By Courtney Robertson and Alexandra Grayson
Lawyers Weekly 04 March 2021
Thinking about having a baby? This is what you need to know about your rights and as a legal professional, write Courtney Robertson and Alexandra Grayson.
Workplace rights are likely the last thing on your mind when you start thinking about having a baby. However, given that – according to the Human Rights Commission – one in two Australian mothers report experiencing discrimination in the workplace at some point during their pregnancy, parental leave or upon their return to work, it is important to know what pregnancy and related discrimination is, what your rights are, and what you can do if you experience pregnancy and/or related discrimination.
It is against the law to discriminate against someone because they are pregnant or potentially pregnant pursuant to the Sex Discrimination Act 1984 (Cth), among other legislation (including the Anti-Discrimination Act [NSW]).
What is pregnancy discrimination?
Pregnancy discrimination occurs when someone is treated less favourably than another person because they are pregnant or potentially pregnant. That is, they are or may be capable of bearing children, they have expressed a desire to become pregnant, or are likely or perceived as being likely to become pregnant. Examples of pregnancy discrimination may include where a pregnant employee is transferred to another role, overlooked for a promotion, or dismissed because they are pregnant or potentially pregnant.
An unreasonable condition, requirement or practice that is the same for everyone but disadvantages pregnant people or potentially pregnant people may also constitute discrimination. For example, all lawyers are expected to attend regular client functions that are typically scheduled after work and run late into the night and involve alcohol, events which may be difficult for a pregnant employee to attend. In determining whether a condition, requirement or practice is unreasonable, a court will consider the nature and extent of the disadvantage, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.
Your right to parental leave
Under the National Employment Standards in the Fair Work Act 2009 (Cth), all employees that have worked for their employer for at least 12 months before the date or expected date of birth or adoption and have or will have responsibility for the care of a child are entitled to up to 12 months of (unpaid) parental leave. Casual employees will be able to access unpaid parental leave if they have been working on a regular and systematic basis for at least 12 months but for the birth, adoption or any related leave being taken, they would expect to continue working for their employer on that basis.
Employees can also request up to an additional 12 months of leave. This can only be refused on reasonable business grounds.
It is important to comply with the notice provisions contained in section 94 of the Fair Work Act, which require notice of the start and end dates of leave to be provided at least 10 weeks before starting the leave (unless this is not practicable, for example, where there is a premature birth). An employer can also require an employee to provide evidence of the date of birth.
If their employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.
If an employee no longer has responsibility for the care of a child, their employer can request them to return to work. The employee must return to work in these circumstances.
Can I get paid parental leave?
Employees may be eligible for 18 weeks of government-paid parental leave under the Australian Government Parental Leave Pay Scheme. The key eligibility criteria include that the employee:
- Is the primary carer of a newborn or newly adopted child;
- Has individually earned less than $150,000 in the last financial year; and
- Meets the “work test” which requires you to have worked for 10 of the 13 months before the date or expected date of birth or adoption, worked at least 330 hours in that 10-month period and had no more than an eight-week gap between working days (which has been extended to 12 weeks for births or adoptions after 1 January 2020).
Casual employees, contractors and self-employed people are also eligible to receive government-paid parental leave if the eligibility criteria are met.
In most cases, employers will facilitate claiming the payment through the Australian Government Department of Human Services and provide the payment to the employee.
Most law firms and other sizeable organisations have paid parental leave arrangements, which go above and beyond the government’s paid parental leave scheme. The details of these arrangements will be set out in enterprise agreements, employment contracts and workplace policies. The amount of paid leave an employee is entitled to under such arrangements will depend on the terms of the agreement, contract or policy.
Your work rights after parental leave
An employee who has been on unpaid parental leave is entitled to return to the position they had prior to taking leave. If an employee’s position no longer exists, the employee is entitled to return to an available position for which they are qualified and suited nearest in status and pay to the position they had prior to taking leave.
One exception to this is where an employee was on a fixed term contract prior to taking parental leave, which ended while they were on leave. In those circumstances, an employer does not have to extend the employee’s contract.
Can I return to my old position on a part-time basis or on a flexible working arrangement?
Under the Fair Work Act, an employee with at least 12 months of continuous employment who has responsibility for the care of a child who is of school age or younger may request flexible working arrangements. This includes an employee who is returning to work after taking parental leave who wishes to work part-time to assist with the care of a child. Casual employees must be long-term casual employees before making the request and have a reasonable expectation of continuing to be employed by the employer on a regular and systematic basis.
An employer may refuse a request for a flexible work arrangement only on reasonable business grounds. For example, where there is no capacity to change the working arrangements of other employees to accommodate the proposed arrangements and where the proposed arrangements would be likely to result in a significant loss in efficiency or productivity.
Enterprise agreements and employment contracts can sometimes have better rights than the statutory minimum.
Can I pump or breastfeed my baby at work?
Yes. Employers generally need to accommodate women who are breastfeeding by, for example, providing suitable facilities for breastfeeding or expressing and permitting breastfeeding employees to time breaks to facilitate breastfeeding or expressing.
Failure to accommodate women who are breastfeeding may constitute discrimination under the Sex Discrimination Act or state-based anti-discrimination legislation.
What do I do if I think I have been discriminated against because I am pregnant, am on parental leave or have returned to work following parental leave?
Discrimination in the workplace is unacceptable and no one should have to put up with it. Having said that, often when you are the subject of discrimination, it is difficult to know what the right thing to do is: for you, for your family, and for your career. While dealing with discrimination may not be easy, it could save your job and taking action against a discriminatory employer could also stop them from discriminating against others.
Below are some key considerations to think about if you think you have been discriminated in the workplace because you are pregnant, on parental leave, or have returned to work following parental leave.
- Maintain a record of the conduct in question. A record should include when it happened, who was involved and the nature of the conduct. If emails and/or other documentation are relevant to the conduct in question, make and keep a copy of those records as well.
- Consider whether the conduct in question is in fact discrimination. Not all discrimination is unlawful. For example, an employer may have no choice but to discriminate against a pregnant employee because of a medical condition or an occupational health and safety issue that cannot be resolved. If you are unsure about whether you have been unlawfully discriminated against you can contact Anti-Discrimination NSW (and equivalent state and territory bodies), the Australian Human Rights Commission (AHRC) and the Fair Work Ombudsman (FWO) that may be able to assist you. You can also seek legal advice from a lawyer who specialises in the area. If you need assistance finding a lawyer, contact your state or territory law society, which may be able to assist you. If you cannot afford legal advice, try National Legal Aid, Community Legal Centres Australia, the Australian Council of Trade Unions, your union (if you are already a union member) or Women’s Legal Services Australia.
- Seek redress directly through your employer. You may want to deal with the situation yourself by raising it directly with the person or persons involved. If that proves unsuccessful, your workplace may have an internal complaint process, which you can utilise.
- Seek advice and assistance from the FWO. The FWO can assist employees (and employers) to understand their rights and assist them in resolving issues including those relating to pregnancy discrimination. The FWO will determine whether the matter should be investigated, or a penalty should be imposed.
- Make a complaint to a state or federal body. Complaints about pregnancy or related discrimination can be made to Anti-Discrimination NSW (and equivalent state and territory bodies) or the AHRC. Complaints to these bodies might not be accepted if the conduct has occurred more than six months ago for the AHRC and 12 months ago for Anti-Discrimination NSW, so employees should be sure to get advice and support as early as possible. Both of these bodies have jurisdiction to investigate and resolve complaints about pregnancy or related discrimination in the workplace although in some instances you must complain to one body or the other. For example, Commonwealth employees are not covered by most state anti-discrimination legislation and many employees of state governments are not covered by the Sex Discrimination Act (but are covered by state-based laws). Complaints made under the Anti-Discrimination Act 1977 (NSW) are made to Anti-Discrimination NSW. Complaints made under the Sex Discrimination Act 1984 are made to the AHRC. Complaints about pregnancy or related discrimination in the workplace may also fall within the jurisdiction of the Fair Work Commission pursuant to the Fair Work Act. If you think you have been dismissed by an employer because of pregnancy, parental leave or upon your return to work, you should consider and seek advice on filing an application in the Fair Work Commission in the first instance. You must do this within 21 days of the dismissal.
- Commence court or tribunal proceedings. Failing resolution of a complaint through a state or federal body, it may be available to you to commence court or tribunal proceedings. You can also seek to resolve the matter through the courts in the first instance if you are seeking an urgent injunction.
As Women Lawyers Association NSW president and barrister Renee Bianchi says, one of the biggest barriers to gender equality in the workplace is family responsibilities. Our workplaces must, she argues, be places where women can do their job without being discriminated against because they are pregnant or might become pregnant, have taken parental leave or have caring responsibilities upon their return to work after taking parental leave.
Courtney Robertson is a member of the WLANSW’s executive committee and a senior lawyer in Gilbert + Tobin’s disputes and investigations team in Sydney. Alexandra Grayson is a member of the WLANSW’s executive committee and a principal lawyer who manages the employment and industrial relations practice of Maurice Blackburn’s Sydney office.
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