Pregnancy Discrimination in the Australian Workplace
As part of its national review into pregnancy discrimination in the workplace, the Australian Human Rights Commission (AHRC) recently released data from a national phone survey measuring discrimination in the workplace related to pregnancy, parental leave and return to work following parental leave. The figures are staggering.
49% of mothers reported that they had experienced discrimination in the workplace. 27% experienced discrimination during pregnancy, 32% when they requested parental leave and 35% said they experienced discrimination when they returned to work.
Just as alarming is the type of discrimination experienced during pregnancy – 37% were threatened with dismissal, were dismissed or their contract was not renewed, and 49% were discriminated against in relation to pay, conditions and duties. More than a quarter of fathers and partners who exercised their legislative entitlement to 2 weeks paid parental leave reported experiencing discrimination either during the period of leave or when they returned to work.
These figures are even more alarming considering that federal law has prohibited pregnancy discrimination in the workplace since 1983.
Pregnancy discrimination is also unlawful under state and territory laws, so is workplace discrimination based on family or carer’s responsibilities. Since 2009, pregnancy discrimination has been unlawful under federal industrial relations legislation. Male and female employees who are the primary caregiver for a child are entitled to 12 months’ unpaid leave and can request an additional 12 months and flexible working conditions when they return to work. They’re also protected from adverse action, such as threatened dismissal, for exercising these rights.
Yet this data clearly shows that workplace discrimination remains a problem and that employees aren’t turning to the law for a solution. Although 75% of women took action in response to the discrimination, only 13% sought legal advice and only 10% made a complaint to a government agency. 25% looked for another job and 24% resigned.
Given that it is challenging enough to utilise anti-discrimination laws (for reasons such as the burden of proof on the employee, low damages claims and high legal costs), it is not surprising that women who are pregnant or returning to work with a young family are choosing not to pursue legal action.
But that presumes they’re aware of their rights. Under federal industrial relations legislation, employers must give all new employees an information sheet outlining their minimum entitlements. There’s no reason information about unlawful discrimination couldn’t be distributed at the same time.
The AHRC’s report and recommendations are due next month. It should recommend a national government funded advertising campaign to make employees aware of their rights and employers aware of their responsibilities. Governments do so for workplace safety, so why not for workplace discrimination?
Australia has used education as the primary means of encouraging compliance with anti-discrimination laws but education alone is not enough. Modern regulatory theory says businesses are more likely to comply if there is a threat that action can and will be taken against them if they don’t.
This is the model the industrial relations regulator, the Fair Work Ombudsman (FWO), has used since it was established in 2009. As well as having education campaigns, such as its 2012-13 campaign targeting working parents, the FWO can investigate complaints about workplace discrimination and take action to enforce the law. It can reach enforceable undertakings in which an employer will agree to change policies and practices and the FWO will agree not to take further court action. By March 2014, the FWO had entered into 7 enforceable undertakings in discrimination matters. 3 were instances of pregnancy discrimination. The FWO can litigate on behalf of employees and seek the imposition of a civil penalty against the employer of up to $10,200 for individuals and $51,000 for a corporation. As at March 2014, 5 of the 7 discrimination matters the FWO had litigated were about pregnancy discrimination and in each the employer was ordered to pay a civil penalty.
There is no reason a stronger enforcement model like this couldn’t be adopted for the federal anti-discrimination Acts.
The previous federal government took the first step by asking the AHRC to gather the evidence about the degree to which discrimination remains a problem for parents in the workplace. The Abbott government must take the next step and give the AHRC the power and resources to do something to address this problem.