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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
It's illegal for an employer to dismiss an employee for a number of reasons. These reasons include:
- A person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin (some exceptions apply, such as where it's based on the inherent requirements of the job)
- Temporary absence from work because of illness or injury
- Trade union membership or participation in trade union activities outside working hours or, with the employer's consent, during working hours
- Nnon-membership of a trade union
- Seeking office as, or acting as, a representative of employees
- Being absent from work during maternity leave or other parental leave
- Temporary absence from work to engage in a voluntary emergency management activity
- Filing a complaint, or participating in proceedings against an employer.
If you think you've been dismissed for any of these reasons, you can apply to Fair Work Australia (FWA) for help to deal with the dispute. Forms can also be lodged at Fair Work Ombudsman (FWO) offices.
You must lodge your application within 60 days after the dismissal took effect, although FWA may accept late applications in limited circumstances. Employees are required to pay an application fee. This fee may be waived on the grounds that its payment would cause serious hardship.
After you apply to FWA, the following steps take place:
- FWA has a private conference with you and the employer.
- If FWA finds that all reasonable attempts to fix the matter were, or are unlikely to be unsuccessful, they issue a certificate to that effect.
- You may use the certificate to apply to court to resolve the matter.
The Fair Work Ombudsman (FWO) also deals with unlawful termination issues. FWO may seek penalties against the employer for breach of a civil remedy provision of the Fair Work Act. You may also be able to claim up to $20,000 through the small claims procedure.
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 transferring 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.