Maternity Leave & Pregnancy Discrimination

One of the most important aspects of taking parental leave is ensuring that you keep regular written contact with your employer and outline the commencement date of your leave and your proposed return date. Under division 5 of the National Employment Standards, you may have an entitlement to parental leave, and section 74 has requirements in relation to notice and evidence of your start and end dates of that leave. Under section 83, if the employer makes a decision that would significantly affect your employment status, for example, a transfer of employment position or a change from full-time to part-time, they are required to consult with you prior to affecting any change. Under section 84, if you have complied with all the requirements under division 5, you will have a return to work guarantee where you are entitled to return to your pre-parental leave position, or if that position no longer exists, an available position for which you are qualified and suited nearest to the status and pay of your pre-parental leave position.

As a casual employee, if you have been employed for less than 12 months, you would not be entitled to any unpaid parental leave. However, you have protections in law against discrimination on the basis of your pregnancy. If your employer has removed you from their roster because they have found out you are pregnant and consider that your future absences will affect their food manufacturing operations, then they have contravened section 14 of the Sex Discrimination Act. On that basis, you will be entitled to file a complaint with the Australian Human Rights Commission, alleging that your employer has taken unlawful discrimination against you on the basis of your pregnancy. Your employer will have to explain on what basis they have stopped giving you work, why for example they were providing work to other casuals, and if there was a connection between the roster changes and your pregnancy. Often employers will defer any actual dismissal to protect themselves from unlawful dismissal cases and simply elect not to roster a casual employee for prohibited reasons. It is open for you to claim that you have been dismissed or in the alternative that your employer has subjected you to less favorable work conditions including by removing you from paid work on the roster.

The Sex Discrimination act prohibits any unfavorable treatment which could amount to a detriment in your employment. That includes, for example, an employer providing a workplace warning, and can even include an employer verbally abusing the employee. The verbal abuse causes you to be upset, hurt and humiliated. Often pregnant employees need to take time off work to attend unavoidable medical appointments and for which protections exist by law to enable the worker to participate in those medical appointments without being discriminated against. Furthermore, for example, the employer might have a policy or practice that no employee can be absent from work without providing 24 hours notice. Such a policy would indirectly discriminate against pregnant females in the workforce who may suddenly feel unwell, or require urgent medical treatment and cannot comply with that poly or procedure.

Section 14 of the Sex Discrimination Act makes it unlawful for an employer to withhold or deny employment opportunities for promotion such as for example, a promotion from an account manager to a regional manager. The employer made unlawful assumptions and implemented discriminatory criteria in assessing your suitability for the regional manager position because they denied you an opportunity for promotion on the basis of the characteristic (imputed) to females that they will be unable to work long hours and days because of pregnancy or potential pregnancy. They also discriminated against you directly because they did not promote you due to your potential pregnancy, which was clearly in their mind as they had asked you about your future plans in relation to your pregnancy.