Annick Masselot Associate Professor in Law, University of Canterbury, New Zealand Raising pigs and children in the European Union and New Zealand: Comparative Legal Approach to Work-Life Balance EUIJ, Waseda University, Japan 18 January 2016

equality/files/your_rights/discrimin ation__pregnancy_maternity_pare nthood_final.en.pdf

3 Terminology RECONCILIATION BETWEEN WORK AND FAMILY LIFE WORK-LIFE BALANCE the need to spend less time in the workplace in order to take care of one’s family the desire to limit the involvement in paid activities in order to pursue other interests (eg. further education) with the overall aim of contributing to individuals’ well being

4 Reconciliation: the model The Leave Provisions The Time Provisions The Care Strategy to grant time off to parents to spend time with children to alter working patterns to provide care whilst the carer is at work maternity leave paternity leave parental leave leave for family reasons (time off for family related reasons) part-time fixed term tele-working Flexible working arrangements child care elderly care

time children adults care leave

6 Article 157 TFEU: a obligation of equal pay between men and women and a general legal basis for the adoption of measures in the field of gender equality Article 33(2) EU Charter of Fundamental Rights: ‘to reconcile family and professional life, everyone shall have the right to protection from dismissal for a reason connected with maternity, and the right to paid maternity leave and to parental leave following the birth or adoption of a child.’ Pregnant Workers Directive (92/85 EEC) Recast Directive (2006/54 EC) Parental Leave Directive (2010/18 EU) Goods and services Directive (2004/113) Extensive case law Two approaches: (1) EU law’s commitment to gender equality

EU Reconciliation as an evolving concept The traditional framework: women with young children Case 184/83 Hofmann [1984] ECR 3047 A modern (dynamic) approach: Reconciliation as a fundamental right which is for everybody (carers rather than parents) Case C-243/95 Hill [1998] ECR I-3738 Case C-104/09 Roca Álvarez [2010] ECR I-8661 But see : C-167/12 C.D. V. S.T. and C-363/12 Z. v. A Government Department and the Board of Management of a Community School ( )

8 Two approaches: (2) NZ Balance between paid work, unpaid work and personal time S 21(1)(a) Human Rights Act 1993: “the prohibited grounds of discrimination are— (a) sex, which includes pregnancy and childbirth” Human Rights Act 1993 covers the provisions of goods and services Employment Relations Act 2000 (amended 2015) Parental Leave and Employment Protection Act 1987 New Zealand Bill of Rights Acts 1990 The (unpaid) Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Extensive case law Preferential treatment for pregnancy/maternity related reasons are covered by S74 HRA 1993 and S106(3)(b) ERA 2000

Two approaches: (2) NZ Balance between paid work, unpaid work and personal time Work-life balance is “about effectively managing the juggling act between paid work and the other activities that are important to people. It's not about saying that work is wrong or bad, but that work shouldn't completely crowd out the other things that matter to people like time with family, participation in community activities, voluntary work, personal development, leisure and recreation.” (NZ Department of Labour) 9

NZ unique motivations Retention of skilled workers contribution to sustainable workplace management flexibility Emphasis on flexibility 10 NZ work-life balance is NOT about gender equality or family well-being

11 Employment Relations (Flexible Working Arrangements) Amendments Act 2007 – As amended by the 2015 ERA Simplified procedure Open to people without care responsibility No limitation on the number or timing of requests Employer must respond within a month Right to request flexible working hours

The importance of cultural/gender stereotypes Law v. Practice Public v. Private sector Small v. Larger enterprises Health and Safety v. Equality

13 Access to employment - recruitment process and monitoring C-177/88 Dekker Legal difficulties o Implementing the law o The problem of proof Practical difficulties Good practice: Monitoring Enhanced damages and redresses

14 Dismissal /pressure to resign Practices contrary to the law “Mobbing” Forced resignation White resignation First choice for dismissal Change of employment contract to precarious contract The impact of the economic crisis Good practice: Systematic monitoring Pre-authorisation for the dismissal or the resignation of pregnant and new mothers/parents

15 Paternity leave Recast Directive Article 16 Member States: overall very minimalistic Gap in EU law – NZ is doing better Parental leave Framework Directive Variable implementations Gap of EU law: the leave is unpaid Good practices: Involving fathers or other carers Fathers

16 Goods and Services  Private health insurance  Financial services  Airline requirements General lack of interest / debate Good Practice: the involvement of the equality bodies in some Member States

Tentative conclusions for the EU, NZ and beyond The importance of State involvement Spread of good practices; Raise awareness of the statutory rights, adequately mainstreaming pregnancy and parenting rights into society; Better access to justice (class actions); Systematic and intrusive monitoring; Monitoring complemented with automatic sanctions; Increasing role for private industries, commercial companies and professional associations; a space for self-regulations? Promote gender equality and fighting stereotypes, inter alia, by involving men in the care of young children. The limit of anti-discrimination law? The role of law? 17

18 Of raising pigs and children in the EU and New Zealand... and beyond Production v. Reproduction More v. Less rights

References  Masselot A., ‘EU childcare strategy in austerity time’, (2015) Journal of Social Welfare & Family Law  Masselot, A., ‘Gender Implications of the Right to Request Flexible Working Arrangements: Raising Pigs and Children in New Zealand’, (2015) New Zealand Journal of Employment Relations 39(3),  Caracciolo Di Torella, E. and Masselot A., ‘Work and Family Life Balance in the EU law and policy 40 years on: still balancing, still struggling’ (2013) European Gender Equality Law Review 2, 6-14  Masselot A., ‘The Right and Reality of Flexible Working Arrangements in New Zealand’, in Families, Care-Giving and Paid Work, G. James and N. Busby eds., (Edward Elgard 2011)  Caracciolo di Torella E., A. Masselot, (2010) Reconciling Work and Family Life in EU Law and Policy. London: Palgrave Macmillan. 19