Report of the National Inquiry into Pregnancy and Work - HREOC assessment of Government Responses to Recommendations

Report of the National Inquiry into Pregnancy and Work

Pregnant and Productive: it's a right not a privilege to work while pregnant.

HREOC assessment of Government Responses to Recommendations 1 November 2000

Recommendation 1: That the Attorney-General amend the Sex Discrimination Act 1984 (Cth) to empower HREOC to publish enforceable standards in relation to pregnancy and potential pregnancy.

Response: No

Recommendation 2: That HREOC and the Affirmative Action Agency, with the assistance of State/Territory anti-discrimination bodies, distribute and promote the Guidelines, by organising and conducting a series of workshops throughout Australia.

Response: Yes, but no additional funding to be provided.

Recommendation 3: That the Attorney-General's Department fund and coordinate the production, in consultation with HREOC, of an educative video on pregnancy and work based upon the Guidelines.

Response: No, HREOC should undertake this project. No additional funding provided.

Recommendation 4: That the Department of Employment, Workplace Relations and Small Business ensure that the Australian Workplace Industrial Relations Survey is conducted on a regular five year basis and include questions covering pregnancy and potential pregnancy. Useful questions could include - the number of women who work during pregnancy - the distribution of pregnant employees by industry - the incidence of discrimination on the ground of pregnancy or potential pregnancy, - the management of pregnancy at work, and - the attitudes of employees and employers regarding pregnancy at work.

Response: No, the continued existence of AWIRS is still in doubt.

Recommendation 5: That the Australian Bureau of Statistics develop, in consultation with HREOC, a set of questions on workplace pregnancy and maternity experiences for distribution in appropriate, regular, national surveys of workplaces (such as the Labour Force survey) and households. In particular, the Australian Bureau of Statistics should consider the creation of a new specialist survey on these issues as well as the inclusion of relevant questions in future censuses.

Response: Yes

Recommendation 6: That the Australian Institute of Family Studies conduct a quantitative and qualitative study into pregnancy and maternity in Australian workplaces.

Response: Yes

Recommendation 7: That the Attorney-General examine the issues of coverage for federal statutory appointees, judicial office holders and Members of Parliament, to provide clarification of coverage and, if necessary, extend the provisions of the Sex Discrimination Act 1984 (Cth) to cover these positions formally.

Response: No, government considers that federal statutory office holders and judicial office holders are already covered by the SDA. (*note: HREOC maintains its position that judicial office holders and members of parliament are not covered by the SDA)

Recommendation 8: That the Attorney-General amend the Sex Discrimination Act 1984 (Cth) to ensure coverage of unpaid workers.

Response: No.

Recommendation 9: That those federal Government Departments and agencies conducting formal unpaid work schemes ensure that participants in those schemes are provided with protection from discrimination on the ground of pregnancy and potential pregnancy.

Response: Yes, Government maintains that arrangements for these schemes are adequate.

Recommendation 10: That the Attorney-General amend section 13 of the Sex Discrimination Act 1984 (Cth) to remove the exemption of employment by an instrumentality of a State.

Response: No, but further views of state/territory governments are being sought.

Recommendation 11: That the Attorney-General amend the Sex Discrimination Act 1984 (Cth) to remove the exemption contained in section 38 for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy.

Response: No.

Recommendation 12: That the Minister for Employment, Workplace Relations and Small Business specifically consider the position of pregnant and potentially pregnant employees in any future workplace relations reform to ensure that such employees are not exposed to the possibility of direct or indirect discrimination.

Response: Yes.

Recommendation 13: That the Department of Employment, Workplace Relations and Small Business and the Office of the Employment Advocate ensure that information is available to all workplace participants in relation to their rights and responsibilities in relation to pregnancy and potential pregnancy under the Workplace Relations Act 1996 (Cth), awards, and in relation to making certified agreements or AWAs.

Response: Yes.

Recommendation 14: That information provided by the Employment Advocate pursuant to section 170VO Workplace Relations Act 1996 (Cth) include information about anti-discrimination laws and the role of the agreement making process in achieving a workplace free from discrimination and harassment. The information should include particular reference to discrimination on the ground of pregnancy and potential pregnancy.

Response: Yes.

Recommendation 15: That the Minister for Employment, Workplace Relations and Small Business fund each Working Women's Centre to provide specific advice and education about pregnancy and work, specifically targeting employees in small business.

Response: No.

Recommendation 16: That the Office of the Employment Advocate be required to collect and regularly publish information about the provisions in AWAs concerning pregnancy and maternity issues.

Response: Yes.

Recommendation 17: That the Office of the Employment Advocate undertake a research initiative in close consultation with the Sex Discrimination Commissioner to assess the progress of AWAs in contributing to the prevention and elimination of discrimination in the workplace in relation to pregnancy and potential pregnancy.

Response: Yes.

Recommendation 18: That the Department of Employment, Workplace Relations and Small Business establish a regular consultative network comprising that Department, the Affirmative Action Agency, the Office of the Employment Advocate, the Attorney-General's Department, the Sex Discrimination Commissioner's policy unit and the Office of the Status of Women to exchange data and review trends in relation to systemic sectoral and industry specific discrimination in AWAs, certified agreements and awards in relation to pregnancy and potential pregnancy and maternity leave issues, with a view to policy development and monitoring of workplace relations reform.

Response: No.

Recommendation 19: That the Sex Discrimination Act 1984 (Cth) be amended to allow the Sex Discrimination Commissioner to refer discriminatory awards or agreements to the Australian Industrial Relations Commission of her own initiative without the requirement to receive a written complaint.

Response: No, but the AIRC could accept them on an informal basis.

Recommendation 20: That the Sex Discrimination Commissioner and the Australian Industrial Relations Commission establish formal links and protocols for information sharing and exchange of expertise, with specific reference to sex and pregnancy discrimination issues.

Response: No.

Recommendation 21: That the Department of Health and Aged Care, in consultation with the National Occupational Health and Safety Commission and HREOC, develop an education campaign that reflects the expectations and needs about the type of information and advice employees and employers want and need to ensure better care of pregnant or potentially pregnant employees.

Response: Yes.

Recommendation 22: That the National Occupational Health and Safety Commission make available on the national OH&S database all available practical advice on risk control issues surrounding pregnancy at work. Such material could include the New South Wales Draft Code of Practice and Guidelines on Pregnancy and Work when adopted in that state and relevant excerpts of the Guidelines.

Response: Yes.

Recommendation 23: That the National Occupational Health and Safety Commission, Comcare and state/territory Occupational Health and Safety Commissions work with HREOC and other relevant agencies and organisations to review the New South Wales Draft Code of Practice and Guidelines on Pregnancy and Work, once that Code is finalised, with a view to implementing such a Code nationally.

Response: Yes.

Recommendation 24: That business and industry take the opportunity provided by this inquiry to consider closely the need for any further lead exemptions under anti-discrimination legislation and to take appropriate action in this regard.

Response: Yes.

Recommendation 25: That the Workplace Relations Act 1996 (Cth) be amended to extend unpaid maternity leave to casual employees employed for over 12 months.

Response: No.

Recommendation 26: That State governments extend unpaid maternity leave rights to casual employees employed for over 12 months under their respective legislation.

Response: N/A, sent to state/territory governments for their attention.

Recommendation 27: That the Department of Employment, Workplace Relations and Small Business establish a working party including the Aboriginal and Torres Strait Islander Commission, HREOC and the Working Women's Centres, to be responsible for the creation of culturally specific education material on pregnancy and potential pregnancy discrimination in the workplace for Indigenous women, and formulate an effective distribution program for the material produced.

Response: Yes.

Recommendation 28: That the Departments of Agriculture, Fisheries and Forestry - Australia and of Transport and Regional Services, in consultation with the Office of the Status of Women and the Aboriginal and Torres Strait Islander Commission, jointly provide education and services in rural and remote areas to assist pregnant and potentially pregnant employees and their employers. In particular, the provision of improved communication facilities and medical information should be a priority.

Response: Yes.

Recommendation 29: That the Department for Education, Training and Youth Affairs, in consultation with the Sex Discrimination Commissioner, develop a pamphlet on the Sex Discrimination Act 1984 (Cth) for all Year 9 to Year 12 students covering their rights and responsibilities at school, while in vocational education programs and in casual or part time work.

Response: No.

Recommendation 30: That the Department of Education, Training and Youth Affairs produce material in consultation with the Sex Discrimination Commissioner providing advice and assistance for managing pregnancy at school.

Response: No

Recommendation 31: That the Chief Executive Officer of the Australian National Training Authority work with the Sex Discrimination Commissioner to develop a strategy to inform policy about the circumstances of pregnant and potentially pregnant apprentices and trainees.

Response: Yes, to some extent.

Recommendation 32: That Group Training Australia, in consultation with the Sex Discrimination Commissioner, develop an information sheet to advise all apprentices, trainees and host employers of the law regarding pregnancy and potential pregnancy discrimination.

Response: N/A, government encourages Group Training and the other bodies involved to implement this recommendation.

Recommendation 33: That the Department of Immigration and Multicultural Affairs translate the Guidelines into six major community languages.

Response: No

Recommendation 34: That Recommendation 22 and 23 include consideration of male partners' reproductive health.

Response: Yes

Recommendation 35: That Attorney-General amend the Sex Discrimination Act 1984 (Cth) to make clear that a complaint about a discriminatory advertisement may be made under section 14(1)(a) of the Act notwithstanding that the complainant is not a person directly affected by the advertisement.

Response: No

Recommendation 36: That the Attorney-General clarify section 27 of the Sex Discrimination Act 1984 (Cth) by the insertion of a specific provision that prohibits the asking of questions (whether orally or in writing) which might reasonably be understood as intended to elicit information about whether or when a women intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities.

Response: Yes

Recommendation 37: That the Attorney-General amend Sex Discrimination Act 1984 (Cth) to clarify that it is unlawful to discriminate in medical examinations of pregnant women during recruitment processes.

Response: Yes

Recommendation 38: That the federal Department of Health and Aged Care and the Australian Medical Association, in consultation with the Sex Discrimination Commissioner, develop a strategy to assist medical practitioners provide advice that contributes to the appropriate management of pregnancy at work.

Response: Yes

Recommendation 39: That the Attorney-General amend the Sex Discrimination Act 1984 to include protection for employees who intend to, or are in the process of, adopting a child, from discrimination on this basis.

Response: No

Recommendation 40: That the Advisory Board of the Affirmative Action Agency consult the Sex Discrimination Commissioner when developing minimum standards and educative materials to ensure that they reflect the legislative requirements of the Sex Discrimination Act 1984 and legal precedents with particular regard to pregnancy and potential pregnancy.

Response: Yes

Recommendation 41: That, in accordance with recommendation 18 of the Unfinished Business report, the Director of the Affirmative Action Agency, in consultation with the Advisory Board, and the Sex Discrimination Commissioner develop protocols for the referral of certain systemic, sectoral or occupational sex-based discrimination issues, which may properly be the subject of an inquiry or report, to the Sex Discrimination Commissioner for consideration.

Response: No, it is up to the Agency and the Commission.

Recommendation 42: That the Attorney-General amend the provisions in relation to award of compensatory damages in the Sex Discrimination Act 1984 to also enable award of punitive damages.

Response: No

Recommendation 43: That the Attorney-General amend the Sex Discrimination Act 1984 to specifically cover breastfeeding as a ground of unlawful discrimination.

Response: Yes

Recommendation 44: That the federal Government remove its current reservation to article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women on paid maternity leave.

Response: No

Recommendation 45: That Australian Governments, in particular through the federal Office of the Status of Women, its State/Territory counterparts and State/Territory anti-discrimination bodies, encourage broad national debate regarding the amended draft text of ILO Convention 103 with a view to ratifying and implementing the resultant Convention.

Response: Yes

Recommendation 46: That the Minister for Employment, Workplace Relations and Small Business provide funding to the Sex Discrimination Commissioner to undertake economic modelling and analysis of possible paid maternity leave options. The project, to be conducted in consultation with the Department of Employment, Workplace Relations and Small Business, would also involve extensive and close consultations with all relevant interested parties.

Response: No

To view the Government's response to the recommendations of the National Pregnancy and Work Inquiry visit: http://law.gov.au/aghome/legalpol/cld/human/Govt_response.html.

To view HREOC's Media Release click here.

To view the Minister for Family & Community Services and Minister Assisting the Prime Minister for the Status of Women's Media Release click here.