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The Sex Discrimination Act and the rights of pregnant workers

What does the law say?

Discrimination against women because of their pregnancy, or possible future pregnancy, is against the law under the Federal Sex Discrimination Act 1984.

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What does this mean?

It is against the law for someone to treat you less favourably than another person simply because you are pregnant or because you may become pregnant. This is direct discrimination.

Example of direct discrimination

During a job interview, a woman was asked by the selection panel whether she intended to have children. Although she was taken aback by the question, she said that she would eventually like to have a family. Although she was the most qualified and experienced candidate, she did not get the job. This is direct discrimination on the ground of potential pregnancy.

It may also be against the law for someone to impose a condition, requirement or practice which could disadvantage you because you are pregnant or may be pregnant in the future. This could be indirect discrimination if it isn’t reasonable.

Example of indirect discrimination

An employer requires the cashiers in a supermarket to stand at all times except while on breaks. On the surface, this requirement does not discriminate against any group of workers. However, it will be difficult for pregnant women to comply with than for others, especially in the later stages of pregnancy. If this requirement is unreasonable in the circumstances, perhaps because cashiers could be provided with chairs and do most of their work while seated, then this is indirect discrimination.

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When could it happen?

Pregnancy discrimination can occur if someone

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What about maternity leave rights?

The Workplace Relations Act 1996 states that women have a right to maternity leave. If you have been with your employer for over a year and are not a casual you are entitled to unpaid maternity leave of up to a year. This includes six weeks compulsory leave (which may be paid or unpaid depending where you work) after the birth. The Act also provides parental leave, including paternity leave and adoption leave.

Most State and Federal Awards provide maternity leave rights along these lines. They may also include parental leave provisions, including a parents’ entitlement to work part-time up to the child’s second birthday. Your ability to work part-time was considerably extended by the Carer’s Leave Test Case Decision 1995. This decision also allows you to use up to five days of your leave entitlements every year to care for ill family members.

Some people, especially in the public sector, are covered by enterprise agreements or Awards providing paid maternity leave. You may also be entitled to the "Baby Bonus". Contact your local CentreLink office (previously known as Department of Social Security) for information.

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How do I apply for maternity leave?

Check with your union or employer as the rules can vary. In general, there are set time periods for applying for leave, for providing a doctor’s certificate showing expected date of return, and also for giving notice of return to work. The leave arrangements can be changed any number of times if both you and your employer agree. Otherwise, you have the right to extend your leave once, up to a maximum of 52 weeks.

Upon returning to work, you are entitled to the same job you held before going on leave. If you had been transferred to another safer job, you have the right to return to the job you held before the transfer. If the job no longer exists, you are entitled to a job similar in pay and status.

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Aren’t there health and safety risks?

Generally, anything which might be hazardous to a pregnant woman is hazardous to anyone. The hazard should be fixed. Slippery floors should be cleared, cleaned and re-surfaced, for example.

Legally, employers have the same duty of care in relation to all employees, pregnant or not. A pregnant woman, or potentially pregnant woman, is generally entitled (under State legislation and many awards) to request a transfer to a safer job if there is an identifiable risk.

If you are concerned that a work process or substance might be hazardous to you during your pregnancy, advice should be obtained from Worksafe or the relevant State or Territory health and safety agency.

Some difficulties can be fixed by short-term assistance, such as occasional help in lifting and climbing.

The transfer should not amount to less favourable treatment, such as loss of pay or opportunities or conditions.

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What can you do about pregnancy discrimination?

You can lodge a complaint with the Human Rights and Equal Opportunity Commission (HREOC). Enquiry staff will explain how to do this.

HREOC will investigate your complaint and try to resolve it through conciliation. The two sides meet with a HREOC Conciliator and try to settle the complaint on agreed terms. Conciliation is private, confidential and free.

If a settlement can’t be reached, the complaint can be referred for a public hearing.

The outcome of the hearing or of conciliation can include:

It is against the law for anyone to victimise you for making a complaint to HREOC.

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Where can I get help and advice?

You can ring one of the HREOC contact offices.

Industrial laws also deal with pregnancy, and maternity, parental and family leave. So you can also phone your State Department of Labour or Industrial Relations or the Commonwealth Department of Workplace Relations and Small Business.

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Last updated 13 July 2004.