By Brigitta Poulos and Anthony El Salim

On 16 February 2023, the Government in Madrid approved legislation making Spain the first country in Europe that will entitle workers to paid menstrual leave. Japan, South Korea, China, Indonesia, Zambia and Taiwan already have some menstrual leave entitlements. The question many have been asking, then, is when will paid menstrual leave become part of Australian and New Zealand employment rights?

While menstrual leave is not (yet) an Australian or New Zealand entitlement, employers who are inconsiderate of menstrual leave in this ‘Jobseekers Economy’ era of low unemployment and high demand may lose great staff by being inflexible. While the legislation was progressing in Spain, here at home the Australian Workers’ Union, the United Workers’ Union, the Transport Workers’ Union, the Rail, Tram and Bus Union and the Australian Workers’ Manufacturing Union spent 2022 working with a law firm planning a joint campaign to get menstrual leave built into the Fair Work Act 2009 (Cth) (FW Act). What they’ve been seeking is a model clause to utilise in bargaining across various industries and together with a law firm, they’ve been calling for 12 extra days’ leave each year.

Data shows how urgent the issue is

Recent research has highlighted the seriousness of the issue and its effect on equality and productivity.

• Between 88 per cent to 92 per cent of women aged 18 to 25 experience painful periods, according to a 2021 Sydney Law Review study, and 40 per cent of all women surveyed have to take days off work or study to cope.
• Between 7 per cent to 11 per cent of women in Australia have a formal diagnosis of endometriosis, amounting to as many as 700,000 women;
• Painful menstruation that is not attributable to a well-defined pathology occurs in 45 per cent to 93 per cent of females;
• Dutch research in 2019 determined that menstrual symptoms account for an average of nine days of lost productivity a year, through presenteeism (poor performance while at work);
• 80 per cent of women surveyed in the Dutch study reported regular presenteeism because of their periods, causing an average productivity loss of 33 per cent and a total of 8.9 days of total lost productivity per year.

To enable women to work to the best of their ability, some local businesses are trialling menstrual leave in their workplace

Sydney company Modibodi, the Victorian Women’s Trust, Future Super and Pacific Media Network have allowed employees to take up to 10 days of menstrual leave a year, or otherwise implemented a related policy. Modibodi CEO Kristy Chong told the media the policy has increased trust and boosted productivity.

The big picture: it seems that letting staff work less when afflicted by painful periods may actually result in increased staff satisfaction, loyalty and higher productivity in the workplace.

But isn’t menstruation a type of sickness, already covered by the Fair Work Act?

In accordance with the FW Act, an employee is able to access their personal leave entitlements if they are unfit for work because of a personal illness or injury.

The 2021 Sydney Law Review article Paid Period Leave for Australian Women: A Prerogative, Not a Pain argues women in Australia should be afforded a legislative entitlement of one day (7.6 hours) of paid menstrual leave per calendar month.

According to the article, women experiencing menstruation are unlikely to be ill or injured as required by the FW Act in order to access their paid personal leave. “Menstruation is simply a part of being female, as opposed to an illness or injury,” the authors wrote.

However, it is arguable that a woman experiencing significant pain, discomfort or adverse symptoms as a result of menstruation and is, therefore, unfit to attend work as a result of such symptoms, is able to utilise her personal leave provisions under the FW Act. Notwithstanding this, the mounting argument is that paid menstrual leave should become its own standalone right so that there is no ambiguity that women will be paid for the time away from the workplace on account of menstrual symptoms and so women do not have to dip into their personal leave entitlements when doing so.

Do I have to introduce a paid menstrual leave policy?

The short answer is no, not until if, and when, this becomes law. However, if you like the idea of introducing such a policy, or something similar, in recognition of the challenges women face in the workplace managing menstruations, our team at HR Assured can prepare a tailored policy that suits your business requirements.

Not an HR Assured client? Contact us today for an informal chat.

Brigitta Poulos is a Workplace Relations Consultant at HR Assured who loves helping clients and businesses achieve excellent workplace compliance with their obligations and duties, by way of interpretation of relevant employment legislation and awards. She particularly enjoys researching and explaining new or ‘hot’ topics in the workplace relations and human resources fields to our clients.

Anthony El Salim is a Workplace Relations Consultant at HR Assured. He assists clients with a range of employment relations and compliance matters via the 24/7 Telephone Advisory Service.