HRC Submission on the Parental Leave and Employment Protection (Paid Parental Leave for Self-employed Persons) Amendment Bill



Justice and Electoral Select Committee

17 February 2006

Introduction

The Human Rights Commission (the Commission) welcomes the opportunity to make a submission on the Parental Leave and Employment Protection (Paid Parental Leave for Self-employed Persons) Amendment Bill.

The Human Rights Act 1993 (HRA) 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. In brief, the Commission’s major functions are to advocate and promote respect for human rights; to encourage harmonious relationships between individuals and among the diverse groups in New Zealand; to lead, monitor and advise on Equal Employment Opportunities (EEO); and to receive complaints of discrimination. Parts of this submission draw on information obtained through the Commission’s disputes resolution service.

As this submission outlines, the Commission has supported the promotion of parental leave provisions as a human right, in line with the standards set in international human rights instruments. The Commission was given an enlarged mandate for employment equity by the creation of an EEO Commissioner which came into force on 1 July 2002. Section 17 of the HRA 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.”

Based on such an EEO assessment, the Human Rights Commission has consistently supported PPL as one of many measures necessary to: 

 

  •  improve parents’ (particularly 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 parents’ (particularly women’s) participation in the labour market.

    In this submission, the Commission comments on the following aspects of the Parental Leave and Employment Protection (Paid Parental leave for Self-Employed Persons) Amendment Bill:
  • Eligibility for paid parental leave (PPL), including extension of eligibility to self-employed persons
  • Other provisions supported in the Bill

Other improvements required in order to ratify ILO Convention 183


1 Eligibility provisions
The Commission strongly supports the Bill’s extension of PPL to self-employed people. The public policy objective of the Bill, as outlined in the Explanatory Note, is “to ensure that the benefits of paid parental leave payments are accessible to a wide range of parents in the workforce, regardless of their different forms of work and economic positions”. 

The Commission strongly supports the Bill’s extension of PPL to self-employed people. The public policy objective of the Bill, as outlined in the Explanatory Note, is “to ensure that the benefits of paid parental leave payments are accessible to a wide range of parents in the workforce, regardless of their different forms of work and economic positions”. 


The Commission made submissions to the Department of Labour’s 2003 review of the Parental Leave and Employment Protection (Paid Parental Leave) Act and on the 2004 Parental Leave and Employment Protection Amendment Bill. It has consistently supported extending the current eligibility criteria for the PPL scheme to include the widest range of proposed groups as progress towards universal eligibility, based on international human rights standards, EEO best practice and a consideration as to whether the PPL scheme could be deemed unlawfully discriminatory. Each of these three factors is analysed in more depth below.


EEO Best Practice


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. Eligibility to paid parental leave 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. 


The extension of PPL provisions to self-employed people is welcomed as a further step towards universal eligibility. It removes an illogical anomaly that deprived some workers, albeit in a different form of work, from the benefit of PPL entitlements. The guiding principles of EEO concern the elimination of barriers to participation in work by all groups and the promotion of equality and equity in the structures of work and in workplaces. Both principles are served by extending eligibility to PPL to self-employed people. This extension also acknowledges the contribution made by self-employed men and women to the New Zealand economy and to society generally. 


It is estimated that the proposals in this Bill would extend eligibility to approximately 2,173 additional new mothers each year. This expansion of the scheme’s eligibility criteria is supported by the Commission. However, this submission restates the Commission’s commitment to universal eligibility to PPL. 


The Commission strongly commends the Government for implementing a 14 week PPL period, in line with ILO Convention 183. It also notes international EEO best practice which has seen a number of OECD countries moving towards up to a year’s paid parental leave. The Commission recommends the Select Committee considers extending the length of New Zealand’s PPL provision, in line with such international trends. Such a measure would support health outcomes for both mothers and children, including the establishment of breastfeeding patterns. It would also enable parents to balance caring responsibilities and labour force participation.  


International standards relevant to eligibility 


The most detailed international human rights convention in relation to PPL is ILO Maternity Protection Convention 183 (2000), which focused on maternity leave. This convention applies to “all employed women, including those in atypical forms of dependent work.” 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. 


New Zealand has not ratified Convention 183 but has made considerable progress in recent years towards compliance.  

Specifically, the length of paid leave available in New Zealand is now in accord with the 14 weeks required under ILO 183. If the Government ratifies ILO 183, it would be required to list the categories of workers excluded in the legislation, and to explain the reasons for their exclusion. Subsequent country reports to the ILO require States Parties 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. 


New Zealand has ratified the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). Article 11 2(b) of that Convention requires States Parties to take all appropriate measures “to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances”. In July 2003 the UN CEDAW Monitoring Committee’s report “welcomed the authorization by the New Zealand Cabinet of the withdrawal of the reservation to article 11, 2 (b), of the Convention on the provision of PPL”. However, under its principal areas of concern and recommendations the Committee noted the following concerns: 


“411. While acknowledging the efforts undertaken by the State party to address discrimination faced by women in the labour market, the Committee is concerned that women remain disadvantaged in the labour market, that prerequisites and criteria qualify for paid parental leave may add to women’s difficulties in entering the labour market and that the level of benefits does not provide an incentive for men to take up parental leave. The Committee is concerned about the persistence of a gender pay gap, occupational segregation, the high number of women in part-time work and in temporary jobs, affecting their eligibility for paid maternity leave, and the low wages paid to women. The Committee is also concerned about the difficulties women face in reconciling their personal and family lives with their professional and public responsibilities.” 


As a result, the Committee made the following recommendations 


    1. “412. . . . The Committee recommends that the State party consider further amending the Parental Leave and Employment (Paid Parental Leave) Amendment Act with a view to ensuring that pregnancy under no circumstances creates an obstacle for women entering the labour market, and to removing the specific time limit which is required to qualify for paid parental leave, and to increasing the benefits level so that men are encouraged to take parental leave.”

      The Commission supports the concerns and recommendations outlined by the CEDAW Committee. It remains concerned that many women are still ineligible for PPL including seasonal and casual workers, temporary workers, those working fewer than 10 hours per week on average and those who have worked for their employer less than 6 months. Self-employed women working less than 10 hours a week will also be excluded from the eligibility.

      The Commission also supports any measures required to encourage and enable men to take paid parental leave.
      While the Commission supports universal eligibility to PPL, some specific improvements to the legislation would be initial steps towards realisation of this goal. Two specific examples are outlined below. 

 

  •  Multiple employment arrangements and 
  •  Extension of PPL provisions to other caregivers
     

Multiple Employment Arrangements

 
The Commission notes that the proposed section 71CC, as inserted by Clause 21 of the Bill, addresses the issue of multiple self-employment so that concurrent types of work are to be treated as a single period of self-employment, as are consecutive types of work provided the break between the engagements is 30 days or shorter. 


However section 2A of the Principal Act does not confer a similar right to employees. Instead “an employee's entitlement to rights and benefits in respect of parental leave must be determined by treating each of the employee's employments separately, if the employee has more than 1 employment.” The only exceptions to this general provision are medical practitioners employed by more than 1 District Health Board (section 2AB) and teachers employed by more than one Board of Trustees to work in more than one state or integrated school (section 2AC). Enabling other employees to combine consecutive or concurrent jobs in order to meet the eligibility criteria for PPL, would be one measure that could address the Commission’s concerns about the exclusion of many seasonal, temporary, casual and part-time employees from this scheme. 


The Commission’s submission on the 2004 Amendment Bill supported the introduction of section 2AC and argued that the rationale 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 workers such as cleaners, carers, and agricultural workers, where successive seasonal or employment arrangements require shorter-term contracts even when their actual work is continuous throughout the year. 


Therefore the Commission recommends that workers whose workforce attachment is continuous should be eligible for PPL even if their employment is covered by multiple employment arrangements. 


Extension of PPL provisions to other caregivers 


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. PPL 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. 


Therefore the Commission recommends that 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.

Unlawful discrimination complaints to the Commission relating to eligibility 


Since 2002 the Commission has received four formal complaints and several enquiries about a perceived lack of fairness of the scheme in relation to eligibility. Two of these complaints related to self-employed people’s exclusion from the scheme. That issue is addressed in the Bill. The other complaints and enquiries have identified two major areas of concern:

 

  • Situations where either, or both, parents are not eligible for PPL because they have not worked continuously for the same employer for the minimum period required in the Principal Act (previously 12 months and now 6 months); 
  •  Partners of biological mothers not having direct access to the scheme because eligibility is based on the employment status of the mother.      


In both cases it is unlikely that ineligibility for PPL would fall within a discrimination ground under the HRA. In the first instance, length of employment is not covered by any of the prohibited grounds of discrimination. However there is the possibility that a case could be made that “intra-ground” discrimination can amount to unlawful discrimination under the Act. In other words, that it is discriminatory under the ground of sex for one group of women to be excluded from eligibility for PPL. While there is no New Zealand case law on this issue, the Canadian Supreme Court has accepted the concept of “intra-ground” discrimination. 


The second complaint alleged that PLEP Amendment Act discriminates against fathers and breaches section 22 of the HRA 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 PPL unless the mother is also eligible. 


The complainant argued that parental leave is made up of three parts – pregnancy, childbirth and childcare. Obviously, pregnancy and childbirth are sex-specific, and any provision for them can only relate to women. However the complainant argues that denying fathers the right to paid parental leave, undermines the achievement of equality between men and women. 


One legal view on this issue has apparently been provided by the Office of Human Rights Proceedings and has been posted on the internet by the complainant. Based on that advice, and in the absence of a Human Rights Review Tribunal ruling, it is arguable whether or not such a case would fall within the ground of sex discrimination. It may be successfully rebutted that the primary purpose of PPL is to enable biological mothers to take leave in the latter stages of pregnancy, recover from childbirth and establish breastfeeding patterns. 


Such an interpretation could be supported by the fact that both CEDAW and ILO 183 focus solely on paid maternity leave and Article 10 (2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) states “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”. However, it should also be noted that both the United Nations Convention on the Rights of the Child (UNCROC) and CEDAW recognise parents’ common responsibilities for the upbringing and development of a child. 


Notwithstanding the complexity of the legal issues involved, the continued lodging and pursuit of similar complaints, indicates there is a significant sense of grievance felt by some male partners of biological mothers, because of the perception that they miss out on direct access to the PPL scheme. The legislation has perhaps created an unintended anomaly by excluding direct eligibility to this group of parents.

The Department of Labour has also noted similar concerns that focussing eligibility on the mother only may be unlawfully discriminatory. Specifically, families may miss out on leave in cases where the father meets the eligibility criteria but is still excluded because the mother is not eligible to take up the leave and therefore cannot pass it on to him.

In 2004 the Commission argued that the Amendment Bill provides 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. "


The Commission invites the Select Committee to reconsider this issue during debates on the current Bill. The Commission recommends that, in the best interests of the child, the Bill should address the anomaly in section 71D(2) with regard to eligibility of partners by ensuring their direct eligibility regardless of the mother’s eligibility. 

 

2 Other provisions supported in the Bill
 

The Commission supports clause 10 which amends section 10 of the Principal Act. This provision reduces the length of time a parent is required to be back at work before becoming eligible for a subsequent period of PPL. The effect of this amendment is that subsequent parental leave entitlements are available to an employee after 6 months have elapsed since the end of a previous period of parental leave. This halves the 12 month requirement in the current legislation, and ensures eligibility criteria for a subsequent period of PPL are consistent with those for an initial period of leave. 


The Commission also supports the additional two amendments outlined in the proposed subsection 3(2) of the Bill which simplify the applications process and increase procedural fairness and natural justice. Clause 29 inserts new section 71IA into the Principal Act to allow the Department of Labour discretion to approve irregular applications, narrowly defined as only minor discrepancies in the application form. Clause 40 inserts new section 71ZB into the Principal Act. The new section allows both employees and self-employed persons to apply to the Employment Relations Authority for a review of a decision made by the Department of Labour relating to a parental leave payment. 


3 Ratifying ILO Convention 183
        

The Commission notes that compliance with ILO 183 would require: 

 

  •  Broader eligibility to cover “all employed women, including those in atypical forms of dependent work”
  • A higher level of PPL payment as Article 6 (3) specifies that when payments "are based on previous earnings, the amount of such benefits shall not be less than two-thirds of the women's previous earnings"
  • The provision of breastfeeding breaks and facilities 


In its 2003 review of the PPL scheme, the Department of Labour considered including provisions for breastfeeding breaks and facilities in this legislation. The Commission is disappointed that this Amendment Bill does not include such provisions. A woman’s right to breastfeed (and a child’s right to be breastfed) are both 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. 


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 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.” 


Unlawful Discrimination complaints and enquiries to the Commission 


The right to breastfeed is substantiated in international law and has been given effect by a number of international agreements, domestic law, and by some overseas courts. There is no specific law to protect breastfeeding in New Zealand apart from anti-discrimination legislation, although other jurisdictions have enacted special legislation to protect and promote breastfeeding. In the current political and social environment, the Commission is likely to see an increase in the number of breastfeeding complaints received and policy work undertaken. 


Both the HRA and Employment Relations Act 2000 (ERA) contain anti-discrimination provisions which apply to breastfeeding women. To what extent these provisions protect breastfeeding women has never been tested in New Zealand courts. 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.
In February 2005 the Commission published a comprehensive report on The Right to Breastfeed outlining the key principles to be considered when assessing and addressing discrimination complaints. In April, it made a submission to the Health Select Committee on these issues. In June 2005 the Commission hosted a breastfeeding forum to enable greater understanding of breastfeeding discrimination. Visiting international expert, Professor George Kent, recommended that the Commission provide clear and accessible advice that supports breastfeeding women to understand their rights. As a result, the Commission has produced and distributed an electronic pamphlet on the right to breastfeed, available in a four different languages. 


The Commission recommends that, in their deliberation on this Bill, the Select Committee considers how best to support the promotion and protection of breastfeeding. In doing so, we invite the Select Committee to consider the analytical framework provided by the principles developed in The Right to Breastfeed report. 


Summary of Submission:

The Human Rights Commission supports the Bill, specifically:

  • extending paid parental leave to self-employed parents
  • reducing the minimum period before an employee is entitled to a subsequent period of PPL 
  •  allowing a right of review by the Employment Relations Authority in respect of entitlement to a parental leave payment

 

 

The Human Rights Commission recommends improvements to the Bill in the following areas, namely that:

  • the specific time limit required for eligibility to PPL should be removed, and the level of payment increased, as recommended by the CEDAW Committee of Experts
  • the Select Committee considers extending the length of New Zealand’s paid parental leave provision, in line with EEO best practice internationally
  • workers whose workforce attachment is continuous should be eligible for paid parental leave even if their employment is covered by multiple employment arrangements 

 

  •  in the best interests of the child, the anomaly in section 71D(2) is addressed by ensuring parents have direct eligibility to PPL irrespective of the mother’s eligibility status
  • eligibility for extended leave and payment provisions is extended to include other caregivers, for example grandparents, other relatives, and those looking after children under whāngai arrangements.
  • the Select Committee considers how best to support the promotion and protection of breastfeeding, given the right to breastfeed is covered by the anti-discrimination provisions within the HRA and ERA


Appendix 1 – Relevant 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.