Pregnancy at work
Unlawful termination
Pregnancy and discrimination in the workplace
Discrimination and industrial instruments
As a general rule, women should be able to continue working in their jobs while pregnant, unless there are occupational health and safety issues which would impact adversely on their health or the baby’s health.
Protections in federal legislation include prohibitions 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.
For information relating to the parental leave, please refer to the parental leave fact sheet.
Unlawful termination
Under Work Choices, it is unlawful for an employer to terminate an employee’s employment on discriminatory grounds which include 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 (eg an alleged breach of the Workplace Relations Act 1996).
An employee can apply to the Australian Industrial Relations Commission for conciliation if they believe their employment was terminated on unlawful grounds (eg pregnancy). Employees who are excluded from making unfair dismissal claims are not excluded from making unlawful termination claims. If conciliation is unsuccessful, the employee can apply to the Federal Court or the Federal Magistrates Court for a remedy, including compensation or reinstatement. Under the Unlawful Termination Assistance Scheme, employees may also be eligible to receive up to $4,000 of independent legal advice.
For further information on the assistance scheme, please refer to the WorkChoices fact sheet or contact the WorkChoices Infoline on 1300 363 264.
Pregnancy and discrimination in the workplace
It may be unlawful to discriminate against women in the workplace on the grounds of pregnancy or potential pregnancy under the federal Sex Discrimination Act (1984) (refer section 14).
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:
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by refusing to employ her;
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by transfering or demoting her;
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by changing her full-time position to part-time, or vice versa;
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by making her a casual employee if she is a permanent employee;
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by reducing or increasing her hours of work;
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by altering her days of work;
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by giving her less skilled or less demanding work;
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by denying her access or limiting her access to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
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by dismissing her; or
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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. The HREOC also provides information and advice for employers about anti-discrimination measures in the workplace.
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.
For more information, please contact HREOC on 1300 369 711 or visit the HREOC website. You can also contact the WorkChoices Infoline on 1300 363 264.