaints under the ERA.  However, the Commission’s disputes resolution service has dealt with several complaints of breastfeeding, but these have usually been in situations where the woman is asked to leave a public place, café, or restaurant because she is breastfeeding.


Enquiries to the Commission reflect confusion about a woman’s right to breastfeed, particularly in public.  Many women who have experienced negative reactions to public breastfeeding want its practice and benefits more widely understood and accepted in society.  For our part, the Commission is working to enhance the application of international human rights standards to guide and inform our work in this area.  Additionally, breastfeeding will feature in a discussion of emerging human rights issues in the New Zealand Action Plan for Human Rights Mana ki te Tangata, due for publication in August, 2004.


This Government has an unusual and important opportunity to implement the international right to breastfeed in New Zealand law with the PPL Amendment Bill.  


Recommendation: The Select Committee should consider how best to support the promotion and protection of breastfeeding in this Bill.
 
Summary of recommendations:

 

  •  Contract workers whose workforce attachment is continuous should be eligible regardless of multiple employment arrangements.
  • In the best interests of the child, the Bill should address the anomaly in section 71D(2) with regard to eligibility of partners.
  • The Bill be amended to extend leave and payment provisions to include other caregivers, for example grandparents, other relatives, and those looking after children under whāngai arrangements.
  • The Government works toward extending the scheme to at least 18 weeks in accordance with Recommendation 191 on ILO Convention 183.
  • The Select Committee should consider how best to support the promotion and protection of breastfeeding in this Bill.

 

 
Appendix 1 – Relevant provisions in international human rights treaties

 

United Nations Convention on the Rights of the Child

 

Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.


2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.


3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.


Convention on the Elimination of all forms of Discrimination Against Women


Bearing in mind the great contribution of women to the welfare of the family and to the development of society, so far not fully recognised, the social significance of maternity and the role of both parents in the family and in the upbringing of children, and aware that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole,


Aware that a change in the traditional role of men as well as the role of women in society and in the family is needed to achieve full equality between men and women


Article 5


States Parties shall take all appropriate measures:


1.To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women;


2.To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.


Article 11


2. In order 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:


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;


Article 16

 

1) States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:

 

(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;


International Covenant on Economic, Social and Cultural Rights

Article 10


2. Special protection should be accorded to mothers for a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits.