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.