Pub­li­ca­tions

Inter­na­tion­al Women’s Day 2019: Reflec­tions by the (female) lawyers of Swaab

Gen­der, pay and job insecurity

Nicole Cini, Associate

The gen­der pay gap for full time work­ers in Aus­tralia is cur­rent­ly 14.1%, but this num­ber does not tell the entire sto­ry. Women com­prise approx­i­mate­ly 47% of employ­ees in Aus­tralia, account for 68% of pri­ma­ry car­ers for old­er peo­ple and peo­ple with a dis­abil­i­ty and 95% of employ­ees tak­ing pri­ma­ry parental leave. The result of this is a sig­nif­i­cant amount of time spent out of the work­force or engaged in employ­ment oth­er than full time work.

Part time and casu­al work­ers are dis­pro­por­tion­ate­ly women, with fam­i­ly respon­si­bil­i­ties being a key dri­ver. As of Sep­tem­ber 2018, the ABS report­ed that 46.6% of women are employed part time, by com­par­i­son to only 18.6% of men. Part time and casu­al work is noto­ri­ous­ly pre­car­i­ous, mean­ing that there is decreased job secu­ri­ty by com­par­i­son to full time work. In addi­tion, while the nation­al pol­i­cy debate often focus­es on unem­ploy­ment rates, under­em­ploy­ment is a seri­ous issue for pre­car­i­ous workers.

Under­em­ploy­ment occurs when a per­son who wants to and is capa­ble of work­ing more hours than they are but is not able to. The ABS report­ed that as of Sep­tem­ber 2018 10.2% of women are under­em­ployed in Aus­tralia, com­pared to 6.3% of men. Work­ers who are under­em­ployed often want to work more hours, but those hours are not made avail­able to them. 

The flow on effect of part-time and pre­car­i­ous work is stark, with many employ­ees hav­ing unpre­dictable pay, infe­ri­or work­ing rights and enti­tle­ments, lim­it­ed or no access to paid leave, irreg­u­lar and unpre­dictable work­ing hours, and uncer­tain­ty over their job secu­ri­ty. This is referred to as inse­cure work and it is an issue impact­ing thou­sands of Aus­tralian women every year.

Over the employ­ment life­cy­cle this sig­nif­i­cant­ly reduces the earn­ing capac­i­ty and career pro­gres­sion of many women, also result­ing in a sig­nif­i­cant and con­cern­ing super­an­nu­a­tion gap. Until we have gen­uine­ly flex­i­ble work­places where women, and car­ers, are in a posi­tion to main­tain their respon­si­bil­i­ties at home along­side gain­ful employ­ment, the gen­der pay gap will con­tin­ue to be a sig­nif­i­cant problem. 

The Fem­i­ni­sa­tion of Poverty

Kate­ri­na Lon­er­gan, Solicitor

On Inter­na­tion­al Women’s Day, per­haps we can take the oppor­tu­ni­ty to reflect upon some of the issues faced by women in Aus­tralia and glob­al­ly. The con­cept of gen­dered pover­ty or the fem­i­ni­sa­tion of pover­ty” is not a new one, and women glob­al­ly are still over­rep­re­sent­ed amongst those liv­ing in pover­ty because of a vari­ety of fac­tors which pre­vent women from being able to par­tic­i­pate equal­ly and ful­ly in society. 

In Aus­tralia, the fastest grow­ing demo­graph­ic in terms of home­less­ness is women over 50. The Nation­al Old­er Women’s Hous­ing and Home­less­ness Work­ing Group’s 2018 report, Retir­ing into Pover­ty, cites low­er super­an­nu­a­tion, unequal pay and time off to under­take unpaid care work as key fac­tors in a 31% increase in home­less­ness in old­er women between 2011 and 2016. The Work­ing Group iden­ti­fied that one of the key legal issues that can cre­ate a sig­nif­i­cant vul­ner­a­bil­i­ty for women is access­ing a fair prop­er­ty set­tle­ment and obtain­ing a super­an­nu­a­tion split from their for­mer part­ner upon sep­a­ra­tion or divorce. 

The Work­ing Group cites Women’s Legal Ser­vice Victoria’s 2018 report on eco­nom­ic equal­i­ty in the fam­i­ly law sys­tem, which iden­ti­fied that rela­tion­ship break­down should … be added to the list of caus­es of gen­der dis­par­i­ty in super­an­nu­a­tion, along­side a per­sis­tent gen­der pay gap and time out of the workforce.” 

It seems iron­ic that in a coun­try as wealthy as Aus­tralia, the num­bers of home­less women over the age of 50 have risen so dra­mat­i­cal­ly over a five-year peri­od. Let us hope that these sober­ing sta­tis­tics will prompt both state and fed­er­al gov­ern­ments into action. 

Women can own prop­er­ty: Mar­ried Per­sons (Equal­i­ty of Sta­tus) Act 1996 NSW

Esther Khoo, Solicitor

Mar­riage! Every­one loves wed­dings, the cel­e­bra­tion of two per­sons start­ing a new jour­ney togeth­er and love eter­nal. Anoth­er cause of cel­e­bra­tion should be how the Aus­tralian legal sys­tem main­tains each person’s indi­vid­ual rights even though mar­riage oth­er­wise is the cel­e­bra­tion of the join­ing of two parties.

One of the most under­rat­ed rights embed­ded in our legal sys­tem is the right of a mar­ried woman to own and deal with prop­er­ty in exact­ly the same way as an unmar­ried woman. Unlike some civ­il law sys­tems which has the con­cept of com­mu­ni­ty prop­er­ty” (where the prop­er­ty of a mar­ried cou­ple is pooled into joint own­er­ship upon mar­riage in which each spouse has an equal share dur­ing the mar­riage), Aus­tralia con­tin­ues its Eng­lish her­itage of hav­ing sep­a­rate prop­er­ty dur­ing marriage. 

The Mar­ried Per­sons (Equal­i­ty of Sta­tus) Act 1996 NSW (Act) places impor­tant safe­guards for both par­ties upon enter­ing mar­riage. A mar­ried per­son is not liable for any debt incurred by the person’s spouse before their mar­riage (s 8 Act) and is enti­tled to civ­il and crim­i­nal redress against the person’s spouse for the pro­tec­tion of his or her prop­er­ty as if that per­son were not mar­ried (s 6 Act).

This has sig­nif­i­cant (and often just assumed) impli­ca­tions in every­day life – it allows mar­ried women to acquire prop­er­ty on their own, with­out the assump­tion that it would auto­mat­i­cal­ly be the husband’s, and gives women auton­o­my that way. It also pro­tects the right to be able to com­mence pro­ceed­ings to enforce their rights. 

This has result­ed in women retain­ing their finan­cial auton­o­my and inde­pen­dence after mar­riage, which can only be a pos­i­tive thing for Aus­tralian women. 

The val­ue of the home­mak­er: Inter­na­tion­al Women’s Day and Fam­i­ly Law

Nicole Pozovsky, Associate

As Inter­na­tion­al Women’s Day approach­es, it is time­ly to reflect on the con­tri­bu­tion that women make to soci­ety, but also how that con­tri­bu­tion is val­ued under Aus­tralian law. 

Whilst women are par­tic­i­pat­ing in the paid work­force at high­er rates than ever before, there is still inequal­i­ty in women’s earn­ings and one of the fac­tors that con­tribute to this inequal­i­ty, is women tra­di­tion­al­ly tak­ing on the role of home­mak­er and par­ent in domes­tic relationships.

The deci­sion for one par­ent to with­draw from the paid work­force, which is typ­i­cal­ly made joint­ly, pri­ori­tis­es the needs of the home or fam­i­ly over the finan­cial secu­ri­ty and inde­pen­dence of the stay-at-home’ par­ent. For many women, the deci­sion to take on pri­ma­ry care respon­si­bil­i­ties, whilst reward­ing, has long term eco­nom­ic impli­ca­tions which arise from their inter­rupt­ed par­tic­i­pa­tion in the workforce. 

It is for this rea­son that when con­sid­er­ing how to divide the assets of a rela­tion­ship fol­low­ing sep­a­ra­tion under the Fam­i­ly Law Act 1975, the Court gives the same con­sid­er­a­tion to the home­mak­ing and par­ent­ing con­tri­bu­tions made by a stay-at-home moth­er’ to the finan­cial con­tri­bu­tions made by the father which are usu­al­ly derived from wages or a salary. 

This approach address­es not only the val­ue of the child-rear­ing con­tri­bu­tions made by women but also the eco­nom­ic impact that their with­draw­al from the work­place has on their future finan­cial secu­ri­ty par­tic­u­lar­ly in cir­cum­stances where they expe­ri­ence a rela­tion­ship breakdown. 

Inter­est­ing­ly, this approach also recog­nis­es the part­ner­ship’ that exists between spous­es in that if it wasn’t for the woman’s con­tri­bu­tion by stay­ing home to look after the chil­dren and the home, it is like­ly that the oth­er par­ty would not have been be able to ded­i­cate as much time to their job and there­by make as much of a finan­cial con­tri­bu­tion to the family. 

The Court also takes into account each party’s future needs” which again con­sid­ers the impact that car­ing respon­si­bil­i­ties and with­draw­ing from the paid work­force have on women and on a stay-at home mother’s abil­i­ty to re-estab­lish them­selves after sep­a­ra­tion and earn an income that sup­ports their needs. 

The approach adopt­ed by the Fam­i­ly Law Act goes at least some way in recog­nis­ing and plac­ing val­ue on par­ent­ing and home­mak­ing con­tri­bu­tions and pro­tect­ing women from the finan­cial impact that gen­der inequal­i­ty in paid employ­ment has fol­low­ing sep­a­ra­tion or fam­i­ly breakdown. 

Women in the Legal Profession

Monique Robb, Senior Associate

In 2018, NSW cel­e­brat­ed 100 years of women in the law. Women now make up 60 per­cent of law school grad­u­ates, and, accord­ing to a recent sur­vey under­tak­en by Pitch­er Part­ners, com­prise approx­i­mate­ly two-thirds of employed grad­u­ate solicitors. 

How­ev­er, on aver­age, female law grad­u­ates earn less than men at entry lev­el, and a gen­der pay gap con­tin­ues to exist at all lev­els of the pro­fes­sion. The gen­der pay gap cur­rent­ly sits at about 35.6 percent.

Despite women hav­ing made up a sub­stan­tial por­tion of law grad­u­ates for a num­ber of years, and where 51 per­cent of prac­tic­ing solic­i­tors in NSW are women, women con­tin­ue to be under-rep­re­sent­ed at senior lev­els of the pro­fes­sion, mak­ing up approx­i­mate­ly 16 per­cent of equi­ty part­ners in law firms, and 25.8 per­cent of part­ners in law firms gen­er­al­ly. A tiny 3.4 per­cent of man­ag­ing part­ners of law firms are women. At the bar, only 23 per­cent of prac­tic­ing bar­ris­ters in NSW are women, and only 11 per­cent of senior coun­sel are female.

Whilst flex­i­ble work­ing arrange­ments are increas­ing­ly avail­able for women lawyers seek­ing to bal­ance car­ing respon­si­bil­i­ties with careers, there are ongo­ing con­cerns about the impact this has on the career tra­jec­to­ries of the women who work part time, or in oth­er flex­i­ble arrange­ments. Many women report being put on the mum­my track”, with reduced access to com­plex, qual­i­ty work, impact­ing on their abil­i­ties to be fur­ther promoted.

Clear­ly, our pro­fes­sion still has some way to go to reach equal­i­ty for women. 

But it’s not all bad news. 

The High Court of Aus­tralia has a female head in Chief Jus­tice Susan Kiefel. Jus­tices Vir­ginia Bell and Michelle Gor­don also sit on the bench of our high­est Court. Mar­garet Bea­z­ley AO, QC, the first female pres­i­dent of the NSW Court of Appeal, will take up her appoint­ment as the Gov­er­nor of New South Wales in May 2019. There are (slow­ly) increas­ing num­bers of senior female lawyers and jurists in high­ly vis­i­ble posi­tions. Progress is slow, but it is progress. We have to hope that with the sub­stan­tial num­bers of younger women enter­ing the pro­fes­sion, change will move at a more rapid rate to enable all female lawyers to have the suc­cess­ful, reward­ing careers in the law which they deserve.