Introduction
This article explains some of a pregnant employee’s rights while at work. We have a separate article entitled ‘parental leave’ which discusses leave and pay entitlements as well as the right to return to work.
This article will be useful reading for all employees (pregnant or not) and all employers. The article is in three parts:
- Unlawful termination
- Pregnancy and discrimination in the workplace
- Discrimination and industrial instruments
Background
The general rule is that women should be able to continue working while pregnant, unless there are occupational health and safety issues which would impact adversely on their health or the baby’s health. If this happens to be the case, they should be offered alternative work with the same employer, which would not impact adversely.
Australia protects against unlawful termination and discrimination in the workplace based on pregnancy and potential pregnancy.
The ground of potential pregnancy relates to the fact that a woman is or may be capable of bearing children, the fact that the woman has expressed a desire to become pregnant, or the fact that the woman is likely, or is perceived as being likely, to become pregnant. This is clearly an ambiguous situation which needs careful consideration. Employers should ensure employment policies cater for such discrimination.
Unlawful termination
Under the latest Work Choices legislation, it is unlawful for an employer to terminate an employee’s employment on discriminatory grounds such as family responsibilities or pregnancy, or because of absence from work during maternity leave or other parental leave. It is also unlawful to dismiss an employee for filing a complaint or participation in proceedings against an employer concerning an alleged breach of the law (e.g. an alleged breach of the Workplace Relations Act 1996).
Some employees are excluded from making unfair dismissal claims, however, unlawful termination claims are accessible to all employees. If conciliation through negotiation and mediation is unsuccessful, the employee can apply to the Federal Court or the Federal Magistrates Court for a remedy. Remedies typically include compensation or reinstatement. However, if the employee / employer relationship has been compromised, as is the case in such circumstances, reinstatement is unlikely. Under the Unlawful Termination Assistance Scheme, employees may also be eligible to receive up to $4,000 of independent legal advice.
Pregnancy and discrimination in the workplace
It is unlawful to discriminate against women in the workplace on the grounds of pregnancy or potential pregnancy under the section 14 of the federal Sex Discrimination Act (1984).
No matter how well intentioned an employer's actions may be, they may still be considered discriminatory. For example, if an employee is pregnant, potentially pregnant, on maternity leave or returning to work from maternity leave, this cannot be used as a reason to discriminate against her:
- by refusing to employ her;
- by transfering or demoting her;
- by changing her full-time position to part-time, or vice versa;
- by making her a casual employee if she is a permanent employee;
- by reducing or increasing her hours of work;
- by altering her days of work;
- by giving her less skilled or less demanding work;
- by denying her access or limiting her access to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
- by dismissing her; or
- by subjecting her to any other detriment.
If an employee believes she has been unlawful discriminated against, she can seek advice and assistance from the Human Rights and Equal Opportunity Commission (HREOC). If a complaint is lodged, it will be referred to the President of HREOC for inquiry or attempted conciliation.
It is important to note that an employer is usually responsible for the discriminatory acts of their employees. In addition to having a strict discrimination policy, it is essential to use it, implement it, remind employees about it and train employees about it. Simply having one kicking around in the head office will not be seen to be acceptable come court time.
Discrimination and industrial instruments
A workplace agreement cannot contain terms which discriminate against an employee because of sex, family responsibilities or pregnancy.
If an employee believes that he or she has been discriminated against on the basis of sex (including pregnancy or potential pregnancy) under certain industrial instruments a complaint can be made to HREOC.
HREOC can intervene if provisions that discriminate on the basis of sex are contained within collective agreements, awards, transitional awards, pre-reform certified agreements, preserved State agreements or notional agreement preserving State awards. The President of HREOC must refer the relevant industrial instrument to the Australian Industrial Relations Commission (AIRC). The AIRC may then vary the industrial instrument to remove the discriminatory provisions. | 
