October 15, 2021

Law and order

A bloody shame: Paid period leave should be law

By Gabrielle Golding and Tom Hvala

Image © Oleg Liashenko / Alamy

Australia’s workplace laws must better accommodate the reproductive body

The shifting tides caused by the #MeToo movement have impacted every Australian workplace, including the Commonwealth parliament. Because of Sex Discrimination Commissioner Kate Jenkins’ “Respect @ Work” inquiry, sexual harassment in Australian workplaces is now prohibited by the Fair Work Act and constitutes a valid reason for dismissal. These legislative changes signify the first of many, as the Sex Discrimination Commission continues to urge the federal government to impose a positive duty on employers to prevent sexual harassment.

These recent changes to Australia’s employment landscape signify an important step forward in the push for gender equality. However, they also obscure a harder, more complex, truth: Australia’s progress towards achieving gender equality is slowing. Once ranked 15th in the world, Australia is now 50th according to international rankings on a global index measuring gender equality. This stagnation looks set to solidify even further, with Australia’s Workplace Gender Equality Agency reporting that the gender pay gap has widened from 13.4 per cent to 14.2 per cent, in part due to the COVID-19 pandemic.

Innovative approaches are needed if we are to achieve gender equality at work, particularly in areas beyond sexual harassment. One way is to rethink how workplaces can better accommodate the reproductive body, from menstruation to menopause.

We argue that the introduction of a statutory paid menstrual leave scheme into the Fair Work Act would significantly improve workplace gender equality at the legislative level. In our view, the Act is shamefully lagging in supporting Australian women, and we have outlined the benefits of a statutory leave provision (as opposed to a workplace policy) in a recent Sydney Law Review article. (For ease of reference, we will use the term “women” here to refer to those who menstruate, including those who do not identify as female, acknowledging that menstruators will not necessarily identify as women. Equally, there are women who do not experience menstruation. Our aim is not to create division, but to place menstruators on an equal footing.)  

Currently, women with painful or heavy periods can take sick leave on the basis that their period constitutes an “illness” or “injury”, as required by section 97 of the Fair Work Act. But this approach demonstrates a lack of understanding of the ways in which menstruation can affect women. It also tacitly reinforces stereotypes that women’s issues are not worthy of proper consideration, and that women have no choice but to conform to pre-existing frameworks, which are ill equipped to cater to their needs. In any event, women who have to take time off work for their periods routinely exhaust their sick leave, forcing them to use their annual leave or take unpaid leave. To be clear: women who menstruate are not necessarily “ill” or “injured” for the purpose of accessing sick leave under the Fair Work Act. Rather, menstruation is a natural process.

Difficulty with menstruation, and its accommodation in the workplace, is a widespread concern for women globally. Around 7 to 11 per cent of Australian women have a formal diagnosis of endometriosis (which is a common cause of menstrual pain). Close to one in five women experience heavy periods and pelvic pain.

Of course, while many women can work uninterrupted while having their period, the physical and psychological symptoms of menstruation can be immense. Women have reported working part-time to cope with their symptoms, and in some instances they give up their jobs entirely. Some have also reported a loss or reduction of income due to working less or having to take time off work.

There appears to be growing focus on this issue from a handful of proactive employers that have introduced their own policies, rather than waiting for legislative reforms. Modibodi, a company that creates period-safe underwear for women, recently introduced a specific menstrual leave provision that provides for 10 days of additional paid leave for menstruation, as well as for menopause and instances of miscarriage. Other Australian employers to introduce a paid menstrual leave provision include Future Super and the Victorian Women’s Trust

The introduction of a paid menstrual leave provision to the Fair Work Act has the potential to improve Australia’s approach to substantive gender equality. Rather than formal approaches to gender equality, which suggest men and women should be treated the same, a substantive approach acknowledges differences between genders, and seeks to adjust structures and systems accordingly. As such, we argue that a paid menstrual leave provision would minimise the disadvantages that women experience because of menstruation. It would also achieve structural change through accommodating difference, and would enhance women’s voices and increase their participation in the workforce.

Besides providing a benefit to women, the introduction of a leave provision that predominantly assists women is known to have benefits for employers too. After introducing domestic violence leave provisions in the workplace, for example, employers reported that their work environments were more supportive and positive, and there was an increased recognition of family violence as a broader social issue.

Legislating paid menstrual leave is an ambitious aspiration, and it is likely to be met with criticism. Admittedly, it is still unclear whether such a provision would reduce stigma, prejudice or gender-based stereotyping. Discrimination on the basis of gender is still common in Australian workplaces, and a broad chorus of disapproval regarding paid period leave already exists. There is valid concern that the medicalisation of menstruation may undermine progress gained in rectifying society’s longstanding misconception that women’s bodies are, by design, inferior to men’s.

More broadly, however, we believe there are gains to be won for society. A statutory scheme for paid period leave may even normalise menstruation, thus destigmatising conversations about menstruation and fertility more broadly. In economic contexts, initiatives that serve to improve gender equality, in turn, improve national productivity and economic growth.

A renewed focus on the inclusion of women in the workplace is a much needed improvement, but more must be done to challenge the stigma around menstruation. Such progress requires more than just companies and individuals taking the initiative. It requires legislative intervention. The introduction of a statutory menstrual leave scheme is a prerogative, not a pain. 

Gabrielle Golding and Tom Hvala

Dr Gabrielle Golding is a senior lecturer at the University of Adelaide and an expert in employment and contract law.

Tom Hvala is a lawyer and researcher. He is an affiliate of the Global and Women’s Health Unit, School of Public Health and Preventive Medicine of Monash University.

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