A Sydney warehouse worker fired by text message within two weeks of telling her employer she was pregnant has won her job back, along with A$15,000 in backpay.
The recent Fair Work Commission ruling about an Adecco contractor working at an Amazon warehouse highlights how employers and employees can interpret the rules on pregnancy and workplace discrimination very differently â sometimes leading to disputes.
Whether youâre newly pregnant or youâre a boss trying to look after your staff, these are the legal rights and obligations in Australia you need to know about.
Iâm pregnant and applying for work. Do I have to mention it?
No, you donât. As the Sex Discrimination Act makes clear, an employer canât ask you about it either.
Even indirect questions â âAre you planning to have a baby in the future?â â are not allowed.
Iâve found out Iâm pregnant. Do I have to tell my boss?
No. When you tell them will depend on your job, your pregnancy and your preferences.
But you might want to tell your boss if you need some adjustments for the pregnancy, such as if you do a lot of physical work or travel thatâs not possible in your particular circumstances.
Iâve had fewer opportunities since telling work Iâm pregnant. Is that allowed?
Under the law, employees canât be discriminated against because theyâre pregnant.
But discrimination often isnât as obvious as being fired or demoted.
In a 2022 study, we found that about 14% of calls to a Victorian employment rights service were about pregnancy and breastfeeding discrimination.
We found pregnant women felt they had to leave work because their jobs werenât being modified, even when they werenât asking for much â such as reduced travel during periods of bad morning sickness.
But things have changed for the better in just the past few years.
Can I ask for flexible work?
Yes â and thatâs new.
Since June 2023, pregnant women have been able to ask for flexible work arrangements, after an update to the Fair Work Act.
About the author
Dominique Allen is a Professor in Business Law & Taxation at Monash University.
This article was first published by The Conversation and is republished under a Creative Commons licence. Read the original article.
You have to have worked for your employer for 12 months and you need to put your request in writing, detailing what youâd like to change and why. Then your employer has to reply within 21 days. They can only refuse on reasonable business grounds after a discussion with you.
Thatâs a significant change and applies right across Australia.
Can I ask for my job to be modified?
Yes, you can ask for a âsafe jobâ or âno safe job leaveâ. Thatâs true for casual workers too.
A pregnant employee whoâs generally fit for work, but can provide evidence that they canât do their current role because of illness, risk to their pregnancy or hazards at work can ask to be transferred to a âsafe jobâ.
Your employer can ask for evidence, such as a medical certificate. And thatâs reasonable: the employer has workplace health and safety obligations to meet too.
If thereâs a safe alternative role, the business has to transfer you to it.
But if none is available, you can ask to be placed on paid or unpaid âno safe jobâ leave.
Check if thereâs an enterprise agreement in place at your work; that may include other requirements on how you document any requests.
The challenge for employers â especially smaller businesses
There are lots of good employers wanting to do the right thing. But especially for smaller businesses without a human resources department, it isnât easy.
Our 2022 study not only found that pregnant women were struggling to understand the law; they told us their employers werenât always sure either.
The following are two common questions employers ask.
My employee has told me theyâre pregnant. Do I have to do anything now?
The Sex Discrimination Act now contains an obligation known as a âpositive dutyâ. It came into force in late 2022.
It means employers need to take reasonable and proportionate measures to eliminate sex discrimination â including discrimination because of pregnancy.
Now you need to be proactive and look for ways to eliminate potential discrimination and accommodate a workerâs pregnancy. This may well change as the pregnancy progresses.
Start by asking yourself if you need to modify the job so your employee can continue to work.
What if Iâm worried my worker canât safely do the job while pregnant?
In the recent Adecco unfair dismissal case, the warehouse worker told her employer she was newly pregnant because she had safety concerns after getting dizzy on a ladder.
Her job required her to be able to lift 12kg. Her doctor recommended she lift less and not use a ladder, but gave her a medical certificate saying she was otherwise âfit to workâ.
She did two light-duties shifts. Then she was told no other light-duties shifts were available and her future shifts were âon holdâ â including shifts to train to work in a different position. No one from Adecco responded to her subsequent text or email.
If youâre an employer, even if you have genuine safety concerns, you canât unilaterally decide that a pregnant worker canât do their job.
Many jobs can be adjusted for pregnancy. Employers need to work with their employees to figure out the best solutions.
