The Pregnancy Guidelines follow the Commission's Report of the National Inquiry into Pregnancy and Work, Pregnant and Productive: It's a right not a privilege to work while pregnant, commissioned by the federal Attorney-General in August 1998.

The primary aim of the Guidelines is to help workplace participants to understand and fulfill their obligations under the federal Sex Discrimination Act 1984. The Guidelines cover issues of pregnancy discrimination through all aspects of the employment relationship, including recruitment, employment and dismissal.

The Guidelines also address the overlap between discrimination, industrial and occupational health and safety obligations to help people better understand and adhere to the existing frameworks.

The Guidelines have been prepared after extensive consultations with employers and unions. They use basic principles and case studies to illustrate rights and responsibility under the Sex Discrimination Act. They provide practical advice for employers, employer organisations, unions and employees on the management of pregnancy in the workplace. The Guidelines answer difficult questions, plus questions some employers have been reluctant to ask.

To view the Pregnancy Fact Sheet click here.

To view the HREOC Media Release click here.

The Pregnancy Guidelines are also available for download in PDF (238k) and Word (260K) formats.

The Media Release from the Attorney-General's Department is also available in PDF (39k) and Word (28K) formats

Copyright © Commonwealth of Australia 2001 ISBN 0 642 26976 9
Human Rights and Equal Opportunity Commission, Sydney, March 2001
Copying is permissible provided acknowledgement is made to the Human Rights and Equal Opportunity Commission

Pregnancy FACT SHEET

1. 18% of complaints received by HREOC in 1999-2000 concerned alleged discrimination on the basis of pregnancy or potential pregnancy.
   
   
2. In 1998, 3.7 million women were employed and approximately 250,000 live births were recorded in Australia.
   
   
3. The average age of women at the birth of their first child is 29 years.
   
   
4. This is also the age of greatest career progression and when women are entering their prime earning years.
   
   
5. Increasing numbers of women put off having children in many cases due to work pressures and the expectation of women's primary role in child-care. The percentage of Australian women over 40 without children has grown in 10 years from 8% to 12% and that proportion is set to increase.
   
   
6. A massive 54% of women in one study believed that their careers have been affected by taking maternity leave. A further 44.1% say their salaries stall, 30.4% believe their careers take a backward step and 29.9% say they sacrificed their careers when they gave birth.
   
   
7. Current low fertility rates (1.86 children per woman) indicate a growing trend by women to make a choice between work and family rather than seeking both. Such choices are still necessary partly because of the failure of workplace practices to accommodate the realities of pregnancy and family responsibilities.

To what extent do I as an employer have to accommodate an employee's pregnancy?

Employers should consider making all reasonable adjustments to the workplace to accommodate the normal effects of pregnancy. Employers need to discuss the issues with the pregnant employee to find solutions.

When can I lawfully refuse to employ a pregnant applicant?

An employer can lawfully refuse to employ a pregnant applicant if she is unable to adequately perform the duties required for the position; where there may be OH&S issues in the workplace that cannot be resolved and if the position required the completion of a specific project and the applicant would be unable to meet the deadlines. This is unusual.

My workplace has an equal opportunity policy .....isn't that enough?

All employers regardless of size or industry type can benefit from developing anti-discrimination policies. Wise employers ensure that all employees are familiar with the policy and are educated about their rights and responsibilities. However, the existence of equal opportunity policies does not necessarily mean that the employer will be automatically protected in the event of a complaint of discrimination. Amongst other things, the employer should be able to show that the policies are practically and continually implemented in the workplace.

If an employee of mine discriminates, then that's their problem isn't it?

An employer may be vicariously liable for the actions of an employee or may be directly liable if it is found that it allowed, encouraged or contributed to the discrimination and did not have adequate policies and procedures in place to prevent and deal with discriminatory attitudes and practices in the workplace.

What am I meant to do when an employee of mine is a casual, is pregnant, but doesn't have a right to maternity leave?

Some casual employees qualify for unpaid maternity leave. Moreover, pregnant employees who do not qualify for maternity leave are still protected by the federal Sex Discrimination Act. Employers and employees can negotiate a fair and reasonable period of leave for those who do not qualify for maternity leave. For example the employer could provide access to other forms of leave (annual leave or unpaid leave).

What if my employee returns to work after maternity leave and I just can't give her the same old job back because of changes in the workplace?

An employee is generally entitled to return to the position she held prior to commencing leave or to a comparable position if her original job has ceased to exist. Employers should note that an employee may wish to return to work on a part-time basis, and some State laws specifically allow for return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have discriminated if a reasonable request for part-time work is refused.

Foreward

The Report of the National Pregnancy and Work Inquiry, entitled Pregnant and Productive: It's a right not a privilege to work while pregnant was published in 1999. Consultations and discussions throughout the Inquiry evidenced that pregnancy discrimination remains a matter of concern in workplaces throughout Australia. In fact over the last financial year, complaints of pregnancy discrimination amounted to 18% of all complaints accepted under the federal Sex Discrimination Act 1984.

These Pregnancy Guidelines clarify many of the issues surrounding pregnancy and work. While pregnancy is a normal, healthy physical condition that many women experience, at work there are a number of anti-discrimination, industrial relations and occupational health and safety laws that cover pregnancy. The intersection of these laws can at times be complex and confusing, consequently the Pregnancy Guidelines aim to address the overlap to help people better understand and adhere to the existing frameworks.

The Pregnancy Guidelines continue the work of the Pregnancy Report by providing practical assistance. They provide case study material, information on legal precedents and current laws that cover employees who are pregnant or potentially pregnant, to assist all parties to understand and fulfil their obligations under the federal Sex Discrimination Act 1984.

As evidenced in the Pregnancy Guidelines, employers are finding constructive creative ways of managing pregnancy issues that not only avoid discrimination, but also contribute to a positive working environment and successful business practice. I encourage all employers to develop policies and strategies to make their workplaces pregnancy friendly.

It is a human right, not a privilege for a woman to work while she is pregnant. I hope that employers and workplace participants will find these Pregnancy Guidelines useful in clarifying their rights and responsibilities in relation to the management of pregnancy at work.

Susan Halliday
Sex Discrimination Commissioner
Human Rights and Equal Opportunity Commission

6 March 2001
Sydney

Preface

Status On 26 August 1998, the Commonwealth Attorney-General, the Hon Daryl Williams AM QC MP, referred to the Human Rights and Equal Opportunity Commission a national inquiry into discrimination on the ground of pregnancy and potential pregnancy and the management of pregnancy in the workplace. The terms of reference for the Inquiry are set out here.

The Report of the National Pregnancy and Work Inquiry, entitled Pregnant and Productive: It's a right not a privilege to work while pregnant ("the Pregnancy Report"), was tabled in Parliament in August 1999. The Pregnancy Report made findings identifying the specific issues covered in these Guidelines.

The Guidelines are a companion to the Pregnancy Report, and where greater detail on a subject covered by the Guidelines is needed, the relevant section of the Pregnancy Report should be referred to.

These Guidelines are not legally binding. They provide practical guidance and advice on the rights and responsibilities relating to pregnancy and potential pregnancy discrimination that arise under the Sex Discrimination Act 1984 (Cth) ("the federal Sex Discrimination Act"), and related case law. The case examples are provided by way of illustrative example only. Some of the suggestions are inferred from or based on an interpretation of the law, rather than on settled cases. Whether or not particular conduct amounts to discrimination can only be determined by taking into account the circumstances of each particular case. These Guidelines should not be used as a substitute for legal advice in complex or difficult situations. Employers are strongly encouraged to comply with these Guidelines to minimise the risk of unlawful discrimination.

Purpose

The purpose of these Guidelines is to:

provide employers, employees, managers and agents (or other workplace participants) with the necessary practical guidance to comply with the federal Sex Discrimination Act, and prevent pregnancy and potential pregnancy discrimination; and

assist trade unions and employer organisations to advise their members on issues concerning pregnancy and potential pregnancy in the workplace.

Scope

The Guidelines deal with discrimination on the grounds of pregnancy and potential pregnancy in employment. An act of pregnancy or potential pregnancy discrimination may also amount to discrimination on the ground of sex or family responsibilities, depending on the circumstances.

The Guidelines apply to employees and employers in the following areas:

• Commonwealth Government departments, agencies and business enterprises;
• all private sector organisations;
• unions;
• educational institutions not under the control of State Government, for example universities; and
• non-government, community and voluntary organisations in their capacity as employers.

Except where expressly stated, these Guidelines do not apply to State Government instrumentalities or State Government employees.

Although these Guidelines are a guide to the federal Sex Discrimination Act, discrimination on the ground of pregnancy and potential pregnancy is also prohibited by State and relevantTerritory anti-discrimination laws. Unless an exception applies, employers must comply with both the federal legislation and the State or Territory law. These are:

• Anti-Discrimination Act 1977 (NSW);
• Equal Opportunity Act 1995 (VIC);
• Equal Opportunity Act 1984 (SA);
• Equal Opportunity Act 1984 (WA);
• Discrimination Act 1991 (ACT);
• Anti-Discrimination Act 1991 (QLD);
• Anti-Discrimination Act 1992 (NT);
• Anti-Discrimination Act 1998 (TAS).

Federal, State and Territory anti-discrimination laws are similar, however, there are some specific differences in definitions and coverage discussed throughout the Guidelines.

General principles: Pregnancy discrimination at work

Pregnancy is a normal, healthy physical condition that many women experience. Various laws have been put in place to ensure that pregnant women are not disadvantaged in their employment because of their pregnancy.

The Sex Discrimination Act 1984 (Cth) ("the federal Sex Discrimination Act") makes pregnancy and potential pregnancy discrimination in employment unlawful. The principles arising from the federal Sex Discrimination Act are set out below. For more information, see the full text of the Pregnancy Guidelines.

Anti-discrimination laws are only one part of the legal framework covering pregnancy and work. Industrial relations laws, occupational health and safety ("OH&S") laws, awards and agreements also deal with pregnancy issues. Employers, supervisors and employees need to understand these laws in addition to anti-discrimination laws.

This summary is intended to provide an overview of the principles involved in avoiding pregnancy discrimination at work, and may be copied and distributed to inform workplace participants of their rights and responsibilities.

The federal Sex Discrimination Act

Who is covered?

The federal Sex Discrimination Act covers all private sector and Commonwealth employers and employees. All types of employees are covered, including temporary, casual, full-time and part-time workers, apprentices and trainees. Commission agents, contract workers and partners in partnerships of six partners or more are also covered.

Employers must not discriminate. Employers can also be held liable for the actions of their managers, employees and agents such as recruitment agents, unless they take reasonable steps to prevent the discrimination. Recruitment agents and individual employees may also be held liable if they assist, aid, instruct, induce or permit an employer to discriminate.

What is pregnancy or potential pregnancy discrimination?

Direct pregnancy and potential pregnancy discrimination takes place when a woman is treated less favourably because she is pregnant or has the potential to become pregnant.

Indirect pregnancy and potential pregnancy discrimination takes place when there is a requirement, condition or practice that disadvantages pregnant or potentially pregnant women. It will not be discriminatory if the requirement, condition or practice is reasonable in the circumstances. In assessing whether an action was reasonable, a court will consider, among other things, the disadvantage to the employee, how the disadvantage could be overcome and whether it is proportionate to what an employer sought to achieve.

Under the federal Sex Discrimination Act, the term "pregnancy" refers to the time when a woman is carrying a foetus, as well as physical characteristics of pregnancy such as having a large abdomen and tiredness. The term "potential pregnancy" refers to being capable of having children, a situation where a woman has expressed a desire to have children or when a woman is likely or is perceived to be likely to become pregnant. An act of pregnancy discrimination may also be sex discrimination or discrimination on the ground of family responsibilities, depending on the circumstances.

When is discrimination unlawful?

The following principles help identify how to avoid discrimination at each stage of the employment relationship.

Recruitment

• Pregnant or potentially pregnant women must be treated the same as any other potential employee during the recruitment process.
• To avoid discrimination, employers and employment agencies should seek the best applicant for the job based on merit, regardless of pregnancy or potential pregnancy.
• Assumptions about the capacities of pregnant women and mothers of young children should not intrude upon the recruitment process.
• Always ask questions that are job specific. Avoid asking applicants about whether they have or want to have children. Rather, ask questions about ability to travel or complete a project within the given timeframe.
• If a pregnant applicant is genuinely unable to perform the requirements of the job, it is not discriminatory to refuse her the job.

Employment

• Pregnant or potentially pregnant employees should be treated in a fair and equitable manner. Employers should not reduce an employee's terms and conditions or deny other benefits on the basis of pregnancy or potential pregnancy.
• Where necessary, employers should make all reasonable adjustments to the workplace to accommodate the normal effects of pregnancy. Employers need to discuss the issues with the pregnant employee to find solutions.
• Where medical issues are associated with a pregnancy or legitimate OH&S issues arise, employers should make reasonable adjustments in the workplace to allow pregnant employees to continue to work.
• It is not discriminatory to accommodate an employee who is pregnant.
• In limited cases where medical or OH&S issues cannot be resolved, an employer may need to temporarily transfer a pregnant employee.
• Constant references to an employee's pregnancy, touching her stomach and badgering her about whether she is "really" planning to come back to work are likely to amount to discrimination.
• When an employee has had her position adjusted in some way because of her pregnancy, her benefits should remain the same, although her salary may alter if her hours decrease.

Leave

• Minimum maternity leave provisions are set in industrial relations laws, awards and agreements. Employee entitlements and notice requirements should be checked as they differ from workplace to workplace.
• Minimum leave entitlements for non-casual employees include:
  - up to 12 months unpaid maternity leave after 12 months service; and
  - access to sick leave when ill during pregnancy.
• Some casuals qualify for unpaid maternity leave.
• Pregnant employees who do not qualify for maternity leave are still protected by the federal Sex Discrimination Act. Employers and employees can negotiate a fair and reasonable period of leave for those who do not qualify for maternity leave.
• Employers and co-workers should not assume that pregnant employees will automatically take 12 months maternity leave, as women take varying amounts. Some women take no maternity leave at all, preferring to utilise paid annual leave or long service leave.
• Generally, employees are entitled to return to their former position after maternity leave.

Dismissal and retrenchment

• An employer cannot dismiss or retrench an employee because she is pregnant or has the potential to become pregnant, even if this reason is only one of the reasons for her dismissal.
• An employer may dismiss or retrench an employee if the decision is based on reasons other than pregnancy such as:
  - genuine financial or reasons;
  - poor or inadequate work performance; or
  - serious or wilful misconduct.
  
  

How can pregnancy friendly policies help?

Effective anti-discrimination policies can limit employer liability in the event of a complaint, as they demonstrate the employer taking steps to prevent acts of discrimination.

Policies aimed at achieving a balance between work and family life can also benefit organisations through, for example, increased productivity and staff retention.

Writing a policy need not be difficult. Start with a document explaining what constitutes pregnancy and potential pregnancy discrimination, stating that it will not be tolerated and inform all workplace participants of the action that will be taken if discrimination occurs. A good policy will also include information about maternity leave and how the organisation manages pregnancy related issues such as OH&S.

Once a policy is developed, it should not be left to languish on a file or intranet. For effective implementation and employer protection, the policy must be well communicated. Education of all parties is required if anti-discrimination laws and the organisation's policy are to be adhered to.

Remember that the facts of each situation will determine whether unlawful discrimination has occurred. If in doubt, refer to the full text of the Pregnancy Guidelines and talk to your Human Resources or Industrial Relations adviser. You could also contact the Human Rights and Equal Opportunity Commission's Complaints Infoline on 1300 656 419 or visit the the Commission's Complaints Information Web page at: http://www.humanrights.gov.au/complaints_information/index.html

PREGNANCY DISCRIMINATION AT WORK

1. Introduction

1.1 The federal Sex Discrimination Act
1.2 Policies and procedures
1.3 The legal framework

1. Introduction

These Guidelines offer advice on preventing pregnancy discrimination in the workplace. They outline the law and provide practical suggestions and examples.

The Guidelines cover issues of pregnancy discrimination through all aspects of the employment relationship, including recruitment, employment and dismissal.

The Guidelines are followed by additional information for reference purposes:

Appendix A: Definitions and case law
Appendix B: Pregnancy policies and procedures
Appendix C: Which law; which forum?

1.1 The federal Sex Discrimination Act

Pregnancy is a normal, healthy physical condition that many women experience. Various laws have been put in place to ensure that pregnant and potentially pregnant women are not disadvantaged in their employment because of pregnancy or potential pregnancy.

The Sex Discrimination Act 1984 (Cth) ("the federal Sex Discrimination Act") makes pregnancy and potential pregnancy discrimination in employment unlawful.

Who is covered by the federal Sex Discrimination Act?

The federal Sex Discrimination Act covers employers and employees in all States and Territories. [1]

All types of employees are covered, including temporary, casual, full-time and part-time workers, apprentices and trainees. Commission agents, contract workers and partners in partnerships of at least six partners are also covered. References to employees throughout the Guidelines include all these workplace participants, except where otherwise stated.

Employers must not discriminate. Employers can also be liable for the discriminatory actions of their managers, employees and agents, such as recruitment agents, unless they take reasonable steps to prevent the discrimination.

When does discrimination take place?

Direct pregnancy discrimination and potential pregnancy discrimination take place when a woman is treated less favourably because she is pregnant or is potentially pregnant. [2]

Indirect pregnancy and potential pregnancy discrimination take place when there is a requirement, condition or practice that disadvantages pregnant or potentially pregnant women, and when the requirement, condition or practice is not reasonable in the circumstances. In assessing whether an action is reasonable, a court will consider, among other things, the disadvantage to the employee, how the disadvantage could be overcome and whether it is proportionate to what an employer sought to achieve. [3]

What is meant by pregnancy and potential pregnancy?

Pregnancy includes the time when a woman carries a foetus, as well as physical characteristics of pregnancy such as having a large abdomen and tiredness. Potential pregnancy includes being capable of having children, a woman expressing a desire to have children or a woman being likely or being perceived as likely to become pregnant. [4]

Prohibitions on pregnancy and potential pregnancy discrimination apply irrespective of the marital status or age of an employee.

Does the federal Sex Discrimination Act require employers to accommodate pregnancy?

To avoid indirect discrimination employers may need to make some changes to the workplace or to the conditions under which a pregnant employee is employed. The Guidelines refer to this as accommodation or adjustment. For example, employers may need to accommodate pregnant employees by providing seating where this will assist employees to continue working.

Pregnancy discrimination often occurs because people make automatic assumptions about pregnant employees requiring different treatment. However, most pregnant employees carry out their work in the same way they did before they were pregnant.

The federal Sex Discrimination Act protects employers who provide benefits to women who are pregnant. It is not discriminatory to provide rights and privileges in connection with pregnancy and childbirth. [5]

Other relevant grounds of discrimination

An act of pregnancy discrimination may also be sex discrimination or discrimination on the ground of family responsibilities. While this publication focuses on pregnancy and potential pregnancy discrimination, employers and employees are advised to seek information on other areas and grounds of discrimination under the federal Sex Discrimination Act that may apply.

Visit appendix A for more information on the federal Sex Discrimination Act (Cth)

1.2 Policies and procedures

A good way for employers to demonstrate compliance with the obligations of the federal Sex Discrimination Act and to avoid discrimination against pregnant or potentially pregnant employees is through the development of policies and procedures dealing with pregnancy issues. All employers regardless of size or industry type can benefit from developing policies. Effective anti-discrimination policies can minimise employer liability in the event of a complaint, as they are evidence of the employer taking reasonable steps to prevent acts of discrimination. Specific policies may be developed to deal with pregnancy or potential pregnancy, or existing policies can incorporate a position in relation to pregnancy or potential pregnancy.

Visit appendix B which provides guidance on developing policies and procedures to prevent and, if necessary, respond to pregnancy discrimination.

1.3 The legal framework

These Guidelines detail principles which have been developed, based on case law and the terms of the federal Sex Discrimination Act, for each stage of the employment relationship.

Where relevant the Guidelines indicate overlaps with State and Territory anti-discrimination, industrial relations and occupational health and safety ("OH&S") legislation. Common provisions in awards and agreements relevant to pregnancy and potential pregnancy discrimination are also mentioned. These Guidelines, however, should not be taken as a comprehensive discussion of these provisions. Independent legal advice should be sought where necessary.

Visit appendix C which summarises the interaction between these laws.

1. With the exception of State Government employment: section 13 Sex Discrimination Act 1984 (Cth).

2. Click here to read the discussion in Appendix A on direct pregnancy discrimination.

3. Click here to read the discussion in Appendix A on indirect pregnancy discrimination.

4. Click here to read the discussion in Appendix A on pregnancy and potential pregnancy

5. Section 31 Sex Discrimination Act 1984 (Cth).

PREGNANCY DISCRIMINATION AT WORK

2. Recruitment

2.1. Non-discrimination in recruitment
2.2. When it is not discriminatory to refuse employment?
2.3. Who is liable for discrimination in recruitment?
2.4. Advertising employment vacancies
2.5. Job applications
2.6. Questions at interview
2.7. Medical examinations to determine pregnancy

2. Recruitment

2.1 Non-discrimination in recruitment

The federal Sex Discrimination Act makes it unlawful for an employer to discriminate against a person on the ground of pregnancy or potential pregnancy during the recruitment process. [6] Pregnancy discrimination in recruitment can occur when an applicant is not given an opportunity to apply for a position, or is not offered a position because she is pregnant. Potential pregnancy discrimination in recruitment can occur when a woman is not given an opportunity to apply for a position, or is not offered a position because she may become pregnant in the future.

Recruitment processes include:

• seeking applications;
• standard application forms;
• any system used for selection, including psychological testing, interviews, group assessments, bonding exercises etc;
• the conduct of selection processes;
• short listing applicants; and
• the final selection and hiring of successful applicants.

Recruitment processes should ensure all potential applicants understand the specific requirements of the job.

Applicants should be selected on merit-based attributes such as skills, experience, qualifications and aptitude. If an applicant is less qualified or is unable to perform the pre-determined requirements of the position, it is not discriminatory to refuse her the position. In only very limited cases will pregnancy have any effect on an applicant's capacity to carry out the requirements of the position. Pregnancy is a normal, healthy physical condition.

Employers must not discriminate against existing employees when filling internal positions. Pregnant and potentially pregnant employees must not be discriminated against when decisions about promotions, transfers and existing or new positions with the same employer are being made.

2.2 When it is not discriminatory to refuse employment

In very limited situations it may not be discriminatory to refuse to employ, promote or transfer an applicant who is pregnant. For example:

• if an applicant is not able to adequately perform the duties required for the position due to a medical condition; [7]
• where there are OH&S issues in the workplace that cannot be resolved due to the pregnancy; or
• if the position requires completion of a specific project and the applicant would be unable to meet the absolute timeframes of the project.

Before an employer refuses an applicant employment on the basis of OH&S or medical issues the employer should proceed with caution. Obtaining a medical report and contacting the relevant State or Territory OH&S organisation [8], could assist in avoiding discrimination. All reasonable options for accommodating the applicant should first be considered.

Click here to get more information on when it is not discriminatory to refuse employment.

In NSW, anti-discrimination legislation allows an employer to discriminate against a pregnant woman during recruitment, in limited circumstances. [9] The federal Sex Discrimination Act does not provide an exemption of this type and an employer in NSW may be the subject of a complaint under the federal law [10], even if they are complying with the NSW law.

2.3 Who is liable for discrimination in recruitment?

Employers and employment agencies may both be liable for discrimination in recruitment.

Employment and recruitment agencies

Employment and recruitment agencies are liable for discriminatory hiring practices even if they are acting on behalf of, or following the directions of, a client. [11]

Employers

When contracting an agency to advertise, search for and select prospective employees, an employer would be well advised to require the agency to adhere to and adopt non-discriminatory processes. This will help employers avoid being held jointly liable with the agency for any acts of discrimination during the recruitment process. An employer may also be liable for the discriminatory actions of its employees or agents who recruit others on behalf of the employer, unless the employer took all reasonable steps to prevent the employee or agent from doing the discriminatory acts. [12]

Reasonable steps might incluIde the employer making it clear that the best applicants for the position are to be short listed irrespective of pregnancy or potential pregnancy. It could also include a review of recruitment and selection procedures, particularly with respect to interview questions asked.

Click here for more information on Reasonable Steps.

2.4 Advertising employment vacancies

Under the federal Sex Discrimination Act, it is an offence to publish or display an advertisement or notice for a position of employment that indicates an intention to discriminate. It is also an offence to cause or permit such an advertisement or notice to be published or displayed. [13]

An advertisement or notice includes publicly or privately distributed notices in a wide variety of forms and by a wide variety of mediums, including advertisements placed on the Internet or notice boards. [14]

At every stage of recruitment advertising, all parties involved may be held liable for discriminatory advertisements, including:

• the employer who authorises the terms of the advertisement;
• the recruitment agency that writes and places the advertisement; and
• the newspaper or other medium that publishes or displays the advertisement.

2.5 Job applications

Generally, job applicants are not required by law to include information regarding their sex, age, marital status, pregnancy or potential pregnancy, in job applications. If such information is provided, employers should not use it to evaluate applicants. [16] Sound recruitment practices generally do not include the need to ask for this type of information and not doing so removes any suspicion of discriminatory use.

2.6 Questions at interview

Employers need to ensure that interviews and selection processes are not based on, or influenced by, stereotypical assumptions about pregnant employees or women who may potentially become pregnant. For example, employers should not make assumptions about the length of maternity leave that individual women want, or that women with young children would not be able to travel extensively to undertake job commitments.

To avoid discrimination, sound management may include:

• asking only those questions relevant to the inherent requirements of the job; and
• developing a series of questions that can be asked of each applicant, irrespective of whether the applicant is male or female.

2.7 Medical examinations to determine pregnancy

In practice, it is very rare for medical information about pregnancy to be relevant to recruitment. Good employment practice would only require this information where there are legitimate and documented OH&S concerns associated with a particular job. Information from medical examinations must strictly be used in a non-discriminatory manner and remain confidential.

6. Section 14(1) Sex Discrimination Act 1984 (Cth).

7. See also sections 15(1), 16(1), 17(1) Sex Discrimination Act 1984 (Cth), covering other workplace relationships. If the medical condition is a disability, an employer would be required to consider the Disability Discrimination Act 1992 (Cth), which requires employers to consider the inherent requirements of the job or whether reasonably accommodating the person would cause unjustifiable hardship. These provisions do not apply to promotion or transfer.

8. See Contact List.

9. Section 25(1A) Anti-Discrimination Act 1977 (NSW).

10. Except for NSW State Government employment: section 13 Sex Discrimination Act 1984 (Cth).

11. Section 105 Sex Discrimination Act 1984 (Cth) would make a recruitment or employment agent liable if they caused, instructed, induced, aided or permitted an employer to do an act that was unlawfully discriminatory. This may also be the case for recruitment and employment where the contracting organisation is offshore and providing instructions from an office offshore, as long as the part of the recruitment process that was discriminatory was conducted in Australia.

12. Section 106 Sex Discrimination Act 1984 (Cth).

13. Section 86 Sex Discrimination Act 1984 (Cth). Further information on advertising is contained in the Human Rights and Equal Opportunity Commission brochure Guidelines for writing and publishing recruitment advertisements: How the Sex Discrimination Act affects you.

14. Section 86(2) Sex Discrimination Act 1984 (Cth).

15. Section 103(1) Equal Opportunity Act 1984 (SA); it is a defence to a prosecution to prove that the defendant believed on reasonable grounds that the publication did not indicate an intention to do an unlawful act: Section 103(2). Sections 195 and 197 Equal Opportunity Act 1995 (Vic); it is a defence to a prosecution to prove that the defendant took reasonable precautions to prevent the publication or display: section 196. Section 68 Equal Opportunity Act 1984 (WA); section 20 Anti-Discrimination Act 1998 (Tas); section 69 Discrimination Act 1991 (ACT); section 127(1) Anti-Discrimination Act 1991 (Qld); and section 109(1) Anti-Discrimination Act 1992 (NT).

16. Section 27(1) Sex Discrimination Act 1984 (Cth).

PREGNANCY DISCRIMINATION AT WORK

3. Employment

3.1. Equity for employees who are pregnant
3.2. Adjustments for employees who are pregnant
3.3. Leave
3.4. Return to work after maternity leave
3.5. Preventing unlawful harassment
3.6. Other issues

3. Employment

3.1 Equity for employees who are pregnant

Pregnancy discrimination often occurs because people make automatic assumptions about pregnant employees requiring different treatment. However most pregnant employees carry out their work in the same way as they did before they were pregnant.

It is the responsibility of employers to treat pregnant and potentially pregnant employees in a fair and equitable manner that does not discriminate against them. This includes providing pregnant and potentially pregnant employees with the same basic terms and conditions of employment and the same benefits as they would receive if they were not pregnant. It is also the employers' responsibility to ensure other employees treat pregnant and potentially pregnant women in a non-discriminatory way.

Generally this means that an employee cannot be:

" transferred; " demoted; " made part-time if she was full-time or vice versa; " made casual if she was permanent; " given reduced hours of work or increased hours of work; " given less skilled or less demanding work; " denied education or training; " denied promotion; or " denied other employment benefits or opportunities

because of her pregnancy or potential pregnancy without the agreement of the employee.

There are a small number of cases when medical issues associated with pregnancy may require an employer to make some adjustment to work arrangements to allow a pregnant employee to work safely and efficiently. Making these adjustments will help ensure that there is no discrimination against an employee because she is pregnant.

3.2 Adjustments for employees who are pregnant

Some women experience physical effects such as tiredness and nausea during certain stages of pregnancy. In most cases, this does not prevent women performing their work. To avoid discriminating on the basis of pregnancy, employers are encouraged to accommodate the normal effects of pregnancy in the workplace.

Employers should note that anti-discrimination legislation in Tasmania and the Northern Territory has provisions that deal specifically with the accommodation of pregnant employees. [17]

What if an employer fails to make appropriate adjustments for employees who are pregnant?

An employment condition, requirement or practice that unreasonably fails to accommodate pregnancy may disadvantage pregnant employees and therefore constitute indirect discrimination under the federal Sex Discrimination Act. [18] While the requirement or practice may appear to be non-discriminatory, ultimately it could have the effect of disadvantaging pregnant employees. The fact that an employer did not intend to discriminate is not relevant under the federal Sex Discrimination Act, it is the impact of the requirement or practice that is assessed.

Click here for a definition of reasonableness and case examples.

General advice for employers is to consider all reasonable options when accommodating pregnant employees and to be prepared to discuss these options with employees to find individual solutions.

There is no single answer as to what is required to reach a non-discriminatory outcome as it depends on individual circumstances. Employer decisions taken in consultation and cooperation with the pregnant employee will usually assist in a reasonable outcome. Remember, no two pregnancies are the same and people need to be managed as individuals. Do not make assumptions about what a pregnant woman wants or needs. It is always better to ask her.

What if an employee who is pregnant cannot be accommodated?

It is unlikely that an employee cannot be accommodated. However, problems may occur if there are medical issues in addition to the pregnancy, or where there are particular OH&S issues in the workplace.

Pregnancy discrimination and medical issues

If a pregnant employee has medical issues associated with her pregnancy, such as fatigue or high blood pressure, the employer should consider the medical issues and the need to accommodate them in the broader context of discrimination law. This may involve seeking medical advice, consulting with the employee and acting on the medical advice in a non-discriminatory way.

There is further information on sick leave here and medical advice here.

Pregnancy discrimination and OH&S

When complying with the responsibility to accommodate pregnancy at work, employers must be aware of OH&S requirements, as well as the prohibition of discrimination against pregnant employees. [19]

Where OH&S risks to pregnant employees cannot be controlled or eliminated, the employer may need to transfer a pregnant employee to an alternative job within the organisation.

See Appendix C for further discussion of OH&S and pregnancy.

Under the federal Sex Discrimination Act, any transfer must be done in a way that does not discriminate against a pregnant employee. For example, the transfer should not result in loss of opportunities for promotion, training, financial loss, extra travel time or exposing the pregnant employee to harassment by fellow workers.

Maternity leave provisions under some State and federal laws, awards or agreements require an employer to consider such a transfer on the production of a medical certificate. [20] These laws also generally provide that a woman be returned to her original job, not the job she was transferred to while pregnant, upon her return from maternity leave. [21]

The role of medical advice in managing pregnancy at work

Nurses, health care workers, midwives, general practitioners and obstetricians, among others, can provide advice about managing pregnancy in the workplace. In-house medical advisers and doctors can also provide general advice, however employees should also seek independent advice.

Medical certificates are usually required when an employee needs to transfer to safer or lighter duties, to reduce working hours, or where special maternity leave is required. [22] The federal Sex Discrimination Act states that it is not unlawful to request or require a person who is pregnant to provide medical information concerning the pregnancy. [23]

Of concern to some employers is the inadequacy or limited nature of the information provided in medical certificates. Of particular concern is the phrase 'light duties'. Employers are encouraged to request that medical certificates address the actual duties that would be appropriate for the pregnant employee.

An employee should discuss with her medical adviser the detail required in a medical certificate. To assist this process, employers may consider developing a simple information sheet to obtain the relevant information.

Information sheets could contain information about current duties, hazards particular to the workplace or the work being performed, and seek any relevant information about the particular circumstances of the pregnancy and possible alternative duties.Information sheets should be compiled in a non-discriminatory manner, concentrating on OH&S criteria.

The limits of workplace adjustment There are, on very rare occasions, circumstances where a pregnant employee can no longer perform her job even after workplace adjustments and there are no alternative tasks or available transfers. In such circumstances, the employer can provide extended leave with or without pay or the pregnant employee could commence unpaid maternity leave early.

It may, after careful consideration, be lawful to terminate the employment contract where the pregnant employee is no longer able to meet the terms and conditions of the position.[24] It is very rare for these circumstances to arise. If such a situation did arise, sound management practice would ensure that there was adequate documentation to demonstrate that no other alternative options existed and that all requirements of anti-discrimination, industrial relations and OH&S legislation had been met. Employers would be well advised to discuss the situation and appropriate responses with a specialist adviser or relevant government agency.

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3.3 Leave

Taking maternity leave

Who has a right to maternity leave?

All employees, except for some casual employees, who have completed 12 months continuous service, are entitled to 12 months unpaid maternity leave. Long-term casual employees are entitled to maternity leave in some States. [25]

Maternity leave entitlements under other federal, State and Territory legislation, awards and agreements can be more beneficial than the minimum standards in the Workplace Relations Act 1996 (Cth). Where this is the case, they may apply rather than the minimum standard. [26] Some employers also provide additional benefits that have been individually negotiated or feature in an organisation's employment policy.

What happens when an employee is not entitled to maternity leave?

Where an employee is not entitled to maternity leave, for example an employee with less than 12 months service or some casuals, an employer remains bound by the federal Sex Discrimination Act and must ensure that a pregnant employee is not discriminated against. Dismissal in these circumstances is likely to be unlawful under the federal Sex Discrimination Act.

Therefore while some pregnant employees may not qualify for maternity leave, employers at a minimum must not discriminate unlawfully and may consider:

• providing access to other forms of leave (such as annual leave or leave without pay);
• discussing a reasonable period of absence having regard to the needs of both the employer and the employee; and
• if leave is refused, providing the employee with reasons why the employer is unable to grant leave without pay or why other options are impracticable.

How much notice does the employee need to provide before taking maternity leave?

Federal, State and Territory industrial relations laws, awards and agreements determine the minimum notice for maternity leave.

The federal Workplace Relations Act 1996 requires:

• notice of the employee's intention to take maternity leave ten weeks prior to the estimated date of birth;
• a medical certificate stating the expected date of birth and an application for maternity leave at least four weeks prior to the first day of maternity leave; and
• a statutory declaration saying the employee will be the child's primary caregiver and will not do anything inconsistent with her contract of employment. [27]

The federal Workplace Relations Act 1996 also states that the required notice of intention to take maternity leave, the provision of documents and application for leave will not be strictly applied if it is not reasonably practicable for an employee to give this notice, for example, if a child is born prematurely. [28]

Similar provisions exist in other industrial relations laws, awards and agreements, although they vary slightly. [29] The applicable provisions most beneficial to employees should always be applied.

Generally, there is no obligation for a pregnant employee to take maternity leave if she chooses not to. [30] Accumulated annual leave or other forms of leave may be used instead of, or in conjunction with, maternity leave, subject to the usual requirements for taking such leave.

Does a medical certificate have to be provided?

Under industrial relations laws, awards and agreements, an employee planning to take any maternity leave must provide a doctor's certificate confirming the pregnancy and the expected date of birth, prior to taking the maternity leave. [31]

Medical certificates may also be required when an employee requests to transfer to safer or light duties, or to reduce work hours due to a medical condition related to pregnancy, or where sick leave or special maternity leave is taken.

Can an employer require a pregnant employee to commence maternity leave prior to the birth?

Some laws, awards and agreements allow employers to request employees who have applied for maternity leave to commence leave before the birth of the child. [32] Usually this arises if it can be demonstrated that continuing to work poses a genuine OH&S risk.

If commencing maternity leave disadvantages an employee, the employer must be able to demonstrate that a thorough examination of alternative duties, options for job modification and availability of positions for transfer have been undertaken in consultation with the employee. It would be most unwise, even if State legislation allows it, to require an employee to commence maternity leave early if she had a medical certificate that stated that she was able to continue working.

Can an employer require an employee to take maternity leave after the birth?

Some laws, awards and agreements require employees who are taking maternity leave to take a mandatory period of leave after the birth of the child. [33] If an employee is disadvantaged by this requirement a complaint under the federal Sex Discrimination Act could still be made. The award or agreement prescribing the mandatory period of maternity leave would then be referred to the Australian Industrial Relations Commission ("the AIRC") for review. [34]

For more information about alternative forums for complaint click here.

Sick leave

Using sick leave during pregnancy

Pregnant employees who become ill during pregnancy have the same sick leave rights and entitlements as well as the same responsibilities as other employees.

Pregnant employees are entitled to use sick leave to attend regular prenatal medical appointments or special appointments associated with pregnancy complications, subject to the same conditions that apply to sick leave generally. Any restriction on the use of sick leave to attend these appointments, or unreasonable restrictions on actually attending such appointments could amount to discriminatory treatment under the federal Sex Discrimination Act, or a possible breach of an award or a certified agreement. [35]

Some laws, awards and agreements make provision for unpaid special maternity leave prior to the birth where a medical practitioner certifies it to be necessary. [36] Special maternity leave is taken instead of, or in conjunction with, paid sick leave and in most cases employees can choose which form of leave to use.

Where sick leave is limited, it is a good idea for pregnant employees, in consultation with their employers, to take the necessary leave in hourly increments rather than whole days. If sick leave runs out and a pregnant employee is still unwell, employers may consider exploring other leave arrangements, such as annual leave, time off in lieu, long service leave or leave without pay in place of sick leave.

Using sick leave during maternity leave

The birth of a child does not, by itself, constitute an illness and does not provide an entitlement to sick leave. However, in some circumstances a pregnant employee or an employee who has just given birth may also be sick. The availability of sick leave in this situation will depend largely on the relevant law, award or agreement covering the given workplace and the pregnant employee's medical certificate. It also depends on how closely the illness and the pregnancy are connected.

3.4 Return to work after maternity leave

Under industrial relations laws, awards and agreements as well as the federal Sex Discrimination Act, an employee is generally entitled to return to the position she held prior to commencing leave or to a comparable available position if her original job has ceased to exist. However, where the pregnancy has required some temporary adjustment or accommodation to the normal role prior to commencing maternity leave (such as part-time employment or change in shifts), the employee is entitled to return to the position or job she held immediately prior to the temporary accommodation.

An employee returning from maternity leave may also wish to work part-time or on a job share basis. Awards, agreements, and some State laws specifically allow for a return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have made a discriminatory decision if a reasonable request for part-time work is refused.

3.5 Preventing unlawful harassment

Pregnant employees are sometimes subjected to behaviour at work that is inappropriate and may be discriminatory. Examples of inappropriate behaviour include constant references to the pregnancy, touching the employee's stomach, badgering the employee about her ability to cope with the workload, or continually questioning the employee about whether she 'really' intends to come back to work. Where such conduct constitutes less favourable treatment of the pregnant employee, it will amount to unlawful discrimination under the federal Sex Discrimination Act. See Appendix A for further information. Employers could be liable for their employees' inappropriate conduct unless they took reasonable steps to prevent it. [37]

Harassment of pregnant women may also amount to sexual harassment for the purposes of the federal Sex Discrimination Act, where the conduct is of a sexual nature, for example, touching a pregnant woman's abdomen or breasts. [38] In cases of sexual harassment the person who harasses may be found to be directly liable. [39] An employer may also be vicariously liable for sexual harassment unless they have taken all reasonable steps to prevent the harassment. [40]

Appendix B provides advice to employers on how to take adequate steps to prevent discrimination and harassment of pregnant employees.

3.6 Other issues

Miscarriage, still birth or the death of a newborn child

Discrimination against employees who suffer a miscarriage, a still birth or the death of a newborn child is likely to be unlawful under the pregnancy discrimination provisions of the federal Sex Discrimination Act. [41]

Where a pregnancy has ended due to a miscarriage, or an employee has suffered a still birth or the death of a newborn child, employers can generally cancel maternity leave if it has not commenced, or limit the leave if it has already commenced. [42] However, employees are usually entitled to special maternity leave or sick leave in such circumstances, subject to the provision of a medical certificate. [43]

Extended leave after a miscarriage, a still birth or the death of a newborn child is in some cases left to the discretion of the employer. [44] However, any discrimination, including the denial of entitlements, may be found to be unlawful under the federal Sex Discrimination Act.

Pregnancy termination

Discrimination against employees who terminate a pregnancy may be unlawful under the pregnancy discrimination provisions of the federal Sex Discrimination Act. [45]

Employees who terminate a pregnancy are entitled to access their sick leave, subject to meeting eligibility requirements under the relevant legislation, award or agreement. Extended leave after a termination is at the discretion of an employer.

Fertility treatment

Discrimination against employees on the basis that they are undertaking fertility treatment, such as in-vitro fertilisation (IVF), may be found to be unlawful under the potential pregnancy discrimination provisions of the federal Sex Discrimination Act. This may include, for example, denial of training or promotional opportunities on the basis that the employee may become pregnant. [46]

In considering whether the conduct would be discriminatory for the purposes of the federal Sex Discrimination Act, the marital status of the employee in question is irrelevant to the situation.

Adoption

The provisions of the federal Sex Discrimination Act relating to pregnancy discrimination do not cover adoption. However, some types of discrimination against employees who have adopted or plan to adopt children could be unlawful discrimination on other grounds. [47] It would be wise for employers to adopt non-discriminatory practices relating to recruitment, selection, terms and conditions of employment and termination of employment when managing employees who are adopting children.

17. See sections 24 and 58 Anti-Discrimination Act 1992 (NT) and section 28 Anti-Discrimination Act 1998 (Tas).

18. Matters taken into account in assessing reasonableness are contained in section 7B(2) Sex Discrimination Act 1984 (Cth).

19. See for example section 16 Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) and section 15 Occupational Health and Safety Act 1983 (NSW) that require the provision of systems of work and plants (including equipment, appliances and machinery) which are safe and without risks to health. See also section 19 Occupational Health, Safety and Welfare Act 1986 (SA); section 19 Occupational Health and Safety Act 1984 (WA); section 27 Occupational Health and Safety Act 1989 (ACT).

20. Schedule 1A clause 17 Workplace Relations Act 1996 (Cth), (applying to Victorian workers); section 70 Industrial Relations Act 1996 (NSW); section 36(2)(a) Industrial Relations Act 1999 (Qld).

21. Schedule 1A clause 14 Workplace Relations Act 1996 (Cth) (applying to Victorian workers); schedule 14 clause 12 Workplace Relations Act 1996 (Cth); section 66 Industrial Relations Act 1996 (NSW); section 32 Workplace Relations Act 1999 (Qld); section 38 Minimum Conditions of Employment Act 1993 (WA); clause 17 schedule 5 Industrial and Employee Relations Act 1994 (SA).

22. Special maternity leave is provided for under a number of federal and State workplace and industrial relations laws. Generally, it allows pregnant employees unpaid leave because of illness associated with the pregnancy or because they have suffered a miscarriage or still birth. Often special maternity leave is taken where the pregnant employee has exhausted all available paid sick leave. The choice of leave is up to the employee.

23. Section 27(2) Sex Discrimination Act 1984 (Cth).

24. See, for example, Parker v North Queensland Animal Refuge Inc (1998) EOC 92-926.

25. Section 53 Industrial Relations Act 1996 (NSW); section 16(1)(a) Industrial Relations Act 1999 (Qld).

26. Section 170KA(4) Workplace Relations Act 1996 (Cth).

27. Schedule 14 clause 3(2) Workplace Relations Act 1996 (Cth).

28. Schedule 14 clause 3(3) and 3(4) Workplace Relations Act 1996 (Cth).

29. For example, section 58(1)(b) Industrial Relations Act 1996 (NSW) requires a pregnant employee to give four weeks written notice of her intention to take maternity leave and the proposed dates of the leave; schedule 5 clause 2 Industrial and Employee Relations Act 1994 (SA) and section 33(2) Minimum Conditions of Employment Act 1993 (WA) require the employee to give ten weeks written notice of their intention to take maternity leave.

30. Under some laws, awards or agreements an employer may require an employee to take some form of leave before and/or after the expected birth date. See page 22 below.

31. See for example schedule 14 clause 13(2) Workplace Relations Act 1996 (Cth); section 58(1)(c) Industrial Relations Act 1996 (NSW); schedule 5 clause 4 Industrial and Employee Relations Act 1994 (SA); section 35 Minimum Conditions of Employment Act 1993 (WA).

32. For example, section 34 Minimum Conditions of Employment Act 1993 (WA).

33. For example, schedule 1A clause 4(4) Workplace Relations Act 1996 (Cth).

34. Section 46PW Human Rights and Equal Opportunity Commission Act 1996 (Cth).

35. See also section 170CK(2)(a) Workplace Relations Act 1996 (Cth) which prohibits dismissal due to a temporary absence from work because of illness.

36. See for example schedule 1A clause 10 Workplace Relations Act 1996 (Cth) (applying to Victorian workers); section 71 Industrial Relations Act 1996 (NSW).

37. Section 106 Sex Discrimination Act 1984 (Cth).

38. Section 28B Sex Discrimination Act 1984 (Cth). See also section 22 Anti-Discrimination Act 1977 (NSW); section 85 Equal Opportunity Act 1995 (Vic); sections 118-120 Anti-Discrimination Act 1991 (Qld); section 17 Anti-Discrimination Act 1998 (Tas); section 87 Equal Opportunity Act 1984 (SA); section 24 Equal Opportunity Act 1984 (WA); sections 58-60 Discrimination Act 1991 (ACT); section 22 Anti-Discrimination Act 1992 (NT). For a detailed discussion of sexual harassment issues, see Human Rights and Equal Opportunity Commission Sexual Harassment: A code of practice HREOC Sydney 1996.

39. Section 28B(2) Sex Discrimination Act 1984 (Cth).

40. Section 106 Sex Discrimination Act 1984 (Cth).

41. Sections 7 and 14 Sex Discrimination Act 1984 (Cth). Although there is no case law on this point, a reasonable interpretation of the Act would cover miscarriage and still birth.

42. Schedule 14 clause 10 Workplace Relations Act 1996 (Cth). In NSW the discretion to return to work after a miscarriage or still birth resides with the employee. An employee may choose when she wishes to return to work by notifying the employer: section 61(2) Industrial Relations Act 1996 (NSW).

43. For example, schedule 1A clause 10 Workplace Relations Act 1996 (Cth) (applying to Victorian workers); section 71 Industrial Relations Act 1996 (NSW).

44. However, in NSW, section 61(2) Industrial Relations Act 1996 (NSW) allows an employee who has commenced maternity leave to continue on maternity leave for the period of leave requested. If maternity leave has not commenced the employee may take as much sick or special maternity leave as her medical practitioner certifies is necessary: section 71 Industrial Relations Act 1996 (NSW).

45. Sections 7 and 14 Sex Discrimination Act 1984 (Cth). Although there is no case law on this point, a reasonable interpretation of the Act would cover termination of a pregnancy.

46. Sections 7 and 14 Sex Discrimination Act 1984 (Cth). Although there is no case law, a reasonable interpretation of the definition of potential pregnancy would cover situations where an employee was undergoing fertility treatment.

47. For example, it is unlawful to discriminate against an employee on the grounds of family responsibilities by dismissing the employee: section 14(3A) Sex Discrimination Act 1984 (Cth). See also section 7(1)(e) Discrimination Act 1991 (ACT); section 7(1)(d) Anti-Discrimination Act 1991 (Qld); Part IIA Equal Opportunity Act 1984 (WA); section 19(1)(g) Anti-Discrimination Act 1992 (NT); section 16(e) and (d) of the Anti-Discrimination Act 1998 (Tas), section 6(l) Equal Opportunity Act 1995 (Vic), section 49T Anti-Discrimination Act 1977 (NSW).

PREGNANCY DISCRIMINATION AT WORK

4. Dismissal and retrenchment

It is discrimination to take into account pregnancy or potential pregnancy when considering dismissal or retrenchment. If an employee's pregnancy is one of the reasons for a dismissal or retrenchment, even though it may not be the dominant reason, the employer has acted unlawfully. [48] Similarly, an employer cannot retrench an employee on the basis that the employee may become pregnant in the future, or because an employee has indicated an interest in having a child.

4.1 Retrenchment

It would not be discriminatory for an employer, due to genuine financial or operational reasons, to retrench a pregnant employee. However, the employer should be able to demonstrate that financial difficulty or economic downturn was the legitimate reason for the retrenchment, and that pregnancy or potential pregnancy of the employee did not play a part.

In addition, the employer should demonstrate that the process adopted to identify employees for retrenchment was not discriminatory. Employers should not forget to consult with employees who are on maternity leave. Nor should employers assume that women on maternity leave will automatically opt for retrenchment or that they will resign and therefore not be entitled to redundancy payments or redeployment opportunities.

4.2 Dismissal

An employer is entitled to dismiss an employee because of poor or inadequate performance. An employer is not entitled to dismiss an employee if a reason for the dismissal (even if it is not the only or main reason) is the employee's pregnancy or potential pregnancy.

Confusion about the motives for dismissal of a pregnant or potentially pregnant employee can often lead to an allegation of discrimination. This can be the result of poor communication and inadequate management practices, for example, where an employee with unsatisfactory work performance is not made properly aware of the performance issues prior to the pregnancy and/or dismissal. Where an employee is under performing it is important to inform the employee directly and conduct regular performance reviews and counselling sessions. Thorough documentation should be kept. Conducting the first such review or dismissing an employee after the employee announces a pregnancy may lead to considerable misunderstanding.

It should also be noted that an employee, including a long-term casual employee, may have access to protection under unfair dismissal and unlawful termination laws if her employment is terminated due to pregnancy.

Renewal of Contract

Failure to renew an employee's fixed-term contract because of her pregnancy is unlawful, even if the pregnancy forms only part of the decision not to renew. However, a failure to renew may not be discriminatory if the contract is for a fixed period of time or a one-off specified task with a pre-determined deadline and the pregnant employee will be absent for a significant part of the set time.

For further information on Renewal of Contract click here.

48. Section 8 Sex Discrimination Act 1984 (Cth).

APPENDIX A: DEFINITIONS AND CASE LAW

1. Definitions of terms in the federal Sex Discrimination Act

1.1. What is pregnancy?
1.2. What is potential pregnancy?
1.3. What is direct pregnancy or potenti