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5 - Call for Law Reform

Published online by Cambridge University Press:  02 March 2024

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Summary

The feminist theories have a strong role in the arguments for paid parental leave. Although liberal feminism has been identified as a strong foundation for women's rights, it has limitations in analysing paid parental leave policies because of the disregard of biological differences. If paid leave had been designed in line with this theory, it would have been enacted by the Fairwork Act 2009 and provided up to two years of unpaid leave for both men and women on the birth or adoption of a child. Childbirth, recovery from childbirth and breastfeeding are biological realities that separate parents who adopt from those who do not. On the contrary, cultural feminism, which appreciates women's unique qualities, champions women's rights by celebrating the differences that liberal feminism chooses to ignore. An illustration of cultural feminism is the enactment of the Paid Parental Leave Act 2010, granting women 18 weeks of paid parental leave on the birth or adoption of a child. On the face of it, this arrangement appears to benefit women and is consistent with the most up-to-date ILO Maternity Protection Convention No. 183 and Maternity Protection Recommendation No. 191. However, it falls short of meeting the ‘best interests of the child’ obligations set out by the CRC since it does not meet the 26-week minimum leave duration recommended by the WHO for optimal maternal and child health. Further, the minimum leave duration warrants women to choose between returning to work early or taking unpaid leave or even exiting the workforce to care for their infant for the recommended 26 weeks. Consequently, taking leave or exiting workplace might contribute to the discrimination against women because of family or carer responsibilities, as pointed out by the Law Council of Australia in their submission on the Fairer Paid Parental Leave Bill. Since the 18-week statutory paid parental leave is exclusive to women, an assumption is made through the lens of cultural feminism that women are full-time caregivers and incapable of being long-term family providers. Meanwhile, reconstructive feminism follows the premise that women need equality and argues that equality is achieved by stripping down social, often masculine norms that put women at a disadvantage.

Type
Chapter
Information
Balancing Work and New Parenthood
A Comparative Analysis of Parental Leave in Australia, Canada, Germany and Sweden
, pp. 47 - 56
Publisher: Anthem Press
Print publication year: 2023

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