Superannuating the Second Sex: Law, Privatisation and Retirement Income

AuthorDimity Kingsford Smith
Date01 July 2001
DOIhttp://doi.org/10.1111/1468-2230.00337
Published date01 July 2001
THE
MODERN LAW REVIEW
Volume 64 No 4July 2001
Superannuating the Second Sex: Law, Privatisation
and Retirement Income
Dimity Kingsford Smith
*
The privatisation of retirement income through state encouragement of occu-
pational and retail funds affects men and women differently. This is largely because
the legal forms adopted in the course of privatisation suppose a 40-year continuous
working life, which is mostly a male experience. Although women with different
backgrounds of class and race have a variety of employment patterns, on average
women spend approximately half the years in the workforce that men do and are
paid considerably less. Time-use statistics indicate this is because women are
engaged in household production from which retirement income under privatised
schemes does not accrue. The result is that low wages are replicated in inadequate
retirement incomes, and many women live in poverty in retirement. Arguments from
desert, social justice and a vision of citizenship in retirement are made to justify
changes to current retirement income policy and its privatising legal forms.
Towards fifty she is in full possession of her powers: she is rich in experience; that is the age
at which men attain the highest positions, the most important posts; as for her, she is put into
retirement. Simone de Beauvoir, The Second Sex 596.
Introduction
This essay is about women and their retirement. In particular it is about the
interaction of law with the socio-economic and cultural patterns that together shape
women’s retirement. Of course, this shaping begins well before the moment of
retirement. It depends on many factors, more or less all of them in some way
related to law. The shape of a woman’s retirement depends on rights to income and
health care afforded by the state in the country where she lives. In modern
capitalist countries where rights from the state are augmented by occupational
retirement schemes, the shape of a woman’s retirement also depends on what rights
she has to a job, promotion and pay. The most important shaping factor of all is
whether or not a woman has married, and remained married. Her economic
ßThe Modern Law Review Limited 2001 (MLR 64:4, July). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 519
*
Professor of Law, Faculty of Law, Monash University, Melbourne, Australia. This research was funded
under a grant from the Australian Research Council.
I am grateful to many for their thoughtful comments on previous drafts: Mary Condon, Bernard Dunne, Ian
Enright, Shauna Ferris, Regina Graycar, Rosemary Lyster, Therese McDermott, Ngaire Naffine; to the
members of the LSE Law Department, the Faculties of Law at Monash University, University of Adelaide
and the F-LAW conference where these ideas were first aired; and for the helpful comments of two
anonymous referees.
position in retirement depends therefore as much on the marriage market,1as on
the state and the investment and labour markets.
In complex union with the socio-economic factors shaping women’s retirement
are our beliefs and values about how a woman’s life should be. These beliefs and
values change slowly, and they are very influential in what we regard as right and
fair. When circumstances change, they can also be at the centre of what we come to
hold as no longer right and as unfair in the content of law, and in those practices
which surround and intersect with law. They are part of how we imagine (and
argue) the law and legal policy should be. They are particularly powerful and
durable in relation to questions of family life, and the movement of women
between the household and the workforce. Because of the strength of these values
and beliefs about women’s role they have, understandably, been crucial in shaping
women’s retirement.
In this essay I will argue that the law affecting women’s retirement continues to
be shaped by influential socio-economic and cultural factors (our values, beliefs
and associated practices) which are blind to the pattern of modern women’s
participation in the paid workforce. It is true that in formal legal terms women
mostly have equal rights of access to superannuation and pension funds, whether
state or private sector. But that is where equality ends, unless a woman can mimic
the working life of a man.
Some state schemes pay flat-rate benefits regardless of workforce participation,
but the benefits they provide tend to be very modest, barely reaching the poverty
line.
2
More generous schemes are almost all earnings-related, and for women that is
the catch. Although they may have the same formal legal rights as men in such
schemes, these are hollow because of the different nature of female participation in
the workforce. Earnings-related schemes have as their centrepiece the male model of
a full-time forty-year employed lifetime.
3
Contribution rates, vesting periods,
retirement benefits and other terms at the financial heart of retirement income
schemes are all selected on the premise that forty years are available to accumulate
enough for an adequate retirement income. Here, the different way in which women
dispose of their time, divided between the labour force and household production, is
crucial. Because of this most women spend less than half the years spent by men in
paid employment. A woman’s years in the workforce are broken by child care and
shortened by elder care. They are also mostly part-time because of the enduring
practice of women doing the greater share of household production even when
employed. In truth women oscillate between household production and the labour
force. In the former they earn little or nothing towards retirement.
4
What they gain
from the latter is diminished further by lower pay rates and slower promotion.
5
The second part of this article provides a short introduction to the mix of sources
of retirement income and their accessibility to women. It continues with an account
of the socio-economic position of women, both in the workforce, and in retirement.
1 In Australia 37.6 per cent of women who retire give ‘dependent on other person’s income’ as the main
source of income in retirement. This is the largest category of income source, only 4.2per cent ofmen
rely on others’ income at retirement: ‘Source of Income in Retirement, 1997’ reported in Australian
Social Trends 2000, Cat No 4120, Australian Bureau of Statistics http:// www.abs.gov.au >.
2 For example the age pension in Australia, the state basic age pension in the UK, Old Age Security in
Canada and ‘welfare’ in the US.
3 See text to notes 97–101 below.
4 In some jurisdictions, such as the UK, women can earn ‘home responsibility credits’ for household
production but these are limited and beset by the kinds of difficulties described in the text to notes 92–
93 below.
5 See generally 38–39 below.
The Modern Law Review [Vol. 64
520 ßThe Modern Law Review Limited 2001

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT