Date of Award

2018

Degree Name

Master of Laws by Research

First Supervisor

Professor Joan Squelch

Second Supervisor

Jessica Smith

Abstract

xiii ABSTRACT In 2010, the Australian federal government introduced a national scheme of taxpayer-funded paid parental leave. This legislation was introduced only after much political debate and came after more than 100 years of reform to Australian industrial law to make employment laws work better for employees with families. These reforms occurred on the back of a long history of relatively slow female legal emancipation in Australia and the concept of employment rights for women having children is a relatively new legal concept. Australian employment law has traditionally been conceptualised in terms of the paradigm of ‘the male breadwinner,’ supported in turn with the legal concept of ‘freedom of contract.’

Based on Australia’s historical heritage of inherited common law from England, ‘freedom of contract’ incorporated notions of ‘master and servant’ mixed with ‘laissez-faire’ into employment law which biased employment relations law strongly in favour of the employer over the employee, who was employed at the employer’s will and could be dismissed at any time for any reason. ‘Laissez-faire’ embodied the doctrine the government should intervene only in a very minimal way in the operation of private contractual relations, including those of employment, excepting those necessary to prevent fraud, theft, violence and social anarchy. The ‘male breadwinner’ concept is derived from the ancient Western social custom that men are economically responsible for the maintenance of their households, decision-making in society and in creating and maintaining the political, social and economic order of society, while women’s primary roles are to help procreate and nurture children, support the smooth running of a domestic household, and care for those in their family and in the wider society while remaining mostly hidden and silent from the public realms of law and politics.

Australian employment law reflected these cultural assumptions until at least the 1960s when the sexual revolution, the rise of feminist activism, historical events earlier in the 20th century and other factors led to women becoming more xiv economically independent from men and also acquiring a greater say on issues in the public sphere. Having acquired the right to vote earlier in the 20th century and later acquiring more freedoms during and after the World Wars, women played an expanding role in public life that could not be changed. To reflect these changes women increasingly demanded greater legal, social and economic recognition for their participation in Australian society, especially in their workplaces.

Within the traditional framework of Australian employment law, as time has passed, women demanded more gender equality in the workplace. These demands included employment rights such as equal pay for equal work, equality of opportunity in hiring and promotions, protections from being dismissed from employment due to gender, and rights such as paid maternity leave, protection unfair from dismissal and discrimination based on pregnancy or family responsibility, affordable childcare, and paid parental leave. This created tensions in the Australian employment law system which due to a strong conservative tradition, continued to embody principles of freedom of contract and the male breadwinner ideal well into the late 20th and early 21st centuries. These tensions could not be easily reconciled with the complex demands placed on workers in the late 20th/early 21st centuries, the continuing reinforcement of ‘freedom of contract’ and ‘male breadwinner’ models of social responsibility and the growing importance of gender equality in Australian workplaces. The legal challenge this presents to the employment lawyer then is how to achieve gender equality in the workplace through traditional mechanisms of employment law or whether government intervention in the labour market is required to the achievement of gender equality in the workplace. Since this issue is quite broad, this thesis will attempt to narrow down this question by a conducting a close and detailed investigation into one particular contemporary issue in Australian employment law: paid parental leave.

The purpose of this thesis is to investigate the tensions between the ‘classical’ model of employment relations law based on ‘freedom of contract’ and ‘male breadwinner’ social roles and will investigate the historical development of these concepts in the Australian context. The historical investigation will examine if xv these classical ideas and their updated versions are effective means of achieving gender equality in the Australian workplace including consideration of paid parental leave as a potential employment right for workers. Secondly, this thesis will investigate the 2010 Paid Parental Leave Act and relevant provisions as well as cases that have considered maternity and parental leave.

This thesis will then examine international legal frameworks for parental leave with particular attention to selected OECD European nations. European countries and their legal and policy frameworks will be considered in more detail as European countries have led the world in introducing paid and unpaid schemes of parental leave and also finding effective ways of funding such schemes. Attention will also be made to the fact that most European countries have government-funded paid parental leave systems like the 2010 Australian Paid Parental Leave Act. Particular attention will be given in this thesis to the parental leave framework of Sweden. Sweden is considered a world leader in being a smaller country adept in balancing a dynamic economy competing in a global marketplace with a generous social system, including fundamental gender equality across society and also providing paid parental leave and affordable childcare systems which are regarded as being among the best in the OECD.

This thesis arrives at a number of conclusions regarding the regulation of paid parental leave in the framework of Australian labour relations law. It also gives a number of recommendations for future policy and legal reform and suggestions for future research. Therefore, this research aims to make a contribution to the development of paid parental leave policy in employment law.

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