Some businesses are introducing carer’s leave for dog owners. Whether new frontier or fad, it raises legal questions, writes Morry Bailes.
Hive Legal is what has become known as a ‘new law’ law firm. The firm encapsulates the practise of the law but executes it in a contemporary way. The firm recently created headlines by announcing its introduction of ‘pawternity’ leave. Yes, you heard right. Pawternity leave is carers or compassionate leave if you are a pet owner. Is this a new far-sighted industrial frontier or just a fad?
I realised some years ago when the Animal Law Committee was formed by the Law Society of South Australia that lawyers took their ‘animal rights’ pretty seriously after it was populated by far more lawyers than our Human Rights Committee. Could it be we were placing a greater emphasis on the animal than the human?
In other areas, some of the most contentious issues in a family law property settlement can surround who gets custody of the family pet. Jane Miller, a former partner of our firm and now barrister, wrote an article a few years ago in which she reckoned as much as $10,000 might be sacrificed by a party in family law property proceedings to get their hands on the family dog. That assessment is probably a tad dated now, given that since COVID any crossbred mutt goes for the best part of 10 grand as long as it is distantly and allegedly related to a poodle ancestor.
It turns out law is far from the only industry offering such entitlements. It is also not a new idea. Businesses here and internationally have been introducing pawternity leave over some years now. Perhaps to assist PR as well as staff, Scottish brewer BrewDog started offering pawternity leave to staff in 2020. Sydney based Pet Circle does the same.
How do you introduce an entitlement that doesn’t exist in law? It is done by providing for it in an individual contract of employment or an enterprise agreement in a larger workplace.
Such entitlements fit in an age encouraging flexibility of employment conditions, and, prompted by COVID, an environment in which we are taking a new look at what the traditional workplace might become. It can also fit with an age old concept in successful businesses that productivity rather than slavish adherence to the workplace is really where it’s at.
What we are talking about here however is flexibility not lack of commitment. For some, flexibility can encourage commitment. To express it in a different way, most smart employers will reward commitment with the necessary provision of flexibility anyway, but is not always possible with big employers. BrewDog operates internationally, as do its pawternity entitlements.
The obvious question is how do these entitlements work in law? The answer is that unlike parental leave and compassionate leave there is no requirement at all to offer pawternity leave. How do you introduce an entitlement that doesn’t exist in law? It is done by providing for it in an individual contract of employment or an enterprise agreement in a larger workplace. It is then enforceable as an individual right as a matter of law. In other words the right is created by private contractual agreement not by statutory entitlement. Significantly, once a substantive right is created it is near impossible to remove it lawfully, subject always to the provisions of the contract of employment.
Additionally you must be careful what you prescribe. BrewDog had in mind leave for those who acquire a new puppy and need to settle it into its new home. But what if you are a cat person? I’m not sure BrewDog had felines in mind. Is such an agreed entitlement discriminatory against the pet-less, and as a pet owner what is in and what is out? One could argue Minneapolis digital marketing company Nina Hale offering ‘furternity’ is clearly more inclusive. But what if you miss out because you incline to the reptilian or Phylum Chordata?
Why is leave offered in the first place? To welcome a pet? To farewell a pet, or facilitate its progression to animal heaven? Or to just spend quality time with Fido who now longs for COVID lockdown bliss when an owner was all theirs?
It is easy to see how resentment may arise in the workplace. As is often the case the devil will be in the detail of such entitlements. It may be fertile ground for the law, given some of the strange and wonderful outcomes to litigated matters before the Fair Work Commission.
In truth, entrenching fashionable rights will likely haunt employers for a long time. Whilst our obsession with animals seems to know no bounds, if you really want to attract, employ and retain talented staff, wouldn’t further general leave be easier? It may not make the headlines but it gives all employees an equal go, including the pet agnostics.
Also, where does it stop? With an emphasis on sustainability, and our front as well as our backyards transforming, strictly in the interests of the planet, into mini agricultural zones, should we anticipate seeding and harvest leave? ‘Are You Okay Day’ as a public holiday? Or is it easier to take the French approach, where garbage collectors are demanding a 21 hour week? Do what you like for the other 147 hours, including loving your pet most of every day. Just don’t expect any productivity gains.
It may be fertile ground for the law, given some of the strange and wonderful outcomes to litigated matters before the Fair Work Commission.
When one looks more closely at law pertaining to animals it is actually law pertaining to humans that may impact animals. Animals don’t have rights; humans have restrictions on what they can do to animals. We eat them after all, including furry ones, and ones with paws. It’s just how we bring them to the table that is regulated.
As to pawternity or furternity or however you wish to label it, it is just another feel good benefit thrown in by an employer to create a sense of virtuousness or smart business practise to have customers or clients melt in admiration.
Business exists to provide goods and services and make money in order to employ a workforce, offer a return to owners, and thereby perpetuate the cycle. End of story. What employee entitlements you choose to offer over and above statutory entitlements is in the judgment of the employer, for business reasons considered important by an employer. How a business fares at the end of the day will be the judge of whether adopting a new and fashionable trend is wise or foolish.
There is also no substitution for hard work. The old saying ‘the harder I work the luckier I become’, is as real as it ever was. Work life balance is work hard and balance that with reward and enjoyment. Anything else is a commercial fantasy. Ask the French.
Moreover understand, that when you entrench a new entitlement and an employee accepts a job based on it, you may be stuck with it and all that goes with it. Flexibility in employment relationships is smart but it is also just that; flexible. Tying yourself down to a particular position as an employer is rarely smart. What is, is singling out your winners and treating them to care, consideration and reward. If they happen to be a pet lover so be it. Maybe ‘paws’ before you lavish every employee with the same largesse, particularly when darker times may be around the corner.
The days of low interest rates and government fuelled public debt being placed in private citizens hands is going to end. If it looks like the party is about to be over, it probably is. It will be interesting to see how many people care about pet leave when the free money runs out.
Morry Bailes is Senior Lawyer and Business Advisor to Tindall Gask Bentley Lawyers, past president of the Law Council of Australia and a past president of the Law Society of South Australia
Originally published 14/10/2021 InDaily