Last year a study by the Human Rights Commission uncovered a nasty fact of Australian life: one in three women experience workplace discrimination when returning to work after maternity leave.

The solution to this unacceptable reality, according to the Australian Council of Trade Unions, is more legal protection, which is why it is pushing for a change to the Fair Work Act.

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But the business lobby disagrees. It argues that, discrimination or no discrimination, more “red tape” solves nothing, and if we leave the current regime alone, businesses and workers will sort things out between themselves.

So who is right?

What the ACTU wants

Currently, the Fair Work Act gives mothers – and in some case fathers – the right to request either an extension of parental leave or to work more flexible hours.

However, in a strange legal quirk that renders this right all but meaningless, the employer has complete discretion to refuse this request.

The ACTU is proposing that the employee be granted the right to appeal her employer’s decision to a Fair Work Commission tribunal.

ACTU head Ged Kearney on Monday put the union movement’s position as follows: “Both of these requests have a significant impact on women in the workforce – yet an employer can simply say ‘no’ to the request and women have no right to appeal the decision with the Fair Work Commission. If we are serious about increasing women’s participation in the workforce, then this needs to change.”

The business lobby was quick to respond, with the Australian Chamber of Commerce and Industry saying: “The business sector stands opposed to this attack on the rights of business owners to manage their operations.”

The vehemence with which both sides present their views suggests this is yet another point on which business and labour will never agree.

The parents’ point of view

The workplace is no longer a male-dominated place. And while most employers profess to embrace the changing gender balance, the fact is many still expect their workers to fit into unaccommodating working hours.

But according to University of New South Wales lecturer and social policy expert Professor Lyn Craig, this attitude is simply incompatible with the sort of society that makes it easy for women to participate in the workforce.

“I am quite sympathetic to the idea that running a business can be challenging, but I think there’s a general assumption that the ideal worker has no other constraints on them other than making themselves available for work,” she says,

“That’s not really possible if we’re expecting parents of both genders to be in the workforce.”

She says there are a number of interests to weigh up when designing the law. While increased flexibility may not be in the interest of businesses, she says the greater good might outweigh the harm to business.

“This kind of flexibility might be the price we pay socially for including women as workers as well as carers.”

Small business’ point of view

Peter Strong, head of the Council of Small Business Australia (COSBOA), staunchly opposes any change to the law, calling the ACTU’s proposal “silly”.

“We agree that there’s obviously been gender discrimination. But you’re not going to make things better by telling an employer they have to employ someone part-time when they’ve only got two employees.”

He says while big businesses can handle increased regulation, small businesses will struggle.

“I already know employers now who really think long and hard before they employ anybody of child-bearing age. This is just another message to employers: be careful who you employ, because you don’t want to end up creating a real problem for yourself.”

Mr Strong takes the view that in a small business, employer and employee ought to be able to work things out between themselves.

“If you’re in a small business, sorry, you’re in a small business. If you can’t work it out with the person that runs the business, then we don’t need a third party to come in.”

Mature conversation

According to Marian Baird, Professor of Gender and Employment Relations at the University of Sydney, Mr Strong is right to say there is more communication between employer and employee in small businesses.

“According to our research, there is less discrimination [of women during and after pregnancy] in small businesses. They talk to their employees and work around things.”

Many businesses, she says, may be happy to create more flexible working environments for mothers, but they don’t want it to be forced on them.

“Employers don’t like being told what to do by governments,” she observes.

But on the other hand, she says unions cannot be expected to accept workers’ rights if they are not enforceable.

“These,” she says, “are the sorts of conversations mature nations must have.”