1. This report describes a significant trend towards legal intervention in the labour market to
achieve more effective resolution of work and family life. Change has been promoted by national
governments, and international institutions including the International Labour Organisation and
those of the European Union.
2. A range of different measures and standards have been created. In some cases, there are now
very significant leave entitlements designed to increase the capacity of workers to reconcile their
commitments to work and family life. For example:
maternity leave (up to 52 weeks’ paid) [UK];
parental leave : three years prior to child’s eighth birthday [Germany];
emergency leave : 60 paid days per worker per year to care for a child under twelve
access to part-time work : ‘right’ to change hours, subject only to serious business
objections [Netherlands and Germany];
quality of part-time work : prohibition on discriminatory conditions vis-à-vis comparable
full-time work [all EU States].
3. Definitions of the field covered by ‘work and family’ are becoming more flexible. So, for
UK law permits workers to request ‘reasonable time off’ to care for non-family members,
where the worker is the only person available to undertake this task in a care emergency;
Irish law provides up to 130 weeks’ leave for a worker who is the primary care giver to, for
example, both disabled parents;
Canadian law (British Columbia) recognises leave for family responsibilities in broad
terms, as related to ‘care, health or education’; Ontario defines as parent’ as ‘a person
who is in a relationship of some permanence with a parent of a child and who plans on
treating the child as his or her own’.
4. Much of this recent regulation is designed specifically to establish a legal framework of
principles and processes within which implementation can occur at the workplace, through
individual or collective bargaining.
5. Assessments of the outcomes of systems of work-life regulation are emerging. On balance, the
early evidence from the UK, Ireland and the Netherlands suggests that the new rules have
increased workers’ use of flexible work and have not led to a sharp increase in contested matters
before industrial tribunals and the courts. There is some evidence that employer groups, many of
whom opposed the introduction of the new laws, have worked well with the new systems. The
predicated catastrophic consequences have either not occurred, or have not yet been reported in
the research available thus far. An exception appears to be the USA, where the Family Medical
Leave Act of 1993 is claimed by some employers as a major fetter on their ability to compete.
International Legal Trends In The Reconciliation Of Work And Family
School of Law and Legal Studies
La Trobe University
Report prepared for the ACTU’s Test Case April 2004
Summary Of National Statutory Leave Provisions In The Work And Family Field
Country Leave available Total available Emergency Access to Q
at birth of child leave for care Leave part-time work p
Canada Mat. Leave 15 Parental Leave Emergency N/A N
weeks’ paid 35 weeks’ paid
Leave: up to 10
(Federal); leave can be
shared by both days’ per year
17 weeks’ (Ontario)
(Federal). Up to 5 days per
Eligibility -must year (British
have 700 hours Columbia).
work in previous
year. Ontario :
each parent has
35 weeks per
child in addition
to 17 mat. leave
(or 37 if mat.
leave not taken).
Germany Parental Leave Emergency Right to adjust Y
:3 years in total Leave : Up to 10 hours of work
Mat. Leave 14
for either or both days per child and
weeks paid. parents (2 paid, under 12 per arrangement of
1 unpaid) to be year to a hours.
taken before the maximum of 25
child’s 3rd days.
birthday (or Eligibility :
before child’s 8 worked for more
birthday with than six months
employer’s for the employer,
agreement), and in
Part-time work workplaces with
during parental more than 15
leave (up to 30 employees.
hours per week
Country Leave available Total available Emergency Access to Q
at birth of child leave for care Leave part-time work p
Ireland Mat. Leave 14 Parental Leave Emergency Access to Q
weeks’ paid four 14 weeks’ Leave : Up to 3 Part-Time Work P
weeks unpaid parental leave days in 12 Labour Relations :
optional leave. for each or both months or up to Commission
parents (avail. in 5 days in 36 preparing a
addition to mat. months Code of Practice
Leave), to be on part-time
taken before work.
child is five.
Eligibility : At
least 12 months
employer; or if
leave for each
New Zealand Mat Leave 14 Parental Leave Personal Leave Access to N
weeks (12 Total of 52 Up to 5 days’ Part-Time Work
paid);Pat. Leave weeks (including ‘personal leave’, Requests to
2 weeks paid mat/pat leave) to includes care change
be taken in first and personal employment
year after sick leave. agreement for
Eligibility birth/adopt-ion. Proposed to reasons of
employed by Other paid increase to 15. work/family
same employer employment balance must be
for 12 months prohibited during dealt with by
and have worked parental leave. parties in ‘good
average of ten faith’.
hours per week
in last 12
Nether-lands Mat. Leave 16 Parental Leave Emergency Right to adjust Q
weeks paid ; Up to 6 months Leave 2 days for hours of work P
Pat. Leave 2 unpaid leave per urgent personal and Y
days paid. parent before reasons; 10 days arrangement of
child is eight. per year to care hours.
Part-time work for family
permitted during members. Eligibility
parental leave. workplaces with
10 or more
Country Leave available Total available Emergency Access to Q
at birth of child leave for care Leave part-time work p
have worked for
that employer for
at least 12
of leave in
time worked with
Sweden See next Parental Leave Emergency Access to Y
column. :450 paid days Leave 120 paid Part-Time Work
per child, 30 of days per child Right to
which are under 12 per part-time work,
reserved for year for care and right to take
non-birth parent. emergencies parental leave on
Available from part-time basis
60 days before while working
birth until child is 25% of normal
eight. hours until child
United Kingdom Mat. Leave 52 Parental Leave Emergency Access to Q
weeks Pat. In addition to Leave Part-Time Work P
Leave 2 weeks paid leave, 13 ‘Reasonable Right to request Y
paid. Mat. leave weeks unpaid amount of time part-time work.
made up of 26 leave before off during
weeks’ Ordinary child is 5, or working hours’,
ML and 26 before disabled unpaid except by
weeks’ child is 18. Must agreement with
Additional ML. have one year employer.
Latter (and pat. continuous
leave) only service with
available to employer.
those with at
least 26 weeks
employer by 14
week prior to
United States of Family/Medical Child-Related N/A N/A N
America Leave 12 weeks’ Leave Federal
unpaid leave per employees may
year annum to take 24 hours’
care for paid leave for
Country Leave available Total available Emergency Access to Q
at birth of child leave for care Leave part-time work p
new-born or child-related
adopted child, or activities.
member or for
worker’s own General Care
recovery from Leave
California : six
Eligibility leave to care for
Available to all new-born,
public employees, adopted or sick
private employees child, or sick
in workplaces with spouse, parent,
50 or more domestic partner
employees, must or close relative.
have 12 months
service with Eligibility
employer and at applies to all
least 1250 hours Californian
during previous 12 businesses
months. irrespective of
1. Part A Introduction Relevance Of International Comparisons
This research report presents a description of selected international and national regulatory
regimes which impact on the reconciliation of work and family life.1 The study focuses on statutory
provisions and international rules in the following areas : (i) leave around the time of the birth of a
child; (ii) planned leave to care for a young child; (iii) leave to attend to care emergencies; (iv)
access to part-time work; (iv) the quality of part-time work; and (v) other developments of relevance
to the reconciliation of work and family life, including leave to care for older children and leave to
care for relatives with serious illnesses and disabilities.
1.2 It should be acknowledged at the outset that in addition to specific legislation, many other
factors, legal and non-legal, shape the developing relationship between work and family life in any
particular country. Underlying cultural attitudes to paid and unpaid work, traditional patterns of
control and hierarchy at work, the general system of industrial relations within which workplace
decisions are taken, the economic context of the time, access to state-run and/or private sources
of care for family members, and the impact of other relevant legal systems (for example, taxation
and social security laws and policies) are all important. Indeed, the focus on a national unit of
analysis often conceals significant differences within countries, for example between people with
different levels of education (Rostgaard, 2002 : 6) or between genders (NZ Ministry of Women’s
Affairs, 2002 : 14).
1 The phrase ‘reconcile work and family life’ is open to interpretation (what is a family, why is family life privileged over
other non-work activities, doesn’t work occur within the family, is ‘reconciliation’ a meaningful goal?), but for ease of
reference and to reflect the terms of the debates which are actually occurring, it is used throughout this paper.
1.3 Given the differences between the actual laws, legal cultures and the many other factors
affecting responses to those laws within any one country, it is important to be clear about the use to
which international legal comparisons such as those set out in this report can be put. First of all,
law is important. It is not only a paramount regulatory device, but it also shapes the other non-legal
elements mentioned above in complex ways. Comparison is useful because, despite the
tendency towards national specificity, important trends may emerge. This paper shows that there is
strong trend towards State intervention in the labour market to assist workers achieve a better
balance between their work and family responsibilities, and to enable employers to attract and
retain suitable staff to meet the needs of the enterprise. (European Foundation for Living and
Working Conditions, 2002) Trend information of this kind is useful because it enables Australian
decision-makers to consider our developing law within a broader context.
1.4 Secondly, regulatory measures and techniques used in other jurisdictions may provide
suitable models for application within the unique institutional, social and economic settings of
Australia. National governments and tribunals need not reinvent the wheel each time they wish to
achieve certain outcomes.
1.5 Of course, no foreign legal technique or significant trend would be of any use whatsoever if
the goals of regulation in the area of work and family were completely different in Australia to those
being pursued elsewhere. It is my opinion that there is a high degree of convergence between the
policy goals of Australian federal industrial law and the goals which underlie many of the laws
discussed in this report.
1.6 Before turning to a discussion of the relevant international and national instruments, it is
useful to set out the goals of the Workplace Relations Act1996 (Cth) as they relate to the laws and
programmes discussed in this report.
2. The Goals of the Workplace Relations Act in International Context : An Overview
2.1 Generally, the intentions of the Australian Parliament as expressed in the Workplace
Relations Act 1996 (Cth) (WRA) are consistent with many of the rationales underlying the laws
governing work and family discussed throughout this report. The principal aim of the WRA is to
provide a ‘framework for co-operative workplace relations which promotes the economic prosperity
and welfare of the people of Australia’ (Section 3). The concept of co-operative workplace relations
is central to the mechanisms established by governments such as those in the UK, Germany and
the Netherlands, particularly in relation to the re-arrangement of working time to meet family needs.
See for example paragraphs 8.2.1[c] (Germany) and 10.3.1[c] (the Netherlands) below. Within
principles and through processes established through legislation, actual requests to adjust working
time are dealt with at the enterprise level, at least in the first instance.
2.2 The promotion of economic prosperity and welfare is a broad aim which few developed States
would disavow. In all the countries studied, public and academic discussion of work and family has
stressed the connection between economic prosperity and meeting the demands of reconciliation
of work and family life. In most cases, this public discussion encompasses a range of views, the
mainstream of which can be summarised in the following terms : there are direct economic benefits
for business if workers are better able to tailor their working lives to their care responsibilities, and
these are best implemented in ways which foster business development, innovation and flexibility.
While there is no agreed measurement of ‘prosperity and welfare of the Australian people’, it is
arguable that an improved regime of work/family regulation would support this goal by creating
higher productivity (Gielow, 2002 : 1541), improved attraction and retention of suitably qualified
staff (McBride, 2003 : 165; Koss, YEAR)), continuity of labour market participation by workers with
carer responsibilities (Department of Trade and Industry UK, 2003), better outcomes for children
and stronger families (Department of Family and Community Services Aust., 2002 :16; Olah, 2001 :
30), progress towards real equality of opportunity for women and men with care responsibilities
(Rostgaard, 2002) and more optimal conditions to improve the fertility rate (Bagavos and Martin,
2000 : 11; Rostgaard, 2002 : 8).
2.3 One of the objects of the WRA is to encourage high employment, improved living standards,
low inflation and international competitiveness through higher productivity and a flexible and fair
labour market (Section 3(a)). These aims are similar to the foundational goals of the European
Union (Article 2, Treaty on European Union, see paragraph 4.2.1 below). As discussed below, work
and family issues are central to the European Employment Strategy, which aims to optimise levels
of employment across the EU while at the same time progressing gender equality. Additionally, EC
law has been the basis of many of the national developments in the area of work and family
(including establishing minimum standards in the areas of the right to paid maternity and parental
leave, access to and the quality of part-time work and the right to emergency family leave). This
would not have been possible if the Community legislation were contrary to the economic goals
expressed in the Treaty. Similarly, the ILO has sought to combine worker protection with
encouraging job growth through its instruments concerning relevant issues. Thus, for example, the
preamble to the ILO Convention concerning Part-Time Work (1994) notes, inter alia, ‘the economic
importance of part-time work [and] the need for employment policies to take into account the role of
part-time work in facilitating additional employment opportunities.’
2.4 The WRA also seeks to establish a flexible and fair labour market. (Section 3(a)) It is possible
for a labour market to be very flexible but unfair and to be very fair labour but inflexible. The
challenge is to devise legislative and other strategies which combine these goals, and this is a
challenge which all the jurisdictions discussed have confronted. The reconciliation of work and
family is relevant to both arms of the aim : flexibility of various kinds is needed by workers who
have care responsibilities, as well as by employers who need to respond to changing production
and customer demands. Of course, flexibility has become a label for many different kinds of work
practices. It is important in any particular instance to carefully consider the dynamics of so-called
flexible work. Thus, for example, part-time work is sometimes regarded as ‘flexible’ in and of itself.
If the part-time hours are fixed regard to the individual workplace, they may not provide the
employer with the necessary staff at peak times. If the hours are not fixed well in advance, they
may not provide the particular kind of flexibility needed by, say, mothers who wish to collect their
children after school. Fairness is a similarly broad concept which also implies fairness for
employees and employers. Fairness is required if workers with care responsibilities are not to be
disadvantaged in the labour market as a result of these responsibilities, and by employers who
need a reliable and predictable supply of appropriately skilled labour to conduct their enterprises.
2.5 My view of the material considered in this report is that most jurisdictions have come to the
conclusion that sensible work/family laws can bolster both flexibility and fairness for employees and
2.6 A key object of the WRA is to ensure that ‘primary responsibility for determining matters
affecting the relationship between employers and employees rests with the employer and
employees at the workplace or enterprise level’ (Section 3(b)). Much of the legislation discussed in
this paper reflects similar regulatory intent : it provides a framework of principles or rights within
which decisions can be taken at the workplace level in discussions between employers and
employees. See paragraph 4.1.7 concerning the EU generally. This is particularly noticeable in
relation to the ‘right to part-time work’ (or in the UK, the right to request flexible work). Once a core
of rights has been enshrined in legislation, application of flexible working practices must be
determined at the workplace, having regard to the needs of the individual applicant and the
business itself. Just such a process seems to be envisaged in s 3(i) of the WRA, which states that
an object of the Act is to assist employees to ‘balance their work and family responsibilities
effectively through the development of mutually beneficial work practices with employers’.
2.7 In several of the jurisdictions discussed here, including the European Union, part of the
rationale for developing work and family laws has been to further the goal of gender equality, in the
home and at work. The WRA has as one of its objects the prevention and elimination of
discrimination on the basis of, inter alia, sex, sexual preference, marital status, pregnancy and
family responsibility (Section 3(j)). In my opinion, without some kind of intervention in the labour
market, workers with family responsibilities will be forced to attempt to accommodate their care
work within their paid jobs in ways which disadvantage them as employees. As most family care
work is currently performed by women (Wilson et al, 1999 : 5; Department of Family and
Community Services, 2002 : 14; Fagan and Burchell, 2002 : 26), the disadvantaging of carers may
also be an issue of direct or indirect sex discrimination against those women and men who attempt
to balance work and family life. Without positive measures to reconcile work and family life, the
WRA’s aim of preventing and eliminating discrimination will not be fulfilled.
2.8 The Act aims to ensure that Australia’s international obligations are met (Section 3(k)),
including those under the relevant ILO Conventions. It is important to recognise that the ILO
believes that proper implementation of its key Conventions on discrimination in employment,
Convention 100 on Equal Remuneration and Convention 111 on Discrimination in Employment will
involve a dedicated response to the issue of reconciliation of work and family life. True equality of
opportunity in employment requires changes in laws, practices and attitudes which, without state
support, are unlikely to occur.
“In the present context of plummeting fertility rates, rises in life expectancy and restrictive
immigration policies in many European countries, it is crucial to keep working mothers in the
workforce to compensate for shortfalls in labour supply and for the payment of taxes needed to
finance welfare provision for the aged and those in poor health. Work/family policies also help
maintain women’s labour market skills by avoiding forced work breaks during child-rearing years.
This translates into women’s greater productivity, due to investments in firm-specific experience
and training. In turn, this improves their career development prospects, employability and earning
rates in the long run”. (ILO (2003b) paragraphs 230 & 231)
2.9 Of course, Australia also has specific obligations under the Convention on Workers with
Family Responsibilities, Article 7 of which requires that ratifying states take ‘all measures
compatible with national conditions and possibilities’ to ‘enable workers with family responsibilities
to become and remain integrated in the labour force, as well as to re-enter the labour force after an
absence due to those responsibilities.’ In my view, Australia is not currently taking all measures
compatible with national conditions and possibilities to achieve the full integration of workers with
family responsibilities into the labour market. This survey of international and other national
measures shows that there is room for improvement in the Australian regulatory schema to bring
us into compliance with our obligations under the Convention on Workers with Family
Responsibilities and to further the other objects of the WRA discussed above.
Part B International Standards
3. The International Labour Organisation
3.1 The International Labour Organisation (ILO) was established as an independent organ of the
League of Nations, and its Constitution was set out in Part XIII of the Treaty of Versailles (1919).
Since that time, the ILO, now an associated body of the United Nations, has created over 180
Conventions dealing with labour matters. These Conventions are the product of exhaustive
deliberation over at least two years by the International Labour Conference of the ILO, a tripartite
body comprised of representatives of governments, employer and employee organisations from
each Member State. As such, the Conventions can be considered in their own right, independent of
ratification and implementation at the national level as expressions of the world regulatory body, as
‘standards’ not ‘obligations’. (Murray (2001), 5/6). The Conference also adopts Recommendations,
which are not open to ratification by Member States but are meant as a guide to national policies.
In the following section of this report, the ILO Conventions dealing with the areas considered by this
Report will be discussed.
3.2 Australia has ratified the following Conventions referred to in the text below : Equal
Remuneration Convention, 1951 (No 100), the Discrimination (Employment and Occupation)
Convention, 1958 (No 111), the Employment Policy Convention, 1964 ( No 122) and the Workers
with Family Responsibilities Convention, 1981 (No 156). Of course, in terms of the possible
processes through which bargaining over work and family issues may occur, it is important to recall
Australia’s ratification of Conventions 87 and 98 on freedom of association and the right to
3.3 Leave Available at the Time of Birth of the Child
One of the first Conventions created by the ILO in 1919 was the Maternity Protection Convention,
which required ratifying states to implement 12 weeks’ paid maternity leave and a scheme of
half-hour nursing breaks twice per day (Maternity Protection Convention, No 3, 1919). In 2000, this
Convention was updated to provide for 14 weeks’ maternity leave, permitting developing states to
provide payment at a lower rate, and to provide one or more daily breaks or a reduction in daily
hours (Maternity Protection Convention, No 183, 2000).
3.4 Total Leave Available for Care of Young Child/Other
3.4.1 The Convention on Workers with Family Responsibilities (No 156, 1981) deals with the
obligations of ratifying states to meet the needs of workers with family responsibilities. The scope
of care responsibilities dealt with in the Convention is broader than those of parent to dependent
child, as it also covers workers ‘with responsibilities in relation to other members of their immediate
family who clearly need their care or support’ (Article 1(2)). The Convention was intended to have
universal scope in relation to such workers : it ‘applies to all branches of economic activity and all
categories of workers’ (Article 2).
3.3.2 The Convention aims inter alia to ensure that workers with such care responsibilities are
able to prepare for, enter, participate in or advance in ‘economic activity’ (Article 1 (1)), and that
those who are in or wish to engage in employment are able to do so ‘to the extent possible, without
conflict between their employment and family responsibilities’ (Article 3(1)). Article 4 requires that
‘all measures compatible with national conditions and possibilities are taken to’, inter alia, ‘take
account of (workers with family responsibilities’) needs in terms and conditions of employment…’
(Article 4(b)). Article 7 requires that ratifying states take ‘all measures compatible with national
conditions and possibilities’ to ‘enable workers with family responsibilities to become and remain
integrated in the labour force, as well as to re-enter the labour force after an absence due to those
3.3.3 The Convention clearly requires national policies and measures on the part of ratifying
States which squarely confront the range of possible conflicts between employment and family
responsibility, and that nations take all possible measures, including when determining terms and
conditions of employment, to overcome these conflicts. Measures which do not permit workers to
retain integration with the labour market and to re-enter work after a care-related absence do not
appear to be within the letter or spirit of the Convention. One of the most obvious and significant
conflicts between work and family responsibility is the need to take time away from work to care for
young children. A recent Australian government report noted:
“In recent years, longitudinal research has shown the critical importance of the first three years of
children’s lives. However, it is often in this period that the capacity of parents to create a positive
environment for their children is most under stress” (Department of Family and Community
Services Aust., 2002 : 23)
3.3.4 The Convention does not explicate the detail of the policy and regulatory measures which
each State should adopt, but it is clear that the concept of sufficient parental leave to care for small
children, backed with measures to preserve labour market integration and return to work, is implicit
in the Convention’s terms.
3.3.5 The Convention on Discrimination in Employment and Occupation (No 111, 1958) requires
ratifying states to ‘declare and pursue a national policy designed to promote, by methods
appropriate to national conditions and practice, equality of opportunity and treatment in respect of
employment and occupation, with a view to eliminating any discrimination in respect thereof’
(Article 2). Discrimination is defined as ‘any distinction, exclusion or preference’ on the grounds,
inter alia, of sex, except for any distinction, exclusion or preference based on the ‘inherent
requirements of the job’ (Article 1). ‘Employment’ includes ‘access to vocational training, access to
employment and to particular occupations, and terms and conditions of employment’ (Article 1).
Ratifying states are to ‘enact such legislation and to promote such educational programmes as
may be calculated to secure the acceptance and observance of the policy’ (Article 3). Special
measures designed to deal with persons with family responsibilities are excluded from the definition
of discrimination (Article 5).
3.3.6 In my view, Australia’s obligations under the Convention on Discrimination in Employment
and Occupation are relevant to the determination of terms and conditions of employment governing
the reconciliation of work and family life. True equality of opportunity in employment, as defined by
the ILO’s Convention, requires a work/family schema which permits workers to undertake their
care responsibilities without loss of contact with the workforce. In circumstances where the bulk of
care work is undertaken by women, failure to institute a scheme which permits job-protected time
off from work to care for children is arguably at odds with our commitments under the Convention.
It is also clear that life-long care responsibilities, not only to children, are also recognised by the
ILO’s various Conventions. Because women are also more likely to care for disabled relatives and
parents as well as young children, any schema to deal with the full implementation of the
Convention on Discrimination in Employment and Occupation should also address these issues.
3.5 ILO : Emergency Leave
3..5.1 To give full effect to the Convention on Workers with Family Responsibilities and the
Convention on Discrimination in Employment and Occupation, some form of job-protected leave is
necessary to permit workers with care responsibilities to deal with unavoidable and unexpected
emergencies. Without such a schema, workers (mainly women, because of the disproportionate
share of caring work they have traditionally undertaken) may be forced to choose between dealing
with a domestic emergency and keeping their contract of employment in tact. Schemes which
permit workers to take their own sick leave to care for others who are sick (or to care for those who
require some other form of attention which keeps the worker from the workplace) do not fulfil the
ILO requirements. The loss of the workers’ own leave to care for others will ultimately
disadvantage that worker in terms of their labour market participation. Their own leave entitlements
are less secure than those of workers without care responsibilities. Where most care work is
performed by women, this disadvantage is unacceptable on the grounds of direct or indirect sex
discrimination and therefore contrary to the Convention on Discrimination in Employment and
Occupation. Even if equal proportions of men and women provided care for children, elders and
the disabled, workers using their own leave for care emergencies would as a group be
disadvantaged vis-à-vis workers without care responsibilities, contrary to the Convention on
Workers with Family Responsibilities.
3.6 ILO : Access to Part-Time Work
3..6.1 The ILO has recognised that one way to fulfil the goals of the Convention on Workers with
Family Responsibilities is to permit the spread of quality part-time work. The ILO notes:
“One way of allowing working parents to harmonize work and family is by permitting them to work
fewer hours than a full-time week or by modifying their hours of work according to their care
responsibilities. One of the most common forms of working time flexibility in the majority of OECD
countries is part-time work….Part-time work has permitted working mothers to reconcile domestic
duties with remunerated work and has allowed employers to adjust with greater flexibility to market
fluctuations”. (ILO, 2003b, para 233)
This conclusion is reflected in earlier Conventions, such as the Convention on Employment Policy,
1964 (No 122), which Australia has ratified. This Convention makes explicit the interconnections
between a desirable level of employment and ‘other economic and social objects’ which arise in the
context of national conditions.
3.6.2 The ILO’s Convention concerning Part-Time Work (No 175, 1994) deals with both access
to part-time work and with the issue of quality part-time work, discussed below. The Convention’s
preamble notes the relevance for part-time workers of the Convention on Workers with Family
Responsibilities. One of the relevant connections is evident in the recognition in the Convention on
Part-time Work that workers may need to access part-time work, and that existing national laws
preventing this should be reviewed. The Convention on Part-time Work requires that ‘laws and
regulations that may prevent or discourage recourse to or acceptance of part-time work’ be
reviewed to ‘facilitate access to productive and freely chosen part-time work which meets the
needs of both employers and workers’ (Article 9). The needs of workers with family responsibilities
are explicitly recognised in the section requiring ‘special attention, in employment policies’ to
specific groups including ‘workers with family responsibilities’ (Article (2)(c)). The Convention
further requires that ‘where appropriate, measures shall be taken to ensure that the transfer from
full-time to part-time work or vice versa is voluntary, in accordance with national law and practice’
3.7 ILO : Quality Part-Time Work
3.7.1 Part-time work is necessary for those who wish to combine work and family care, but it is
not simply a question of availability. The quality of part-time work is also significant. As a recent
Australian government report noted:
“The availability of regular part-time jobs with secure conditions is important to helping families to
combine work and family responsibilities”. (Department of Family and Community Services Aust.,
2002 : 42, emphasis added)
3.7.2 The ILO Convention on Part-Time Work seeks to ensure that ratifying states which engage
in the promotion of part-time work also ensure that the quality of such jobs meets minimum
acceptable standards. That is, part-time work should not be used to erode full-time jobs against the
wishes of individual workers – hence part-time work is to be voluntarily undertaken. The ILO also
seeks to ensure that part-time workers are not disadvantaged vis-à-vis full-time workers, reflecting
concerns which emerged in the 1990s that part-time work was essentially ‘a highly segregated and
female-dominated form of service work’. (Smith et al, 1995: 51), a finding reconfirmed in relation to
EU Member States in 2002 (EFILWC, 2002 : 8). The Convention on Part-Time Work requires
ratifying states to ensure that part-time workers are afforded equal treatment with equivalent
full-time workers in relation to certain issues: the basic wage (which should be pro-rata of the
equivalent full-time wage, not lower merely because the worker works part-time) (Article 5);
working conditions including maternity protection, termination of employment, paid annual, public
holiday and sick leave (Article 7); and the international labour rights relating to freedom of
association, right to a safe workplace and right to work free from discrimination in employment
(Article 4). Ratifying states are permitted to exclude certain groups from these standards.
4. The European Union
4.1 The Nature of the EC Jurisdiction
4.1.1 The impact of the EC legal order on the reconciliation of work and family matters within the
EU2 Member States is wide-reaching and complex. This discussion aims to point to the main
areas of impact and to highlight the most significant developments.
4.1.2 There are four key ways in which the EU has impacted on work and family issues in its
Member States. First, the Treaties of the European Communities and of the European Union set
out the goals of the EU and the various powers, rights and obligations of Member States, EU
Institutions and citizens. The Treaties are somewhat analogous to the constitution of a nation state,
and are therefore significant expressions of the fundamental principles underlying the political
organisation. Secondly, the EC has developed ‘secondary legislation’ which deals directly with work
and family issues, and which forms the basis for much of the national law discussed in this report.
Thirdly, the EU operates as a framing policy institution in the field of employment strategies, a key
component of which is the work and life balance issue. Finally, the EU regime upholds the human
rights expressed in the European Convention on Human Rights of the Council of Europe. These
four elements are considered in paragraphs 4.2 – 4.5 below.
4.1.3 The European Economic Community was established in 1957 with the signing of the Treaty
of Rome by the governments of France, Germany, Italy, the Netherlands, Belgium and
Luxembourg. There have been amendments to the foundation Treaty over the years, and these
have now been consolidated through the Treaty of Amsterdam. In this paper, all references will be
made to the Treaty Establishing the European Community (Consolidated Version). In addition to
the founding six States, the United Kingdom, Denmark, Ireland, Greece, Spain, Portugal, Austria,
Finland and Sweden are Members. Negotiations for accession have concluded with the Czech
Republic, Cyprus, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia. The
EC creates laws and policies which impact on work and family in all these states. Thus, for
example, it is binding Community law that all these countries provide leave from work for the
purposes of dealing with family emergencies (see paragraph 5.4.1[f] below).
4.1.4 The EC only has power to make rules which are binding in the Member States to the extent
that these powers are provided by the Community legal regime (the founding Treaties and the
jurisprudence of the European Court of Justice). The Community’s powers in the ‘social’ field
(which in European jargon includes labour law) have been quite limited from the start, and despite
some advances, continue to be less broad than those which a national government would generally
have. In the most contentious fields, unanimity amongst the governing EC Council (made up of the
first ministers of each Member State) was essential - a further brake on EC regulation of labour
4.1.5 The nature of EC rule-making has two ramifications for the comparative study of work and
family provisions. The first is that many of the features of EC regulation are as much the result of
attempts to build meaningful and acceptable laws from these constrained constitutional bases as
they are a reflection of aggregate European wisdom on particular issues. Thus, for example, the
Working Time Directive is based on the Community’s power to ‘support and complement the
activities of the Member States in the…improvement in particular of the working environment to
protect workers’ health and safety’ (Article 137 EC), not a general power to make working time
rules. The Community Pregnant Workers Directive is based on the same health and safety
provision. The EC has not developed a comprehensive set of laws equivalent to a national labour
code, as its laws are designed to supplement those at the national level where this is necessary to
meet the Treaty objectives.
2 Note that the European Union is an overarching political union which includes the European
Community. Under the Treaties, the European Community is the legal entity which makes the laws
of the EU. Thus this paper will refer to the laws of the EC, as they are implemented within the EU
4.1.6 This means, in the author’s opinion, that those looking for regulatory solutions in EU law
from other jurisdictions should be prepared to consider both the minimum European standards and
the additional or different measures taken by the Member States in the relevant field.
4.1.7 The second ramification is that EC laws, carefully constructed on narrow constitutional
bases to meet the needs of many disparate Member States, often provide useful examples of
innovative regulatory techniques, particularly in the form of framework laws which provide principles
within which decisions are taken further down the regulatory chain. In this sense, the EC laws may
provide interesting data for non-European states considering new responses to workplace issues.
EC laws are shaped by the principles of subsidiarity and proportionality, and this preference that
actual determination of labour standards be achieved at the lowest possible level has much in
common with the contemporary legislative approach of the Australian government, which seeks to
devolve decision-making within a framework of principles to the level of the workplace.
4.2 The Treaties
4.2.1 The European Community (EC) had as its initial task the creation of a common market
amongst the Member States and its objective is ‘to promote throughout the Community a
harmonious, balanced and sustainable development of economic activities, a high level of
employment and of social protection, equality between men and women, sustainable and
non-inflationary growth, a high degree of competitiveness and convergence of economic
performance….the raising of the standard of living and quality of life…’ (Article 2).
4.2.2 The Treaty of Rome (1957) which created the European Economic Community, did not
include a catalogue of rights. However, jurisprudence of the European Court of Justice (ECJ) has
since found that ‘respect for fundamental personal human rights is one of the general principles of
Community law… there can be no doubt that the elimination of discrimination based on sex forms
part of those fundamental rights’ Defrenne No 3 Case 149/77  ECR 1365, 1378.
4.3 EC ‘Legislation’
4.3.1 The EC institutions have created a body of ‘legislation’ which deals directly and indirectly
with issues to do with the reconciliation of work and family. These instruments are discussed in the
4.3.2 Of relevance to this report is the fact that the ECJ has developed the principles prohibiting
indirect discrimination on the grounds of sex in ways which have shaped the regulation of part-time
work within the EC. It is common for part-time work to be female-dominated. (This is the case in
Australia. (Wilson et al, 1999 : 16)) Where such workers are treated differently from relevantly
comparable full-time workers, the Court has often held that unlawful discrimination has occurred.
Different treatment of part-time workers was found to breach EC equal treatment laws in relation to
access to occupational pensions (Bilka-Kaufhaus v Weber von Hartz, Case 170/84  2 CMLR
701), where part-time workers were paid less than equivalent full-timers (Jenkins v Kingsgate
(Clothing Productions) Ltd  IRLR 288, access to sick pay for employees working less than 10
hours per week, Rinner-Kuhn v FWW Spezial Gebaudereinigung GmbH & Co. KG  IRLR
493; and found to be discriminatory a job evaluation scheme which awarded higher grades to
workers with special skills and seniority with the result that on average women (because of their
lower years of service) received lower pay - Handels-Og Kontorfunktionaerernes Forbund i
Danmark v Dansk Arbejdsgiverforening (acting for Danfoss)  IRLR 532.
4.3.3 In ECJ jurisprudence, indirect discrimination on grounds of sex may be justified where the
particular measures are justified according to objective criteria not based on sex discrimination.
The potentially offending measures must ‘correspond to a real need on the part of the undertaking,
[be] appropriate with a view to achieving the objectives pursued and [be] necessary to that end.’
(Hervey (1991)). The United Kingdom Department of Trade and Industry has argued that EC law
on indirect discrimination means that ‘a requirement to work full-time must correspond to a real
need on the part of the employer and must be appropriate and necessary to achieve the objective
in question’ (DTI 2001 Annex E,1, emphasis added). This approach envisages that employers must
be able to objectively justify any decision to only employ workers on a full-time basis in accordance
with this test. If this approach takes root, then it is expected that workplace decisions on full-time
and part-time work may become more transparent, with the potential for requests for part-time
work to be met more favourably than has been the case in the past.
4.4 The European Employment Strategy
4.4.1 The Treaty has been amended to give the EC a greater role in co-ordinating a
Community-wide approach to employment. See Title VIII Employment (Articles 125 - 130 EC).
Article 135 states:
“Member States and the Community shall…work towards developing a co-ordinated strategy for
employment and particularly for promoting a skilled, trained and adaptable workforce and labour
markets responsive to economic change with a view to achieving the objectives defined in Article 2
of the Treaty on European Union and in Article 2 of this Treaty.”
4.4.2 A European Employment Strategy (EES) has been developed. This is a policy which has
four ‘pillars’: employability, entrepreneurship and job creation, adaptability and equal opportunity.
The strategy does not have mandatory force and as Article 135 suggests, it aims to co-ordinate
national and transnational action within the EU. Within the equal opportunity pillar, the reconciliation
of work and family life has been a key element of the EES, while the adaptability pillar has included
measures to deal with making working time more flexible. Each Member State is required to
prepare a National Action Plan, which is designed to operationalise the European-wide guidelines
in the EES.
4.4.3 Under the Equality pillar, the Guidelines state that ‘Member States and the social partners
should translate their desire to promote equality of opportunity into increased employment rates for
“Reconciling Work and Family Life
Policies on career breaks, parental leave and part-time work, as well as flexible working
arrangements which serve the interests of both employers and employees, are of particular
importance to women and men. Implementation of the various Directives [discussed in detail
below] and social-partner agreements in this area should be accelerated and monitored regularly.
There must be an adequate provision of good quality care for children and other dependants in
order to support women’s and men’s entry and continued participation in the labour market. An
equal sharing of family responsibilities is crucial in this respect. In order to strengthen equal
opportunities, Member States and the social partners will : …
20. design, implement and promote family-friendly policies, including affordable, accessible and
high quality care services…as well as parental and other leave schemes”. (European Commission,
Guidelines for Member States’ Employment Policies for the year 2000)
4.4.4 A common thread across all policy making is the need to reconcile work and family life.
Thus, for example, the Community’s Strategy on Gender Equality (2001 - 2005) covers five areas,
one of which is ‘economic life’ : ‘This area relates to the remaining gaps in the labour market and
the ways to tackle them. Action consists in increasing the employment rate of women, reducing
unemployment rates among women and to making it easier for women and men to reconcile
working with family life.’ To this end, the EES has set a quantitative target for Community policies -
to increase the number of women in employment from 51% to 60% by 2010 (Council Decision 20
Dec 2000 on gender equality).
4.5 The European Convention on Human Rights and Fundamental Freedoms
4.5.1 In 1989, the Community created its non-binding Community Charter of Fundamental Social
Rights for Workers. This is essentially an aspirational statement which elaborated on the principle
of equal treatment for men and women, stating ‘Measures should also be developed enabling men
and women to reconcile their occupational and family obligations’ (Article 16). The European
Council held in Nice (2002) revised a charter of rights, which is still not legally binding. However,
the Treaty has been amended to articulate the EC regime with that of the Council of Europe’s
European Convention on Human Rights and Fundamental Freedoms (ECHR). The Treaty on
European Union states in Article 6(2):
“The Union shall respect fundamental human rights, as guaranteed by the European Convention
for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November
1950 and as they result from the constitutional traditions common to the Member States, as
general principles of Community law.”
4..5.2 The European Court of Human Rights enforces the ECHR in all states which are members
of the Council of Europe. Its jurisprudence on the right to family life has some relevance to this
report. For example, in Petrovic v Austria, the Court considered whether or not a law which granted
parental leave to women and not men was in breach of the right to family life. In its decision, the
Court found that Member States were evolving in their approach to work and family issues, and
that there was a recent trend to recognise the care responsibilities of men and women and the
need to accommodate working lives to meet these needs. It found that Austria had amended its
parental leave scheme to include men in 1990, and that the earlier regime did not offend the
Convention, because states were entitled to develop their national social policy in this area over
5. The Relevant EC Directives
5.1 Note on EC Directives
5.1.1 The EC institutions are empowered by the Treaty to create various classes of legal
instruments, which have different legal effect within the Member States and at the Community
level. The relevant secondary ‘legislation’ of the EC in the field of work and family takes the form of
directives. EC directives are addressed to the Member States of the EU, and are ‘binding, as to the
result to be achieved, upon each Member State to which it is addressed, but shall leave to the
national authorities the choice of form and methods.’ (Article 249 EC). Directives generally do not
preclude more favourable provisions (see for example Clause 4(1) of the Parental Leave Directive :
‘Member States may apply or introduce more favourable provisions than those set out’), that is, like
the ILO Conventions, they take the form of minimum standards.
5.1.2 EC Directives are binding on the Member States, which can be held to account by the ECJ if
they fail to properly ‘transpose’ each directive within the specific period for implementation.
(Individuals cannot bring such actions.) In addition, the ECJ has developed the notion of ‘direct
effect’ of directives in such a way that some provisions in directives (or the whole instrument) may
have automatic legal effect within the Member State notwithstanding, say, national refusal to
implement the Community rule. The finding of direct effect of directives means that individual
citizens within the EU may have the legal right to pursue their entitlements within the Community
legal order, even if the Member State has not transposed the directive, or has transposed it
incorrectly. Correct transposition of directives requires that citizens have ‘the right to a real,
effective and adequate remedy’ (Barnard (1998) 41).
5.2 Equal Treatment
5.2.1 A number of EC Directives deal with the issue of discrimination against workers with family
responsibilities. The primary instrument is the Equal Treatment Directive (Council Directive
76/207/EEC of 9 February 1976 on the Implementation of the Principle of Equal Treatment for Men
and Women as Regards Access to Employment, Vocational Training and Promotion, and Working
Conditions [Official Journal of the European Community, hereafter OJ, 1976, No L39/40]). Article 2
(1) states that equal treatment means that ‘there shall be no discrimination whatsoever on grounds
of sex either directly or indirectly by reference in particular to marital or family status’. The Directive
permits different treatment to remove existing inequalities, and is without prejudice to measures to
protect women ‘particularly as regards to pregnancy and maternity (Article 2(3)). Commentators
note the far-reaching scope of the Directive, positing that ‘family status’ could include elder care as
well as child care. The case law of the ECJ is beyond the scope of this essay, but it should be
noted that the Directive has prompted some important changes within the Member States : for
example, different retirement ages for men and women have been held to be contrary to the
Directive, as has the earlier ban on women’s work at night. (See Barnard 1998 : 191)
5.2.2 Article 5 requires equal treatment in relation to working conditions. Member States are
required to ensure that any existing laws or administrative provisions contrary to this principle are
abolished. The Article further requires that any contrary provisions in ‘collective agreements,
individual contracts of employment, internal rules of undertakings or in rules governing the
independent occupations and professions shall be, or may be declared, null and void or may be
amended’ (Clause 5(2)(b)). Protective rules where ‘the concern for protection which originally
inspired them is not longer well founded’ must be revised (Article 5(2)(c)).
5.2.3 Because of the gendered division of labour at home and at work in the EU, these
provisions are relevant to the reconciliation of work and family life because more women than men
are likely to be disadvantaged by barriers in both fields. One structural difficulty with regulation of
work and family through anti-discrimination law is the need to show disadvantage in relation to an
accepted comparator. The legal technicalities and patchy development of case law of the
discrimination approach mean that it is a blunt tool for achieving efficient regulation in the field of
work and family. Positive measures are called for which deal with the issues on a universal and
global basis, and which lay the groundwork for greater equality of care and work responsibilities
between men and women.
5.3 Pregnant Workers and Maternity Leave
5.3.1 The Directive on Pregnant Workers (Council Directive 92/85 of 19 October 1992 on the
Introduction of Measures to encourage improvements in the Safety and Health at work of pregnant
workers and workers who have recently given birth or are breastfeeding) was created on the basis
of the Treaty power relating to health and safety. Indeed, the Directive is one of the ‘daughter’
directives created from the Community’s primary health and safety directive. Although the health
and safety basis was the legal ‘hook’ upon which the Directive was hung, it covers a wider field
than might normally be expected of such an instrument.
[a] Health and Safety : the Directive requires Member States to participate in the development of
guidelines for pregnant women and nursing mothers in relation to hazardous materials (Article 3),
and other risks must be assessed and catalogued (Article 4 and 5).
[b] Night Work : If it is contrary to the health of a pregnant worker or nursing mother as stated in a
medical certificate, such workers must be permitted under national law to refuse work at night.
National regimes must ensure that two options are possible : the transfer to day work or leave from
work where transfer is impossible (Article 7).
[c] Maternity Leave : Member States must introduce a scheme of at least 14 weeks of continuous
maternity leave, two weeks prior to birth and two weeks after the birth of which must be compulsory
(Article 8). Maternity leave is to be remunerated at a rate determined at the national level which
must be no less than sickness benefit. [Women on maternity leave may also be entitled to other
work-related benefits. For example, the European Court of Justice has held that it is contrary to the
equal pay provisions in the Treaties to withhold a Christmas bonus from women on
maternity/parental leave where the purpose of the bonus is to encourage future performance at
work, rather than reward effort during the period in which the claimant was on leave : Lewen v
Denda  All ER (EC) 261. A similar finding was made in the UK case GUS Home Shopping
Ltd v Green  IRLR 75 (EAT).]
[d] Time off for ante-natal examinations : Member States are to ensure that pregnant workers have
time off work with pay to attend ante-natal examinations, if these have to take place during working
hours (Article 9).
[e] Employment Rights : dismissal of pregnant workers or nursing mothers from the beginning of
pregnancy to end of maternity leave is prohibited, ‘except in exceptional cases not connected with
their condition’ (Article 10). Member States must ensure that, whilst on leave, workers retain
employment rights in their contract, ‘including the maintenance of a payment to, and/or entitlement
to an adequate allowance’ (Article 11). The Directive states ‘the allowance…shall be deemed
adequate if it guarantees income at least equivalent to that which the worker concerned would
receive in the event of a break in her activities on grounds connected with her state of health,
subject to any ceiling laid down under national legislation’ (Article 11(3)).
[f] Defence of Rights : Member States are required to provide workers who do not receive their
entitlements access to ‘judicial process (and/or, in accordance with national law and/or practice) by
recourse to other competent authorities’ (Article 12).
5.4 Parental Leave and Emergency Family Leave
5.4.1 The EC’s Directive on Parental Leave (Council Directive 96/34/EC of 3 June 1996) was the
result of negotiations between the social partners at the Community level. Their agreement was
then given legally binding status by the EC institutions through the novel legislative process in the
Treaty. The Directive reflects the commitment in the Community Charter of Fundamental Social
Rights of Workers (1989), referred to above, that steps be taken at the Community level to achieve
equal treatment for men and women by helping them to reconcile their work and family obligations.
[a] Scope : the Directive applies to ‘all workers, men and women, who have an employment
contract or employment relationship as defined by the law, collective agreements or practices in
force in each Member State’ (Clause 1(2)).
[b] Parental Leave Entitlement : the Directive entitles men and women workers to an individual,
non-transferable right to parental leave on the grounds of the birth or adoption of a child for the
purpose of taking care of that child. All of the worker’s acquired rights will be maintained during the
period of leave (Clause 2(6)), and they are entitled to benefit from any changes made to these
conditions during their leave. The Directive does not specify the fate of the contract or employment
relationship during leave : this is a matter left to national determination (Clause 2(7)), and all social
security issues are left for national determination (Clause 2(8))3. The period of parental leave is
to be no less than three months, which can be taken up to a given age prior to the child’s eighth
birthday (the age specified in national law to be determined at the national level) (Clause 2(1) and
(2)). At the end of the period of parental leave, workers have the right to return to the same job ‘or,
if that is not possible, to an equivalent or similar job consistent with their employment contract or
employment relationship.’ Member States are required to ‘take the necessary measures’ to ensure
that workers are not dismissed for seeking or taking parental leave (Clause 2(4)).
[c] Pre-requisites : most details are to be worked out in the national arena, but the Directive
specifies that it is permissible to establish a pre-requisite based on length of service, which if used
must not exceed one year (Clause 2(3)(b)).
[d] Options for Employer : the Directive permits national provisions which allow the employer to
postpone the granting of parental leave ‘for justifiable reasons related to the operation of the
undertaking (eg where work is of a seasonal nature, where a replacement cannot be found within
the notice period, where a significant proportion of the workforce applies for parental leave at the
same time, where a specific function is of strategic importance)’ (Clause 2(3)(e)).
[e] Exclusions for Small Business : Member States may ‘authorise special arrangements to meet
the operational and organisational requirements of small undertakings’ (Clause 2(3)(f)).
[f] Time Off Work on the Grounds of Force Majeure : Member States are required to implement
schemas which ‘entitle workers to take time off from work, in accordance with national legislation,
collective agreements and/or practice, on grounds of force majeure for urgent family reasons in
cases of sickness or accident making the immediate presence of the worker indispensable’
(Clause 3(1)). Member States are permitted to establish conditions of access to this entitlement,
which may be limited ‘to a certain time per year and/or per case’ (Clause 3(2)).
5.5 Access to Part-Time Work and Quality Part-Time Work
5.5.1 The Part-time Work Directive is, like the Parental Leave Directive, the product of the
legislative process by which the European social partners negotiate an agreement which is then
passed into law by the Community institutions.
5.5.2 The purpose of the Directive is to assist in increasing employment within the Community.
Under the ‘General Considerations’ section, the Directive states at point 4 :
“Whereas the conclusions of the European Council meeting at Essen emphasised the need for
measures to promote both employment and equal opportunities for women and men, and called for
measures aimed at ‘increasing the employment intensiveness of growth, in particular by more
flexible organisation of work in a way which fulfils both the wishes of employees and the
requirements of competition…”
5.5.3 In addition, the Directive recognises that benefits of properly regulated part-time work ‘in
order to prepare for retirement, reconcile professional and family life, and take up education and
training opportunities…for the mutual benefit of employers and workers and in a manner which
3 Note that in many cases, where the Directive refers to determination by the national government,
it also permits decision-making to be devolved to the national ‘social partners’ (EC jargon for
representatives of workers and employers).
would assist the development of enterprises…’
[a] Scope : the Directive applies to workers with an employment contract or employment
relationship. Casual workers may be excluded by Member States (Clause 2).
[b] Definition of part-time worker : one who works fewer normal hours than a comparable full-time
worker (Clause 3).
[c] Discrimination against part-time workers : The Directive requires Member States to prohibit less
favourable treatment of part-time workers, when compared with comparable full-time workers,
solely on the grounds that they work part-time. Member States are permitted to place conditions on
the attainment of certain unspecified conditions of employment (Clause 4). Refusal to transfer from
a part-time to full-time job or vice-versa is not a valid reason for termination of employment (Clause
[d] Opportunities for part-time work : Member States must ‘identify and review obstacles of a legal
or administrative nature which may limit the opportunities for part-time work, and where
appropriate, eliminate them’ (Clause 5(1)(a)).
[e] Right to part-time work : the Directive does not enshrine such a right. But note that the
requirement to review and remove obstacles to part-time work (see above) may be extended to
include the promotion of such a right. The Directive states, ‘As far as possible, employers should
give consideration to (a) requests by workers to transfer from full-time to part-time work that
becomes available in the establishment’ (Clause 3(a)). Employers should also ‘consider’ requests
from part-timers to go full-time, providing information on the availability of part-time and full-time
positions and so on. Employers need only consider, as far as possible, requests for transfer in
relation to part-time ‘that becomes available’, which suggests that requests in any event would not
necessarily concern the reduction in hours of the applicant’s own job.
5.6 Other Relevant Areas - Telework
5.6.1 The EU has conducted extensive research into the issue of teleworking (defined as work
which is regularly carried out away from the employer’s premises using information technology). As
part of the European Employment Strategy, the European social partners were asked to consider
the modernisation of work including flexible working arrangements ‘with the aim of making
undertakings productive and competitive and achieving the necessary balance between flexibility
and security’ (Preamble to Agreement on Telework). Telework is seen by the social partners as a
means of improving competitiveness and ‘as a way for workers to reconcile work and social life’
(Preamble). A more pessimistic view of telework is that it is likely to reinforce existing gender
divisions of labour (Travis, 2003). The social partners (ETUC, UNICE, CEEP and UEAPME)
negotiated a Framework Agreement on Telework. The Agreement has not become a binding
Community law at this stage, and its purpose is to provide guidelines for national collective
bargaining and national legal intervention in this area. The following are the Agreements key
[a] Agreement necessary : telework must be voluntary for worker and employer.
[b] Employment Rights : teleworkers are to receive the same terms and conditions as other
workers, and additional rights which may be negotiated through collective and/or individual
agreements to reflect the particular needs of their work.
[c] Privacy and data protection : the employer must inform the worker of data protection
requirements, and the worker must respect these. The employer must respect the privacy of the
worker, and monitoring systems must be ‘proportionate’ to the objective of introducing them.
[d] Equipment : Questions of liability and cost to be determined prior to telework commencing.
Generally, employer responsible for providing, installing and maintaining equipment.
[e] Health and Safety : Employer responsible. Employer, workers’ representative and/or relevant
authorities have access to the telework place. If this is the worker’s home, access subject to prior
notice and worker’s agreement. Worker may request inspection visits.
[f] Organisation of Work : Generally, the worker is responsible for the organisation of work,
however workload and performance standards should be equivalent to those of comparable
workers at the employer’s premises. Employer to take steps to prevent isolation of teleworker,
‘such as giving him/her the opportunity to meet with colleagues on a regular basis and access to
[g] Training : Same access as comparable workers at the employer’s premises.
[h] Collective Rights : Same as comparable workers at the employer’s premises. ‘The
establishment to which the teleworker will be attached for the purpose of exercising his/her
collective rights is specified from the outset.’ Worker representatives are to be informed of the
introduction of telework.
Part C National Provisions
The following discussion attempts to give a sketch of the work and family legislative provisions in
the following countries : Canada, Germany, Ireland, the Netherlands, New Zealand, Sweden, the
United Kingdom and the USA. This selection includes the main ‘abstentionist’ states within the EU,
the UK and Ireland. These countries have traditionally subscribed to systems of labour law which
give primacy to free collective bargaining to the exclusion of binding, universal labour laws.
Germany and the Netherlands come from a more ‘statist’ tradition of labour regulation, while
Sweden is an example of the long-established Nordic tradition of state intervention to assist
families combine care and work. Canada and New Zealand are developed states which have
similar legal traditions to Australia’s. The USA has been included because of the significance of its
labour market in terms of size and its contrasting regulatory philosophy.
Canada has a federal system of government, with labour laws made by both the federal and
provincial governments. The relevant federal legislation is the Employment Insurance Act 1996,
which provides for up to 50 weeks of insurance benefits for workers on pregnancy and parental
leave (Clause 23) compensated at the rate of 55% of former earnings (Madsen, 2002). Many
workers are excluded from access to this leave because of the 700 hours employment prerequisite
(Madsen, 2002). The federal Canada Labour Code, RSC 1985, provides for job protection during
up to 50 weeks’ pregnancy and parental leave. Mothers are entitled to 15 weeks of benefits, and
both parents are eligible to share up to 35 additional weeks of benefits. People on
maternity/parental leave are permitted to earn up to $50 or 25% of previously weekly earnings
(whichever is greater) without loss of benefits (Crichton, 2000). Some examples from the laws of
British Columbia and Ontario are considered below. In some cases, these laws provide greater
entitlements to leave than the federal legislation, which means that only part of the provincial leave
schemes are covered by the federal insurance benefits.
7.2.1 Parental Leave
The Employment Standards Act 2000 (Ontario) provides for 17 weeks’ unpaid maternity leave,
which must be taken in one block. May receive payment for this leave via the federal system;
eligibility requires that employee has worked for that employer for at least 13 weeks before the
baby’s expected birth date.
[a] Entitlement to parental leave : 35 weeks’ leave (if the employee took maternity leave) or 37
weeks leave (if the employee did not take maternity leave). Leave is available for both parents. If
both are employees, then a maximum of 87 consecutive weeks per child is available (17 weeks
maternity leave, 35 weeks for birth or adoptive mother, 35 weeks for other parent).
[b] Payment : may receive parental benefits under the Federal Employment Insurance Act. Those
eligible receive 15 weeks’ maternity leave benefits and up to 35 weeks parental/adoption leave
benefits. According to James, the threshold for eligibility for the Insurance Act benefits was
increased in 1996 from a minimum of 300 hours employment to a minimum of 700 ‘pushing many
part-time workers out of the system altogether’ (James, 2002 : 10).
[c] Definition of parent : includes a birth parent, an adopting parent whether or not the adoption has
been legally finalised, and ‘a person who is in a relationship of some permanence with a parent of a
child and who plans on treating the child as his or her own.’
[d] Blocks of leave : may choose not to take whole period of available leave, but once leave is
commenced, cannot break it up.
7.2.2 Ontario: Care Leave
[a] Entitlement : up to 10 days’ unpaid, job-protected leave per year. Can be taken in single days;
part day counts as a whole.
[b] Pre-requisite: Employer must regularly employ at least 50 employees. All employees including
homeworkers, those part-time, those on probation, those on short-term contracts, and those laid
off, on strike or locked out are to be counted. Part-time workers are to count as one regardless of
their hours. If the business exists in more than one location, all employees working at least location
are to be counted.
[c] Reason for leave ; ‘may be taken in case of illness, injury and certain other emergencies and
urgent matters.’ These include personal illness, injury or medical emergency, and death, illness,
injury, medical emergency or urgent matters relating to : ‘spouse or same-sex partner, a parent,
step-parent, foster parent, child, step-child, foster child, grandparent, step-grandparent, grandchild
or step-grandchild of the employee, the employee’s spouse or the employee’s same-sex partner,
the spouse of a same-sex partner of an employee’s child, a brother or sister of the employee, a
relative (see below) of the employee who is dependent (see below) on the employee’s care or
[d] Further definition of ‘relative’ : can be a relative of the employee through ‘blood, marriage, a
same-sex partnership or through a spousal relationship between people of the opposite sex who
are not married. The relationship of relative can be established through a same-sex or spousal
relationship once there is a conjugal relationship, regardless of how long the relationship has been
[e] Further definition of ‘dependent’ : not defined in the Act. The Ministry states that ‘this provision
applies to any ‘relative’ who relies on the employee to some degree for care or assistance in
meeting their basic living needs. The relative does not have to be completely reliant on the
employee for all their needs, nor does he or she have to live with the employee. Moreover, the
event for which an employee requests emergency leave does not have to relate to the particular
type of dependence the relative has on the employee.’
[f] Definition of ‘urgent matter’ : not defined in the legislation. The Ministry’s policy is that ‘an urgent
matter must be unplanned or out of the employee’s control and involve the possibility of serious
negative consequences, including emotional harm if not attended to. The test is whether a
reasonable person in the employee’s circumstances would feel that the matter is an urgent one.’
The Ministry gives the following examples : babysitter calls in sick and no one else is available to
care; employee rung at work and asked to pick up sick child from school.
[g] Accrual of leave : cannot be accrued from year to year.
7.3 British Columbia
7.3.1 Family Responsibility Leave
British Columbia’s parental leave scheme is similar to that of Ontario (outlined above), except that
the period of leave is not used for the employee’s own illness or injury. In relation to emergency
family leave, the following provisions apply:
[a] Entitlement : Up to five days of unpaid leave per year ‘to meet responsibilities related to the
care, health or education (sic) of any member of the employee’s immediate family’.
[b] Definition of immediate family : spouse, child, parent, guardian, sibling, grandchild or
grandparent of an employee, and ‘any person who lives with the employee as a member of the
[c] Bereavement leave : note that the Employment Standards Act (BC) includes an additional
entitlement to up to 3 unpaid days for bereavement purposes, in addition to the five days’ Family
Responsibility Leave. These can be taken as single days, and do not have to start on the date of
8.1 Parental Leave and Related Provisions
8.1.1 German law provides 14 weeks’ maternity leave (the Mutterschutzgesetz or Maternity
Protection Law ‘MuSchG’) (Schiek, 2002 : 4), and a general right to take short interruptions to work
to deal with birth of child (father) or illness of a child (Burri and others, 2003 : 325). Parents have an
entitlement to unpaid leave (with sickness benefit) to care for an ill child for up to a maximum of ten
days per year (Burri and others, 2003 : 325).
8.1.2 In addition, there is an entitlement for three years’ full-time unpaid parental leave, to be
taken before the child’s eighth birthday. (Burri and others, 2003 : 326); for a discussion of the
history of this legislation see Schiek 2002 : 2) Some pay is available for low income workers DM
600 per month per child (up to the child’s second birthday). A period of 14 weeks parental leave is
paid at the rate of DM 25 per day plus employer top-up. (James, 2002 :13) Unlike other schemes,
such as that in New Zealand, parents on parental leave are permitted to work, here between 15
and 30 hours per week. Note, too, that the German law now refers to ‘parental time’ not ‘parental
leave’, seeking ‘symbolically to recognise that parenting involves no less real work than paid
employment’ (Schiek, 2002 : 2).
8.1.3 Under the Act on Benefits and Leave for Care for Children (Bunderserziehungsgeldgesetz,
or BErzGG) parents have a right to organise their parental leave in the form of part-time work in the
former job (Schmidt, 2001 : 348). This entitlement is only available to employees who have worked
for more than six months for an employer employing more than 15 workers (Schiek, 2002 : 2).
The employer and employee must meet within a month of a request for part-time work being made,
in order to reach an agreement as to duration of working time and its distribution. The employer
must grant the leave unless there is a ‘conflicting urgent operational reason’. (Schmidt, 2001 :
348) Note that under this form of right to part-time work, hours fewer than 15 per week cannot be
claimed, and that the grounds for rejection are narrower than in the TzBfG (urgent operational
reasons in the BErzGG, operational reasons under the TzBfG). (Schmidt, 2001 : 348; Schiek, 2002
8.2 Germany : The Right to Part-Time Work
8.2.1 Germany has transposed the EC’s Part-time Work Directive in its Act on Part-time Work and
Fixed-term Contracts (Gesetz uber Teilzeitarbeit und befristete Arbeitsvertrage, or TzBfG) (Jacob
and Schmidt, 2001 : 372). The purpose of the Act was to generate jobs growth and to increase the
proportion of men working part-time (Jacob and Schmidt, 2001 : 373). The introduction of a ‘right’
to part-time work (and to seek greater and/or rearranged hours) was inspired by the Netherlands’
legislation discussed below. (Schmidt, 2001).
[a] Entitlement : right to seek adaptation of working time for a greater number or fewer hours.
Unlike the Dutch legislation discussed above, the TzBfG establishes different regimes for reducing
and enlarging hours. The latter is ‘more uncomplicated’ (Jacob and Schmidt, 2001 : 375). In
relation to a request for more hours, the employer must ‘give preference’ (sic) to it, unless this
conflicts with urgent operational reasons or requests of other part-time workers. Jacob and
Schmidt state, ‘Although the wording is vague the duty to ‘give preference’ is interpreted as a duty
to grant the request’ (Jacob and Schmidt, 2001 : 375).A change in distribution of hours can only be
requested in relation to a request for reduction in hours.
[b] Pre-requisite : employer must regularly employ at least 15 employees. (Jacob and Schmidt,
2001 : 374) Some 75% of all employees are included in this definition. (European Foundation for
the Improvement of Living and Working Conditions, 2003 :22) Employees must be employed by the
same employer for at least 9 months. Note that these pre-requisites do not apply for employees
seeking to increase hours : ‘hence from the very first day of employment every part-time employee
in every enterprise is entitled to claim an extension of his or her working time, as long as there are
no ‘urgent operational reasons’ or conflicting requests from other employee.’ (Schmidt, 2001 : 349).
[c] The Process : An oral request is sufficient, and must be made at least three months in advance.
As in the Netherlands, the employee is not required to give a reason for his/her request. The
employee is not required to specify the distribution of hours sought; but Schmidt notes that if no
request is made, the employer determines this unilaterally. The employer must discuss the request
with the employee, and the matter of the distribution of hours, with the aim of reaching an
agreement (Dutch law does not specify that the discussions between employer and employee
should aim at agreement). (Jacob and Schmidt, 2001 : 377). Schmidt states that this element of
the Act reflects the parliament’s view that the law would act as means to encourage voluntary
agreement in practice (Schmidt, 2001 : 344).
[d] Reasons : if the request is to reduce working hours, the employer must agree unless there are
‘operational reasons’ (Jacob and Schmidt, 2001 : 378) for not doing so. This is translated as
‘business reasons’ by Burri and others, (2003 : 337), who contrast this test with the ‘serious
business requirements’ in Dutch law. The TzBfG gives examples of such reasons - if the reduction
seriously interferes with the organisation, the work or safety of the enterprise, or if it causes
disproportionate costs. Jacob and Schmidt argue that the specified reasons in the legislation have
led to some confusion, as in a previous draft of the law, the same reasons were used as examples
when the test for refusal of requests was ‘urgent operational reasons’. Note that the unavailability of
a suitable replacement worker is not a valid reason unless the employer can show ‘that such an
employee is not available in the labour market’ (Jacob and Schmidt, 2001 : 378).
[e] The Courts’ interpretations of ‘business reasons’ : the most recent data (Burri and others, 2003)
shows that there has been a total of 24 decisions by German courts. Some 17 of these decisions
were made by district labour courts, and seven were dealt with on appeal to the State labour court.
So far, no cases have been heard by the Federal labour court (Burri and others, 2003 : 338) In 16
of the 24 cases, the claim for reduced hours and the distribution of hours was upheld. In 7 it was
rejected. The pattern of decisions is said to be similar to that noted below in relation to the
Netherlands. This is strange, because there is a lower threshold for the German employer must
meet to show a proper reason for rejecting a request (business reason not serious business
reason as in Netherlands). Burri et al argue that employers tended to rely on the same arguments
used in the Netherlands (extra administrative expenditure, increased overhead costs, scheduling
problems, problems with replacement staff) but, as in the Netherlands, tended not to produce
convincing evidence of the problem. ‘Instead, they adhere to slogans or unproven facts.’ (Burri and
others, 2003 : 341) For example, ‘one employer denied the request of a paramedic by arguing that
the employee would set a bad example for the other employees.’ (341).
[f] Collective agreements may set out reasons for rejecting these requests in a specified number of
areas, for example on-call employment (Jacob and Schmidt, 2001 : 379).
[g] The employer must inform the employee of his/her decision at least one month in advance of
the new hours commencing. As with the Netherlands’ legislation, failure to agree and notify the
employer’s decision by the one month deadline means that the request automatically takes effect.
If the employer refuses the request, the employee can complain to the labour courts, which must
assess whether or not the application was properly refused on operational grounds. If not, the court
may make its own binding decision on the application. (Schmidt, 2001 : 345)
[h] Further claims : cannot be made within two years.
[i] Protection against victimisation : as per Netherlands.
9.1.1 The Employment Equality Act 1998 prohibits discrimination, which is defined as less
favourable treatment ‘on any relevant characteristic’, and positive action is permitted in certain
circumstances in relation to gender, marital status, family status and other characteristics (Buckley
2000 : 2).
9.2 Parental Leave
9.2.1 Irish legislation implementing the EC Directive on Parental Leave provides for 14 weeks
paid maternity leave (Rostgaard 2002 : 12)4. Note that a new tranche of legislation was proposed
in April 2003, which dealt with the right for pregnant workers to attend ante-natal care without loss
of pay, for fathers to attend two ante-natal sessions, breaks for breastfeeding for the first four
months after the birth etc. (EC Bulletin on Legal Issues in Equality, No 1/3003)
9.2.2 The Parental Leave Act 1998 implements the EC Parental Leave Directive in the following
[a] Scope : covers those with a ‘contract of employment’, which is defined as those with a contract
of service or apprenticeship, or those with ‘any other contract whereby an individual agrees with
another person, who is carrying on the business of an employment agency within the meaning of
the Employment Agency Act 1971, and is acting in the course of that business, to do or perform
personally any work or service for a third person (whether or not the third person is a party to the
contract’ (Section 2(1)).
[b] Entitlement to Parental Leave : 14 working weeks’ unpaid leave to care for natural or adoptive
child (section 6(1), which must be taken before the child is five or, if the child is adopted, the child
is aged between three and eight years (Section 6(2)). Leave is not transferable between two
parents (Section 6(7)). Leave may be continuous for 14 weeks, or, if agreed by employer or
representatives of employer and employee, for a number of periods (Section 7(1)). No more than
14 weeks parental leave can be taken in any period of 12 months, unless there is a multiple birth
(Section 7(3)). The employer and employee may agree to curtail or postpone the leave, even once
agreed (Section 10(1)). If the employer believes the leave sought ‘would have a substantial
adverse effect on the operation of his or her business, profession or occupation by reason of
seasonal variation in the volume of work concerned, the unavailability of a person to carry out the
duties of the employee in the employment, the nature of those duties, the number of employees in
the employment or the number thereof whose periods, or part of whose periods, of parental leave
will fall within [the requested time]’ the employer may postpone the parental leave by no more than
six months (Section 11(1)).
[c] Pre-requisite : 12 months’ continuous service ‘with the employer from whose employment the
leave is taken’ (Section 6(4)). However, if have three months service at the latest available time at
which the leave could be taken, having regard to the age of the child, the worker is entitled to one
week for each month of continuous service with that employer (Section 6(8)).
[d] Abuse of Parental Leave : Leave must be taken for the purpose of caring for the child (Section
12(1)). If the employer has reasonable grounds to believe that the employee on parental leave is
not caring for the child, the parental leave may be terminated by notice in writing by the employer
(Section 12 (2)).
[e] Employment Rights : ‘An employee shall, while on parental leave, be regarded for all purposes
relating to his or her employment (other than his or her right to remuneration or superannuation
benefits or any obligation to pay contributions in or in respect of the employment) as still working
in the employment and none of his or her other rights relating to the employment shall be affected
by the leave (Section 14(1)).
4 Note that this paper has not addressed the issue of compensation for care work in full. Some
countries provide indirect support for carers through tax exemptions and social security benefits.
For a transnational discussion, see Keefe and Fancey (1999), DIR Queensland (2004).
[f] Return to Work : Right to return to work with the same employer, or his/her successor (Section
15(1)(a), and to the job held immediately prior to the parental leave (Section 15(1)(b)), and ‘under
the contract of employment under which the employee was employed immediately before the
commencement’ of the leave (Section 15(1)(c)). Where return to work is not ‘reasonably practical’
on these terms, the employee is entitled to be offered by the employer ‘suitable alternative
employment’ (Section 16(1)).
[g] Dispute Resolution and Enforcement : disputes between the parties over entitlements under the
Act can be referred to a rights commissioner, who will conduct a hearing in private and make a
decision (Section 18)). An appeal from this decision may be made to the Employment Appeals
Tribunal (Section 19). The Tribunal may refer a question of law to the High Court, and parties may
appeal a determination by the Tribunal to the High Court on questions of law (Section 20(1)). The
rights commissioner and the Tribunal may determine that a grant of parental leave be made, or that
an employee is compensated by the employer. Compensation must ‘just and equitable’, but no
more than 20 weeks of the employee’s pay (Section 21(3)).
9.3 Ireland : Leave for Family Emergencies
9.3.1 The Parental Leave Act 1998 also implements the provisions of the EC Directive on
Parental Leave on ‘force majeure’ leave. The scope of application of emergency leave, and the
enforcement provisions are as above
[a] Entitlement to Emergency Leave : Employees (as defined, see above) are entitled to leave with
pay known as ‘force majeure’ leave, ‘where, for urgent family reasons, owing to an injury to or the
illness of a person specified (see below)…the immediate presence of the employee at the place
where the person is, whether at his or her home or elsewhere, is indispensable (Section 13(1)).
[b] Duration of leave : one or more days’ paid leave, but shall not exceed 3 days in any 12
consecutive months or 5 days in any period of 36 months (Section 13(4)).
[c] Person whose injury/illness is the basis for leave : ‘(a) a person of whom the employee is the
parent or adoptive parent, (b) the spouse of the employee or a person with whom the employee is
living as husband or wife, (c) a person to whom the employee is in loco parentis, (d) a brother or
sister of the employee, (e) a parent or grandparent of the employee, and (f) persons of such other
(if any) class or classes as may be prescribed’ (Section 13(2)).
9.4 Access to Part-Time Work and Quality Part-Time Work
9.4.1 The Protection of Employees (Part-Time Work) Act 2001 implements the EC’s Part-time
Work Directive. The Irish Government has chosen to establish standards which are higher than the
Directive in certain respects :
[a] Scope : as per parental leave, carer’s leave. Also includes some casual workers, defined as
those who have been in continuous service for less than 13 weeks and the employment is not
‘regular or seasonal’ or is defined as casual under a relevant collective agreement (Article 11).
Service is deemed continuous unless the employee has been dismissed or voluntarily left the
employment (Article 11).
[b] Principle of non-discrimination : same as Directive but extended to include discrimination in
relation to pay and pensions. The Act permits discrimination against part-time casual workers ‘if
such less favourable treatment can be justified on objective grounds’ (Article 11(2)).
[c] Employer not to penalise : including if employee refuses to transfer from full-time to part-time
and vice versa, etc. ( Section 15). Penalise means dismiss or suffer any unfavourable change in
conditions of employment, or if the employee is subject to any other prejudicial action (Article
15(2)(b)). An employer may penalise an employee who refuses to move from part-time to full-time
work or vice versa if ‘having regard to all the circumstances, there were substantial grounds both to
justify the employer’s making the request concerned and the employer’s taking that action
consequent on the employee’s refusal, and the taking of that action is in accordance with the
employee’s contract of employment and [relevant Acts]’ (Section 15 (2)(b)(i) and (ii)).
[d] Right to Part-time Work : no right in the legislation, as the Directive. The Labour Relations
Commission has been asked to draw up a Code of Practice dealing with the transfer of workers
from full-time to part-time work and vice versa (EC (2003b) 40).
9.5 Ireland: Carers’ Leave
9.5.1 The Carer’s Leave Act 2001 provides as follows :
[a] Scope : as for parental leave.
[b] Entitlement to Leave : up to 65 weeks to provide ‘full-time care and attention to a relevant
person’ (Section 6(1)). The employee must provide full-time care and attention during the leave,
and must not ‘engage in employment or self-employment’ (with some exceptions). Leave may be
taken as a continuous block or in several periods (Section 8(1)). Cannot take carer’s leave to care
for a person who is also being cared for by another employee on carer’s leave. If need to care for
another person, must apply separately, and carer’s leave must not exceed a total of 130 weeks
[c] Determination of ‘Relevant Person’ : Employee must apply to Minister for Social, Community
and Family Affairs for a decision by a deciding officer that the person whom the employee wishes
to care for is a relevant person.(Section 6(5)). Entitlement to the State payment for carers is not a
condition for entitlement to carer’s leave (Section 6(7)).
[d] A ‘relevant person’ under the Social Welfare Act is a person who has ‘such a disability that he or
she requires full-time care and attention, and who – (a) has attained the age of 16 years, or (b) is
under the age of 16 years and is a person in respect of whom an allowance is paid for domiciliary
care of handicapped children….’ A relevant person is said to require full-time care where ‘(a) he or
she has such a disability that he or she requires from another person – (i) continual supervision
and frequent assistance throughout the day in connection with normal bodily functions, or (ii)
continual supervision in order to avoid danger to himself or herself, and (b) the nature and extent of
his or her disability has been certified in the prescribed manner by a medical practitioner.’ (Inserted
in the Social Welfare Act 1993 by the Social Welfare Act 2000, Section 10, Part III, Carer’s Benefit)
[e] Employer’s Right to Refuse Periods of Leave : employer on reasonable grounds may refuse
carer’s leave for a period of less than 13 weeks duration, and must give grounds for refusal in
writing to employee (Section 8(2)).
[f] Employment Rights : ‘An employee who is absent from work on carer’s leave shall be regarded
as still working in the employment for all purposes relating to his or her employment and none of
his or her rights or obligations related to the employment shall be affected by availing of carer’s
leave other than (a) the right to (i) remuneration, (ii) annual leave…(iii) public holidays, and (iv)
superannuation benefits, and (b) any obligation to pay contributions in, or in respect of, the
employment’ (Section 13(1)).
[g] Return to work : similar provisions to parental leave (above).
[h] Penalising Carer : Employer must not ‘penalise’ an employee for proposing or exercising the
entitlement to carer’s leave (Section 16(1)). This includes dismissing the employee, treating the
employee ‘unfairly’ (including in relation to selection for redundancy), and making an ‘unfavourable
change’ in employee’s conditions of employment (Section 16(2)). If employer refuses to allow carer
to return to work, worker is deemed to have been unfairly dismissed under the Unfair Dismissals
Acts 1977 - 1993 (unless there were substantial grounds justifying the dismissal), and be deemed
to have had his/her contract terminated for the purposes of the Redundancy Payments Acts 1967 -
1991 (Section 16(4)).
10.1 Parental and Related Leave
10.1.1 The Netherlands has the highest rate of part-time employment in the EU (Jacobs and
Schmidt, 374), and as been hailed as the first ‘part-time economy’ in the world. (Freeman 1998 : 2)
Some 42% of Dutch workers worked part-time in 2001 (Burri and others, 2003 : 323). In 2001, the
Netherlands government passed the Act on Work and Care (Wet Arbeiden Zorg). The Act provides
for 16 weeks’ pregnancy and maternity leave, and two days’ paternity leave. In addition, employees
have an unrestricted right to six months’ part-time parental leave until the child reaches eight years
of age. ‘This leave is up to half of the weekly working time for a maximum period of half a year.’
This parental leave is unpaid, although collective or individual agreements may see the employer
paying or providing full-time or extended leave. (Burri and others, 2003 : 325). The Netherlands
also has a scheme of career breaks of 2 - 6 months, with an entitlement to pay of 40% of statutory
minimum wage. However, Burri et al state that ‘(t)his benefit is not accompanied by right to leave
and depends on several preconditions that can hardly be met in practice. Therefore, very few
employees have actually received any benefits up till now.’ (Burri and others, 2003 : 326)
10.2 The Netherlands : Leave for Family Emergencies
10.2.1 Various forms of leave are available for family emergencies. In the case of a short illness
of a child, workers are entitled to two days’ paid leave for urgent personal reasons. (European
Foundation for Improved Living and Working Conditions, 2003 : 23) If the employee’s spouse or
child has a more prolonged illness, up to 10 days per year may be taken to care for them. 70% of
salary is payable for this longer leave (Burri and others, 2003 : 325).
10.3 The Netherlands : Right to Part-time Work and Quality
10.3.1 As part of the implementation of the EC’s Directive on Part-time Work, a Dutch law was
created with the sole purpose of creating a right to ‘an adaption of his/her working hours’ from
full-time to part-time, or to convert to a longer hours arrangement, or simply to redistribute existing
hours over a different span of times or days. The Adaption of Working Time Act (Wet op de
aanpassing van de arbeidsduur, or WAA) took effect from 1 July 2000. (Jacobs and Schmidt, 2001
[a] Scope : the WAA ‘has an almost general applicability’ (Jacobs and Schmidt, 2001 : 376) across
public and private sectors, but see below.
[b] Pre-requisites : Only available to employees of employers who employ 10 or more. (Jacobs and
Schmidt, 2001 : 376). Employees must have worked for the same employer for at least one year
(amendments propose to include within the calculation periods of leave not exceeding three
months, and work undertaken for previous employers who ‘on grounds of fairness (can) be
considered successors’ to the current employer. (Jacobs and Schmidt, 2001 : 377)
[c] Initiating the Process : employees must request adaptation of their working hours in writing four
months before the change is to commence. The written request must state the number of hours
sought, and the distribution of hours (Jacobs and Schmidt, 2001 : 377) but is not required to state
the reason for which the change is sought (Burri and others, 2003). The employer is required to
discuss the request with the employee (Jacobs and Schmidt, 2001 : 377). In the case of requests
for both shorter and longer hours, the employer may only refuse to grant the request if he/she has
specific reasons based on the ‘serious interests of the enterprise or service’ (zwaarwegende
bedriifs- of dienstbelangen) (Article 2 sec 5 WAA)(Jacobs and Schmidt, 2001 :378). Burri et al
translate this provision as follows : the employer must grant the employee’s request ‘unless this is
precluded by serious business reasons (Art 2 Ss 4 and 4) (Burri and others, 2003 : 329).
[d] Statutory Examples of ‘Serious Interests’ : The legislation includes a non-exhaustive list of
examples of ‘serious business interests’ : Jacob and Schmidt state that ‘there will be a serious
interest of the enterprise or the service if the reduction leads to serious problems :
(a) for the conduct of the business if the vacated hours are to remanned
(b) in the area of safety, or
(c) in scheduling technicalities (Art 2 sec 8 WAA)’
[e] In the case of an extension of hours, ‘there will be a serious interest of the enterprise or service
if the extension leads to serious problems :
(a) of financial or organisational nature
(b) because sufficient work is lacking
(c) because the fixed formation of space or personnel budget is insufficient (Art 2 Sec 8 WAA)’.
[f] Case law on ‘serious business reasons’. The most recent academic analysis seems to be that of
Burri and others (2003). Of the 14 cases dealt with in the lower courts (Kantonrechter) as at
September 2002, nine cases for changes in hours were upheld, four were rejected and one
decision was pending. Generally, the court did not elaborate on the definition of serious business
reasons, because in most cases the employer did not put forward sufficient evidence of a real
problem in granting the request. In only one of the nine successful cases, however, did the court
agree to the distribution of hours sought by the employee. ‘It turns out the courts are generally
willing to acknowledge the fact that by enactment of the [WAA] the legislator restricted the
entrepreneurial freedom of the employ. Serious business reasons are therefore not easily
established in court. This outcome is in most cases, however, mitigated by determining a broader
distribution of hours the requested by the employee.’ (Burri and others, 2003 : 332)
[g] Notifying Employee : Employer must tell employee of his/her decision on number of hours and
distribution at least one month before the change has been requested to commence (Jacobs and
Schmidt, 2001 : 380). In the event of a failure to agree and a failure of the employer to notify the
employee by this time, ‘the working time is automatically reduced and distributed in accordance
with the employee’s wishes (Art 2 sec 10 WAA)’ (Jacobs and Schmidt, 2001 : 280).
[h] Disagreement over Distribution of Hours : the employer may agree to the reduced volume of
hours sought by the employee, but is able to impose a different distribution of hours than that
sought in the application ‘if the interests of the enterprise outweigh the employee’s interests in
keeping the distribution of working time (Art 2 Sec 6 WAA)’ (Jacobs and Schmidt, 2001 : 380).
Burri et al translate this provision as follows : The employer is entitled to determine a different
distribution of hours ‘where his interest is such that the employee’s wishes must in all
reasonableness and fairness yield (Article 2 s 6)’ (Burri and others, 2003 : 329)As Burri et al argue,
because the employee is not required to give any reasons for seeking to adapt working time, this is
a rather strange requirement to balance interests when one is not known.
[i] Limits on Requests : Employee is not entitled to make a further request to adapt working time for
a period of two years (Art 2 Sec 3) (Jacobs and Schmidt, 2001 : 380).
[j] Protection against Victimisation : Employer must not terminate employment on grounds that
employee has sought or used entitlements under the WAA (Jacobs and Schmidt, 2001 : 381).
[l] Withdrawal of request : this becomes important in light of the power of the employer to
unilaterally determine a different distribution of hours than that sought by the employee (on certain
grounds) even if the requested number of hours is agreed to. If the reconciliation of work and family
was the reason for the request, a different distribution of hours may be an insuperable barrier to the
worker’s capacity to move to the new arrangements. Thus, for example, the worker may seek 20
hours a week distributed as four hours per day over five days. An employer-imposed regime of,
say, two ten hour days may create problems. Burri et al argue that it appears that employees are
not able to withdraw claims, and seem to be stuck with an employer-imposed distribution of hours
for two years (the earliest time at which another application for change can be made). However,
they predict that, in light of this, workers will frame their claim for reduced hours as conditional upon
receiving a particular distribution of hours to protect their position.
10.4 The Netherlands : Sunday Work
10.4.1 Workers now have a right to refuse Sunday work under the 1996 Working Time Act. (EIRO
‘New Legislation Enhances Employment Rights’)
11. New Zealand
11.1.1 Discrimination on the grounds of family status is prohibited by the Human Rights Act 1993.
A New Zealand government report states says that ‘(t)o date, this provision has not been
significantly tested. Its provisions have therefore not yet been interpreted as widely as those in
Australian anti-discrimination legislation…’ (NZ Ministry of Women’s Affairs, 2002 : 22) The
Employment Relations Act 2000 requires ‘good faith bargaining’, and the Report states that ‘if an
employee wishes to propose a change to an employment agreement for reasons of work and
family balance, this should be considered in good faith.’(NZ Ministry of Women’s Affairs, 2002 : 22)
11.2 Parental Leave
11.2.1 Under the Parental Leave and Employment Protection Act 1987, four kinds of leave are
defined : (1) special leave of up to ten days for pregnant employees for pregnancy-related reasons
(eg ante-natal care); maternity leave of up to 14 continuous weeks; partner’s/paternity leave of up
to two weeks on the birth or adoption of a child; extended leave of up to 52 weeks (which includes
any period of maternity leave) that can be shared between parents, if both are eligible. This leave
must be taken in the first year after the birth/adoption.
11.2.2 In addition, the Parental Leave and Employment Protection (Amendment) Act 2002
introduced the payment of statutory paid parental leave, which permits eligible workers to claim
payment for some of the above leave.
[a] Scope : applies to employees as defined in Section 6 of the Employment Relations Act 2000 :
means ‘any person of any age employed by an employer to do any work for hire or reward under a
contract of service’ and includes a homeworker, a person intending to work but excludes a
volunteer who ‘does not expect to be rewarded for’ the volunteer work and receives no reward.
Unions, a Labour Inspector or ‘one or more other person’ may seek a declaration from the Court
that the person or persons named in their application are employees.
[b] Entitlement : 12 weeks’ pay for parental leave (note this leave is not additional to the 14 weeks’
leave discussed above). Payment can be taken by one parent or shared between two eligible
partners (including heterosexual and same sex partners). In the case of birth, ‘the primary eligibility
lies with the mother’. If her partner is eligible, then mother may transfer pay entitlement to partner
(Section 71E). Adoptive parents can decide which of them has primary eligibility and that parent
may transfer to the other. Payment from 1 July 2003 is a maximum of $334.75 gross (53% of
AWE) or 100% of previous weekly wage, whichever is higher.
[c] Periods of leave : payment is only made when leave is taken in one continuous block of 12
weeks, or, if transferred between partners, two continuous blocks which together do not exceed 12
weeks (Article 71J).
[d] Pre-requisites : must have been employed by the same employer for 12 months, and have
worked an average of 10 hours per week, including at least one hour per week or 40 hours per
month for that employer during that period. Fixed term employees have entitlements until their fixed
term ends. If a redundancy situation arises while an employee is on leave, the employee must be
[e] Impact of work while on leave on entitlement to pay : prohibited, including returning to work on a
one-off basis to cover for another employee, undertaking casual work, taking leave on a part-time
basis and working part-time, or working from home.
11.3 New Zealand : Carer’s Leave
11.3.1 Under the Parental Leave and Employment Protection Act 1987, employees can take
unpaid leave on the birth of a child or adoption of a child under 5, with qualifications as outlined
above. The Act provides that it is illegal to dismiss or discriminate against a person taking such
leave under this Act.
11.4 New Zealand : Leave for Family Emergency
11.4.1 Under the Holidays Act 1981, every employee who workers for the same employer for
more than six months is entitled to a minimum of 5 days of special leave per year, which can be
used to care for a dependent child or parent of the employee or their partner as well as for the
worker’s own sickness. The self-employed are excluded. In 2002, the government announced a
proposal to amend the Act so that employees could access 15 paid leave per year for sick or
domestic leave. (The Hon Laila Harre, 2002)
11.4.2 Under Section 30A (2) of the Act, such leave can only be taken ‘(a) when the worker is
sick; or (b) the spouse or de facto partner (whether of the same or different sex) of the worker is
sick; or a dependent child or dependent parent of the worker or of the spouse is sick; or the worker
suffers a bereavement.’ This leave does not accumulate year to year. Normal pay is received
during special leave. Bereavement is defined as the death of a spouse, parent, child, brother or
sister, grandparent or father-in-law or mother-in-law or ‘on any occasion on which the employer
accepts that, by reason of the death of any person, the worker has suffered a bereavement.’
12.1 Parental Leave and Related Provisions
12.1.1 The Swedish Parental Leave Act provides universal parental leave and benefit coverage,
which is available to workers and to those not in the labour market. Parents are entitled to up to
450 days of compensated leave per child (80% of former salary up to a ceiling for 360 days if
employed, 6.7 euros if not employed or on leave from job after 360 days of parental break).
(Pylkkanen and Smith, 2003) Fathers have an additional 10 days’ paid leave that has to be taken in
the first 60 days of the child’s life (James, 2002). Parental leave can be taken from 60 days before
the birth until the child is eight years old. Both parents can access the leave. Benefits can be
taken on a full-time or part-time basis or saved and used at any time during the entitlement period.
The leave is transferable between partners, but 30 days are reserved for the non-birth parent. This
leave is lost to the couple if not taken. Single parents are entitled to 450 days, and if a multiple birth
occurs, another 180 days leave is granted.
12.2 Temporary Parental Leave
12.2.1 Up to 60 days per year (compensated at the maximum rate of sickness allowance) are
available for the care of children under twelve. (DIRQ 2002 : 121) ‘This is for parental care if the
child or childminder is sick’, and is not intended to be used for the purposes of on-going care.
(Bjornberg 2002 : 34)
12.3 Sweden : Right to Work Part-time
12.3.1 Workers in Sweden have a general right to work part-time for family reasons. (McCann
12.3.2 Both parents in Sweden also have an entitlement to take a 25% reduction in normal
working hours to look after a child under 8 years, or a child over 8 who has not yet completed their
first year of schooling. A part-time worker who wishes to increase their working time is to be given
priority when positions in the firm are filled. (EC Commission, 2003b : 37).
13. United Kingdom
13.1.1 Direct and indirect discrimination on the grounds of gender and marital status are dealt
with in the Sex Discrimination Act 1975 (SDA). The UK Equal Opportunity Commission notes that
inflexible or very long working hours may interfere with a worker’s right to family life in a way which
breaches the Human Rights Act, although it notes that it is more likely that remedies are sought
under the SDA.
13.2 Parental Leave
13.2.1 The UK work-family legislative and administrative provisions are complex. Under Section
80A of the Employment Rights Act 1996 (as amended by the Employment Act 2002) and the
relevant implementing regulations, all employees without exception are entitled to 26 weeks paid
Ordinary Maternity Leave, and most employees are also entitled to 26 weeks Additional Maternity
Leave (Underwood, 2003). As required by the EC Pregnant Workers Directive, pregnant
employees are entitled to time off work with normal pay to receive ante-natal care (Employment
Rights Act 1996 Section 55). Paternity leave is now two weeks of paid leave, from April 2003
payment is £100 or 90% of the employee’s average weekly earnings, whichever is less.
13.2.2 The Maternity and Parental Leave Regulations 1999 (Statutory Instrument 1999 No 3312).
The following discussion deals only with the parental leave component of the Regulations.
[a] Scope : individuals who work under a contract of employment only (Regulation 2).
[b] Entitlement : 13 weeks’ leave in respect of each individual child for whom the employee has
‘parental responsibility’ or ‘has been registered as the child’s father under any provision of …the
Birth and Deaths Registration Act 1953….’ (Regulation 13). No entitlement to parental leave may
be exercised after the child’s fifth birthday (Regulation 15(a)), or, in the case of a disabled child,
eighteenth birthday (Regulation 15(b)), or, in the case of adoption, after the fifth anniversary of the
placement or the date of the child’s eighteenth birthday whichever is earlier (Regulation 15(c))’.
Employees with children who are eligible for a disability living allowance are entitled to 18 weeks
leave (amendment to the principle regulations, see below)
[c] Pre-requisite : employee must be continuously employed for at least one year and ‘has, or
expects to have responsibility for a child’ (Regulation 13). This provision was amended in 2001 by
the Maternity and Parental Leave (Amendment) Regulations 2001 , Statutory Instrument 2001 No
4010. The purpose of this amendment was to permit employees to rely on service with other
employers in order to make up the requirement of one year’s continuous service. Employees must
give their current employer proper notice, and if required, evidence of the previous relevant service.
[d] Employer obligations to employee on parental leave : the employee is ‘entitled…to the benefit of
her (sic) employer’s implied obligation to her of trust and confidence and any terms and conditions
of employment relating to’ notice of termination, compensation in event of redundancy or
disciplinary/grievance procedures (Regulation 17(a)).
[f] Employee obligations to employer while on parental leave : the employee is bound ‘by her
implied obligation to her employer of good faith and any terms and conditions’ relating to notice of
termination of contract, disclosure of confidential information, acceptance of gifts or other benefits,
or the employee’s participation in any other business (Regulation 17(b)).
[g] Return to work : If take four weeks’ parental leave or less, entitled to return to same job. If
longer than four weeks and it is not ‘ reasonably practicable’ for her/him to return to same job,
entitled to ‘another job which is both suitable to her and appropriate for her to do in the
circumstances’ (Regulation 18).Terms and conditions not to be less favourable.
[h] Protection from detriment : employee is protected from any detriment caused any act, or
deliberate failure to act by the employer for any of the following reasons : because the employee is
pregnant, has given birth to a child…took or sought parental leave, declined to sign a workforce
agreement or, being a representative of the members of the workforce, performed functions or
activities in this role (Regulation 19). An employee is entitled to be treated as unfairly dismissed if
dismissed for any of the preceding reasons, or if the employee is made redundant for one of those
reasons in circumstances where another worker holding a similar position was not made redundant
[i] Default provisions if no collective or workplace agreement : Schedule 2 of the Regulations sets
out certain additional details which apply to employees not covered by a collective or workplace
agreement. For example, the process by which employers may postpone parental leave if ‘the
employer considers that the operation of his business would be unduly disrupted if he employee
took leave during the period identified in his notice…’ (Schedule 2, Section 6); leave must be taken
in at least one week blocks, unless the child who is being cared for is entitled to a disability living
allowance (Schedule 2, Section 7).
13.2.3 The UK Government’s ‘light touch regulation’ focuses on non-binding guidelines to
augment the legislative framework. For example, the following Good Practice Examples are given :
‘an employer can extend the entitlement to parental leave to individual with informal responsibility
for looking after a child, such as grandparents, step-parents or long term foster parents’; ‘employer
can waive the one year qualifying period if they wish…’; ‘the employer can disregard the child’s age
and allow the parents of older children to take some parental leave’.
13.3 UK: Access to Part-Time Work and the Quality of Part-Time Work
13.3.1 British law, implementing the direct and indirect sex discrimination regime of the EU, has
recognised a right to work part-time in some individual cases. One example of this is the litigation
concerning Susan Edwards, who was one of 21 female and 2,033 male train operators. London
Underground introduced a new shift system which meant that Ms Edwards could no longer care for
her child in the early mornings and evenings. The Court of Appeal upheld a decision by the
Employment Appeals Tribunal in support of the original finding, that London Underground’s action
was an instance of indirect sex discrimination which was not objectively justified. Conaghan
“…the EAT’s observations are surprisingly strong on this point (ie whether or not London
Underground had objectively justifiable reasons for refusing Ms Edwards part-time work), even
suggesting that where it was obvious that an employer could accommodate an employee in Ms
Edward’s position ‘without difficulty or expense’, there might be a case for alleging direct
discrimination. They insisted that employers must be flexible about adjusting employment practices
to accommodate employees’ needs, and ‘the more clear it is that the employers failed to show
flexibility in their employment practices, the more willing a tribunal should be to make a finding of
unlawful discrimination.” (Conaghan, 2000: 165, quoting Edwards (No 2)  IRLR 157 (EAT) at
13.3.2 The UK has also instituted a positive legislative schema designed to enhance workers’
access to part-time work. In 2003, Part 8A of the Employment Rights Act (ERA) 1996 (as inserted
by s 47 of the Employment Act 2002) took effect. Under Part 8A, the following regulations have
been passed : the Flexible Working (Procedural Requirements) Regulations 2002 and the Flexible
Working (Eligibility, Complaints and Remedies) Regulations 2002. Section 80F of the Employment
Relations Act sets out the grounds on which an employee may request a contract variation for the
purpose of caring for a child. Note that this is not limited to the hours of work and their
arrangement, but also includes may include a request as to the place of work (home or place of
business of employer’ (Article 80F(1)(a), ERA).
13.3.3 The UK Flexible Working (Procedural Requirements) Regulations 2002
[a] Scope : the Regulations cover employees, ie those with a contract of service or apprenticeship.
The Regulations also contain a definition of ‘worker’ : an individual either with a contract of
employment (ie an employee) or an individual with ‘any other contract…whereby the individual
undertakes to do or perform personally any work or services for another party to the contract
whose status is not by virtue of the contract that of client or customer of any profession or business
undertaking carried on by the individual’ (Regulation 2(1)).
[b] The Process : where an employee makes an application for contract variation, the employer
must hold a meeting to discuss the application with the employee within 28 days (Regulation 3(1)),
unless the employer has agreed to the application in writing before that time. Within 14 days after
the meeting, the employer must advise the employee of his/her decision (Regulation 4).
[c] Withdrawal of application : an employer may treat an application as withdrawn if notified orally or
in writing by the employee, or if the employee fails to attend a meeting as specified below ‘without
reasonable cause’, or has ‘without reasonable cause, refused to provide the employer with
information the employer requires in order to assess whether the contract variation should be
agreed to’ (Regulation 17).
[d] The Employer’s Decision : if the employer accepts the employee’s application, he/she must
advise the employee in writing the agreed contract variation and the date from which the variation
takes effect. If the employer refuses the application, the employer must state which of the grounds
in ERA he/she relies on, and a ‘sufficient explanation as to why those grounds apply’. The
employee must also be advised of the appeal procedure. The only grounds upon which a request
may be refused are one or more of the following : ‘(i) the burden of additional costs, (ii) detrimental
effect on ability to meet customer demand, (iii) inability to re-organise work among existing staff,
(iv) inability to recruit additional staff, (v) detrimental impact on quality, (vi) detrimental impact on
performance, (vii) insufficiency of work during the periods the employee proposes to work, (viii)
planned structural changes, and (ix) such other grounds as the Secretary of State may specify by
regulations’ (S 80G (1)(b) ERA).
[e] Appeals : Within 14 days of receiving the employer’s decision in writing, the employee may give
notice of that she/he wishes to appeal. This must be in writing and set out the grounds of the
appeal. Within 14 days of receiving the employee’s notice of appeal, the employer must meet with
the employee to discuss the appeal, unless during this time the employer has agreed to the
application in writing (Regulation 8). The employer must inform the employee of her/his response to
the appeal notice within 14 days of this meeting (Regulation 9). This must either accept the appeal,
or specify the grounds upon which it is rejected (Section 10). Employees may be accompanied by
‘a worker’ (see above for definition) employed by the same employer as the employee (Regulation
14). Anderson reports that since the decision of the European Court of Human Rights in Wilson v
UK  IRLR 568, trade unions in the UK have argued that the right to be accompanied includes
the right to be accompanied by a trade union representative. (Anderson, 2003 : 40). Employees
may complain to an employment tribunal if the employer refuses the permit the employee to be
accompanied (Regulation 15).
[f] Detriment or Dismissal : An employees have the right ‘not to be subjected to any detriment by
any act, or any deliberate failure to act, by his employer’ on the grounds that the employee
exercised or sought to exercise rights under the Regulations, or accompanied or sought to
accompany an employee as set out above (Regulation 16(1)). Section 48 of the 1996 applies. An
employee dismissed on these grounds shall be regarded as being unfairly dismissed in terms of
the 1996 Act (Section 16(3)).
13.3.4 The UK Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002
[a] Eligibility for entitlement to request a contract variation : employee must have been
‘continuously employed’ for at least 26 weeks; is either (i) the mother, father, adopted, guardian or
foster parent of the child or (ii) married to or the partner of the child’s mother, father, adopted,
guardian or foster parent [‘partner’ is defined as ‘a person (whether of a different sex or the same
sex) who lives with the child and the mother, father, adopter, guardian or foster parent in an
enduring family relationship but is not a relative of the mother, father etc….’ (Regulation 2(1))];
‘has, or expects to have responsibility for the upbringing of the child’ (Regulation 3).
[b] Complaint to tribunal : employee has two grounds under which to complain to an employment
tribunal pursuant to Section 80H of the 1996 Act : (a) failure to hold a meeting as set out above
(regs 3(1) or 8(1)); (b) ‘failure to notify a decision in accordance with reg 4 or 9’ (Regulation 6).
[c] Cap on Compensation : where an employment tribunal finds a complaint ‘well-founded’, it may
award compensation up to 8 weeks’ pay (Regulation 7). A week’s pay is to be calculated in
accordance with Chapter 2 of Part 14 of the 1996, in 2002 £250 (but subject to review).
13.3.5 The UK Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
(Statutory Instrument 2000, No 1551) implement the EC’s Part-time Work Directive This discussion
is based on the EC Report on implementation of the directive.
[a] Scope : covers ‘workers’, that is those with a contract of employment and those who perform a
personal service to another (Section 1(2) Employment Rights Act).
[b] Basis of comparison : part-time workers must show that they suffer a disadvantage vis-a-vis
comparable full-time workers. These are defined as workers employed by the same employer as
the part-time worker under the same type of contract doing the same or broadly similar work. If
workers move from full-time to part-time, they can compared their terms and conditions they have
with those they had when they worked full-time.
[c] Discrimination : similar to Directive. The Regulations state that it is not discriminatory to refuse
to pay overtime to a predominately female group of part-time workers until they have worked in
excess of the equivalent full-time hours. This reflects the jurisprudence of the ECJ, which held in
Helmig v Stadt Lenperich (Case C-399/92) [1994 European Court Reports I-5727] that overtime
rates only commence once part-timers have worked more than full-time hours.
[d] Remove barriers to part-time work : as noted above, the UK legislation does not go so far as to
enshrine a right to part-time work. The EC Report on the implementation of its Part-time Work
Directive indicates that the form of the UK’s transposition of the Directive means that ‘the Sex
Discrimination Act 1975 and the Equal Pay Act 1970 will continue to be important in conferring
legally enforceable rights. Yet the legislation is not straightforward. For example, since there is no
obligation to create part-time jobs or job shares, women who want to return to part-time
employment after confinement will, therefore, continue to have to rely on indirect sex
discrimination, which may be justified where part-time work or a job share is costly or
administratively inefficient.’ (EC Commission, 2003b : 37)
13.4 UK : Leave for Family Emergencies
13.4.1 The Employment Rights Act 1996 (ERA), as amended by the Employment Relations Act
1999, provides for the right to take unpaid time of work to deal with care emergencies. The details
are set out below.
[a] Scope : Employees, no qualifying period of employment.
[b] Entitlement : ‘a reasonable amount of time off’ during working hours (s 56A(1) ERA) to ‘(a)
provide assistance on an occasion when a dependant falls ill, gives birth or is injured or
assaulted’(note that illness or injury includes mental illness or injury); ‘(b) to make arrangements for
the provision of care for a dependant who is ill or injured’; (c) ‘in consequence of the death of a
dependant’; ‘(d) because of an unexpected disruption or termination of arrangements for the care
of a dependant, or (e) to deal with an incident which involves a child of the employee and which
occurs unexpectedly in a period during which an educational establishment which the child attends
is responsible for him.’
[c] The legislation does not refer to a reasonable period of time, but DTI guidance states that ‘For
most cases, one or two days should be sufficient to deal with the problem. For example, if a child
falls ill with chickenpox, the leave should be enough to help the employee cope with the crisis – to
deal with the immediate care of the child, visiting the doctor if necessary, and to make longer term
care arrangements. The employee is not entitled to take two weeks leave to look after a sick child.’
[d] Definition of dependant : Means a spouse, child, partner or ‘a person who lives in the same
household as the employee, otherwise than by reason of being his employee, tenant, lodger or
border’. In addition, in relation to the reasons for time off set out in (a) and (b) in previous
paragraph, ‘dependant’ includes ‘any person who reasonably relies on the employee (a) for
assistance on an occasion when the person falls ill or is injured or assaulted, or (b) to make
arrangements for the provision of care in the event of illness or injury’ (s 57A(3) and (4) ERA). The
Department of Trade and Industry gives as an examples of ‘any person who reasonably relies on
the employee : ‘an aunt who lives nearby who the employee looks after outside work falls ill
unexpectedly, or an elderly neighbour living alone who falls and breaks a leg, where the employee
is closest on hand at the time of the fall’. (DTI, 2000)
[e] Obligation on Employee : must inform employer ‘as soon as reasonably practicable’ (s
57A(2)(a)) to obtain the entitlement.
[f] Protection from Dismissal and Detriment : Legislation provides that employees must not be
penalized or dismissed for seeking to take, or taking, these entitlements.
[g] Dispute Resolution and Enforcement : DTI guidance states that employers and employees
should attempt to settle disputes through normal grievance procedures. Failing that, an employee
may complain to an employment tribunal if employer’s agreement has been unreasonably withheld
(s 57B ERA). Employees can also complain to the tribunal if they have been penalised or
dismissed for seeking to take, or taking leave under these provisions. If the employee’s claim is
upheld, the tribunal may make an award of compensation to the employee. There is no cap on the
compensation provided for the ERA (although other statutory limits apply), which states that
compensation must be ‘just and equitable in all the circumstances having regard to (a) the
employer’s default in refusing to permit time off to be taken by the employee, and (b) any loss
sustained by the employee which is attributable to the matters complained of’ (s 57B(4). The
tribunal has the power to order re-instatement or re-employment in the case of unfair dismissal.
14. United States of America (USA)
14.1 Regulatory Setting
14.1.1 The USA’s approach to labour market regulation is quite different to those in the countries
discussed above, and to the current institutions and laws in Australia. The provisions of the chief
Federal law, the Family Medical Leave Act (FMLA), provide only minimal opportunities for
mandated care leave. The FMLA should be seen against the background of USA leave
entitlements generally. There is no legislation governing annual leave in the USA. In a recent
report, it was stated that workers receive from an average of 9.6 paid days of annual leave in their
first year of service, rising to an average of 13.8 paid days of annual after five years, 16. 9 paid
days after ten years and 20.3 paid days after twenty years. Some 11% of workers received no
annual leave at the time the survey was carried out in 1997. (EIRO, 2004)
14.2 Family Medical Leave Act
14.2.1 The Family Medical Leave Act  (FMLA) provides for up to twelve weeks’ leave for
birth/adoption, or to care for a child or spouse or the worker themselves where the
dependent/worker suffers from a ‘serious medical condition’. Serious medical condition is defined
as ‘an illness, injury, impairment or physical or mental condition that involves (a) inpatient care in a
hospital, hospice or residential medical facility; or (b) continuing treatment by a health care provider
14.2.2 The legislation and the US Department of Labor Guidelines on how to interpret the
provisions have been criticised as confusing, and judicial interpretations appear to have led to
some unexpected outcomes. For example, Beckett-McWalter discusses the case of Roberts v
Human Development Association. Here a 64 year-old worker experienced a sudden health crisis
while working as an in-house carer. She rang her employer several times and asked that a
replacement worker be sent so she could go to hospital. Eventually she left her patient in the care
of the patient’s daughter and went to a hospital emergency department, where a procedure
requiring a general anaesthetic was performed. When the worker rang her employer the next day
she was told that her employment was terminated because she left her post. The court found that
the worker’s condition (sudden severe vaginal bleeding) was not a ‘serious medical condition’ as
defined under the FMLA, that she had not undergone ‘inpatient care’ because she had not stayed
overnight in hospital, and that the worker had not shown, as required by the DOL guidelines, that
she had been ‘incapacitated for three days’. (Beckett-McWalter, 2003 : 461/2)
14.2.3 It is estimated that some 44% of US workers are ineligible to apply for leave under the
FLMA. (Glavinovich, 1996 : 161) The FLMA applies to all public sector workers, and private sector
workers employed in firms with 50 or more workers within a 75 mile radius of the applicant’s
workplace. To be eligible to apply, workers must have worked for at least 12 months with that
employer, and for at least 1250 hours (roughly three months of five day weeks of eight hours each)
in the previous 12 months.
14.2.4 In a number of USA states, some forms of paid family leave are available. For example, in
California, most workers are eligible for six weeks’ paid family or medical leave funded by the State
disability insurance scheme. Writing in 2002, Mathiason and Barrett argue that:
“Such paid leave is the beginning of a trend, not an isolated occurrence, based on underlying social
and economic forces, as well as recognition that 127 countries, including most of the European
Union, provide some form of paid leave to working parents.”
Part D Assessment Of Outcomes
15.1 Just how to assess the outcomes of measures such as those discussed in this paper raises
notoriously complex issues which are difficult to disentangle from ideological concerns. An
additional complication in the case of work and family laws and processes is that most have been
introduced quite recently.
15.2 This section aims to give an overview of the main issues raised in support of and in
opposition to mandated labour standards which support the better reconciliation of work and family
life. Where possible, reference has been made to materials written in English which discuss the
impact of the measures. It is recognised that this field of research is still developing.
15.3 Three key areas of debate can be identified : first, the rationales underlying work-family laws
which see reconciliation of work and family as a valuable end in its own right; secondly, discussion
over the proper role of the state and the ‘burden’ on business some anticipated in advance of the
creation of the new rules; and thirdly, the arguments in favour of doing more than has currently
16. Work-Family Reconciliation : An End in Itself
16.1 State intervention to assist workers better reconcile work and family life has, in the past
decade, become a widely recognised goal in its own right. Drago et al find that ‘….a consensus
seems to be emerging from the work/family literature regarding core values and policy
objectives….The core values include the following : individuals have a right to life where they can
successfully meld responsibilities to paid employment and to their families, and care for children
and other dependants should be valued. (Drago et al, 2002 : 2, footnotes omitted) This finding is
supported by an OECD survey in 2001, which found that 18 countries had increased maternity and
care leave in the previous year (quoted in DIRQ 2002). Below are some of the reasons given, to
varying extents, as rationales for improved work-family reconciliation :
(a) to support and strengthen families; supported by evidence from Sweden : ‘Parents who share
the task of economic provision, childrearing and household work more equally have more stable
unions than others as the source of potential conflicts are also reduced in such unions.’ (Olah,
2001 :130) In relation to the UK, see DTI (2003 : 13).
(b) to ensure that both paid and unpaid work are equally valued : ‘Depending on life-cycle phase,
both men and women should be able to choose a personal mix of paid labour in long part-time (or
short-full-time) jobs, part-time household production of care and part-time outsourcing of care’
(Plantanga, 2002 : 54).
(c) to ‘modernise’ the concepts of care and family; for example, the UK emergency leave
provision enables workers to take emergency leave to care for non-family members, where they
are the only person on whom the ill/injured person can rely; Canadian law recognises the concept
of leave for emergency ‘educational’ purposes, not just for illness or like occurrence; Irish law
provides for long leave to care for adults with disabilities; Canadian law recognises same sex
relationships as part of ‘family’.
(d) to reduce the incidence of work-related illness and injury of workers with care responsibilities;
‘A body of literature has emerged which links women’s well being to the availability of leave and
childcare entitlements.’ (Madsen, 2002 : 19)
(e) to enable businesses to attract and retain staff, and reduce turnover and unauthorised
absences; cf a claim that Californian businesses could save US$89 million in labour costs thorugh
the implementation of that State’s six weeks’ paid family and medical leave (Koss (2003) 1088);
similar broad claims are made by the UK DTI.
(f) to encourage the growth of employment generally by ensuring that those with care
responsibilities are not lost to the workforce altogether; (UK DTI 2003; OECD 2001 : 18; Pylkkanen
and Smith, 2003)
(g) to bolster the labour market’s capacity in times of ageing populations (Rostgaard, 2002 : 10)
and falling fertility rates; Bagavos and Martin conclude that ‘enabling women and men to reconcile
their paid work with a normal family life without great personal sacrifice appears to be an important
prerequisite for raising fertility levels.’ (2000 : 11)
(h) to improve the quality, as well as the quantity, of employment: this is a key objective of both
the ILO and the EU.
17. The Role Of The State And The Burden On Business
17.1 One’s view on how best to achieve the above benefits will depend on the theoretical
orientation adopted. A neo-liberal position might claim that a freely functioning market would lead to
optimal outcomes, and that any State intervention would have unintended negative consequences.
A number of studies dispute the proposition that individual workers and employers, left to their own
devices, will create work processes which permitted a satisfactory balance of work and family life.
One reason is that workers may be constrained, by various factors, from taking up leave offered as
only a firm-level benefit. Drago et al in their study of American firms found that, in the absence of
binding regulation (either legislation or legally binding collective agreements), the rate of utilisation
of corporate policies (eg on part-time work) was poor. The authors believed that a shift from
‘[workplace] benefit to rights’ would be more effective in achieving the core values discussed
above. (Drago et al, 2002 : 17) A 2003 survey by the UK Equal Opportunity Commission found that
80% of employers interviewed believed that appropriate work-life provisions would foster good
industrial relations at the workplace, but over half of the employers had implemented no such
provisions. (EFILWC, 2003 : 2) As Bagavos and Martin put it:
“The partial incompatibility between childbearing and paid work throughout two decades of major
social changes indicates that reconciling women’s wish to work and to take care of their children -
that ought to be shared by men - cannot be accomplished without supportive measures.” (Bagavos
and Martin, 2000 : 11)
17.2 The fact that traditionally ‘legal abstentionist’ states such as the UK and Ireland have
intervened with legislative measures to achieve change suggests that the attainment of better
work-life balance may not emerge naturally from the market. It is also significant that these states
have framed laws which both set standards and provide for elaboration and implementation
through bargaining at the workplace.
17.3 The measures discussed in this report were subject to vigorous opposition during their
development. Business groups are often identified as chief opponent. (However, care should be
taken with this kind of generalisation, because in the UK at least, a range of business views – from
total opposition to muted approval - has been identified.) There are two key elements arguments
put against these measures. The first is that at the level of the individual firm, the new rules and
processes will hamper business efficiency and impose costs and unacceptable restrictions on
managerial prerogative. Even where the costs of paid leave were to be funded solely by employee
contributions, business groups in California predicted ‘an increase in worker absences, worker
fraudulently filing for paid leave, and increases in the cost of seeking temporary replacements’.
(Koss, 2003 : 1086/7) Hengst and Kleiner (2002), for example, cite a survey of American human
resource managers complaining about the administrative burden of keeping jobs open for the
twelve weeks of leave provided by the FLMA, finding staff to cover the vacancies and in
maintaining workers’ benefits while on leave. The second is that at the level of national economies,
the new work and family regimes will lead to a loss of competitiveness and productivity, leading to
decrease in employment and loss of national economic, and therefore social, well-being.
17.4 First, what is the available evidence of impact at the firm level?
17.4.1 One group with specific concerns is small business. A recent study by Edwards,
commissioned by the UK DTI, found that for small businesses, the new work and family regulations
in that country were a relatively insignificant burden.(EIRO ‘The Impact of Employment Legislation
on Small Firms’)
17.4.2 Some research suggests that work/life balance provisions will help firms attract and retain
suitable staff. For example, an ILO report into the chemical industry states:
“In a study at Du Pont, female engineers who left the company in search of companies offering
better work/family were likely to be the best performers. Further advantages ascribed to
family-friendly programmes include a reduction in insurance rates, in part due to reduced stress
level, lowered absenteeism and tardiness, reduced disciplinary action programme and heightened
performance”. (ILO, 2002 : 56/7, referring to a study by Nord et al 2000)
17.4.3 McBride reports on the successful use by the UK National Health Service of term-time
work to attract nurses with family responsibilities back to the workforce. The UK, like Australia,
suffers from a shortage of skilled nurses.
17.3.4 Webster argues that ‘(t)he competitive and financial advantages to companies in
introducing innovations like family friendly working are poorly understood, but they may well be
substantial. They are likely to include, for example, the retention of skilled or valued employees,
reductions in labour turnover, reductions in recruitment, training and retraining costs, and the ability
to match working hours to the consumption requirements of customers…’ (Webster, 2001 : 45)
17.4.5 The extremely complex Working Time Regulations (implementing the EU’s Working Time
“do not seem to have been an issue of major concern over the last three years to most of the
organisations interviewed” (Neathey, 2003 : 7)
17.4.6 A study commissioned by the UK government of the implementation of the right to request
part-time work found that employers had experienced a significant increase in staff requests to
work flexibly. However,
“a large majority of employers say they generally have little difficulty with the new right - 76% say
that the impact of the legislation on their organisation has been negligible and 90% report no
significant problems complying with the new requirements….As with most things, organisations
have responded pragmatically to the introduction of these rights, and contrary to some alarmist
predictions at the time, have moved to accommodate the impact…” (Lovells, for the UK DTI, 2003 :
17.4.7 A similar finding, although contested, finding was made by Bornstein of the US Family and
Medical Leave Act :
“Prior to its passage, the Act faced a great deal of opposition from business interests which argued
that by ‘mandating’ benefits, the Act interfered with the need for flexibility in the workplace and
threatened to stifle the United States’ competitive status. Although employer concern focused in the
potentially devastating costs to business, such fears have proved unwarranted….The Act’s
implementation has not wreaked the corporate havoc that many business lobbyists
portended….Since the implementation of the family and medical leave, businesses have reported
lower absenteeism and higher employee morale, have found the law easy and costless to
administer, and have eliminated the costs associated with permanently replacing workers who
needed leave”. (Bornstein, 2000 : 78/9)
17.4.8 Bornstein’s comments are supported by the US Family and Work Institute, which found
that the FMLA had ‘no negative effect on business performance.’ (Gielow, 2002 : 1541)
17.5 Secondly, what is the impact of work-family provisions at the level of an economy as a
17.5.1 Again, business groups tended to predict that improvements in work-family schemes would
have ‘potentially catastrophic effects’. (Koss, 1086/7). It is clearly difficult to identify the role a
particular social policy plays in relation to nation-wide conditions. Both supporters and opponents
put forward bold arguments as to the projected costs and benefits. It has been argued, for
example, that standards of living in the Netherlands are higher than those in the USA, despite the
shorter hours culture in the Netherlands (Jacobs and Gerson, 1998). Fears that the new
regulations might limit the flexibility of labour markets is disputed by some UK research, which
found that the new legislative measures designed to protect ‘non-standard’ workers (such as the
part-time work regulations) is not expected to hinder the trends towards more flexible employment.
Indeed, only one-third of UK workers now work ‘standard hours.’ (ECOTEC, 2003 : 68) The UK
government has been one of the strongest supporters of a business case for change:
“A more effective use of human resources within the economy, including the better utilisation of the
skills of those with caring responsibilities, it likely to have beneficial impact on the UK’s productivity.
It is clear that an efficient labour market - one where the pool of labour is maximise and utilised to
its full - is essential to the UK’s competitiveness”. (UK DTI, 2002, 22)
17.5.2 Koss draws attention to research which argues, contrary to the business lobby’s fears, that
Californian companies could save US $89 million through reduced turnover and increased retention
as a result of the State-level six weeks’ paid leave law. Whether or not this saving is actually being
made is now known.
17.5.3 The EU is in a position to monitor implementation of its legislation across a very broad range
of countries. It reports that implementation of its Part-Time Work Directive has been achieved
without major difficulties. (European Commission, 2003)
18. The Need to do More
18.1 Some commentators have been critical of the legislation discussed in this report because it
does not go far enough, in the authors’ views, to achieve a better reconciliation of work and family
life. This is especially so in relation to the UK, where some academics have attacked the way in
which the government has implemented its European obligations, and the relatively low standards
set when compared with other European States. Much of the commentary focuses on the need to
empower workers to control their working time, and the UK government has been criticised for not
creating a more positive ‘right’ to part-time work (such as is seen to exist in the Netherlands and
Germany). It is feared that the ‘right to request’ might not be enough to ensure that workers who
need to re-order their paid work to meet care responsibilities will be able to achieve their goal. The
limited scope of some of the instruments in the UK (particularly its implementation of the Part-Time
Work Directive) has been criticised as omitting vulnerable workers from the net of regulation.
Difficulties in progressing social change through the discrimination law mode have long been
identified by some academics, and the barriers to workers with family responsibilities attaining just
outcomes (particularly the problem of finding a comparable worker to show discrimination on
grounds of part-time status) are still of concern.
18.2 Much of the commentary is limited to an analysis of existing laws. However, it should still be
recognised that even in countries such as the UK where major legislative change has occurred,
there is still a significant gulf between the leave to which workers are legally entitled and the leave
they would need to combine work and family without excessive stress. Only Sweden, in the
countries examined here, comes close to recognising the actual time required to blend work and
family responsibilities. It is expected that reforms in the international and national realms
considered in this paper will continue for some time yet.
This Report was prepared on the basis of desk research conducted on English-language sources available in
Australia in 2003/4. Where legislation and policy documents in Dutch, German or Swedish are referred to,
the author has relied on secondary sources and, where available, translations of the relevant materials. I am
grateful to Sara Charlesworth, Mary Gardiner, Kate McClive, Deirdre McCann of the International Labour
Office, and Professor Sandra Fredman, Oxford University for their assistance with various aspects of the
Report. The views expressed here are mine alone and I am solely responsible for any errors or omissions.
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