01 March 2009

Mamma Mia! A Woman's Way in the Working World

By Jennifer Mills, Partner, & Bridget Fleming, Senior Associate, Minter Ellison Rudd Watts

We have all heard about the "glass ceiling", read statistics about the large number of female graduates produced by universities around the country, but also seen the practical reality - that those figures still do not correlate to large numbers of female executives at the top of New Zealand companies or at Board tables around the country. Now don't get me wrong - there are certainly women who are at the top and taking their place at those Board tables, but the point is, not in the numbers you might hope for, or expect, given the number of female graduates.

Having it All

And the reason? Like everything, there is no one single reason. Theories abound, but at least one contributing factor is undoubtedly the dual role many women try to balance as employee and primary caregiver. So is it an impossible dream? Is it the elusive "having it all"? And is it any easier now, than it has been previously?
The challenges facing working women appear to have been made easier by recent amendments to employment law. These amendments include the introduction of the Employment Relations (Breaks, Infant Feeding & Other Matters) Amendment Act 2008, which will, when enacted, provide a statutory right to breaks and, where practicable, facilities for breastfeeding. As well as the Employment Relations (Flexible Working Arrangements) Amendment Act, which provides employees with the right to request flexible working arrangements to accommodate the care of any person.

New Mothers

Looking first at the breastfeeding legislation, this legislation, which is significant for new mothers wanting to return to the workforce, has been somewhat overlooked. Perhaps due to the fact that was passed at the same time as the more controversial amendments to the Employment Relations Act regarding KiwiSaver.
The Amendment Act, which will take effect from 1 April 2009, requires employers to provide breaks for employees, as well as appropriate facilities for those who wish to breastfeed or to express breast milk at work, where it is "reasonable and practicable in the circumstances". In deciding what is practicable, employers are entitled to take into account their operational environment and available resources.

The limitation that the facilities for breastfeeding or expressing milk are to be provided "where reasonable and practicable" will be a welcome inclusion for many employers, as the reality is that many existing businesses will not have the resources to provide separate facilities for breastfeeding. For example, many small employers will not have a separate room, other than the bathroom, which could be used for such a purpose. For larger employers, with more resources (and more room), it is likely to be both reasonable and practicable for such facilities to be provided.

Notwithstanding that "limitation", in terms of the potential benefits of this legislation for mothers returning to the workforce, the fact remains that there is now a statutory requirement for employers to provide employees not only with rostered breaks, but also, where appropriate, additional breaks for breastfeeding, where it is reasonable and practicable to do so. So at least in theory, the interests of female employees returning to the workforce following maternity leave are being improved.
The other significant legislative change is the introduction of the Employment Relations (Flexible Working Arrangements) Amendment Act, which took effect on 1 July 2008.

Flexible Working

While it is correct that this legislation applies to all employees who have the care of "any person", in reality the Amendment Act is likely to be highly utilised by female employees who are, at least traditionally, more likely to occupy the primary caregiver role or to assume care for dependent family members.
The Amendment Act provides that an employee who has been working for their employer for the immediately preceding six months, and who has the care of any person, may make one statutory request, per 12 month period, for fixed term or permanent flexible working arrangements.

Employees can request a change to their hours of work, days of work or place of work and the employer must consider whether the request can be accommodated. While there are limited grounds for an employer to decline a request, the Act arguably lacks "teeth" in that an employee's right to challenge an employer's refusal to grant a request for flexible working hours is limited to challenging the employer's compliance with the statutory procedure for considering the request, not the employer's actual decision. But again, this is a law, mandating a change, which at least in theory if not in practice, will have benefits for employees - including female employees - where they are responsible for the care of any person.

Practical Realities

As highlighted above, while there may be practical issues with both new pieces of legislation, one which is in force already, and one which will take effect very soon, their inclusion indicates a government focus on the practical realities of the need for employees to balance commitments outside of the workplace. While the legislation doesn't apply only to female employees, and while it may not be enough to make it more attractive to return to the workplace following parental leave (and that is an issue for individual employers), what it does mean is that for those who do elect to return, the transition may just be that little bit easier. So that women can say - Mamma Mia - here I go again - only this time, it is going back to the workforce.

Acknowledgement

Minter Ellison Rudd Watt's Employment Team has extensive experience in all matters relating to employment law, including industrial relations, human resource management, corporate governance and dispute resolution. They provide practical advice to clients regarding all areas of employment legislation such as parental leave, KiwiSaver and flexible working arrangements. They also develop, and regularly conduct, training courses for employers and line managers on the practical application of employment legislation.

Jennifer Mills leads Minter Ellison's Auckland employment practice. Jennifer is an extremely well regarded employment law expert who has acted for a large number of national and international companies and Jennifer was recently recognised as a leading individual in Chambers Global. Jennifer and the team advise clients on the full range of employment issues including corporate restructuring, employment agreements, disciplinary and termination procedures, ACC, privacy, restraints of trade, industrial action (including strikes and lockouts), health and safety (including workplace stress), good faith, collective bargaining issues and superannuation.

For more information and to go on the team's employment update mailing list, please contact Jennifer Mills or her secretary on 09 3539885.

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