Chapter 5: The legal and policy framework

In summary

  • Australia has entered binding international human rights obligations to prohibit pregnancy/return to work discrimination.
  • Australian laws, such as the Sex Discrimination Act 1984 (Cth), implement these obligations by prohibiting discrimination on the grounds of pregnancy, potential pregnancy, breastfeeding and family responsibilities.
  • The National Review found that while the existing legal framework is reasonably extensive, it identified a small number of areas still requiring reform in relation to the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth) and the Work Health and Safety laws.
  • The National Review found that the biggest gap in the adequacy of the existing legal and policy framework is in its implementation.
  • Several complementary strategies are needed to address the gap in implementation, including:
    • information, guidance and support for employers on how to fulfil their obligations
    • clear, accessible information for employees on their rights and entitlements
    • innovative, leading practices by employers on how to implement the laws and policies
    • changing stereotypes, practices and behaviours that impede the effective implementation of laws and policies

 

The National Review heard a range of views from stakeholders on the adequacy of the existing legal and policy framework aimed at protecting employees from pregnancy/return to work discrimination.

Whilst this National Review has identified further legislative reforms that would assist in strengthening workplace protection and clarifying obligations, the main finding of the National Review is that there is a significant gap between the law and its implementation.

Several complementary strategies are needed to address this gap. Employers need further information, guidance and support on how to fulfil their obligations, whilst employees need clearer and more accessible information on their rights and entitlements. Workplaces can also take the lead in changing workplace cultures by implementing innovative, leading practices and strategies.

This chapter focuses on assessing the adequacy of the legal framework that provides protection to employees from discrimination in the workplace, and identifies areas that may require strengthening to address:

  • barriers to access to justice
  • gaps in protection
  • gaps in implementation.

In assessing the adequacy of the legal framework and considering areas of possible reform it is essential that the principles of non-discrimination and substantive equality underpin such an analysis.[561]

5.1 International human rights obligations

Australia has an obligation to implement international human rights standards, set out in Conventions which it has ratified. This includes implementing legislative measures and other measures, prohibiting discrimination against women and establishing legal protection for the rights of women. These obligations extend to the regulation of the actions of non-state actors, including private entities.

Discrimination related to pregnancy and return to work after parental leave can potentially result in violations of a range of human rights including:

  • the right to access decent work
  • the enjoyment of just and favourable conditions of work
  • the right to equal remuneration for work of equal value
  • the right to safe and healthy working conditions
  • the right to health
  • the right to an adequate standard of living.[562]

A range of international legal instruments set out the obligations to protect women’s rights in employment. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) obligates countries to pursue appropriate legislative measures and legal protection mechanisms, prohibiting discrimination against women. This obligates Australia to take appropriate measures in relation to women in the field of employment, across a range of areas relating to pregnancy, parental leave and on return to work after parental leave, including:

  • to prohibit...dismissal on the grounds of pregnancy or of maternity leave [or] marital status
  • to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances
  • to encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of childcare facilities
  • to provide special protection to women during pregnancy in types of work proved to be harmful to them.[563]

Obligations to prohibit discrimination related to pregnancy and return to work after parental leave also arise in a range of International Labour Organization (ILO) conventions ratified by Australia (see Appendix C).[564]

The International Covenant on Economic, Social and Cultural Rights (ICESCR) obligates States parties to guarantee the right to work without discrimination and to ensure women’s equal enjoyment of the right of work.[565] The Committee on Economic Social and Cultural rights has recognised that, under ICESCR, States have an obligation to respect the right of women to have access to decent work and thus to take measures to combat discrimination and to promote equal access and opportunities.[566] In particular, pregnancy must not constitute an obstacle to employment and should not constitute justification for loss of employment.[567]

The Committee on Economic Social and Cultural Rights has also noted that States are required to avoid any measure that results in discrimination and unequal treatment in the private and public sectors.[568] It further recognises that all members of society - individuals, local communities, trade unions, civil society and private sector organisations - have responsibilities regarding the realisation of the right to work.[569]

Further, any person or group who is a victim of a violation of the right to work should have access to effective judicial or other appropriate remedies at the national level. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or a guarantee of non-repetition.[570]

The Beijing Declaration and Platform for Action (1995) also calls on governments to eliminate discriminatory practices by employers such as the denial of employment and dismissal due to pregnancy or breastfeeding, or requiring proof of contraceptive use, and to take effective measures to ensure women are not discriminated against (para 165c).[571]

5.2 The legislative framework

The key federal laws that protect pregnant women and new parents from workplace discrimination in Australia are: the Sex Discrimination Act 1984 (Cth) (SDA), the Fair Work Act 2009 (Cth) (FWA), and Work Health and Safety laws (WHS laws).[572]

All states and territories have anti-discrimination laws that prohibit sex discrimination and that either implicitly or explicitly prohibit discrimination on the basis of pregnancy or breastfeeding. Prohibition of discrimination on the basis of family responsibilities also exists in most Australian jurisdictions. However, there are variations in the protections provided across these jurisdictions.[573]

The different procedural frameworks for pursuing complaints under the SDA and the FWA are provided in Appendix D to this report. An overview of the enquiries and complaints data of the Australian Human Rights Commission, the Fair Work Ombudsman, work health and safety regulators, and state and territory anti-discrimination and equal opportunity authorities, is provided in Appendix E. An analysis of the federal case law highlighting the range of workplace discrimination issues experienced by pregnant women and working parents is then provided at Appendix F.

(a) The Sex Discrimination Act 1984 (Cth)

The SDA seeks to implement Australia’s obligations in relation to CEDAW, bringing these human rights standards and principles into Australian domestic law. The SDA also implements a number of Australia’s obligations under relevant ILO Conventions.[574]

The SDA prohibits discrimination on the basis of sex, pregnancy, potential pregnancy, marital/relationship status, family responsibilities or breastfeeding, among other grounds.[575] Except for family responsibilities, where only direct discrimination is prohibited,[576] both direct and indirect discrimination are prohibited on all these grounds. These grounds are known as protected attributes.

Each of these grounds also prohibits discrimination due to a characteristic which ‘appertains generally to’ or is ‘generally imputed to’[577] those with any of the above attributes. This means that treatment of an individual employee by an employer based on the characteristics of a protected attribute, or a characteristic they are presumed to have, may be unlawful discrimination. For example, in Thomson v Orica Australia Pty Ltd,[578] the Court found that taking maternity leave is a characteristic belonging generally to pregnant women and to women in general.[579]

The SDA prohibits discrimination on the above grounds in many areas of public life including employment, education, and provision of goods, services and facilities among others.[580] Discrimination on the ground of family responsibilities is only prohibited in the area of employment.

In the area of employment, the SDA covers a wide range of workers or job applicants:[581]

  • employees
  • a person working under a contract for service such as individual independent contractors
  • a commission agent
  • a contract worker (someone who works for another person because of a contract the contract worker’s employer has with that other person, eg a labour hire situation).

Discriminatory conduct is also prohibited by partnerships of six or more, by employment agencies and others.

 

Examples of behaviours and actions which may constitute discrimination in the workplace related to pregnancy/potential pregnancy, parental leave and return to work include situations, among others, where a person has been:

• refused employment

• dismissed

• denied a promotion, transfer or other employment related benefits

• given less favourable terms or conditions of employment

• denied equal access to training opportunities[582]

• experienced another employment related detriment. This could include being unreasonably denied part-time or flexible work.

The SDA provides for special measures to be taken to achieve equality between women and men, and in relation to pregnancy or potential pregnancy, breastfeeding, and family responsibilities.[583]

The SDA also contains specific exemptions relating to the grounds of sex, marital status, pregnancy, potential pregnancy, breastfeeding or family responsibilities, including ‘rights or privileges in connection with pregnancy, childbirth or breastfeeding’[584], which operate in specific areas such as accommodation, charities, religious bodies, or an act done under statutory authority.[585]

(i) Direct discrimination

Direct discrimination occurs when a woman is treated less favourably because she is pregnant, or because she may become pregnant or takes or may take parental leave, or because she is breastfeeding or needs to breastfeed over a period of time. It also happens when a woman or a man is treated less favourably because they have family responsibilities or because of their sex.

 

In order to demonstrate direct discrimination on the grounds mentioned above, the applicant needs to show that they:

  • have suffered a form of unfavourable treatment
  • that this treatment is less favourable than that which has been or would be given to someone in similar circumstances (making a comparison to show a difference in treatment)
  • the treatment is by reason of the applicant’s sex,[586] breastfeeding[587] or family responsibilities[588] or because of her pregnancy or potential pregnancy.[589]

An action may be discriminatory even if it is not the ‘dominant or substantial reason’. This means that, if an act or treatment is performed for two or more reasons, it may be unlawful if a relevant ground of discrimination is one of those reasons, even if it is not the only reason.[590]

(ii) Indirect discrimination

Indirect discrimination occurs when there is a rule, policy, requirement or practice which appears gender neutral on its face but reproduces disadvantage for a particular group, including women who are or may become pregnant or who are breastfeeding/expressing. However, it is not unlawful where the rule, policy, requirement or practice is reasonable in the circumstances.

 

Indirect discrimination may occur on any of the grounds mentioned above, except for family responsibilities, where an applicant proves:

  • a condition, requirement or practice (referred to below as a ‘condition’) exists or is to be imposed
  • it has the effect of disadvantaging (or is likely to disadvantage) persons of the same sex as the applicant, or women who are pregnant or potentially pregnant, or breastfeeding.

If the employee establishes these two threshold issues, the burden of proof then shifts to the employer who can show that the condition is not discriminatory if it is reasonable in the circumstances. A non-exhaustive list of considerations for determining if the condition is reasonable includes:

  • the nature and extent of the disadvantage resulting
  • the feasibility of overcoming or mitigating the disadvantage
  • whether the disadvantage is proportionate to the results sought by the employer in imposing it.[591]

In assessing whether a condition is reasonable, the section below from Secretary, Department of Foreign Affairs and Trade v Styles[592] has been described as the ‘starting point’:[593]

[T]he test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience ... The criterion is an objective one, which requires the Court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.[594]

Indirect sex, pregnancy or breastfeeding discrimination can occur where a condition or policy exists at a workplace that applies to everyone, but causes difficulties for persons of the same sex as the employee complaining of discrimination or for others who are pregnant, potentially pregnant or breastfeeding, and is unreasonable. One example may be a requirement to stand for long periods of time to serve customers, as it may have a particularly negative or disadvantageous effect on pregnant women. Another example may be a requirement for full-time work or to work certain hours. In several cases, the Courts have accepted that a requirement to work full-time disadvantages women because they undertake most of the childcare responsibilities within a family. It has been found that this may constitute indirect sex discrimination.

It is not possible, however, to claim indirect discrimination on the ground of family responsibilities.[595] Thus a father or partner with family responsibilities cannot argue that his employer discriminates against him in this role because the employer has imposed a condition of (for example) inflexible or full-time hours or particular shift patterns which disadvantages (or is likely to disadvantage) persons who have family responsibilities.

(iii) Strengthening the Sex Discrimination Act 1984 (Cth)

Implementing outstanding recommendations from the 2008 Senate Inquiry

The SDA has been the subject of a number of inquiries and has been amended on several occasions since it was introduced in 1984.[596] The most significant review was the 2008 Senate Inquiry. The Sex and Age Discrimination Legislation Amendment Act 2011 implemented some of the recommendations from the 2008 Senate Inquiry.

The National Review heard from stakeholders that many of the unimplemented recommendations from the 2008 Senate Inquiry remain current issues for addressing these forms of discrimination.[597] One example is the recommendation that “family responsibilities” be expanded to include indirect discrimination.[598]

Unlike the protection afforded to every other protected attribute, the SDA does not prohibit indirect discrimination on the ground of family responsibilities. While both men and women are able to make complaints of direct discrimination on the ground of family responsibilities; only women will be able to bring complaints of indirect discrimination related to family responsibilities, by making a complaint of indirect discrimination on the ground of sex under s 5(2) of the SDA.[599]

Enabling women but not men to make complaints of indirect discrimination on the ground of family responsibilities may actually serve to entrench traditional domestic arrangements as the responsibility of women and discourage a more equal sharing of caring and domestic work. This in turn may limit women’s workforce participation. Equal use of family friendly work arrangements by men and women is important in promoting the SDA’s object of gender equality.

For this reason the National Review recommends amending the SDA to ensure that discrimination on the ground of ‘family responsibilities’ includes ‘indirect discrimination’.

Implementation of several other outstanding recommendations from the 2008 Senate Inquiry would assist in addressing pregnancy/return to work discrimination including those relating to costs, comparator and the role of the Commission.

Further analysis and information on the relevance to the focus of the National Review of each of these outstanding recommendations from the 2008 Senate Inquiry is provided in Appendix G.

Positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities
In an effort to work towards substantive equality, the National Review received submissions proposing that the SDA be amended to include a positive obligation on employers to take all reasonable and appropriate measures, including special measures, to provide a workplace free of pregnancy/return to work discrimination.

The National Review received several submissions to include within the SDA an express duty on employers to reasonably accommodate or make reasonable adjustments for persons (including employees and prospective employees) who are pregnant or who have family and caring responsibilities, including requests for flexible working arrangements to accommodate family or carer responsibilities.

Whilst in practice, the existing indirect sex discrimination provision under the SDA already requires that policies and practices do not unreasonably disadvantage people with a particular attribute, it would be clearer to have an express provision to this effect. This provision would require reasonable accommodation, except where those adjustments would cause unreasonable hardship to the employer. This would also align the SDA with similar obligations under the Disability Discrimination Act 1992 (Cth) relating to reasonable accommodation of persons with a disability.[600]

The National Review recommends including under the SDA a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family/carer responsibilities.

Prohibiting employers from collecting information not related to the job and/or using information collected to discriminate against an employee

The SDA prohibits collection of information relating to pregnancy, potential pregnancy, or marital or relationship status, if it is being collected for a discriminatory purpose (ie the information will be used to treat that person less favourably than someone without the protected attribute). However, the National Review received submissions noting that some employers do collect such information, on the basis that it will not be used for a discriminatory purpose and it is difficult to prove otherwise. The National Review found that consideration could be given to producing guidance materials to assist organisations to minimise the unnecessary collection or recording of information in recruitment and employment processes, relating to pregnancy (including miscarriage, stillbirths and abortions), potential pregnancy, and marital or relationship status.

(b) The Fair Work Act 2009 (Cth)

The FWA protects employees from discrimination by prohibiting adverse action related to pregnancy and parental responsibilities through a number of provisions, including a specific prohibition on discrimination on the basis of sex, family or carers’ responsibilities and pregnancy.[601]

The FWA also provides certain specific rights for pregnant employees and new parents which are contained in the National Employment Standards (NES). The NES are statutory minimum employment rights for employees. Some of the NES provisions, discussed below, provide a different (and complementary) way of protecting employees’ core work rights during pregnancy, parental leave and/or on return to work.

For example, there is provision for unpaid parental leave and a return to work guarantee. Employers cannot contravene the NES provisions and to do so is a contravention of the FWA,[602] regardless of whether the contravention is because of a discriminatory reason which is prohibited, such as pregnancy or family responsibilities.

Employer conduct can result in findings of both unlawful adverse action and contraventions of the NES.[603]

The general protection provision relating to adverse action under the FWA and the specific rights under the NES are outlined below, together with a summary of other relevant workplace rights that are also protected under the FWA.

(i) Unlawful adverse action

The FWA prohibits employers from taking adverse action[604] against an employee or prospective employee,[605] ‘because of’ their sex, family or carers’ responsibilities and pregnancy.[606] If an action is not unlawful under any anti-discrimination law in force in the place where the action is taken, proceedings cannot be brought under the FWA adverse action provision.[607]

Unlawful adverse action includes workplace situations where a person has: been refused employment; been dismissed; been injured in their employment; or had their position as an employee altered to their prejudice. It also includes situations where the employer has discriminated between the employee and other employees; or where the employer has threatened to do any of these things.[608]

The Fair Work Ombudsman has stated that behaviour which may amount to unlawful adverse action includes doing, threatening or organising any of the following:

  • not giving an employee legal entitlements such as pay or leave
  • changing an employee’s job to their disadvantage
  • discriminating between one employee and other employees (because of their sex, pregnancy, family or carer’s responsibilities etc)
  • not hiring someone
  • offering a potential employee different (and unfair) terms and conditions for the job, compared to other employees.[609]

Under the FWA, no express distinction is made between direct and indirect discrimination,[610] ie less favourable treatment generally does not need to be demonstrated.[611]

The reason for an action may be unlawful even if the prohibited reason is only one of several reasons for the action.[612] The burden of proof is different to that under the SDA. If an applicant proves that the employer took adverse action against them (such as by dismissing them) and alleges that this was because of a prohibited attribute such as pregnancy,[613] then (provided that they can show they have the attribute) it is assumed that the alleged reason is the reason. It is then for the employer to prove that their reasons for acting did not include a prohibited attribute.[614]

(ii) National Employment Standards[615]

The NES apply to employees[616] but the coverage is more restricted than for the adverse action provisions under the FWA and the anti-discrimination protections under the SDA. For example, for certain entitlements, length of service eligibility requirements exist for permanent employees, meaning that casuals have fewer rights.[617] As noted above, the NES provisions provide a different (and complementary) way of protecting employees’ core work rights during pregnancy, parental leave and/or on return to work. Employer conduct can result in findings of both discrimination and contraventions of the NES.[618] Under the NES the following rights exist:

12 months unpaid parental leave is available to an employee with 12 months continuous service with their employer.[619] This includes casuals with a reasonable expectation of continuing employment on a regular and systematic basis. Leave must be associated with the birth or adoption of a child under 16 years of age. Written notice of intention to take leave and its dates must usually be given at least 10 weeks in advance and confirmed (or altered) four weeks in advance.[620] If it is not practicable to provide 10 weeks written notice of intention to take leave, or to provide four weeks’ notice confirming (or altering) the leave, then written notice must be provided as soon as is practicable (which may be a time after the leave has started).[621]

Where both parents in a relationship are employees,[622] including same-sex partners, they are entitled to up to 24 months between them, usually in one unbroken period.[623] Up to eight weeks may be taken by parents concurrently.[624] A right to request[625] up to a further 12 months exists for each parent but any leave taken by the other is deducted from this so that only a total of two years is available for a couple between them.[626]

Up to two days unpaid pre-adoption leave is also available.[627]

Unpaid special maternity leave is available to an eligible employee who cannot work because of pregnancy-related illness or if the employee has been pregnant and the pregnancy ends within 28 weeks of the expected date of birth of the child, otherwise than by the birth of a living child.[628] Any leave taken under this provision does not reduce the entitlement of an employee to unpaid parental leave.

Keeping in touch provisions ensure that during unpaid parental leave, an employee may agree with their employer to work for up to 10 days to keep in touch with their job and workplace. They are entitled to be paid for this.[629] Provided the provisions of the FWA are complied with, someone working in this way during their unpaid parental leave will not break the requirement that unpaid parental leave is to be taken as one continuous period. If an employee extends their period of unpaid parental leave beyond 12 months, an additional 10 days can be taken.[630]

Transfer to a safe job or ‘no safe job’ leave is available where a pregnant employee is able to work but cannot do so in her job for reasons associated with the pregnancy or hazards related to her position.[631] Appropriate evidence must be provided. The safe job must be for the same hours (unless otherwise agreed), conditions and full pay as in the original job. If no such job is available, paid (at base pay) ‘no safe job leave’ is available for those eligible for unpaid parental leave.[632] ‘No safe job leave’ is available unpaid for those without a right to unpaid parental leave.[633]

Consultation rights while on unpaid parental leave. Where an employer of an employee on unpaid parental leave makes a decision that will significantly affect the status, pay or location of the employee’s pre-parental leave position, the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on the position.[634]

Return to work guarantee exists at the end of unpaid parental leave[635] so that an employee may return to their pre-parental leave position (that is the job they held before moving to a safe job, taking ‘no safe job leave’ or reducing their working time due to pregnancy). However, if the job no longer exists, the right is to an available position for which the employee is qualified and suited, nearest in status and pay to the pre-parental leave position.

A right to request flexible working arrangements exists for an employee (including a long term casual employee employed on a regular and systematic basis) with 12 months continuous service with their employer[636] who is a parent, or has responsibility for the care of a child of school age or younger, to assist the employee to care for a child.[637] The request must be in writing and set out the details of the change sought and the reasons for the change. The employer must give the employee a written response within 21 days stating whether the employer grants or refuses the request. A request may be refused only on ‘reasonable business grounds’ and, if refused, details of the reason for refusal must be provided in writing.

(iii) Workplace rights[638]

Employees are also protected from adverse action in relation to a ‘workplace right’, or where they have exercised a ‘workplace right’ or plan to do so.[639] Workplace rights include, for example, the express rights which pregnant employees and parents have under the NES.[640] Cases under the FWA alleging pregnancy and family responsibilities discrimination may also allege breaches of related workplace rights.[641]

(iv) Strengthening the Fair Work Act 2009 (Cth)

Since the FWA has been in force, it has been reviewed (in 2011-12)[642] and undergone several amendments to enhance its effectiveness and strengthen its protections.[643]
In 2013, Fair Work Amendment Act 2013 (Cth):

  • extended the right to request to care for a child who is school age or younger and to other employees[644]
  • set out a non-exhaustive list of what may constitute reasonable business grounds and that such grounds will be determined having regard to the particular circumstances of each workplace and the nature of the request made
  • expanded the right for pregnant women to transfer to a safe job, to be available to women with less than 12 months consecutive employment
  • enabled both parents to take up to 8 weeks of concurrent unpaid parental leave, and ensured that any special maternity leave taken will not reduce an employee’s entitlement to unpaid parental leave
  • required employers to consult with employees about the impact of changes to regular rosters or hours of work, particularly in relation to family and caring responsibilities; and
  • amended the modern awards objective to require that the Fair Work Commission take into account the need to provide additional remuneration for employees working overtime; unsocial, irregular or unpredictable hours; working on weekends or public holidays; or working shifts.[645]

A bill to amend the FWA is also currently before parliament[646] and a Productivity Commission review of the FWA is proposed to take place in the near future.[647]

There were a range of views on the adequacy of the existing provisions in the FWA to protect employees from pregnancy/return to work discrimination. Some submissions suggested amending existing rights under the FWA and others considered the inclusion of new rights under the FWA to clarify employer obligations and strengthen protections for employees was necessary.

Amendments to existing entitlements and protections

Several key amendments to existing entitlements and protections may assist in addressing the forms of discrimination examined by the National Review.

❖ Right to request flexible working arrangements

While the research shows there is a relatively low awareness of the right to request a flexible working arrangement amongst employees,[648] the results of the National Telephone Survey showed that 89% of requests for adjustments to their working arrangements (by mothers on their return to work after parental leave) were granted. However, 18% of mothers who returned to work following the birth of their child reported experiencing discrimination related to requests for flexible work.

Despite some challenges faced by businesses in accommodating flexibility in the workplace (see Chapter 4), business and industry groups generally supported the ‘right to request’ provisions in their current form, but did not support amendments to include provisions for enforcement.[649]

On the other hand, the National Review received many submissions from individuals who had experienced discrimination, as well as submissions from unions and community organisations, that the right to request provisions lacked ‘teeth’ and that employers were using the ‘reasonable business grounds’ provision[650] as a basis for refusing requests without a genuine attempt to accommodate employees’ requests. Given there is currently no right to appeal, this leaves employees with no recourse. The National Review received submissions with the following suggestions to strengthen the ‘right to request flexible working arrangements’:

  • remove the qualification requirements relating to length of employment in s65(2);
  • include a positive obligation on employers to reasonably accommodate an employee’s request for flexible work arrangements (including part-time work);
  • strengthen the enforcement mechanisms by: providing for an appeal process against a refusal to make reasonable adjustments or a failure to respond with reasons within 21 days; or removing the exemption of the ‘right to request’ flexible work arrangements from the civil remedy provisions under the FWA (s44);
  • include a 'right to work part-time or flexibly' until a child is two years of age.

The Commission has previously recommended amendments to the provisions on the right to request flexible working arrangements.[651]

The National Review recommends amending the FWA to strengthen the implementation of the right to request a flexible working arrangement by:

  • removing the qualification requirements in section 65(2)(a) of the FWA (ie the requirements for 12 months continuous service);
  • introducing a positive duty on employers to reasonably accommodate a request for flexible working arrangements; and
  • establishing a procedural appeals process through the Fair Work Commission for decisions related to the right to request flexible working arrangements to ensure processes set out in the FWA have been complied with.

 

 

❖ Right to request additional unpaid parental leave

The National Review received similar submissions to those made in relation to the 'right to request' flexible work, (eg in relation to qualification requirements and enforcement) around the right to request additional unpaid parental leave.

The proposed amendments to the FWA currently before parliament propose an amendment to subsection 76(5) which would allow an employee to request an extension of unpaid parental leave and a requirement that an employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request.[652]

Inclusion of new entitlements and protections

The inclusion of new entitlements and protections may also be necessary to address these forms of discrimination in the workplace.

❖ Dismissal, non-renewal of contracts and redundancy during pregnancy, parental leave and on return to work

The National Review heard that some employers may use redundancies and restructures as a pretext for dismissing employees who are pregnant, on parental leave or have family and caring responsibilities.

Even in situations of genuine redundancy, employees on parental leave or who have returned from parental leave may face an increased likelihood of being selected for redundancy. One reason for this can be that their performance review (on which a decision may be based) may be out of date (compared to other employees); or they may be just ‘out-of-sight-out-of-mind’.

Whilst most employers will make every effort to retrain and redeploy returning employees in these circumstances, and comply with the statutory requirement to offer suitable alternative employment, they may inadvertently discriminate against pregnant women and women and men on parental leave.

In some countries in Europe, specific protections from redundancy and dismissal have been provided for pregnant workers, workers on parental leave and on return to work after parental leave. For example, Switzerland imposes a restriction on termination of a contract during an employee’s pregnancy and for a period of 16 weeks after the birth.[653] This restriction applies regardless of the reason for termination and forms an absolute ban. This period of protection begins from the first day of the pregnancy, regardless of knowledge of the pregnancy by the employee or the employer.[654]

In Germany, there is also a prohibition against dismissal of an employee on parental leave and for a period of four months following the birth.[655] Termination of employment by an employer is invalid if the employer has knowledge of the pregnancy at the time of dismissal, or is informed of the pregnancy within two weeks of announcing the dismissal. Dismissal during this period is only lawful as a special exception if the employer is undergoing unusually severe difficulties.

 
 


ILO Convention No. 183 sets out standards, which require members to make it ‘unlawful for an employer to terminate the employment of a woman during her pregnancy, absence on leave or during a period following her return to work except on grounds unrelated to the pregnancy or birth of the child and its consequences or nursing’.[656]

The National Review heard of leading strategies implemented by organisations to overcome these concerns including: conducting audits to assess if pregnant employees, employees on parental leave or employees with family or caring responsibilities were over-represented in redundancies; and introducing a ‘special measure’ such as an automatic review by senior leadership of any decision to make someone redundant who is pregnant, on parental leave or has family and caring responsibilities (See Chapter 6).

Serious consideration should be given to developing mechanisms for protection from redundancy, dismissal and non-renewal of contracts for employees who are pregnant, on parental leave or have family and caring responsibilities.

❖ Use of paid personal leave to attend reproductive health appointments

There is confusion among employers and employees about the use of paid personal leave entitlements (or unpaid leave) to attend pregnancy related appointments such as prenatal appointments. There is also a need for fathers and partners to access paid personal leave entitlements or unpaid leave to attend prenatal appointments (including IVF) and to take time off following miscarriage.

When I fell pregnant I was really sick - throwing up all the time. So I called them to say I was unable to come to work. But the manager would say she really wanted me to come because she was short staffed. So I would go to work no matter how sick I was because I wanted to keep the job. One day she saw me at the checkout and she said ‘oh you look really wasted'. Then she made an appointment to see me about leave arrangements. She said that I cannot go on sick leave but I could take my annual leave days for my morning sickness.[657]

I am about to start IVF next year and have faced nothing but trouble about appointments and time off.[658]

Other jurisdictions, such as the UK, provide for ‘reasonable paid time off’ to attend antenatal care.[659] The National Review received submissions relating to time off to attend prenatal care and reproductive health appointments (such as those associated with IVF). Submissions included suggestions that: the FWA be amended to include additional paid leave to attend such appointments; and that s 97 of the FWA on personal leave be amended to state that employees can use this leave to attend reproductive health appointments such as prenatal appointments as well as to take time off following miscarriage.

The National Review recommends allowing employees to use existing personal/carer leave entitlements under s97 of the FWA to attend prenatal appointments (including IVF).

❖ Breast-feeding/lactation breaks and provision of adequate facilities

Lack of explicit provision under the FWA for breastfeeding or expressing breaks creates uncertainty for both employers and employees and may give rise to discrimination against women who are breastfeeding or expressing.

The lack of provision for breaks and adequate facilities can cause enormous stress for employees and can result in mothers ceasing to breastfeed or having to leave the workplace.

The National Review received a range of submissions suggesting: dedicated paid leave for breastfeeding or expressing be provided under the FWA; or explicitly allow for personal leave or unpaid leave to be used for the purposes of breastfeeding or expressing. Submissions also noted the need for adequate facilities to be provided in workplaces for mothers to breastfeed or express milk.

The National Review recommends that the FWA be clarified to allow employee breaks from work for the purposes of breastfeeding or expressing.

❖ Unpaid parental leave as active service

The National Review received several submissions that noted the disadvantage women faced as a result of unpaid parental leave not being recognised as active service, for the purposes of accruing entitlements related to annual salary increments, superannuation, personal/carers leave and long service leave.

Some businesses have implemented leading strategies to ensure women undertaking parental leave are not further disadvantaged in this way by recognising parental leave as active service for the purposes of accruing salary entitlements and superannuation (see Chapter 6).

The National Review found that serious consideration should be given to recognising unpaid parental leave (and any paid parental leave) as active service, for the purposes of accruing entitlements related to annual salary increments, superannuation, personal/carers leave and long service leave.

(c) Work Health and Safety laws[660]

Laws to protect workers’ health and safety exist in all Australian jurisdictions. While WHS laws do not specifically cover workplace discrimination,[661] they impose important obligations on employers to ensure that the workplace is safe for all employees, including pregnant or potentially pregnant employees and women returning to work after childbirth.

WHS laws, based on a model law developed by Safe Work Australia, have been enacted by the Commonwealth and all states and territories except Victoria and Western Australia. However, both these states have similar legislation to the model law. Model Work Health and Safety Regulations and Codes of Practice (for example in relation to manual handling and hazardous chemicals) expand on the statutory obligations and provide practical guidance for employers and workers.

Broadly, workplace health and safety provisions throughout Australia require organisations/employers to:

  • do what is reasonably practicable to ensure their workers’ health and safety while at work
  • consult so far as is reasonably practicable with workers who are or are likely to be directly affected by a matter relating to health and safety while at work.

These requirements apply in relation to all workers - including pregnant or potentially pregnant women in the workplace or women returning to the workplace after having children.

Given the adverse impact that discrimination has on the mental health of most workers who experience it, workplaces that conduct or permit pregnancy/return to work discrimination are also potentially in breach of their work health and safety obligations pertaining to eliminating or minimising safety risks of psychological injury.

The employer[662] must provide, so far as is reasonably practicable, a work environment without risks to health and safety, which includes:

  • safe systems of work
  • safe use handling and storage of plant and structures and substances
  • adequate and accessible facilities and amenities
  • information training and supervision necessary to protect workers’ health and safety
  • monitoring workers’ health and workplace conditions to prevent illness or injury occurring through the conduct of work.[663]

To assist employers in assessing what it is reasonably practicable for them to do regarding their workers’ health and safety, the WHS laws states that this means what is reasonably able to be done under the circumstances.[664] This involves taking into account and weighing up all relevant matters including:

  • the likelihood of a particular risk[665] occurring - this should include any specific risks to women of reproductive capacity and new or expectant mothers
  • the degree of harm which might result from a particular risk
  • what the employer[666] knows, or reasonably ought to know, about the risk and ways of eliminating or minimising it
  • the availability and suitability of ways to eliminate or minimise the risk
  • after assessing the above, the costs associated with eliminating or minimising the risk, including whether that is grossly disproportionate to the risk.[667]

Workers are entitled to stop unsafe work in certain circumstances and are protected against discrimination for trying to exercise their work health and safety rights.[668]

These obligations apply to and protect all workers, including pregnant or potentially pregnant women and women returning to work after having children (including those who are breastfeeding). However, no explicit reference to these categories of workers is made in the WHS laws, except in relation to workers engaged in certain lead-risk processes. The obligations also protect workers against conduct that is psychologically harmful. Such conduct includes bullying and harassment, and could arguably include discrimination.

The model Work Health and Safety Regulations do provide explicit protections for workers engaged in certain lead-risk processes who are pregnant or may become pregnant.[669] These have been adopted in all states and territories, except in Victoria and Western Australia, which have comparable legislation.

Safe Work Australia has also devised model Codes of Practice. Model Codes of Practice in relation to manual handling and hazardous chemicals include references to pregnant workers, however no model Codes of Practice specifically address pregnancy risks. WorkCover NSW does provide guidance on the kinds of measures that need to be put in to place to ensure the health and safety of pregnant or potentially pregnant women in the workplace, however it was issued in 2002 and has not been updated since.[670] WorkSafe Western Australia and the Northern Territory WorkSafe provide guidance on ‘manual handling and pregnancy’.[671]

(i) Strengthening Work Health and Safety laws

There can be a lack of understanding among employers about how to accommodate the work health and safety needs of women during pregnancy and when returning to work after childbirth (including breastfeeding).

The National Review heard from many individuals who were denied toilet breaks, breaks to eat or drink, or use of a stool during their pregnancy. The National Review heard from some women that upon return to work they were denied breaks to breastfeed or express milk. This has a significant impact on the health and safety of employees and their capacity to perform their job.

While pregnant I was lectured about pregnancy not being a 'valid reason' for not being able to perform some duties such as lifting or mopping flights of stairs.[672]

While I was pregnant and working as a full time English teacher, there were no allowances made for me being pregnant in terms of workload, taking time off for obstetric appointments or even going to the toilet more frequently.[673]

Currently, businesses must assess unassisted,[674] reasonably practicable measures to safely accommodate pregnant and potentially pregnant employees and those returning to work after childbirth (including breastfeeding mothers). Workers can also lack clarity as to their rights under WHS laws, such as their rights to be consulted, the adjustments they might reasonably expect and when they are entitled to stop work. Additionally, there is the complexity of understanding how these laws interact with the anti-discrimination legislation and employee rights under the FWA, particularly in relation to safe work and no safe job leave.[675]

While some stakeholders told the National Review that the existing work health and safety framework was sufficient, many others identified gaps in the WHS laws.

Some of the submissions underscored the importance of including in relevant Work Health and Safety Regulations direct reference to the reproductive health of workers, pregnant workers, workers who have recently given birth, who are breast feeding and/or returned to work, including provisions relating to identification of hazards, management of risk and control measures and existing Codes of Practice.[676]

The absence of specific reference to pregnant women and women returning to work from childbirth in WHS laws and codes of practice is a gap and one which contributes to the lack of effective implementation of the existing laws to protect the health and safety of these specific groups of workers.

Many of the recommendations relating to the work health and safety framework made by the Commission in Pregnant and Productive: It’s a right not a privilege to work while pregnant, have not been implemented. There remains a pressing need for clear and practical guidance for employers on how to meet their obligations to protect the health and safety of pregnant employees, post-parental leave employees and breastfeeding mothers. Especially useful would be centralised, clear guidance that covers all overlapping workplace obligations applying to pregnant women in the workplace or parents returning to work after parental leave.

The National Review heard that WHS laws may on occasion be misused by some employers and may result in discrimination against employees. For example, employers may not understand the health and safety needs of pregnant women, or how to assess the health and safety of a workplace for a pregnant employee. Consequently employers may discriminate against pregnant employees by forcing them to change roles unnecessarily, or by forcing them to commence parental leave early. Some stakeholders cautioned that strengthening of the WHS laws, such as through the introduction of any ‘risk assessment’, needs to address the potential for misuse.

Discrimination can have a negative impact on the mental and physical health of employees and therefore undermine the work, health and safety of employees in the workplace. The results of the National Telephone Survey showed that of the:

  • - mothers who experienced discrimination, 72% reported that it had an impact on their mental health and 22% reported it had an impact on their physical health;
  • - fathers and partners who experienced discrimination, 61% reported it had an impact on mental health and 14% reported it had an impact on their physical health.

The mental health impacts of discrimination for mothers may in turn have a physical impact such as on their capacity to breastfeed or express milk, and, in some cases miscarriage.

Lin[677], who worked for a supermarket chain, began to experience stomach pain, so she told her line manager that she could not work her usual shift.

He suggested she speak to the Store Manager. The Store Manager shouted: ‘you are pregnant, not sick.’ The employee explained that she didn’t want to lose her baby after it had taken years to become pregnant.

Lin told the Store Manager that she would like to take leave, asking for unpaid leave so the store would not be affected. The Store Manager said that Lin had to give a week’s notice so the store could arrange a replacement.

The Store Manager did not offer to move her to another role, and being newly arrived in Australia the employee wanted to keep her job, so she continued working 6.00 am – 3.00 pm shifts, lifting heavy sacks.

One evening that week, Lin started bleeding heavily, and went to hospital where the doctor told her that she had miscarried. Lin stayed in hospital for two nights and needed blood transfusions. She then took leave and went back to the same job some weeks later.[678]

 
 
 
 
 
 
 
 

 

The National Review also heard of employers not adhering to the medical certificates provided to them by employees, including in relation to safe work during pregnancy. Suggestions on how to address these concerns included:

  • requiring an employer to adhere to medical certificates from medical practitioners.
  • creating an offence, with penalty provisions, where an employer has ignored a medical certificate.
  • requiring employers to respect the choice of patients to be treated by their own doctor.
  • requiring employers to respect the rights of patients to doctor/patient confidentiality by respecting private medical appointments without the presence of third parties.
  • prohibiting employers from approaching a patient’s doctor seeking clarification of advice or suggesting alternative treatment, without the patient’s full and informed consent (in breach of a patient’s right to doctor/patient confidentiality).

The National Review recommends development of guidance material for employers in relation to their legal obligations and in relation to the work health and safety needs covering the requirements of pregnant employees, employees undergoing IVF and employees returning to work after miscarriage or childbirth (including employees who are breastfeeding) is critical. The National Review recommends that this guidance material is developed with a view to introducing a ‘code of practice’ to have effect under WHS laws in every jurisdiction.

Safe Work Australia should play an important role in leading these reforms to strengthen the laws and develop codes of practice and practical guidance under the WHS laws and regulations, to ensure the health and safety of pregnant or potentially pregnant women in the workplace and women returning after having children.

State and territory regulators should also develop and implement a comprehensive ‘compliance strategy’ which includes education and guidance components (consistent across the state and territories), monitoring and enforcing activities and the sharing of information between regulators.

5.3 Other issues related to the adequacy of the legal framework

(a) Guidance and information on the interaction of laws

The laws described above interact to create a framework of protection for employees against pregnancy/return to work discrimination. Employees and employers alike consider that the interaction of legal jurisdictions creates complexity and may cause confusion. Small businesses in particular often lack capacity to understand the legal requirements. This lack of understanding may contribute to discrimination in the workplace, as well as inhibit employees’ capacity to seek redress when occurs.

The National Review received submissions from employers and employees on the need for clear, comprehensive and consistent information that will assist them to increase and enhance their understanding of their obligations and their rights and how they should be applied in the workplace. This information needs to cover all relevant jurisdictions and explain the interaction of obligations under different laws.

The National Review also received submissions that emphasised the need for greater coordination across relevant government and statutory agencies in providing clear and comprehensive information and guidance to employers and employees.

The agencies suggested include: the Department of Social Services (DSS), Australian Human Rights Commission, the Fair Work Ombudsman (FWO), the Fair Work Commission (FWC), Safe Work Australia and state and territory anti-discrimination and equal opportunity authorities.

The need for information to be translated into different languages was also identified.

For the first time in Australia, the national Paid Parental Leave (PPL) scheme has created a mechanism through which information can be automatically disseminated to working mothers, fathers and employers. The PPL is likely to be widely accessed.[679] Given, parents can apply up to three months before they are due to have the baby, the application stage provides a useful point through which to target dissemination of materials to both employees and employers.

The PPL, along with other existing mechanisms through peak employer bodies, unions, anti-discrimination and equal opportunity authorities and community legal centres, can be utilised to ensure widespread dissemination of such materials.

Organisations should also ensure that the information and guidance material is passed on to all relevant personnel, including line managers. Beyond communicating the material, organisations should ensure that it is actually understood by all employees. This will require a range of strategies, including comprehensive communication strategies and regular analysis to ensure employees understand and apply the policies correctly.

The National Review recommends government:

  • coordinate across all relevant government and statutory agencies the production and dissemination of clear, comprehensive and consistent information about employer obligations, employee rights and leading practices and strategies.

 

  • collaborate with peak bodies from the business community, unions and community organisations, to develop these materials and assist with their dissemination.

 

  • automate the delivery of guidance material to employees and employers through the national PPL scheme and other existing mechanisms.

 

  • allocate funding to conduct a national education campaign on employer obligations and employee rights and highlight the benefits to the workplace and the Australian economy.

The National Review recommends employers ensure the effective delivery and communication of guidance material and leading practices and strategies throughout the organisation, particularly to line managers who have responsibility for managing pregnant employees, employees on parental leave and those returning from parental leave.

(b) Access to justice

Whilst the National Telephone Survey identified a high prevalence of pregnancy/return to work discrimination, it also confirmed that only a small proportion of individuals make a formal complaint either within their organisation or to a government agency.

While 49% of women reported experiencing discrimination on at least one occasion during pregnancy, parental leave or on return to work, of this group, only 6% made a formal complaint within their organisation and only 4% made a complaint to a government agency.

The low levels of reporting identified in the National Prevalence Survey are confirmed by the data on the number of complaints received by the Commission, FWO and State and Territory anti-discrimination authorities as set out in Appendix E.

The National Review heard that there are several compounding reasons for the small number of complaints relative to the prevalence of discrimination revealed by the National Prevalence Survey, including, lack of resources and capacity to take action for certain complaints, the uncertainty surrounding remedies, the risk of high costs in pursing litigation, lack of awareness of what constitutes discrimination, and fear of negative consequences in the workplace as a result of taking action against discrimination.

(i) Lack of resources and capacity

Pregnancy/return to work discrimination takes place at a point in parents’ lives when they are dealing with the demands of the pregnancy or a new baby and do not have the time, resources or capacity to pursue a discrimination matter.

For fear that the stress of taking further action could have a detrimental effect on my pregnancy I chose to take no action.[680]

I did not take any action against any of the parties...– I was so desperate to find a job. That was my focus.[681]

It is a very stressful time in someone’s life which discourages someone pursuing it...this is the reason [there is not much case law], not because [the discrimination] doesn’t happen.[682]

Community organisations including unions and legal services also confirmed this:

Many clients said that it was too difficult to bring a claim against their employer – the...process was too complex, time consuming and stressful.[683]

In our experience, women going through this type of discrimination often do not have the time, confidence, psychological strength, [economic] security and resources to pursue complaints.[684]

The National Review heard that the 21 day time period for pursuing certain complaints under the FWA can be too short for pregnant employees and working parents to make a complaint.

The National Review found that to assist women who are experiencing discrimination to make a complaint to the FWC, the FWC General Protections Bench Book could clarify under s366(2): the FWC be allowed to provide a further period for applications (beyond 21 days), where the reason for the delay includes IVF treatment, pregnancy, miscarriage, child birth and early child rearing.

(ii) Costs

While the vast majority of complaints under the SDA are satisfactorily conciliated in a cost free process, the National Review heard that the high costs of pursuing legal action through the courts is a significant barrier to women pursuing formal action if a matter cannot be resolved at conciliation.

The most significant barrier for employees experiencing discrimination is the risk of an adverse costs order. By pursuing a discrimination complaint in the federal court system...pregnant women are at a stage of their lives where they already feel economically vulnerable...The stress alone of the potential of adverse costs is enough to dissuade women to pursue this option.[685]

Under the FWA, each side generally bears their own costs. However, even bearing their own costs may still be a deterrent to an applicant even with a good case given that these costs may amount to a significant proportion of any money awarded by the Court.[686]

[Taking a case to the Federal Court] is hugely expensive and prohibitive for most - my lawyer advises this will cost [me] in excess of $100,000 in legal fees, and as this is a no cost jurisdiction I can't claim legal fees from my employer even if I were to win the case. In reality any money awarded by the Court goes directly to the lawyers, and I am left in a situation where I have invested a huge amount of time and effort, and while getting a moral victory I am still in dire straits financially with no job, no maternity benefits and with an extra mouth to feed.[687]

The Senate Standing Committee on Legal and Constitutional Affairs considered the issue of costs in its Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality in 2008 (2008 Senate Inquiry).[688] The issue of costs was also considered in the Consolidation of Federal Anti-Discrimination Laws.[689]

To address the issue of costs the 2008 Senate Inquiry also recommended: increasing funding to working women’s centres, community legal centres, specialist low cost legal services and Legal Aid to ensure they have the resources to provide advice for sex discrimination and sexual harassment matters.[690]

The National Review finds that to increase access to justice for employees who have experienced pregnancy/return to work discrimination, serious consideration should be given to:

  • amending the SDA to make ‘each party bears their own costs’ and grant the courts powers to award costs ‘in the interests of justice’;
  • increasing funding to working women’s centres, community legal centres, specialist low cost legal services and Legal Aid to provide free legal advice and representation.

(iii) Remedies

Compounding the concern related to costs, the National Review heard that uncertainty about the type and quantum of remedies awarded in discrimination matters may be a deterrent to women pursing their matter.

The great majority of people with legitimate complaints under Australian anti-discrimination law do not report the conduct or make a complaint...It is our experience that clients are deterred by...the poor cost-benefit of litigation (even if the complaint is successful) due to the significant time, energy and cost involved in pursuing a complaint of discrimination (at a period in life when applicant is energy and time poor and has dependent children) and the fact that compensation payments are low.[691]

The payments awarded in this jurisdiction (SDA)...do not reflect the serious and extensive impact the discriminatory conduct has had on the complainant, her family and her career. The complainant is usually left without employment and financially disadvantaged.[692]

In conciliations under the SDA, the terms of settlement may be very broad.[693] If a matter before the Commission does not settle, and the complainant commenced Court proceedings, under the SDA the Court has powers to make a broad range of orders which it sees as appropriate.[694]

However, the remedies awarded by courts under the SDA are usually limited to financial remedies and while the amounts vary, they can be quite low. Total damages awards[695] in SDA cases have ranged between $1,338 - $44,701.90.[696] Given the risk of incurring costs in making a claim, the National Review heard that the low quantum of costs may be an added disincentive for the employee to pursue action.

In Cincotta v Sunnyhaven Ltd[697] over $44,701.90 was awarded. This included damages for economic loss and pre judgement interest. Lost wages were calculated as if Ms Cincotta had been a permanent employee at the time of dismissal as her acceptance of casual status was partly due to the unlawful discrimination she suffered.[698]

 

Other remedies which have been ordered in SDA cases include apologies,[699] injunctions,[700] or awards of aggravated damages. In one discriminatory dismissal case an order for reinstatement was made together with a variation of the employee’s lunch hour to facilitate her caring responsibilities.[701] The focus of remedies awarded by the courts is on providing redress to the employee applicant. Deterrence is relevant when the Court assesses penalties along with a range of other factors.[702]

Under the FWA, broad remedial powers exist where there have been contraventions of the adverse action provisions or contraventions of the NES (and workplace rights).[703] The Court ‘may make any order the Court considers appropriate’.[704]

As with the SDA, remedies awarded under the FWA are usually limited to financial remedies. Penalties in the FWA cases examined in this report have ranged between $4,950[705] - $61,000.[706]The range of damages awarded (that is, not including penalties) has been between $2207.42[707] and $174,097.[708]

In the FWA case of Ucchino v Acorp,[709] economic loss (including interest) of nearly $9,000 was awarded, the sum partly being due to unexplained reasons preventing the employee’s return to work for the foreseeable future. The employee’s embarrassment at questions asked by those in her ‘close community’ about why she was no longer employed was not found to amount to distress justifying an award for non-economic loss. The Court found her feelings were of a type which accompany most terminations.[710] The Court found that ‘the contraventions in this case are no trivial or technical breach’ and imposed a penalty of $5500 paid to the employee.[711]

 

This contrasts with the enforceable undertakings which the FWO has entered into with employers who have admitted contraventions of the FWA.[712] Five of the FWO’s ten enforcement activities in relation to pregnancy and family responsibilities discrimination resulted in enforceable undertakings. Apart from financial remedies for the individual applicant, these arrangements impact the employer’s treatment of current and future employees and community awareness of such discrimination. Terms of the undertakings included:

  • Ensuring workplace policies and processes are appropriate in relation to parental rights, informing staff of these rights and avoiding discrimination
  • Ongoing management training on discrimination and pregnancy and parental leave rights
  • Informing staff (for example through the employee newsletter or a workplace notice) about the breaches of workplace rights which the employer has admitted to and remedies
  • Ensuring publicity in print media about the breaches
  • Donations to not-for-profit legal advice organisations to assist with their educational/advice work on employees’ parental rights and related issues.[713]

The first enforceable undertaking relating to pregnancy discrimination obtained by the FWO in 2011 was with Coles Supermarkets Australia. An employee who gave her employer a medical certificate relating to lifting restrictions while she was pregnant, was demoted from her manager role to the role and lower pay of a service assistant. This breached the FWA NES requirement that an alternative safe job should be at the same pay. Coles’ commitments in the enforceable undertaking included:

  • identifying and repaying other affected employees
  • widely publicising these employee rights
  • training line managers to educate them about employee rights[714]


The National Review finds that Courts could place a greater emphasis on deterrence of discrimination by imposing greater financial and other consequences on the employer for breaches.

(iv) Lack of awareness of what constitutes discrimination

The results of the National Telephone Survey highlighted the gap in individuals’ awareness of the behaviours and actions that are likely to constitute discrimination. Of the 49% of women who reported experiencing discrimination in the workplace, more than half of them did not immediately recognise the behaviour or action they experienced as unfair treatment or disadvantage (because of their pregnancy, parental leave, family responsibilities or breastfeeding).[715]

The National Review also heard from individuals, who considered that in their workplace, attitudes and practices that could be discriminatory may be so widespread that they are considered ‘normal’. Accordingly, individuals may not recognise them as potentially discriminatory or as something for which they could seek redress.

The culture in firms such as this has always been the same and is therefore just accepted.[716]

I was told that the firm had an unwritten rule - that when a woman had two children she didn't come back.[717]

Further information and guidance, as well as a broad national information campaign, is an important avenue for addressing the lack of awareness of employees and employers about their respective rights and obligations.

(v) Fear of negative consequences as a result of taking action

The National Review heard from many individuals that they did not complain about the discrimination they experienced, or take any form of action, because they feared negative consequences as a result of taking action. They feared these negative consequences could have an impact on their relationship with their employer/manger/colleagues, their job security, and their career (both within the organisation as well as more broadly within their industry or occupation).

I have considered making a complaint to AHRC regarding my treatment but that would be a career suicide and I will be branded a trouble maker.[718]

The reason no-one submits formal complaints is because [this city] is very small and most people remain in the same industry moving from one firm to the other. If you were to submit a complaint as serious as this [discrimination relating to pregnancy and return to work after parental leave] things would be made very difficult for you.[719]

I decided not to pursue any sort of claim because the niche in which I work has only a couple of work opportunities in the state, and I knew my life would be made very difficult.[720]

I decided not to pursue this as I was in fear of retribution and for fear of future bullying when I returned to work following my maternity leave.[721]

The unfortunate thing is that if you pursue your rights you will have a black mark against your name and it will make getting a job in the future very difficult as people talk.[722]

The National Review heard that this situation may be exacerbated for workers who are in temporary or insecure employment including casual and contract workers.

Much of the discrimination seems to be unreported and much of it is hard or impossible to prove. Casual workers have no recourse if the discrimination comes from their boss, even if they work for large organisations, because their only assurance of continuing employment is their good relationship with their boss. Many primary care givers of young children are attracted to part time and casual work.[723]

Although the SDA includes a provision prohibiting ‘victimisation’ for making a claim under the SDA, the National Review heard that the reality in workplaces is often that pursuing a formal complaint either within the organisation or with a government agency jeopardises good relationships within the organisation and may also jeopardise an employee’s reputation within their profession.

The National Review finds that there needs to be increased awareness about the provisions under the SDA prohibiting ‘victimisation’, and the creation of safe reporting environments in workplaces.

(c) Strengthening the Paid Parental Leave Act 2010 (Cth)

In 2010, the Australian Government enacted the Paid Parental Leave Act 2010 (Cth), which established Australia’s first national PPL scheme.

Key objectives of the scheme are to ‘promote equality between men and women and balance between work and family’ and to ‘encourage women to continue to participate in the workforce’.[724] The Dad and Partner Pay scheme was also introduced in 2013, which aims to support fathers and other partners to take time off work to care for their new born children.

The National Review received many submissions from stakeholders related to aspects of the PPL scheme that may contribute to pregnancy discrimination in the workplace or compound the impact of such discrimination on women, including:

  • Some women who experience discrimination and who are dismissed or have to leave their employment may not meet the work test requirements[725] for PPL. For example, women who have their employment terminated due to pregnancy discrimination (including women on fixed-term contracts whose contract is not renewed as a result of their pregnancy), or women who are unable to work because there are no ‘safe’ duties they can perform while pregnant.

 

  • Women may be less inclined to take action against pregnancy discrimination if they are fearful that their employment may be terminated (or shifts reduced) as a result of taking action and thus prevent them from meeting the work test requirements for PPL.

The National Review considers that the current PPL scheme could be further improved by:

  • Including superannuation contributions under the PPL scheme and the Dad and Partner Pay scheme.
  • Ensuring the administration of the scheme supports the framing of PPL as a workplace entitlement not a welfare payment. This would be facilitated by retaining employer administration of the scheme.
  • Increasing the duration of the paid leave available under the PPL scheme to 26 weeks. International evidence suggests that approximately six months paid leave per person is the period of leave that ‘is advantageous, but not harmful, to women’s labour-force attachment and longer-term employment trajectories’.[726] The Productivity Commission found: ‘Overall, there is compelling evidence of child and maternal health and welfare benefits from a period of absence from work for the primary carer of around six months and a reasonable prospect that longer periods (of up to nine to 12 months). With the evidence pointing to a period of around six to nine months as being the optimal period of exclusive parental care’.[727]
  • Increasing the period of leave available under the Dad and Partner Pay scheme.[728]
  • Increasing the PPL pay rates with a view to moving towards providing full replacement wage payments.
  • Increasing and improving the early childhood and care services, including out of school hours care, alongside the PPL scheme.

The current government has proposed further amendments to the PPL scheme.[729]

(d) Workplace gender equality reporting framework

The reporting framework supported by the Workplace Gender Equality Agency (WGEA) plays an important role in assisting organisations to achieve gender equality in their businesses.

In 2013, the objectives of the Workplace Gender Equality Act 2012 (Cth) were reformed to promote, amongst employers, the elimination of discrimination on the basis of gender in relation to employment matters (including in relation to family and caring responsibilities).[730] The government is also currently conducting consultations on the WGEA reporting framework.

Within the existing gender equality indicators under the reporting framework, there is scope to collect and monitor data relating to:

  • Number of dismissal and redundancies of employees while they are pregnant, on parental leave, or soon after return to work from parental leave
  • Return rate of employees from parental leave (for government or employer schemes)
  • Retention rate of employees working flexibly (including part-time) on return to work from parental leave
  • Promotion rate for employees who are pregnant or working flexibly (including part-time) on return to work from parental leave.

This would assist organisations to identify gender gaps and then develop or adjust measures to support working parents. The data could also assist WGEA to usefully guide businesses in how to reduce pregnancy/return to work discrimination and promote gender equality.

(e) Incentivise employers

The National Review received several submissions promoting the use of incentives to encourage employers to recruit and retain pregnant employees and employees returning to work after parental leave, including accommodating flexible work.

It was proposed that employers be ‘incentivised’ by a direct payment or tax incentive that meet best-practice criteria. Such initiatives were highlighted as being particularly attractive for small and medium sized businesses.

Submissions were also made in relation to expanding non-monetary incentives, such as the WGEA ‘Employer of Choice’ designation.

(f) Early childhood education and care services

As outlined in Chapter 3, the lack of adequate and affordable early childhood education and care services is a key structural impediment to parents’ transition back to the workplace following parental leave. Research has demonstrated that affordable early childhood education and care services would boost women’s participation across all industries. As the price of such services increases, the number of hours that women are in paid employment decreases.[731]

The National Review considers the provision of accessible, affordable, flexible and quality early childhood education and care services as essential to facilitating women’s workforce participation.[732]

The Productivity Commission is currently undertaking a review into childcare and early childhood learning and is due to report in October 2014.

(g) Ratification of conventions

Australia has ratified several of the international conventions that provide standards for the protection of employees from discrimination related to pregnancy, parental leave and return to work. However there are other conventions that Australia has not ratified including:

  • Convention 183 on Maternity Protection (2000);
  • Convention 103 on Maternity protection (1952, revised);
  • Optional Protocol to the Covenant on Economic Social and Cultural Rights (2008).

Ratifying these conventions would assist to strengthen the protections available in Australia and serious consideration should be given to doing so.

5.4. Conclusion

Strong legal standards are critical to providing clarity about rights and obligations in the workplace. While the legal framework in Australia is extensive, some key reforms would assist in strengthening protection against discrimination in the workplace and providing greater clarity for employers on their obligations.

The biggest gap, however, in the adequacy of the existing legal and policy framework is in the implementation. The starting point for addressing this gap is having strong standards that are effectively implemented in the workplace. Alongside this employers and employees also need an increased understanding of their obligations and rights.

The implementation can be further advanced through several complementary strategies and actions including disseminating information at the earliest possible time, conducting effective training, changing workplace cultures to remove harmful stereotypes, practices and behaviours, and monitoring the implementation of policies. With strong leadership within organisations, reforms that shape more supportive and successful workplaces can occur.


[561] Applying these principles requires any proposed reforms to be examined on the basis of their direct or indirect discriminatory impact on individuals. This must also be done with a view to addressing systemic discrimination faced by particular groups and ensuring that any reforms will further the substantive equality of women. Reforms that do not consider these factors may have the unintended effect of discriminating against pregnant women, and parents with family responsibilities, and will have a detrimental impact on workplaces and the Australian economy.
[562]International Covenant on Economic Social and Cultural Rights, Articles 6 and 7.
[563]Convention on the Elimination of All Forms of Discrimination against Women (1979), Article 11.
[564] While not creating any obligations for Australia, it is noteworthy that within the European Union there are also laws to protect pregnant workers, those on and returning from maternity and parental leave and for gender equality. The amended Directive 76/2007 on Equal Treatment, the Parental Leave Directive and the Pregnant Workers Directive are particularly significant laws made under the Treaty on the Functioning of the European Union, binding EU member states to certain minimum standards. For a description of European Union legislation and case law in these areas, see A Masselot, E Caracciolo D Torrella and S Burri, Fighting Discrimination on the Grounds of Pregnancy, Maternity and Parenthood: The application of EU and national law in practice in 33 countries, report for the European Commission Directorate-General for Justice. At http://ec.europa.eu/justice/gender-equality/files/your_rights/discrimination__pregnancy_maternity_parenthood_final_en.pdf (viewed 1 June 2014).
[565]International Covenant on Economic Social and Cultural Rights, Article 3.
[566] Committee on Economic, Social and Cultural Rights, General Comment 18: The Right to Work (2005), UN Doc E/C.12/GC/18, para 23.
[567] Committee on Economic, Social and Cultural Rights, General Comment 18: The Right to Work (2005), UN Doc E/C.12/GC/18, para 13.
[568] Committee on Economic, Social and Cultural Rights, General Comment 18: The Right to Work (2005), UN Doc E/C.12/GC/18, para 31.
[569] Committee on Economic, Social and Cultural Rights, General Comment 18: The Right to Work (2005), UN Doc E/C.12/GC/18, para 52.
[570] Committee on Economic, Social and Cultural Rights, General Comment 18: The Right to Work (2005), UN Doc E/C.12/GC/18, para 48.
[571] Under the Beijing Declaration and Platform for Action Governments are also called on to:

  • ensure that full and part-time work can be freely chosen by women and men on an equal basis
  • eliminate discriminatory practices by employers on the basis of women's reproductive roles and functions, including refusal of employment and dismissal of women due to pregnancy and breast-feeding responsibilities
  • develop policies, inter alia, in education to change attitudes that reinforce the division of labour based on gender in order to promote the concept of shared family responsibility for work in the home, particularly in relation to children and elder care (paras 179 b, c and d).

Further, Governments, the private sector and non-governmental organizations, trade unions and the United Nations are called to

  • design and provide educational programmes through innovative media campaigns and school and community education programmes to raise awareness on gender equality and non-stereotyped gender roles of women and men within the family; provide support services and facilities, such as on-site child care at workplaces and flexible working arrangements; (paras 179 b).

See the UN Beijing Declaration and Platform for Action (1995) at: http://www.un.org/womenwatch/daw/beijing/platform/economy.htm (viewed 14 June 2014).
[572] The Model Work Health and Safety (WHS) Act forms the basis of the WHS Acts being enacted across Australia to harmonise Work Health and Safety laws. The protections available under the statutes vary as to which workers they cover, including job applicants. For simplicity, this report refers to employers and employees but coverage may be wider or narrower depending on a particular provision.
[573] N Rees, S Rice and D Allen, Australian Anti-Discrimination Law (2nd ed 2014), p 239 and386. Only the Northern Territory prohibits parenthood discrimination. For an overview of the Commonwealth and State/Territory anti-discrimination statutes, noting the differing protections provided by them for pregnancy and caring related discrimination, see A Chapman, Australian Anti-Discrimination Law, Work, Care and Family (2012) pp 6-10. At
http://www.law.unimelb.edu.au/files/dmfile/WPNo51FINAL.pdf (viewed 4 June 2014).
[574] See Appendix C. The Fair Work Act 2009 (Cth) also implements relevant ILO obligations.
[575] Other grounds also prohibited under the SDA include sexual orientation, gender identity and intersex status. Sexual harassment is also prohibited under the SDA. It occurs where certain unwelcome conduct occurs ‘in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated,’ Sex Discrimination Act 1984 (Cth), s 28 (A).
[576]Sex Discrimination Act 1984 (Cth), s 7A.
[577] See Sex Discrimination Act 1984 (Cth), s 5(1)(a) and (b) for example, in relation to sex discrimination.
[578]Thomson v Orica Australia Pty Ltd [2002] FCA 939.
[579]Thomson v Orica Australia Pty Ltd [2002] FCA 939 [165 and 167].
[580] Other areas of public life covered by the SDA include: accommodation and housing, buying or selling land, clubs and the administration of Commonwealth laws and programs. Sex Discrimination Act 1984 (Cth), Part II, Division 1 and 2.
[581]Sex Discrimination Act 1984 (Cth), Part II, Division 1
[582]Sex Discrimination Act 1984 (Cth), s 14(1) and (2).
[583]Sex Discrimination Act 1984 (Cth), s 7D.
[584]Sex Discrimination Act 1984 (Cth), s 31.
[585]Sex Discrimination Act 1984 (Cth), Part II, Division 4. See Australian Human Rights Commission, Federal Discrimination Law Online, 2011, ch 4, pp 59-66. At https://www.humanrights.gov.au/sites/default/files/content/legal/FDL/2011/4_SDA.pdf (viewed 1 June 2014).
[586]Sex Discrimination Act 1984 (Cth), s 5.
[587]Sex Discrimination Act 1984 (Cth), s 7AA.
[588]Sex Discrimination Act 1984 (Cth), s 7A and s.4A.
[589]Sex Discrimination Act 1984 (Cth), s 7 and s. 4B.
[590]Sex Discrimination Act 1984 (Cth), s 8 states: ‘A reference in subsection 5(1), 5A(1), 5B(1), 5C(1), 6(1), 7(1) or 7AA(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.’
[591]Sex Discrimination Act 1984 (Cth), s 7B.
[592] (1989) 23 FCR 251.
[593]Commonwealth Bank of Australia v Human Rights & Equal Opportunity Commission (1997) 80 FCR 78, 111.
[594]Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251, [263] per Bowen CJ and Gummow J at [263], cited in Australian Human Rights Commission, Federal Discrimination Law Online, 2011, ch 4, pp 36-37, which also provides a summary of case law principles which assist in guiding how to determine what is reasonable. At https://www.humanrights.gov.au/sites/default/files/content/legal/FDL/2011/4_SDA.pdf (viewed 1 June 2014).
[595] In state and territory jurisdictions such a claim is possible, for example under the Anti-Discrimination Act 1977 (New South Wales) and Equal Opportunity Act 2010 (Victoria).
[596] The Senate Legal and Constitutional Affairs Committee has conducted the following inquiries since 1984:

  • Inquiry into the Sex Discrimination Amendment Bill (No 1) 2000;
  • Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality in 2008;
  • Inquiry into the Sex and Age Discrimination Legislation Amendment Bill 2010;
  • Inquiry into the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Bill 2013.

The Commission made submissions to all of the inquiries. The amendments to the SDA to date include:

  • Sex Discrimination Amendment Act 1995. The amendment introduced: potential pregnancy as a ground of discrimination; tests for indirect discrimination and direct pregnancy discrimination; and special measures to achieve equality between women and men, people of different marital status, and women who are pregnant or could potentially be pregnant;
  • Sex Discrimination Amendment (Pregnancy and Work) Act 2003. The amendment recognised breastfeeding as a characteristic that appertains generally to women and prohibited requests for information used for the purpose of a discriminatory act that is unlawful;
  • Sex and Age Discrimination Legislation Amendment Act 2011. The changes prohibited direct discrimination against male and female employees on the ground of family responsibilities and strengthened protections against sexual harassment in workplaces, schools and conducted through new technologies;
  • Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013. This amendment provided new protections against discrimination on the grounds of sexual orientation, gender identity and intersex status.

[597] Submissions noted the need to amend the SDA with regard to costs, comparator, causation, burden of proof, and the role of the Commission.
[598] Senate Standing Committee on Legal and Constitutional Affairs, Report on the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008). At http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 28 June 2014).
[599] Women are able to make these complaints because courts have accepted that,

the present state of society shows that women are currently the dominant caregivers to young children. While that position remains (and it may well change over time), s 5(2) of the SDA operates to protect women against indirect discrimination in the performance of that care giving role.
Howe v Qantas Airways Ltd (2004)188 FLR 1, 147 [117] (Driver FM).
[600] Similar provisions also already exist in some state and territory jurisdictions, for example, Equal Opportunity Act 2010 (Vic), s 19. The 2008 Senate Review recommended the SDA be amended to impose a positive duty on employers to reasonably accommodate requests by employees for flexible working arrangements, to accommodate family or carer responsibilities. Senate Legal and Constitutional Affairs Committee, Report on the Inquiry into the effectiveness of the Sex Discrimination Act 1984 (Cth) in eliminating discrimination and promoting gender equality (2008), para 11.34. At http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 28 June 2014).
[601]Fair Work Act 2009 (Cth), s 351.
[602]Fair Work Act 2009 (Cth), s 44.
[603] For example, in Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 and Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509.
[604] As defined in Fair Work Act 2009 (Cth), s 342 (1).
[605]Fair Work Act 2009 (Cth), s 351.
[606]Fair Work Act 2009 (Cth), s 351(1).
[607]Fair Work Act 2009 (Cth), s 351(2)(a). The other exemptions to this provision are for actions taken due to the inherent requirements of the job and in certain situations actions against staff members of religious institutions, Fair Work Act 2009 (Cth), s 351(2)(b) and (c).
[608]Fair Work Act 2009 (Cth), s 342. It’s unlawful for a person to take adverse action against another person for having or using a workplace right (s340), belonging or not belonging to a union (s346), taking or not taking part in industrial activity (s346) or having a protected attribute (s351).
[609] Fair Work Ombudsman, Workplace Discrimination. At
http://www.fairwork.gov.au/About-us/policies-and-guides/Fact-sheets/rights-and-obligations/workplace-discrimination#adverse-action (viewed 7 July 2014).
See further, Fair Work Commission, General Protections Benchbook. At http://benchbooks.fwc.gov.au/generalProtections/ (viewed on 1 June 2014).
[610] The FWO states that the discrimination prohibitions outlined above are ‘broad and do not differentiate between indirect, direct and systemic discrimination nor do they require the discrimination to be deliberate.’ The FWO interprets the prohibitions as covering both direct and indirect discrimination. See Fair Work Ombudsman, Guidance Note No. 6 on Discrimination Policy, para 5.4. At:
http://www.fairwork.gov.au/About-us/policies-and-guides/internal-policies-and-plans (viewed 1 June 2014).
[611] Note that adverse action where the employer discriminates between the employee and other employees can contain a comparator element, Fair Work Act 2009 (Cth), s 342.
[612]Fair Work Act 2009 (Cth), s 360 states: ‘For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason’. In Turnbull v Symantec [2013] FCCA 1771, the Court, citing Gummow and Hayne JJ in Board of Bendigo Regional Institute and Technology and Further Education v Barclay (2012) 86 ALJR 1044 [104], decided a reason for the adverse action complained of must be a ‘substantial and operative’ one [32-33] and [35].
[613] Or because they have a particular workplace right such as rights under the NES (see above).
[614] The High Court in Board of Bendigo Regional Institute and Technology and Further Education v Barclay (2012) 86 ALJR 1044 examined the evidence an employer needs to bring to rebut this assumption. It held that reliable evidence from a person who made the decision about the adverse action as to their reason (including an assertion the protected attribute was not the only reason for their action) can amount to sufficient proof of why the action was taken. The Court notes such evidence may be shown to be unreliable because of contradictory evidence that person gives or because other ‘objective facts [are] proven which contradict the decision-maker’s evidence’, para 45, cited in N Rees, S Rice and D Allen, Australian anti-discrimination law (2nd ed 2014), p 877.
[615] This section draws on the FWO fact sheet on Parental leave and related entitlements and the National Employment Standards. At
http://www.fairwork.gov.au/ArticleDocuments/2221/FWO-Fact-sheet-Parental-leave-and-related-entitlements-and-the-NES.pdf.aspx?Embed=Y
(viewed 24 May 2014).
[616] Parental leave and related entitlements apply to all employees (subject to service qualifications and employment status) even if they are not in the national workplace relations system. Fair Work Act 2009 (Cth), s 744 extends the rights to unpaid parental leave and related entitlements to all employees. See FWO overview. At http://www.fairwork.gov.au/ArticleDocuments/2221/FWO-Fact-sheet-Introduction-to-the-NES.pdf.aspx?Embed=Y (viewed 14 May 2014).
[617] The SDA and FWA anti-discrimination protections are available to casual and permanent employees (and job applicants) at the start of their employment.
[618] For example, in Fair Work Ombudsman v Tiger Telco Pty Ltd (in liq) [2012] FCA 479 and Fair Work Ombudsman v A Dalley Holdings Pty Ltd [2013] FCA 509.
[619]Fair Work Act 2009 (Cth), s 70, 67.
[620]Fair Work Act 2009 (Cth), s 74.
[621]Fair Work Act 2009 (Cth), s 74.
[622] Different rules apply where one employee only takes leave.
[623]Fair Work Act 2009 (Cth), s 72.
[624]Fair Work Act 2009 (Cth), s 72(5).
[625] This request may be refused by the employer on reasonable business grounds. See s 76 of the Fair Work Act 2009 (Cth).
[626]Fair Work Act 2009 (Cth), s 76(6).
[627]Fair Work Act 2009 (Cth), s 85.
[628]Fair Work Act 2009 (Cth), s 80. Special provision is made for miscarriage, stillbirth or infant death.
[629]Fair Work Act 2009 (Cth), s 79A.
[630]Fair Work Act 2009 (Cth), s 79A(4).
[631]Fair Work Act 2009 (Cth), 81 and 81A.
[632]Fair Work Act 2009 (Cth), s 81A. The conditions for such paid leave change in the six weeks prior to the expected date of birth.
[633]Fair Work Act 2009 (Cth), s 82A.
[634]Fair Work Act 2009 (Cth), s 83.
[635]Fair Work Act 2009 (Cth), s 84.
[636]Fair Work Act 2009 (Cth), s 65(2).
[637]Fair Work Act 2009 (Cth), s 65. Eligible employees also have a right to request a flexible work arrangement where they are a carer; have a disability; are 55 years or older; are experiencing violence from a family member; or are providing care or support to an immediate family or household member, who requires care or support because the member is experiencing violence from the member's family.
[638] Where an employee’s employment is terminated and they cannot make an application under the FWA general protections provisions Fair Work Act 2009 (Cth), Part 3-1, (which include the adverse action provisions and the workplace rights provisions), they may be able to bring a claim for unlawful termination for reasons including sex, family and carer's responsibilities, or pregnancy under the Fair Work Act 2009 (Cth), Part 6-4.
[639]Fair Work Act 2009 (Cth), s 340 FWA. The provision also prohibits adverse action for other reasons including to prevent an employee using a workplace right.
[640]Fair Work Act 2009 (Cth), s 341.
[641] For example, Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 [3] (a demand to work unreasonable hours); Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 [59-62] (a warning for using personal leave for an unexpected childcare emergency)
[642]Post-Implementation Review of the Fair Work Act (2011-12). At https://employment.gov.au/fair-work-act-review (viewed 12 June 2014)
[643] Fair Work Amendment Act 2013. At http://www.comlaw.gov.au/Details/C2013A00073 (viewed 25 June 2014).
[644] Including employees who are carers as defined in the Carer Recognition Act 2010 (Cth), employees with a disability and employees 55 years or over. Fair Work Act 2009 (Cth) s 65.
[645]Fair Work Amendment Act 2013 (Cth).
[646]Fair Work Amendment Bill 2014. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5174 (viewed25 June 2014).
[647]The Coalition’s Policy to Improve the Fair Work Act (May 2013) At http://www.liberal.org.au/improving-fair-work-laws (viewed 29 June 2014).
[648] The Australian Work and Life Index (AWALI) 2012 Survey found that two years after the introduction of the right to request provisions under the FWA the majority of employees were not aware of the right to request flexible working arrangements. In particular, there were lower levels of knowledge of the right to request amongst mothers with children of pre-school age, young people under the age of 25, low paid workers and workers employed in the private sector, particularly in small businesses. N Skinner, C Hutchinson and B Pocock, AWALI 2012 The Big Squeeze: Work, home and care in 2012, Centre for Work + Life, University of South Australia (2012), p 71. These findings concurred with the FWC’s findings which found that approximately 48% of employees were aware of the right to request and that awareness was higher among females (49% of females compared with 46% of males). Fair Work Australia, General Manager’s report into the operation of the provisions of the National Employment Standards relating to requests for flexible working arrangements and extensions of unpaid parental leave 2009-2012 (November 2012), p 30. At: http://www.fwc.gov.au/documents/documents/NES.pdf (viewed 20 June 2014).
[649] [We] support the educative and facilitative nature of the right to request provisions in the Fair Work Act as they encourage dialogue between employees and employers about achieving meaningful flexibility in the workplace that works on both a personal level for the employee and an operational level for the employer...[We] strongly oppose the introduction of compulsory arbitration to deal with ‘right to request disputes’...Employers generally report that the best flexible working arrangements are those that are discussed and negotiated freely and openly with the employee...Prescriptive and ‘dispute-oriented’ approaches would most likely perpetuate an adversarial, negative response from employers when dealing with requests for flexible working arrangements from employees returning to work. Employer submission no. 5 (Australian Industry Group)
[650]Fair Work Act 2009, sections 65(5) and 65(5A).
[651] Australian Human Rights Commission, Submission to the Post-Implementation Review of the Fair Work Act (2009). At http://www.humanrights.gov.au/post-implementation-review-fair-work-act-2009 (viewed 12 June 2014); Australian Human Rights Commission, Submission to the House Standing Committee on Education and Employment on the Fair Work Amendment Bill 2013 (2013); Australian Human Rights Commission, Submission to the Senate Employment, Workplace Relations and Education Legislation Committee on the Fair Work Amendment Bill 2013 (2013). See also the discussion of these issues in the Commission’s report, Investing in care: Recognising and valuing those who care (2013).
[652] Fair Work Amendment Bill 2014. At http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r5174 (viewed25 June 2014).
[653] State Secretariat for Economic Affairs, Pregnancy: Employee Protection, Swiss Labour Directorate (2010), p 16. At http://www.seco.admin.ch/dokumentation/publikation/ (viewed 09 July 2014).
[654] The employee must have successfully completed a trial employment period of up to three months for this protection from dismissal law to be applicable.
[655] Eurofound, Maternity Protection – Germany, http://www.eurofound.europa.eu/emire/GERMANY/MATERNITYPROTECTION-DE.htm , (viewed 09 July 2014).
[656] International labour Organization, Convention 183 on Maternity Protection (2000), article 8.
[657] Individual submission no. 148.
[658] Individual submission no. 115.
[659] Government of UK, Pregnant employees’ rights. At https://www.gov.uk/working-when-pregnant-your-rights (viewed 2 July 2014).
[660] This section draws on material from Safe Work Australia including their website. At
http://www.safeworkaustralia.gov.au/sites/swa/pages/default (viewed 1 June 2014), and A Stewart, Stewart’s Guide to Employment Law (4th ed, 2013).
[661] Except in so far as protecting an employee from discriminatory conduct for trying to exercise their work health and safety rights. Part 6 of the Work Health and Safety Act 2011 (Cth)
[662] The definition of who is under a duty under the Model Work Health and Safety Act 2011 extends wider than an employer, see s 19.
[663]Work Health and Safety Act 2011 (Cth), s 19(3).
[664]Work Health and Safety Act 2011 (Cth), s 18.
[665] Usually also includes hazards.
[666] Or other person under a duty under the Work Health and Safety Act 2011 (Cth), s19.
[667]Work Health and Safety Act 2011 (Cth), s 18.
[668]Work Health and Safety Act 2011 (Cth), s 84 and ss104-106.
[669] Model Work Health and Safety Regulations, reg 415.
[670] NSW WorkCover, Pregnancy and Work Guide, (2002). At http://www.workcover.nsw.gov.au/formspublications/publications/Documents/pregnancy_and_work_693.pdf (viewed 16 May 2014).
[671] Work Safe WA, website guide on ‘Manual tasks for pregnant workers’ at https://www.commerce.wa.gov.au/worksafe/manual-tasks-pregnant-workers (viewed 28 June 2014); NT Work Safe Manual handling issues for new or expectant mothers in the workplace, At http://www.worksafe.nt.gov.au/Bulletins/Bulletins/06.02.02.pdf (viewed 28 June 2014).
[672] Individual submission no. 98.
[673] Individual submission no. 142.
[674] General guidance is available from Safe Work Australia. See Safe Work Australia Interpretive Guideline – Model Workplace Health and Safety Act. The Meaning of ‘reasonably practicable’. At http://www.safeworkaustralia.gov.au/sites/SWA/about/Publications/Documents/607/Interpretive%20guideline%20-%20reasonably%20practicable.pdf (viewed 1 June 2014).
[675]Fair Work Act 2009 (Cth), s 81.
[676] Other submissions included proposals to upgrade the Work Health and Safety Guide for Preventing and Responding to Workplace Bullying to a Code of Practice.
[677] This name is a pseudonym; no real names are used in the report.
[678] Consultation 1E (Affected women and men).
[679] The Department of Social Services reports that with the replacement of the Baby Bonus for births/adoptions with the lower level payment of the Newborn Supplement from 1 March 2014, it is likely that a greater number of parents will apply for the PPL.
[680] Individual submission no. 258.
[681] Individual submission no. 222.
[682] Individual submission no. 10.
[683] Community organisation submission no. 39 (Employment Law Centre of WA).
[684] Community organisation submission no. 7 (National Working Women’s Centres).
[685] Community organisation submission no. 18 (Kingsford Legal Centre).
[686] A Stewart, Stewart’s Guide to Employment Law (4th ed, 2013), p 176.
[687] Individual submission no. 130.
[688] Senate Standing Committee on Legal and Constitutional Affairs, Report on the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008). At http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 28 June 2014).
[689] Attorney-General’s Department, Consolidation of Commonwealth Anti–Discrimination Laws: Discussion Paper (2011). At http://www.ag.gov.au/Consultations/Pages/ConsolidationofCommonwealthanti-discriminationlaws.aspx (viewed 12 June 2014).
[690] Senate Standing Committee on Legal and Constitutional Affairs, Report on the Effectiveness of the Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality (2008). At http://www.aph.gov.au/binaries/senate/committee/legcon_ctte/sex_discrim/report/report.pdf (viewed 28 June 2014).
[691] Community organisation submission no. 14 (Victoria Legal Aid).
[692] Community organisation submission no. 54 (Shop, Distributive and Allied Employees’ Association).
[693] The terms of settlement in a conciliation under the SDA can include can include a range of outcomes including financial compensation, an apology or acknowledgment of wrong-doing, changes to policies within the respondent organisation and training and awareness-raising within the respondent organisation in relation to discrimination in the workplace.
[694] The SDA sets out a non-exhaustive list of possibilities including:

  • Compensation for loss or damage (damages award)
  • Order requiring the employer to employ or re-employ the applicant
  • Order that the employer not continue or repeat the unlawful discrimination (where a findings of unlawful discrimination has been made)
  • Order that the employer undertake a reasonable act / course of conduct to remedy the applicant’s loss / damage.

Australian Human Rights Commission Act 1986 (Cth), s 46PO(4).
Academic commentators have described those available under federal anti-discrimination legislation generally as ‘remarkable’ in their breadth, but underdeveloped, N Rees, S Rice and D Allen, Australian anti-discrimination law (2nd ed, 2014), p 810.
Financial compensation for discrimination may include damages to compensate for financial loss such as lost earnings (economic loss) or damages for hurt, humiliation and distress (non-economic loss). Other claims may be heard at the same time as the discrimination proceedings such as for breach of contract. Aggravated damages may be awarded to compensate for damage caused by particularly high-handed, malicious, insulting or oppressive conduct by the employer, but the availability of exemplary (punitive) damages remains unclear (Ronalds C and Raper E Discrimination Law and Practice (4th ed, 2012) p 214; Australian Human Rights Commission Federal Discrimination Law Online (2011), Ch7, p 13 suggests the Court may be able to make such an order). Interest may also be awarded up to the date of judgment and from that date (Legal practitioners and authors, Ronalds and Raper have commented in Discrimination Law and Practice (4th ed, 2012), in relation to cases in the federal anti-discrimination jurisdiction generally that ‘Applicant’s legal costs of $80,000 for a damages award of $15,000 are not unusual’ (at p 212). They note that damages for hurt and humiliation are often within the ‘relatively modest’ range of $12,000-$20,000, at p 216 and for economic loss rarely exceed $50,000 (at p 215).
[695] This is damages payable for the discrimination, not in relation to other claims brought at the same time.
[696] This is the range in the decided cases examined in Chapter 1of this report. The first award was made in Fenton v Hair & Beauty Gallery Pty Ltd [2006] FMCA 3 and the second in Cincotta v Sunnyhaven Ltd [2012] FMCA 110 (plus post judgement interest). An exception is with regard to Poniatowska v Hickinbotham [2009] FCA 680 that awarded $463,000. The award of over $100,000 in total made in Burns v Media Options Group Pty Ltd & Ors [2013] FMCA 79 was a combined award under the Disability Discrimination Act 1992 (Cth) and the SDA.
[697]Cincotta v Sunnyhaven Ltd [2012] FMCA 110.
[698]Cincotta v Sunnyhaven Ltd [2012] FMCA 110 [346-347].
[699] For example, Cincotta v Sunnyhaven Ltd [2012] FMCA 110 [357-360].
[700]Gardner v the National Netball League Pty Ltd [2001] FMCA [50, 58, 84]. The pregnant applicant obtained an interim injunction to prevent the League from banning her from competing in the then running season of the National Netball League competition, or from disciplining her in relation to her participation while pregnant.
[701] See Song v Ainsworth Game Technology Pty Ltd [2002] FMCA 31 [31, 87]. Ronalds C and Raper E Discrimination Law and Practice (4th ed, 2012) p 219 suggest that other orders which could be made include granting a promotion or an opportunity to apply for the next promotion where they have lost out due to their employer’s discriminatory conduct. In Morgan v Dancen Enterprises Pty Ltd (Anti-Discrimination), brought under the the Equal Opportunity Act 1995 (Vic) Senior Member Lyons ordered under section 125(a)(i) that the respondents undertake training provided by the Equal Opportunity Commission of Victoria. In making the order Senior Member Lyons held that that the training would ‘provide Ms Morgan with a measure of redress; limit the risk of Ms Morgan being subjected to further unlawful discrimination ... and minimise any future risk of the ...Respondents engaging in conduct which might contravene the Act’. Morgan v Dancen Enterprises Pty Ltd (Anti-Discrimination) [2006] VCAT 2145. Similar remedies may be awardable under the SDA which allows for a broad range of remedies.
[702] These include the extent of loss caused, any similar previous behaviour by the employer, the size of the business, whether the breach was deliberate, any contrition, corrective action or cooperation with investigators, any involvement by senior management and any need for specific and general deterrence. See, for example, as summarised in Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 [362].
[703] These are all civil remedy provisions and Fair Work Act 2009 (Cth) s 545 enables the court to make orders where it is satisfied a person has contravened or proposes to contravene a civil remedy provision. This power does not usually extend to employer refusals of a request for flexible working arrangements or extended unpaid parental leave, Fair Work Act 2009 (Cth) s 44(2).
[704]Fair Work Act 2009 (Cth) s 545(1). A non-exhaustive list states such orders may include: Interim and full injunctions to prevent, stop or remedy a contravention; compensation for loss; reinstatement of the employee concerned (Fair Work Act 2009 (Cth) s 545(2)).The Court may additionally impose a penalty on the employer for a contravention (including one for which an order as described above has been made) of a civil remedy provision, which includes unfair dismissal and discriminatory adverse action on the basis of an employee’s sex, pregnancy or family or carer’s responsibilities. For an individual who has committed such a breach, the maximum penalty is $10,200 and for a body corporate five times that amount ($51,000) (As at May 2014, FWA s 546(2) and Crimes Act 2014 (Cth) s 4AA).
[705]Aitken & Vandeven v Virgin Australia Airlines (No.2) [2013] FCCA 2031 [28].
[706] This range is drawn from the decided cases considered in Chapter 1. Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 [378-380]. In this case, this was the total of penalties imposed on the business itself and each of the individual employers.
[707]Fair Work Ombudsman v Wongtas Pty Ltd (No 2) [2012] FCA 30. At: http://www.fairwork.gov.au/About-us/news-and-media-releases/2012-media-releases/February-2012/20120202-wongtas-penalty (viewed 14 July 2014).
[708]Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875 at 358-359.
[709]Ucchino v Acorp Pty Ltd [2012] FMCA 9.
[710]Ucchino v Acorp Pty Ltd [2012] FMCA 9 [79].
[711]Ucchino v Acorp Pty Ltd [2012] FMCA 9 [75-83].
[712] The FWO may bring legal proceedings in the FCCA or the FCA against an employer for contravening the adverse action discrimination provision under the FWA (Fair Work Act 2009 (Cth) s 351) or, where the employer has admitted a contravention, may accept from the employer an enforceable undertaking (Fair Work Act 2009 (Cth) s 715) setting out how the employer is going to remedy the contravention and the timeframe for doing so (Fair Work Ombudsman Enforceable Undertakings Policy, Guidance Note No. 4. At
http://www.fwo.gov.au/about-us/publications/policies-and-procedures/Pages/default.aspx (viewed 14 July 2014).
[713] These were $20,000 by Coles to Jobwatch Australia and $10,000 by Guardian Early Learning Centres to the South Australian Working Women’s Centre
[714] Links to the five cases of enforceable undertakings are contained in the list of cases in Appendix F.
[715] See Figure 14 in Chapter 3.
[716] Individual submission no. 205.
[717] Individual submission no. 296.
[718] Individual submission no. 65.
[719] Individual submission no. 205.
[720] Individual submission no. 85.
[721] Individual submission no. 245.
[722] Individual submission no. 248.
[723] Individual submission no. 154.
[724]Paid Parental Leave Act 2010 (Cth), Chapter 1, Division 1A, s 3A.
[725] The work test refers to the number of days an eligible PPL claimant is required to have worked prior to the birth of the child. Paid Parental Leave Act 2010 (Cth), ss 32- 36B
[726] M Yerkes, K Standing, L Wattis & S Wain, ‘The disconnection between policy practices and women's lived experiences: combining work and life in the UK and the Netherlands’ (2010), 13(4) Community, Work & Family 411, p 424; A Hegewisch and J Gornick, ‘The Impact of Work-Family Policies on Women’s Employment: A Review of Research from OECD Countries’ (2011), 14(2) Community, Work & Family 119, p 324.
[727] Productivity Commission, Paid Parental Leave: Support for Parents with Newborn Children (2009), 4.53. At http://www.pc.gov.au/projects/inquiry/parental-support/report (viewed 18 February 2014).
[728] See Australian Human Rights Commission, Investing in care: Recognising and valuing those who care (2013).
[729] The Government’s proposed amendments to the PPL scheme include:

  • Payments at replacement wage (capped at the $100,000 salary level).
  • Payments for up to a total of 26 weeks, including any time taken by a secondary carer.
  • Dedicated Paternity Leave - allows two weeks of paid leave at replacement wage, capped at a maximum salary of $100,000.
  • The Family Assistance Office will administer the payment in order to reduce the compliance cost to employers.

Coalition Paid Parental Leave Policy (18 August 2013). See also Sydney morning Herald, Tony Abbott to lower cut-off for paid parental leave scheme: report (30 April 2014). At http://www.smh.com.au/federal-politics/political-news/tony-abbott-to-lower-cutoff-for-paid-parental-leave-scheme-report-20140430-zr1ly.html#ixzz36rwIuYIQ (viewed 2 July 2014).
The Paid Parental Leave Amendment Bill 2014 (Cth), currently before parliament, aims to amend the Paid Parental Leave Act 2010 (Cth) to make the payments payable by the Department of Human Services, rather than the employer, unless the employer chooses to make the payments and the employee consents to this arrangement.
[730]Workplace Gender Equality Act 2012 (Cth), s 2A. The Act was further amended in 2014 through the Workplace Gender Equality (Minimum Standards) Instrument 2014 to include minimum standards for relevant employers with 500 or more staff.
[731] Ernst & Young, Untapped opportunity: The role of women in unlocking Australia’s productivity potential (2013), p 10 (citing: J Jeremenko, ‘Give childcare a tax break’, The Australian Financial Review (2012) pp 1-2).
[732] See also Australian Human Rights Commission, Submission to the Productivity Commission Review on Childcare and Early Childhood Learning (2014). At https://www.humanrights.gov.au/submissions/inquiry-childcare-and-early-childhood-learning (viewed 2 July 2014).