Pregnancy Discrimination

Federal workplace relations law applies to the overwhelming majority of Australian employees. Discrimination laws have long sought to protect pregnant workers. Federal workplace relations law prohibits employers from taking an "adverse action" against any employee or prospective employee because of pregnancy. Merely treating a worker differently because of their pregnancy does not necessarily constitute discrimination. Rather, pregnant workers are protected from an "adverse action". This includes matters such as:

  • dismissing an employee;
  • damaging an employee's ability to do her job;
  • changing an employee's job to her disadvantage;
  • treating one employee differently from other employees;
  • refusing to employ a potential employee; or
  • not offering a potential employee all the terms and conditions normally in a job.

Fair Work Australia and the Fair Work Ombudsman can enforce the laws for employment-related discrimination that occurred after 1 July 2009. For employers and employees who were previously covered by the state system until 1 January 2010, investigations can only take place for complaints occurring after this latter date. Fair Work Australia can conciliate disputes and dismissals involving discrimination. The Fair Work Ombudsman can advise on and investigate workplace discrimination and, if necessary, pursue legal proceedings in court.

The Fair Work Ombudsman has had the authority to investigate discrimination claims since 1 July 2009. One year later, the Fair Work Ombudsman launched the first pregnancy discrimination claim in the Federal Court of Australia in relation to a worker at a New South Wales printing company.

According to the statement of claim, the worker held a clerical position with the printing company. The worker alleged that her employer told her that she must bear the consequences of the inconvenience caused by her pregnancy. In particular, the worker claimed she was told that she might not be able to return to her clerical position. When the woman asked for sick leave due to complications with her pregnancy, the employer hired another full-time worker for the position.

The statement of claim alleges that when the woman returned to work, she was told that her pregnancy had inconvenienced the company. The company instructed the employee to perform packing duties in the printing company's factory. This position involved manual labour, required regular overtime and involved working in conditions which were significantly hotter than an office environment. When the employee complained, the employer allegedly advised her that she should consider leaving the company. The employee subsequently received a written warning about her performance. The employee made a complaint to the Fair Work Ombudsman. Upon returning to work, she was told she was no longer an employee.

In its claim the Fair Work Ombudsman is seeking compensation for the employee as well as penalties against the company and its directors for breaches of the Fair Work Act 2009 (Cth). The company faces a maximum penalty of $33,000 per breach, while the directors each face a maximum penalty of $6,600 per breach. The case is listed for first directions on August 18.

In addition to launching the legal claim, the Fair Work Ombudsman intends to launch an information campaign advising women about pregnancy discrimination. While it is important for pregnant workers to understand their rights, it is equally important for employers to understand their legal obligations to pregnant employees.

Archive

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Ages and Wages: Discrimination in the Workplace

Protecting Confidential Information of Employers

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Key Dates for Implementation of the Fair Work Act 2009 (Cth)