Right to maternity leave

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to maternity leave?

The right to maternity leave includes an entitlement for working mothers to paid leave or social security benefits during a reasonable period before and after childbirth. It also requires countries, as a measure of prevention of discrimination against women, to provide maternity leave with pay or with comparable social benefits without loss of former employment or seniority.

The UN Committee on Economic Social and Cultural Rights has stated that under Article 9 of International Covenant on Economic, Social and Cultural Rights (ICESCR), regarding the right to social security, a country should guarantee 'adequate maternity leave for women, paternity leave for men, and parental leave for both men and women' in implementing Article 3, which ensures the right of equality between men and women in enjoying economic, social and cultural rights.

Where does the right to maternity leave come from?

Australia is a party to seven core international human rights treaties. The right to maternity leave is contained in article 10(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

See also articles 3 and 9 of ICESCR and articles 4(2) and 5(b) of CEDAW.

When do I need to consider the right to maternity leave?

You will need to consider the right to maternity leave when you are working on legislation, a policy or a program that:

  • provides for entitlements to leave to allow parents and carers to care for children
  • provides for financial entitlements to parents and carers of children to allow them to take time off work to care for the child after the child's birth, or
  • addresses discrimination against women on the ground of marital status or maternity.

This list should not be regarded as exhaustive.

What is the scope of the right to maternity leave?

The requirement in CEDAW for maternity leave with pay or comparable social benefits manifests the preamble to the Convention that states 'the social significance of maternity and the role of both parents in the family and in the upbringing of children, and that the role of women in procreation should not be a basis for discrimination but that the upbringing of children requires a sharing of responsibility between men and women and society as a whole'.

On ratification of CEDAW in 1983, Australia made a statement and reservation that:

The Government of Australia states that maternity leave with pay is provided in respect of most women employed by the Commonwealth Government and the Governments of New South Wales and Victoria. Unpaid maternity leave is provided in respect of all other women employed in the State of New South Wales and elsewhere to women employed under Federal and some State industrial awards. Social Security benefits subject to income tests are available to women who are sole parents.

The Government of Australia advises that it is not at present in a position to take the measures required by Article 11(2)(b) to introduce maternity leave with pay or with comparable social benefits throughout Australia.

This statement and reservation has not been withdrawn. However, the Commonwealth has introduced a Paid Parental Leave scheme which began in 2011 (see 'Which domestic laws relate to the right to maternity leave?' below). During Australia's Universal Periodic Review in 2011, the Australian Government committed to establishing a systematic process for the regular review of Australia's reservations to international human rights treaties.

The UN Committee on Economic, Social and Cultural Rights has stated of the obligation under Article 10 that paid maternity leave should be granted to women involved in all types of work and be given for an adequate period.

What is the obligation under ICESCR?

Obligations of progressive realisation

Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective … of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.

Obligations of immediate effect

The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.

Can the right to maternity leave be limited?

Article 4 of ICESCR provides that countries may subject economic, social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee on Economic, Social and Cultural Rights has stated that such limitations must be proportionate, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

Top of page

Which domestic laws relate to the right to maternity leave?

The Paid Parental Leave Act 2010 provides for payment of Parental Leave Pay to persons entitled under the Act, from 1 January 2011. Section 3A sets out the object of the Act:

  • (1) The object of this Act is to provide financial support to primary carers (mainly birth mothers) of newborn and newly adopted children, in order to:
    • allow those carers to take time off work to care for the child after the child's birth or adoption; and
    • enhance the health and development of birth mothers and children; and
    • encourage women to continue to participate in the workforce; and
    • promote equality between men and women, and the balance between work and family life.

Section 70 of the Fair Work Act 2009 provides for an entitlement to up to 12 months of unpaid parental leave under the National Employment Standards associated with the birth of a child of an employee or the employee's spouse or de facto partner, provided that the employee has or will have a responsibility for the care of the child.

Baby Bonus is also relevant in considering financial entitlements to parents and carers of children. It is governed by the A New Tax System (Family Assistance) Act 1999. Section 36 sets out the eligibility conditions for Baby Bonus.

Many employers, including the Australian, state and territory governments also provide paid parental leave entitlements.

Section 14 of the Sex Discrimination Act 1984 prohibits discrimination against a person in employment on the ground of a person's sex, marital status, family responsibilities, breastfeeding or a woman's pregnancy or potential pregnancy. Section 31 provides an exemption for rights or privileges granted in connection with pregnancy or childbirth, i.e. maternity leave and similar benefits.

What other rights and freedoms relate to the right to maternity leave?

The right to maternity leave may also be relevant to:

  • the right to work in article 6 of ICESCR
  • the right to just and favourable conditions of work in article 7 of ICSESR
  • the right to social security in article 9 of ICESCR
  • the right to protection of women's health and to safety in working conditions, including the safeguarding of the function of reproduction in article 11(1)(f) of CEDAW
  • the requirement to ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period in article 12 of CEDAW.

Articles from relevant Conventions

International Covenant on Economic, Social and Cultural Rights

Article 10(2)

The States Parties to the present Covenant recognize that special protection should be accorded to mothers during a reasonable period before and after childbirth. During such period working mothers should be accorded paid leave or leave with adequate social security benefits

Convention on the Elimination of All Forms of Discrimination Against Women

Article 11(2)(b)

In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures:

(b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances

See also: ICESCR article 3, 9; CEDAW articles 4(2), 5(b).

Where can I read more about the right to maternity leave?