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.