I believe that I am being discriminated against at work because I am pregnant. What are my rights?
The general protections provisions of Fair Work Act 2009 protects a female employee from being discriminated against if she is pregnant or has recently given birth, takes sick leave due to a pregnancy-related illness, elects to take maternity leave, or requests flexible working arrangements.
More specifically, your rights under the Fair Work Act include but are not limited to:
- Continuation of work during the 6 weeks leading to birth by providing a medical certificate that it is safe for you to do so if you choose not to take birth related leave.
- Transfer to a safe job due to illness or risk due to pregnancy, or hazards connected to the position for the 6 week period leading up to your due date, or the right to paid leave if no safe job is available if you are entitled to unpaid parental leave.
- Right to return to work after leave (or safe job, or modification to work, or reduction in work hours during pregnancy) to the same job and position you held prior to your pregnancy; or if that position no longer exists for genuine reasons, the right to another position which you are suited and qualified for, or most closely resembles your previous role and salary.
- If you have been working for your employer for at least 12 months, you have the right to take special maternity leave if you have a pregnancy-related illness or if your pregnancy ends because of a miscarriage or still birth.
- If you have been working for your employer for at least 12 months, have the right to take 12 months unpaid parental leave.
The Sex Discrimination Act 1984 also protects you against being treated less favourably than a person in the same work situation who is not pregnant or potentially pregnant.
What constitutes discrimination during pregnancy?
Discrimination, in this case, is being unlawfully treated less favourably because of your pregnancy. It can take on many forms such as but not limited to:
- An employer arbitrarily terminating your employment, reducing or unnecessarily increasing your hours, or changing your job description without lawful cause (because of your pregnancy)
- Implementing conditions to your employment that are not inherent in nature, are unreasonable and would be purposefully hard for you to comply with because of your pregnancy
- Your former position becoming no longer available, or your role has been modified with disadvantage to you
- If a prospective employer refuses to employ you when they find out you are pregnant, or makes the terms and conditions of potential employment negatively different compared to other employees
- Dismissal, non-renewal of your contract, or redundancy upon return to work after maternal leave
An example of a case in which an employee was discriminated because of pregnancy is Sagona v R & C Piccoli Investments Pty Ltd & Ors  FCCA 875 (30 April 2014).
In that case, upon learning of Ms Sagona’s pregnancy, her employers asked her to work additional hours outside of her original work agreement, and it was inferred that Ms Sagona’s remuneration and employment would be in jeopardy if she did not satisfy these new conditions. These threats were made on an on-going basis. Ms Sagona sought to work in her usual position or alternative duties of similar capacity, but her requests were refused.
At no point in her pregnancy did Ms Sagona take sick days or act in a manner that would make her employers question her ability to continue performing the duties of her employment. Upon her return to work from maternal leave, Ms Sagona’s requests for modification of her work to part-time or flexible hours, so she could care for her child, were also denied by her employer. The employer’s requirements of Ms Sagona’s role were not inherent in nature and the creation of a hostile working environment constituted constructive dismissal.
The presiding judge held the acts of R & C Piccoli Investments against Ms. Segona were in violation of the anti-discrimination provisions of the Fair Work Act 2009.
In its findings for Ms Sagona, the court ordered R & C Piccoli to pay loss of wages, including compensation for medical expenses, totalling $164,097. Additionally, the employer and other individuals involved in the discrimination were required to pay a total civil penalty of $61,000 to Ms Sagona.
What are my rights for unpaid maternity leave and change in working arrangements?
You have the right to unpaid maternity leave if you are unfit to work due to a pregnancy-related illness.
If you have paid personal or carer’s leave entitlements, you may also take that leave instead of special unpaid maternity leave. Your other rights under the Fair Work Act include but are not limited to:
- Birth-related leave no less than 6 weeks before due date, or more, if previously agreed with your employer and taken not later than the baby’s birth
- 12 months of unpaid maternal leave, if you have been employed at your current workplace for a period of 12 consecutive months. This also applies to casual or part time employees who have been regularly employed for the same period.
- Extended leave for up to 24 months total, to be requested in writing, no less than 4 weeks of your expected return date.
Your rights under the Fair Work Act 2009 also entitle you to request a change in working arrangements if you have the responsibility for the care of a child who is of school age of younger.
This can include requesting to work part-time hours, or working at home from time to time, if the nature of your job allows doing so. A written request setting out the details and proposed arrangements can be made if you have been continuously employed by the same employer for a period of no less than 12 months.
The general protections provisions of the Fair Work Act 2009 protects employees from discrimination based on family or carer’s responsibilities.
The Fair Work Act 2009 provides you with other rights which include but are not limited to:
- You are entitled to paid carer’s leave of 10 days for each year of service, and if a day of leave falls on a public holiday, it does not count as leave. This includes caring for your children, your parent, spouse, domestic partner, relative or even friend, who wholly or considerably relies on you for care
- 2 days of unpaid leave for any occasion in which you are required to care for another person as mentioned above
Under the Sex Discrimination Act 1984, it is unlawful to discriminate against you if you have family responsibilities to care for a dependent child or immediate family member. It’s important to make the distinction that immediate family member is a spouse, or sibling of the spouse, a parent, a grandparent, a grandchild, or your own sibling.
What constitutes discrimination on the basis of Family or Carer’s responsibilities?
It is unlawful for an employer to discriminate against you on the grounds of your family or carer’s responsibilities by treating you less favourably than an employee without such family responsibilities.
Examples of discrimination on the grounds of family or carer’s responsibility can include but are not limited to:
- Denying or limiting your access to promotion, transfer or training, or to any other benefits associated with your employment.
- An employer arbitrarily terminating your employment, reducing or unnecessarily increasing your hours, or changing your job description without lawful cause.
- If a prospective employer refuses to employ you because you are a parent or carer, or imposes conditions to your employment that are negatively different compared to other employees.
- An employer implements unreasonable and would be purposefully hard for you to comply with when learning of your responsibilities as a parent or carer.
I believe I have been discriminated against by my employer due to my pregnancy or my family responsibilities. Where can I make a claim?
You can file a general protections claim under the Fair Work Act 2009 if you are covered by the federal law system and are discriminated at work. Alternatively, if you are not covered by the Federal law system you can lodge an unlawful termination claim under the Fair Work Act 2009.
You can also lodge a claim with the Australian Human Rights Commission.
What can I do if I am a contractor and I have been discriminated against because of my pregnancy or my family responsibilities?
A contractor cannot make a claim under the general protections provisions of the Fair Work Act for discriminatory grounds, because those provision only apply to employees.
However, as a contractor you are still protected from discrimination and you can lodge a claim with the Australian Human Rights Commission, or your relevant State Commission. As a contractor, you are protected from discrimination related to your pregnancy or your family responsibilities under the Sex Discrimination Act 1984