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Introduction
Under the federal Fair Work Act 2009 (Cth) (FWA) and National Employment Standards (NES), workers that are pregnant and/or parents have several entitlements to leave, flexible working arrangements, returning to work and other protections. Additionally, the FWA and South Australia’s Equal Opportunity Act 1984 (SA) (EOA) protect workers from discrimination and other negative action on the grounds of pregnancy and family or carer’s responsibilities.
Despite these rights and entitlements, discrimination and barriers related to pregnancy and caring responsibilities are widespread in Australian workplaces. According to the Australian Bureau of Statistics’ 2022-23 financial year survey, ‘Barriers and Incentives to Labour Force Participation, Australia’, 35.7% of women in Australia reported ‘caring for children’ as their reason for being unavailable to start a job or work additional hours. This statistic is even higher (75%) for mothers with children under the age of 15.[1] By contrast, just 7.3% of men report ‘caring for children’ as a barrier to starting a job or working more hours.[2]
Additionally, a recent 2024 review by the University of South Australia[3] showed women in Australia face several barriers and discrimination at work related to pregnancy and caring for children, including (but not limited to):
If you are an employer, you must comply with your legal obligations and ensure you do not intentionally or unintentionally discriminate against workers who are pregnant and/or parents; otherwise, you may be opening yourself up to costly and lengthy legal claim(s).
This factsheet aims to provide information to employers, especially small businesses with limited resources, on practical ways to avoid discriminating against their pregnant and/or parent workers and to.
Workers’ right to unpaid parental leave
According to the FWA, parental leave means up to 12 months’ unpaid leave that is related to either the birth or adoption of a worker’s child because the worker has responsibility for caring for the child.[4]
To be eligible for this leave, as a general rule, workers should have worked continuously for an employer for at least 12 months immediately before the leave period is expected to start.[5] This includes:
Do NOT attempt to dismiss a pregnant worker to block their eligibility for unpaid parental leave – this is unlawful.
Example
Ayla* was working as a bookkeeper at a dental practice, Happy Teeth Whyalla, from 1 June 2023 until 5 May 2024. On 12 April 2024, Ayla told her boss and the practice owner, Dr Dell, that she was pregnant and intends to take parental leave in or around July 2024.
Just two weeks later, Dr Dell called Ayla into a meeting to discuss a restructuring of the business. Dr Dell told Ayla that the practice needs to downsize to cut costs, so her role as a bookkeeper is no longer required and she was being made redundant.
Ayla was devastated given she was only weeks away from being eligible to unpaid parental leave. She was also confused because just two months earlier in a staff meeting, Dr Dell told everyone that the business was doing ‘really well’, so he is considering opening another location in Port Augusta.
Ayla continued to work during her notice period, but she observed she was given low-level tasks below her experience and being ignored and excluded from after-work social events. Ayla asked her co-worker Clara why everyone was acting differently around her. Clara said, “Dr Dell told us about your exciting news! We are just trying to be helpful since you’ve got a lot on your plate now…”
Ayla felt something was not right, so she got legal assistance to make dismissal and discrimination claims against Happy Teeth and Dr Dell.
Even though Dr Dell said his reason for dismissing Ayla was because he needed to restructure the business, an argument could be made that the real reason was because of Ayla’s recent pregnancy announcement. Defending this claim cost Dr Dell lots of time, energy and money in legal fees, which ultimately hurt his business in the long run.
Workers’ right to return to work
The FWA says that after ending a period of unpaid parental leave, a worker has a right to return to their pre-parental leave position.[6] However, if the position does not exist anymore, the worker has a right to return to a position they are qualified for which is closest in status and pay to their previous role.[7] In the latter situation, an employer has a duty to tell and consult with the worker when the employer makes a decision that will affect the status, pay and/or location of the worker’s previous position.[8] This duty means an employer must take all reasonable steps to tell and give the worker an opportunity to discuss the employer’s decision.
Flexible Working Arrangements
Although workers have a right to return to return to their pre-parental leave position, workers who are parents or carers of a child also have a right to request flexible working arrangements. This means that previously full-time workers may request to return to work on a part-time basis to care for their child.[9] Note that a flexible working arrangement is for a specified period of time and is not a permanent change that affects the worker’s substantive pre-parental leave role.
An employer must respond to the worker’s request for a flexible working arrangement in writing within 21 days. An employer can refuse this request, but only if the employer:
Some examples of reasonable business grounds include if:
Do NOT attempt to return a worker returning from parental leave to a lesser position – this is unlawful
Example
Since February 2022, Dana has been employed by a winery in the Barossa Valley as a sommelier and works part time, three days per week. On 2 September 2023, she went on unpaid parental leave after she and her partner Tina adopted a child. Dana told her boss, Steve, that she will take the full 12 months of leave she is entitled to and will come back on 1 September 2024.
In August 2024, Dana reached out to Steve to start planning her return to work. Steve told Dana that the winery has been doing well over the last year, and they have hired lots of casual staff. Because of this, Steve said he is not able to offer Dana three days of work per week, but he could still offer her three days per fortnight. Steve also said that he is happy to make her a casual moving forward so she can get casual loading, and because it will be much more flexible for Dana as a new parent.
Dana declined this offer and said she prefers the stability of working part time three days per week. However, Steve said his hands are tied and Dana should either ‘take it or leave it’.
Dana thought this was unfair, so she got legal assistance to make a discrimination claim against the winery and Steve.
Although Steve thought he was being helpful by offering Dana a casual position with more flexibility, in reality he is offering Dana a worse off position with less stability and no rights to paid personal and annual leave. Additionally, Dana legally has the right to return to her permanent part time position. Defending himself from Dana’s claim used up a lot of Steve’s time, energy and resources.
Key takeaway
Plain and simply – when a worker tells you they are expecting a child, do not start treating them differently even if you think you are helping them. Each worker is different – some may want to take the full 12 months’ of unpaid parental leave, while others may only want to take 6 months and come back to work in flexible ways. Listen to and genuinely consider what the worker is requesting due to their specific circumstances.
If you are an employer and would like further resources and/or training, get in touch with our Training staff by completing an enquiry form here: https://wwcsa.org.au/workplace-training/.
[1] https://www.abs.gov.au/statistics/labour/employment-and-unemployment/barriers-and-incentives-labour-force-participation-australia/2022-23
[2] https://www.abs.gov.au/statistics/labour/employment-and-unemployment/barriers-and-incentives-labour-force-participation-australia/2022-23
[3] https://www.unisa.edu.au/contentassets/8ae25a7ca90845c7a5fe38e3872b34b7/national-review-pregnant-parent-workers-18032024.pdf
[4] FWA s 70.
[5] FWA s 67
[6] FWA s 84.
[7] FWA s 84.
[8] FWA s 83.
[9] FWA s 65(1B).
[10] FWA s 65A.
