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Pregnancy and Work: Know Your Rights

We talk to the Fair Work Ombudsman to get some advice for pregnant women in the workplace – and their partners.

Freshly painted nursery and gender-neutral decals on the walls? Check. Baby bath, cot, stroller? Check, check and check.

Most expectant mothers have many checklists to help them prepare for their baby’s arrival, yet these often don’t include a list of things to do in the workplace when they are preparing to become a parent.

Don’t Just Assume Your Rights Will Be Respected

Expectant parents often assume their rights will be respected and that their employers will happily support them in their life-changing decision to have a child. In reality, expectant and new parents need to know exactly what their rights are in the workplace so as to protect themselves from unfair or unlawful treatment.

A great way to start is to sit down with your employer and discuss what’s ahead.

For instance, all full-time and part-time employees, as well as some long-term casuals, who have 12 months’ continuous service before the date of birth or adoption of a child under 16 years, are entitled to take a minimum of 12 months’ unpaid parental leave. They also have the right to request up to 12 months’ additional leave in some circumstances.

Some parents may also be entitled to paid parental leave under a scheme at their workplace, or through the Federal Government’s Paid Parental Leave scheme.

The government-funded scheme is available to primary carers who meet a set of eligibility criteria.

Preparing For Pregnancy As An Employee

Taking these steps can help minimise confusion and ambiguity in the workplace:

  • Talk to your manager.
  • Find out exactly how much notice you need to give. It must be in writing, and the human-resources department will generally need to know at least 10 weeks before you start leave (have your medical certificate ready).
  • Structure your leave to retain as much regular income as possible. For example, if you are planning to take 12 months off work, you could take your employer-funded parental leave at half pay first, then the 18-week government-funded parental-leave pay. You might also have annual leave accrued, which you can negotiate to receive at half pay after receiving the government-leave pay. From 1 January 2013, working dads and partners (including same-sex partners) will be entitled to payments of up to two weeks at the national minimum wage.
  • Consider requesting flexible working arrangements for when you return to work, such as working part-time around childcare, or changing start or finish times to accommodate drop offs. Have a think about how your flexible arrangement could work for you and the business, then talk to your employer about how you can put it into action – it needs to work for both of you. It’s best to make your request for flexible working arrangements in writing, and employers need to respond within 21 days, also in writing, and can only refuse the request on reasonable business grounds.
  • Maintain communications while on leave. You have a right to be kept informed of decisions by your employer that will have a significant effect on the status, pay or location of your pre-parental leave position.
  • Pre-arrange a phone hook-up for two months after the baby is due and arrange a work visit with the new member of your family.

What If There Is Discrimination Because Of Pregnancy?

Discrimination on the grounds of pregnancy is the second-highest category of discrimination complaint received by the Fair Work Ombudsman. Complaints include receiving inappropriate or negative comments; missing out on training or development opportunities; missing out on opportunities for promotion; being given different duties without consultation; and receiving less-favourable reviews of work performance.

Cases of pregnancy discrimination can be obvious and clear-cut, but at other times more subtle.

It’s important you know your workplace rights so you can recognise pregnancy discrimination, which is against the law.

An employer is engaging in pregnancy discrimination if they:

  • Demote an employee because she is pregnant.
  • Reduce a pregnant employee’s employment status, such as switching an employee from permanent to casual.
  • Make an employee redundant because she is pregnant.
  • Refuse to let an employee take their parental-leave entitlements.
  • Refuse to keep an employee’s job available while they are on parental leave.
  • Permanently replace an employee who is on parental leave.
  • Demote or change the job of an employee who has returned from parental leave.
  • Do not guarantee a returning employee their job, or if that job no longer exists, a job they are qualified for, can realistically perform, and which is nearest in pay and status to their pre-parental leave role.
  • Refuse to employ or promote an employee because she is pregnant.

For example, in a recent case, the operator of a Perth childcare centre was fined $13,200 and ordered to pay $5000 compensation to an employee it pressured into resigning after she became pregnant.

In passing sentence, the judge said, “An appropriate message needs to be sent not only to the contraveners in this case, but also to employers at large, that it is unlawful to terminate a woman’s employment because she is pregnant”.

Businesses Also Benefit From Doing the Right Thing

From the point of view of productivity and long-term benefits, effective parental-leave policy and family-friendly, flexible working arrangements benefit the business as much as workers. Businesses with flexible working arrangements, including good parental-leave policies, can benefit from:

  • Lower staff turnover, therefore lower recruitment and training costs.
  • Recognition as an employer of choice.
  • Improved employee satisfaction and commitment.
  • Greater ability to attract new employees.
  • Smoother transitions for employees between work and parental leave.

Resources Available To Pregnant Women And Their Employers

Work and family best-practice guide.
Parental leave best-practice guide.

For free information and advice about workplace laws related to pregnancy, visit www.fairwork.gov.au. Employers and employees can also access free advice at the Fair Work Infoline on 13 13 94. A free interpreter service is available on 13 14 50.

Lynda McAlary-Smith is executive director of the Fair Work Ombudsman’s Education and Major Employers Branch. She is also the mother of two pre-school children and has navigated returning to work after periods of parental leave and the transition from full-time to part-time work.

Words By Lynda McAlary-Smith

Guest Contributor