Recent data published by the Human Rights Commission found one in two mothers had been discriminated against at work either whilst pregnant, on parental leave or on their return to work. This data and our own anecdotal experience, demonstrates that discrimination against mums-to- be and new mums remains rampant, albeit sometimes disguised. These days it can take the form of never-before raised performance issues, a position mysteriously being made redundant, or employers who are “unable” to offer flexible work arrangements. This article is aimed at equipping unions, delegates, organisers and industrial officers to navigate and advise pregnant women and new mums.
Rights of Mums to Be and New Mums
Under the Fair Work Act 2009 (FW Act), pregnant employees have the right to:
- Not be treated adversely, either by being bullied, harassed, demoted or fired, because of their pregnancy or carer’s responsibilities;
- Take up to 12 months unpaid parental leave;
- Return to their “pre-parental leave position” or if that is not available, the closest position “for which the employee is qualified and suited nearest in status and pay to their pre-parental leave position”.
- Be consulted, whilst on parental leave, about decisions affecting their status, pay or location of their pre-parental leave position.
In addition, employers have obligations under relevant state and federal discrimination law not to discriminate against women on the grounds of sex, pregnancy or family responsibilities. This includes not treating woman less favourably than an employee who is not pregnant or potentially pregnant. For example, it would be unlawful for an employer to refuse to promote an otherwise qualified and suitable employee just because she is pregnant. Another potential case of discrimination may arise where an employer refuses to allow a new mum to return to work on a part-time basis.
In addition, in Victoria, employers must not unreasonably refuse to accommodate the responsibilities that an employee has as a parent or carer. This includes, for example, not unreasonably refusing to accommodate an employee’s request regarding their start time in order to collect or drop off their child from childcare. What is reasonable will depend on a range of factors including the employee’s circumstance, the nature of their role, nature of arrangements required to accommodate those responsibilities, size and financial position of employer and effect on workplace and business.
Pregnancy and carer’s discrimination continues to exist yet it can be subtle in the form that it takes. Unions are familiar with the tactics adopted by some employers to hide unlawful conduct, for example, through the way employers disguise contraventions of the Fair Work Act when dealing with union delegates. Unions also understand that it can be appropriate to challenge employment decisions that, on face, value appear to be neutral but are in fact motivated by unlawful discrimination.
A recent case handed down in the Federal Circuit Court shows that challenging pregnancy discrimination can be successful. That case concerned an employer who refused to allow a pregnant photographer to continue to work whilst pregnant because it wasn’t a “professional look”. The employer also refused to allow her to return on a part time basis, questioned her work ethic, increased her workload, raised performance concerns that had never been raised before and ultimately caused the applicant to resign. The Court found that the employer had discriminated against the applicant and had constructively dismissed her. The Court ordered the business to pay $174,097 in compensation and $45,000 in penalties. The owner of the business was also ordered to pay $8000 in penalties.
Some practical tips for delegates, organisers and industrial officers, to try and stop pregnancy and family responsibility discrimination include:
- Ensure that members, both male and female, fully understand their rights and the obligations on employers regarding pregnancy and family responsibility discrimination;
- Address, and if necessary and appropriate, challenge any performance issues that get raised or redundancy decisions made, after a pregnancy announcement;
- Advise members, or assist members, to have open discussions with their employers about the arrangements whilst they are on parental leave and when they return;
- Encourage members to keep in touch with their employer whilst on parental leave. Members may also consider negotiating with their employer “keeping in touch” days. If employees attend work on such a day, they are entitled to be paid for those days and it will not break their period of unpaid parental leave;
- When employers consult unions on organisational change, make specific enquires in relation to how many affected positions are held by employees who are pregnant or are on parental leave. Ensure that employers properly consult those employees, and the employees are given a proper opportunity to apply for a position in the new structure.
- Represent or advise members on return to work discussions with their employers. For example, employers may maintain that the employee can only work full-time. In many instances, there are reasonable adjustments that can be made to enable a new mum to return to her job in a way which accommodates family responsibilities eg part-time work.
 Headline Prevalence Data: National Review on Discrimination Related to Pregnancy, Parental Leave and Return to Work. 2014. Australian Human Rights Commission 2014: page 4.
 Fair Work Act 2009 (FW Act), section 351
 FW Act, section 70
 FW Act, section 84
 For example, see the Sex Discrimination Act 1984, section 7.
 Section 19 of the Equal Opportunity Act 2010 (Vic) (EO Act).
 Section 19(2) of EO Act
 Sagona v R & C Piccoli Investments Pty Ltd & Ors  FCCA 875 (30 April 2014)
 FW Act, section 79A.