Paid maternity leave but no paid paternity leave - not  discriminatory

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Paid maternity leave but no paid paternity leave - not discriminatory

The Tasmanian Anti-Discrimination Tribunal has found the provision of 12 weeks paid maternity leave to female State Service employees and no equivalent paid parental leave for males is not discriminatory.

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The Tasmanian Anti-Discrimination Tribunal has found the provision of 12 weeks paid maternity leave to female State Service employees and no equivalent paid parental leave for males is not discriminatory.

It said the entitlement was primarily to safeguard the health of the mother and that, however it was used in reality, there was no indication that part of the purpose of the provision was to allow for child care.

Background

The complainant, an employee of the Department of Health and Human Services, alleged that he was discriminated against by the State of Tasmania on the basis of gender and parental status in that he was not entitled to extended paid leave after the birth of his child. By comparison, female State Service employees were entitled to 12 weeks paid leave. The complainant maintained that this amounted to either direct or indirect discrimination.

The tribunal heard that the complainant’s de facto partner, an Education Department employee, took 12 weeks paid leave two weeks before the birth and 10 weeks after. The complainant was entitled to only five days paid carer’s leave. He said that denying him entitlements to paid leave at the same level offered to female employees meant he did not have the same opportunities as his partner of having the day-to-day care of their child while being paid.

Counsel for the complainant argued that maternity leave was not just about safeguarding the health of the mother, but also about protecting their employment and allowing for child care considerations which apply equally to male and female employees.

Counsel for the employer countered that the qualifying attribute for paid maternity leave was not parental status or family responsibilities but pregnancy and so consequently s25 of the Anti-Discrimination Act 1998(TAS) applied. Section 25 allows discrimination when it occurs due to the operation of a scheme for the benefit of a group disadvantaged because of a prescribed attribute. In this case the maternity leave provision was a scheme for the benefit of pregnant women in the work force who have a special need because of a prescribed attribute, namely pregnancy.

Findings

The tribunal said the central question of the case was the nature and purpose of the provision for paid maternity leave. It found the way in which the leave was structured indicated that the purpose of the paid leave was to safeguard the health of the mother and to allow for 'the realities of advanced pregnancy and child birth'. It said it was not indicated that part of the purpose of paid maternity leave was for child care.

The tribunal rejected the complainant’s argument that it was generally accepted that incapacitation did not tend to take up the full 12 weeks and so a portion of the period should be regarded as being for child care.

'It may be that in many cases women are well enough to work and these women viewing the leave in a subjective way, coloured by their experience, may attribute the leave to child care but that does not alter the nature and purpose of paid maternity leave.'

The tribunal noted that while female State Service employees had an entitlement to unpaid leave, men had to apply for discretionary unpaid leave. 'If this is the case then the potential exists for that scheme to operate in a discriminatory way.'

It went on to say that its conclusion that the purpose of paid maternity leave was to protect female employees did not deny the valid policy considerations raised by the complainant. 'These are seen as compelling considerations when considering the needs of modern families.'

The tribunal concluded that s25 of the Act applied to the employer’s conduct. The restriction of paid maternity leave to female employees was conduct for the purpose of carrying out a scheme for the benefit of a group (female State Servants who are pregnant) which is disadvantaged or which has a special need because of the attribute of pregnancy. 'Even if it could be established that the complainant had been subjected to direct or indirect discrimination, that conduct could not be unlawful because of the application of s25 of the Act.'

It also found that while it may be argued that men should have an entitlement to paid parental leave, their situation was not unfair or discriminatory vis-a-vis women.

'The entitlement of women to maternity leave is grounded in the experience of pregnancy and childbirth which requires special provision. It follows that acknowledging the validity of [the complainant’s] submissions, women may also argue that they should have an entitlement to paid parental leave for the purpose of child care.'

'Men may legitimately argue that they should have parental leave for the purpose of child care. This position is consistent with the tenor of the agreement and the principles set out in the State Service Commissioner’s Direction. However, this is not the jurisdiction to mount that argument.'

Cahill, Peter v State of Tasmania [2004] TASADT 5 (28 June 2004)

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