Why Law Reform will Beat Cultural Change in the Campaign for Gender Equality at Work

While national trends and rates vary across the region, in many countries women are increasing their workforce participation. This marks a significant change in women’s employment patterns. Yet labour law and workplace policies have not kept abreast of these changes, leaving traditional social norms unchallenged.

The COVID-19 pandemic has highlighted the gendered nature of labour markets and unpaid care responsibilities. The impact of the current crisis on the unequal distribution of work and care between men and women across the Asia-Pacific region is significant, reflecting the general pattern in countries around the globe. Previous research on the impact of health and economic crises show that women’s equality gains can be pushed back and that the effects of economic downturn are long lasting – up to seven years – unless there are direct interventions from governments to correct inequalities.

In this essay we look at the way in which inadequate employment legislation may hold back gender equality by reinforcing gendered behaviors and expectations. For example, The World Bank’s Women, Business and the Law Report 2021 shows global gaps in gender inequality remain particularly persistent in the areas of pay and parenthood. For example, less than half of the globe’s economies mandate equal remuneration for work of equal value and most that do are high-income economies. Only a few East Asian and Pacific nations have equal pay laws. Improved equal pay legislation can promote change by disrupting the practices and mindsets of employers and communities. Legislation is important for signaling the direction of change a government wants to take and promoting that change through the economy. Laws can change behaviour, and thus norms and cultures, and this is more effective than waiting for culture to change of its own accord. If equality is a genuine goal of countries in the Asia-Pacific region, then showing leadership through legislation is needed.

Different rules abound, but women are playing a bigger role in the economy

The Asia-Pacific is an extremely diverse region, marked by rapid change and contrasts. In many countries (e.g. India, Bangladesh, Myanmar and Indonesia), informal economic arrangements are widespread and women historically make up the majority of these informal workers. Employment in the informal economy is characterised by low pay, insecurity, inadequate social security protection and exploitation. These conditions prevail largely because formal labour law rarely applies to informal enterprises and those engaged in informal employment relationships. In other countries (e.g. Japan, South Korea, Singapore), the rates of women in the formal economy have increased, and it is now the dominant form of employment. Whether informal or formal employment arrangements prevail, gender inequality is a feature of the region. For example, Japan, South Korea, China, India and Indonesia are ranked in the bottom third of the Global Gender Gap Index 2021 rankings. However, the shift in women’s workforce participation – from rural agriculture to waged work in metropolitan centres, from owner operated and micro enterprises to large national or multi-national firms, from informal to formal employment – has led the World Bank to conclude that women in the region “are better positioned today than ever before to participate in and contribute to their countries’ development”.

As more women enter, and are encouraged to enter, the formal paid labour forces of the Asia-Pacific, the different legislative frameworks under which they are employed, and their capacity to support equality in the workplace are providing valuable case studies in how to drive better outcomes for women. However, gender equality will require policies that address inequalities in two domains: work and care. A majority of men and women across the Asia-Pacific report a preference for female labour force participation, but legislative frameworks lag community expectations.

Legislation and workplace policies that support women and men’s equal contribution to unpaid care will support efforts to increase women’s participation in formal paid employment. For example, labour law that focuses on national economic development, encouraging female labour force participation, is often not supported by parallel laws on the public provision of childcare or flexible working hours. These laws leave women workers exposed to the double burden of active engagement in paid work coupled with caring responsibilities. COVID-19 has exacerbated this tension. Where labour law does not support the socialisation or redistribution of care, most women are unable to ‘compete’ with men in the workplace as equals and are relegated to less secure, lower paid employment at the bottom of the organisational hierarchy with limited career opportunities.

There are many labour laws that influence women’s employment – some drive formal gender equality at work while others remain deeply entrenched in normative assumptions about working men and women. Most countries across the Asia-Pacific include labour laws that provide women with formal equality with men, including legislation for equal pay, non-discrimination in hiring and workplace sexual harassment. The Philippines and Vietnam in particular provide broad legislative protection for women at work. Other laws provide specific support for women workers in their role as mothers. This includes paid maternity leave, breastfeeding breaks and workplace childcare. Again, most countries in the region provide some paid maternity leave but breastfeeding is not well supported in legislation, with the Philippines and Vietnam again leading in this area. Only Vietnam provides workplace childcare and no country provides for women’s job guarantee on return from maternity leave. According to the World Bank, only 56 per cent of economies in East Asia and the Pacific and 50 per cent in South Asia prohibit the dismissal of pregnant workers.

Women specific legislation is also quite common across the region. The Philippines, India and Indonesia provide protection from night working, protection for domestic workers is mandated in the Philippines, Thailand and Cambodia and paid menstrual leave is provided in South Korea, Taiwan, some Chinese provinces, Vietnam and Indonesia. The private sector in India has also been an enthusiastic adopter of menstrual leave. Legislation that challenges traditional gender norms is less prevalent. Though short periods of paid/unpaid paternity leave are beginning to be introduced, flexible forms of work and regular part-time work are much less common in Asian economies compared with the Organisation for Economic Cooperation and Development rich countries.

Paternity leave is gradually changing the workplace for women and men

Paternity leave is one type of leave that clearly reflects gender norms, but which can also effectively disrupt gender behaviours by enabling and incentivising a greater sharing of care between men and women, and by setting up new expectations about care into the future. So, it is an example of the role legislation can play in driving workplace gender equality.

In the Philippines, current legislation provides for 105 days of paid maternity leave at 100 per cent of earnings with the option to extend for 30 days without pay and 7–14 days of paid paternity leave. The Philippines first introduced national paternity leave legislation in 1996, providing married fathers employed in the private and public sectors with seven working days of paid leave at full pay for up to four children. In 2019, changes to the Maternity Leave Act came into effect allowing any female worker entitled to maternity leave to transfer up to seven of her 105 days of paid leave to the child’s father, regardless of whether they are married or not. This new policy means men are eligible for up to 14 paid leave days. In Vietnam, mothers are entitled to 24 weeks maternity leave at full wage rate. Mandatory, state-sponsored paternity leave paid from social insurance came into effect in Vietnam in 2016. Employed, married fathers are entitled to paid paternity leave for between five to 14 days, with the duration of allowed leave depending on the type of birth, number of children born and if the child is adopted. Indonesian women are entitled to 14 weeks paid maternity leave. Indonesia introduced paternity leave paid for by employers in 2003. The policy provides employed, married fathers with two days of paternity leave at full pay for the birth of a child or a miscarriage. Male public servants in Indonesia are eligible for one month of paternity leave during which they receive their basic pay.

Japan, by contrast, although having a larger formal labour market for both men and women, has 14 weeks paid maternity leave for women, but no statutory entitlement for fathers, indicating a highly gendered orientation to work and care. There is provision for Parental Leave which can be taken by each parent until a child is 12 months old but recent uptake figures indicate that just 12 per cent of male workers used this leave in 2020 and for less than 5 days. (Interestingly, a 2021 amendment to provide specific paternity leave was introduced to shift the fathers’ leave behaviour.) A similar pattern exists in China, which has 98 calendar days of paid maternity leave for mothers, but no national paid paternity leave for fathers. There is also no right to broader parental leave in China. In contrast, South Korea has 90 days paid maternity leave at 100 per cent of earnings, and ten days of paternity leave also at full pay.

The above examples highlight the wide range of policies available across the Asia-Pacific region and demonstrate the gaps between leave options for women and men, which reflect and reinforce long held assumptions about the role of women in the paid workforce and the unpaid domain of home and care. Legislation alone may not change gender norms and practices, but it does help in shifting the behaviours of fathers and men, as experience from the Nordic countries show.

Not only do good parental leave policies including maternity and paternity leave disrupt expectations of caring, they also compensate women for time lost to child birth and may also encourage businesses to follow suit. However, these forms of policy must be supported by additional equal opportunity policies for women and individuals need to be encouraged to use these benefits – introducing policy is one thing, ensuring its uptake is another. When designing and implementing maternity and paternity leave, it is important to learn from the experiences of other countries. It is known, for instance, that when paternity leave is paid at a high wage rate, accompanied by incentives for the family to take extra leave and is non-transferable and ring fenced for men alone, it is most effective at encouraging men to use the benefit.

Workplace changes flow on to family life and school performance

Paternity leave policies benefit governments, families and businesses. Gender egalitarian policies are associated with higher fertility rates and assist governments in achieving their targets for improved female workforce participation. Fathers also form stronger relationships with their wives and children, which is linked to lower levels of intimate partner violence. Fathers who take paternity leave may also experience lower levels of depression and reductions in levels of smoking and alcohol consumption. And importantly for shifting gender norms, paternity leave has been linked to the increased involvement of fathers in unpaid household labour. Increased involvement of the father in a child’s early years is also associated with better family relationships, which often translates to higher school performance outcomes. For businesses, the case for paternity leave is also persuasive. Paternity leave policies signal more supportive corporate cultures and lead to increases in commitment from employees, which assists in the attraction and retention of staff.

Work and family policies are constantly changing across the world but it is timely, especially post-COVID, for countries in the Asia-Pacific region to review their own laws and practices if gender equality is to be improved at both work and home. The outcomes for society, for families and future growth are improved when such policies are in place.

Marian Baird AO is Professor of Gender and Employment Relations at the University of Sydney and Elizabeth Hill is Associate Professor in Political Economy at the University of Sydney.

Table 1. Labour force participation rates across the Asia-Pacific region 1999–2019 (% of population ages 15+) (modelled ILO estimate)

Source:   The World Bank, DataBank ‘World Development Indicators’