Improving the Law for Pregnant Women and Working Parents

Earlier this year I wrote about the preliminary data that the Australian Human Rights Commission (“AHRC”) had published which showed the high levels of workplace discrimination encountered by women who are pregnant, on parental leave and returning to work, and fathers and partners who take parental leave. This is despite the fact that Australian law has prohibited such discrimination for over 30 years, and men and women have statutory entitlements to unpaid parental leave and flexible working conditions when they return to work. They’re also protected from adverse action, such as threatened dismissal, for exercising these rights.

The AHRC has now published its final report which draws upon two national telephone surveys and consultations in every capital city and major regional areas with individuals who experienced discrimination, employers and industry groups, and representatives from community organisations, unions, health organisations and academics. It also received 447 written submissions. It is noted that the data captures the participants’ perceptions; what they experienced may or may not be held to constitute discrimination if a claim proceeded to court

Data collected from the telephone surveys provides a snapshot of the characteristics of women who are experiencing discrimination:

• 58% of mothers who identified as Aboriginal or Torres Strait Islander reported experiencing discrimination on at least one occasion;
• During pregnancy, one in two women aged between 18 and 24 reported experiencing discrimination compared to one in four of all other women;
• Mothers who are the sole income earner are more likely to experience discrimination than those who are not;
• Single mothers are more likely to experience discrimination during pregnancy than mothers who are in a relationship;
• Women who worked for large organisations (ie over 100 employees) were more likely to experience discrimination when they requested or took parental leave of returned to work following leave.

Many of the review’s recommendations for how to address this persistent problem relate to strengthening the existing law. The review recommends implementing recommendations made by a Senate Committee in 2008 to change the Sex Discrimination Act 1984 (Cth) to define ‘family responsibilities’ as including caring responsibilities, prohibiting indirect discrimination based on family responsibilities (only direct discrimination is currently prohibited) and giving the Sex Discrimination Commissioner power to launch own motion investigations.

It recommends strengthening s 65 of the Fair Work Act 2009 (Cth) which gives employees the right request flexible working conditions if they have child who is of school age or younger but allows the employer to refuse the request on ‘reasonable business grounds’. The refusal is not reviewable and evidence received by the review suggested that employers are grappling with what is meant by flexible working conditions and how to institute them in certain workplaces.

Australian law is reactive rather than proactive in how it addresses discrimination. The review recommends introducing two positive duties – one would require an employer “to take all reasonable and appropriate measures… to provide a workplace free of pregnancy/return to work discrimination” and a second would require an employer to reasonably accommodate the needs of employees who are pregnant or who have family or caring responsibilities except where those adjustments would cause unreasonable hardship.

The review also highlighted that employers are confused about the operation of federal, state and territory workplace laws. For example, they are unsure of how to meet their obligations under workplace health and safety laws while also ensuring that they don’t discriminate against a pregnant employee, such as by forcing her to change jobs unnecessarily.

The underlying message of the review is that we not only need effective law, we need to ensure employees are aware of their rights and that employers understand their obligations and comply with them. It was encouraging that immediately after the AHRC released the report, the federal government committed to giving it $150,000 to prepare a practical resource for employers and employees about their rights and obligations within one year. This resource needs to be disseminated widely and early to be effective.

Pregnant women are bombarded with information about their health during pregnancy yet expectant and new parents do not receive any information about the rights at work, nor are the physiological and economic harms caused by discrimination acknowledged. Information about an employee’s rights should be made available in a GP’s surgery, obstetrician’s rooms, birthing centres and maternity hospitals, along with information about government assistance for child care and government funded paid parental leave.