There are growing calls for the establishment of new work rights, including additional leave, for those who experience menstruation and menopause*. These biological processes are normal and are experienced by large numbers of workers. Yet their sometimes debilitating effects have been ignored in the framework of workplace rights historically built around men’s experience of life and work.

Unions have begun surveying their members on the issue and a growing number of unions are seeking new rights in collective agreements, including additional leave, for menstruation, menopause, and reproductive health concerns. The ACTU, Australia’s peak union body, is likely to discuss a policy on reproductive leave (including leave for menopause and menstruation) at its Congress in June 2024. There is also evidence that organisations are moving to include policies on these issues in their HR handbooks. These calls for new rights reflect increasing public awareness and acceptance that biological processes experienced by women should come out of the shadows and from behind closed bathroom doors.

However, not everyone agrees that seeking additional leave and other workplace rights because of menstruation or menopause is the right way to go. Leading industrial relations academic Marian Baird, whilst being a strong advocate for new rights, has noted that debate on issues such as menstrual leave ‘can be polarising for organisations and for feminists.’ Concerns include that leave and other rights for menstruation and menopause may result in women being targeted as weak or unable to do the job because they are absent from work or that employers will see them as less reliable or more costly to employ. Thus, undermining women’s position at work. Some scholars argue that focusing on leave, and therefore effectively removing the problem from the workplace, means that the problem is being hidden at work.

There have been long standing debates between feminist theorists about whether the path to gender equality at work is best served by highlighting the similarities between men and women and treating all workers the same – sometimes referred to a formal equality. Or whether there should be accommodation of differences including acknowledging biological differences and the reproductive role that women play in society and ensuring that work rights reflect this. The difficulty we have in Australia, like in many western democratic countries, is the standard of the ideal worker is male so treating everyone the same, effectively means treating them as men.

It is difficult to ignore that some workers are struggling with the impacts of menstruation and menopause at work. Supports are needed for these workers. Not everyone’s experience is the same but for some menstruation involves severe bleeding, extreme pain, and lethargy. Shame and stigma for some workers may lead to hiding period pain and carrying on with job. This can have both physical and psychological impacts. The effects of the processes associated with menopause may include losses of concentration, difficulty sleeping, headache, fatigue and mood changes. In both cases work based impacts can include perceptions of poor work performance, a loss of confidence for effected workers and using all personal/carers’ leave trying to ‘manage’ the impact of menstruation and menopause. Some workers may need a move to part-time work or even consider leaving paid work as a way of managing.

The evidence gathered around the work-based impacts of menstruation and menopause establishes the need for further changes in work rights to accommodate the lived experience of women. To ignore this evidence would in effect reinforce men’s experience of work as the norm and the standard around which work rights are framed. Australian public policy and legal frameworks have developed to accommodate some biological processes experienced by women. For example, there are now universal rights around pregnancy, maternity, and breastfeeding and work. Leave and workplace flexibilities accommodating the effects of menstruation and menopause could be the next step in the evolution of these workplace rights.

Beyond HR policies there are two main ways of establishing work rights – incorporating these rights in workplace laws or bargaining for their inclusion in enterprise agreements. Incorporating leave and other rights to flexible work arrangements in legislation would provide a universal standard and a whole of society approach. Bargaining offers the opportunity to craft boutique solutions considering the needs of the organisation and those of the workforce. The process of bargaining itself helps to educate and explore the issue thus assisting with ‘normalising’ it at work. However, bargaining for ‘equality rights’ of this kind can take time and often requires work-based champions to get and keep the issue on the bargaining agenda.

In Australia many universal workplace rights have been achieved first through unions bargaining for these at the industry or organisational level and then by unions fighting to have these included in legislation. The achievement of paid leave for those workers experiencing family violence is the most recently high-profile example of this. The progress to gain menstrual and menopause leave, and other associated rights is likely to involve both bargaining for these rights and lobbying for legislative change.

Leave for menstruation and menopause will advance women’s rights and gender equality at work however, even when these rights exist that won’t be the end of action to make them a reality. Workers will need to be aware of these rights and feel comfortable and confident to use them without fear that they will be treated less favourably for doing so. Establishing the rights either through legislation or bargaining will set the normative standard. Organisations will then have the obligation to create systems processes and cultures that would ensure that workers can, and do, access these rights once they exist.

*I use the term woman/en to include those who experience menstruation or menopause but who may not identify as a woman.

**This article originally appeared in The Point the official newspaper of the Independent Education Union Victoria Tasmania

This International Women’s Day, it is time to call on Australia’s workplace umpire, the Fair Work Commission, to finally close the gender pay gap.

Half a century after the commission’s predecessor granted women “equal pay for equal work” in a landmark case in 1969, the gap remains between 12% and 21%.

Amendments to the Fair Work Act by the incoming Labor government in 2022 gave it new tools to close the gap by addressing the undervaluation of work in traditionally female-dominated occupations.

If it uses these tools to their full potential, 2024 will be a landmark year in the genuine achievement of equal pay for equal work.

What we’ve been doing hasn’t much worked

Traditionally in Australia, addressing gender-based undervaluation has relied on two approaches.

The first has been to argue the business case for gender equality – convincing employers they’ll be rewarded for “doing the right thing”.

The second has been to bring equal pay cases to tribunals.

Unfortunately, neither approach has been successful. In particular, pushing for equal remuneration through tribunals has been time-consuming and expensive.

These tribunals, historically working on models of male full-time wage earners, have struggled to understand the undervaluation of work performed predominantly by women.

The commission’s new tools

The commission’s act has been rewritten to require it “to promote job security and gender equality.”
It also has the power to make equal remuneration orders either on its own initiative or on application in order to bring about equal pay for work of equal or comparable value.

A further new development is the establishment of expert panels to assist in gender-related cases. Advice from gender experts should assist in overcoming historical gender biases in commission decisions.

Perhaps the most promising tool is the change to the commission’s modern awards objective, which requires it to eliminate gender-based undervaluation of work and provide workplace conditions that facilitate women’s full economic participation each time it reviews an award.

Among other things, this requirement is likely to result in provisions that ensure part-time work is treated equally to full-time work and ensure a better balance between work and caring responsibilities.

Amending awards is likely to be particularly important for women given that almost three in five of the workers on awards are women. Men are mainly on negotiated agreements.

If the commission wanted to, it could hold a wide-ranging inquiry into the many factors that have contributed to gender-based undervaluation of women’s work.

It could also review entire industries and occupations that are female-dominated, upgrading multiple awards at the same time. This would avoid lengthy and costly reviews of individual awards.

What’s likely in 2024

The Fair Work Commission’s resolve to make lasting change will be tested by several matters currently before it.

The commission is due to issue its final decision in the case lodged by the Australian Nursing and Midwifery Federation, the Health Services Union, and the United Workers Union on the value of the work done by workers in aged care.

An initial interim decision delivered in 2022 awarded some – but not all – of these workers a 15% increase, finding that work in feminised industries had been historically undervalued and the reason for that undervaluation is likely to be gender-based”.

Workplace Relations Minister Tony Burke backed the decision, saying it was merely the “first step”.

Another application, for nurses and midwives outside of aged care, was lodged by the Australian Nursing and Midwifery Federation in February this year.

The commission has already started the process of grappling with gender-based undervaluation in modern awards, commissioning research that documents the segregation of women and men into different occupations and industries.

Further research documenting the history of a select group of female-dominated modern awards and identifying the extent to which common elements indicate gender-based undervaluation, is due to be released in April.

It will feed into the annual wage review due by the middle of the year.

How to be bold

Gender-based undervaluation of women’s work won’t be eradicated by incremental adjustments.

Here are three bold steps the commission could take:

• grant a minimum interim 12% increase (one estimate of Australia’s national gender pay gap) across the board for female-dominated awards in this year’s annual wage review
• develop new systems for classifying work and ascribing work value, breaking with the previous standards built around skills and qualifications in male dominated occupations
• better consider the uneven bargaining power in industries such as nursing where governments fund care work and try to restrain costs.

The changes to the Fair Work Act that allow multi-employer bargaining are a start, but unlikely alone to correct the undervaluation of women’s work.

In female-dominated industries where collective bargaining is non-existent or ineffective, the commission should step in and further increase wages.

The Fair Work Commission has been given the tools. This should be the year it applies them.