Unpausing the discussion about menopause in Australian workplaces

October 25, 2024

Background

Recently issues concerning women's health have received more attention and funding from the Government. This has extended to the Senate producing a report concerning perimenopause and menopause (the Senate Report).

The Senate inquiry explored the impact of both perimenopause and menopause on women's lives, including the impact on retirement planning and caregiving, as well as cultural and societal factors influencing perceptions and attitudes around perimenopause and menopause. The Senate Report quoted a submission from the Affiliation of Australian Women's Action Alliances:

"Menopause is not an illness, and neither is it a medical condition: it is a normal component of the female life cycle; however, it is a women's health issue with social and economic consequences."

The Senate inquiry considered measures required to support women during this phase of their lives, with the Senate Report containing 25 recommendations. These recommendations included providing greater support to women in the workplace.

Potential impact on employment

The Senate Report referenced the Australian Longitudinal Study on Women's Health, which explained that, in Australia, the average age at menopause is 51 years old and that the menopause transition usually starts around 47 years of age. The Senate Report references the Australian Institute of Superannuation Trustees (AIST) which indicated that "menopause costs female workers AU$17 billion each year in lost earnings and superannuation" being "based on an estimate of 25 per cent of menopausal women experiencing debilitating symptoms causing long term absences from work or forcing early retirement". Submitters to the Senate Report also pointed out that this contributes to the gender superannuation gap.

The Senate Report makes it clear that perimenopause and menopause present issues for women, but they also present issues for employers. The physical and mental impact that commonly result from perimenopause and menopause has a debilitating impact on women. It also has significant adverse impacts on employers, ranging from loss of productivity to women leaving the workforce at the height of their careers.

Employers can do more to support women undergoing the debilitating effects of symptoms of menopause and perimenopause, and simultaneously reduce the adverse business impacts associated with women leaving the workforce before their time. The benefits for employers are manifest.

Current Australian legal framework

The issues commonly facing women experiencing perimenopause and menopause suggest that supportive arrangements and protections should be accessible under the Fair Work Act 2009 (Cth) and anti-discrimination legislation. At present this is not the case.

Flexible working arrangements

The Fair Work Act 2009 (Cth) contains a mechanism whereby particular employees can request flexible working arrangements. For example, an employee who is the parent of a child who is of school age or younger, an employee who is a carer or an employee who has a disability may access these provisions.

These provisions do not currently permit an employee experiencing perimenopause or menopause to request flexible working arrangements.

Discrimination laws

A female worker cannot directly allege perimenopause or menopause discrimination as they are not explicitly protected against discrimination. Discrimination on the basis of sex is unlawful and this includes discrimination by reason of a characteristic that pertains generally to women.

A female worker who is treated unfavourably in circumstances where she has been open about her experience of perimenopause or menopause and any detrimental effects on her work is likely to have a claim for sex discrimination.

There is also a positive obligation imposed on employers under the Sex Discrimination Act 1984 (Cth) to (as far as possible) prevent sex discrimination, conduct that creates a workplace environment that is hostile on the grounds of sex, and victimisation based on sex. Given that perimenopause and menopause impact women and gender-diverse people, it is possible that the positive duty to prevent mistreatment on the basis of sex may extend to preventing mistreatment of employees going through perimenopause or menopause.

Discrimination on the basis of disability is also prohibited in workplaces. Disability has a broad meaning for the purposes of these legislative protections and symptoms experienced by some women may be similar to those covered by "disability", but this protection is not adequate - as the Senate enquiry found, menopause is not an illness or medical condition.

As of yet, no Australian cases have successfully relied upon perimenopause or menopause to effectively argue discrimination.

Anti-Discrimination New South Wales reported in 2024 that in the five years prior, they had not received a single complaint based upon menopause discrimination. They suggest this is because the social stigma attached to menopause is preventing women suffering discrimination from raising complaints. These contentions are supported by the 2023 National Women's Health Survey, in which only 20% of women disagreed with the statement that it would be private and embarrassing to tell their employer that they have menopause symptoms.

The same survey also found that around 70% of Australian women believed that some employers would use menopause as an excuse to discriminate against women, and over 80% believed that at least some coworkers would not be understanding of a person taking menopause leave. It is not hard to see why a culture of silence has developed in this respect.

An express legal protection for women experiencing perimenopause and menopause in workplaces can assist in bringing this particular women's health issue to light and in so doing, contribute to better outcomes for women and employers.

Health and safety laws

Work health and safety legislation imposes obligations on employers to ensure, so far as is reasonably practicable, the health and safety of workers at work. This includes both physical and psychological health, and therefore may extend to ensuring the health and safety of employees experiencing perimenopause and menopause.

Experience in other jurisdictions

Earlier this year, a Tribunal in the United Kingdom (UK) awarded a teacher compensation of AU$118,000 for both disability discrimination, relating to menopausal symptoms, stress, anxiety and depression, and unfair dismissal. In Allison Shearer v South Lanarkshire Council 4107433/2023 (Shearer), a long-time teacher was ordered to relocate to a special needs school which taught students with significant behavioural difficulties. This proposed move caused the teacher great stress and anxiety and worsened her already existent menopause symptoms. Despite this, the school council refused to reconsider its requirement that the teacher relocate. This was regarded as 'dismissive, intransigent, and unhelpful' by the Tribunal.

Another case in the UK (Mrs K Anderson (or Farquharson) v Thistle Marine (Peterhead) Ltd and J D Clark: 4101775/2023) involved an office worker being awarded £37,000 in compensation after her employer claimed the menopause was her "excuse for everything" and told her to just get on with it. After a number of incidents, the employee resigned, citing an untenable position and intolerable working conditions. The Scottish Employment Tribunal found the employee had been unfairly dismissed and harassed.

Australia: Options for the future

No specific legislative reform has been foreshadowed at this point. However, the Senate Report recommended that Parliament consider:

• Adding menopause as a basis for requesting flexible working arrangements under the Fair Work Act 2009 (Cth). This right, which currently only applies to certain subsets of employees including those with caring responsibilities and those over 55, requires business to provide flexible working arrangements to employees unless they have 'reasonable business grounds' not to do so.
• Incorporating a right to paid gender-inclusive reproductive leave (covering menopause, amongst other matters) into the National Employment Standards and modern awards.
• Allowing WGEA to collect data from employers in relation to menopause leave policies.

Meanwhile some employers have recognised the issue and taken action to support women in their workplace. The Workplace Gender Equality Agency (WGEA) reported that 65 out of 532 employers (who had voluntarily answered questions related to menopause in 2022-23) indicated that they had provided paid menopause leave to employees.

Next steps

There are many measures that employers can consider implementing to support women and gender-diverse people during this phase of their lives including:

• Creating a policy and providing paid leave entitlements, which may extend to general reproductive leave. For example, Scope, a disability support provider, has recently agreed to provide 12 days of paid reproductive health leave per annum under their enterprise agreement. This leave entitlement extends to menstruation, perimenopause, menopause, polycystic ovarian syndrome, endometriosis, IVF, vasectomy, hysterectomy and other health matters;
• Extending flexible working arrangements to women going through perimenopause and menopause, this might include allowing employees to work different hours and work from home when necessary;
• Inclusion of perimenopause and menopause in any policies dealing with inclusive workplaces and preventing discrimination, bullying and exclusion;
• Including a discussion on perimenopause and menopause in any educational programs - educating the workforce at large is important to help all employees better understand what their colleagues may be experiencing and to create a culture where perimenopause and menopause can be openly discussed.

Employers should consider the above measures given the potential for perimenopause and menopause to affect the wellbeing of female employees at work and the data which suggests that perimenopause and menopause may be contributing to the early retirement of affected individuals - and so contributing to the premature loss of talent and experience amongst the workforce.