Hard Labour? Pregnancy, Discrimination and Workplace Rights October 2007

Hard Labour?
Pregnancy, Discrimination and Workplace Rights
A Report to the Offi ce of the Workplace Rights Advocate
October 2007
Sara Charlesworth & Fiona Macdonald
Centre for Applied Social Research
RMIT University
prgmea.com
Hard Labour?
Pregnancy, Discrimination and Workplace Rights
A Report to the
Office of the Workplace Rights Advocate
October 2007
Sara Charlesworth & Fiona Macdonald
Centre for Applied Social Research
Acknowledgements
We would like to thank the 13 Victorian women who gave generously of their time in speaking to
us about their experiences of pregnancy-related discrimination at work. We would also like to
thank the individuals, community groups and state and federal government agencies who spoke
to us about a range of issues around pregnancy-related discrimination. Special thanks are due to
Estelle Tang for her research assistance on legislative issues. Thanks also to Gillian Whitehouse,
Marian Baird and Colin Fenwick for technical and legal advice on specific issues. Any errors,
however, are our own. We would like to particularly thank the following agencies for providing
us with access to data they collect on enquiries and complaints made to them:
The Office of the Workplace Rights Advocate
Job Watch Inc.
The Victorian Equal Opportunity and Human Rights Commission
The Human Rights and Equal Opportunity Commission
The Workplace Authority
Sara Charlesworth & Fiona Macdonald
Centre for Applied Social Research
RMIT University
Contents
ABBREVIATIONS USED ........................................................................................................ I
EXECUTIVE SUMMARY ........................................................................................................ii
1
INTRODUCTION ........................................................................................................... 1
1.1
1.2
1.3
2
PREGNANCY-RELATED DISCRIMINATION: CASE STUDIES.................................6
2.1
2.2
3
INTRODUCTION ...............................................................................................................................55
THE EXPERIENCES OF DISCRIMINATION ...................................................................................55
ACCESS TO ADVICE AND ACTIONS TAKEN ................................................................................65
KNOWLEDGE OF RIGHTS AND VIEWS OF THEIR EFFICACY ...................................................69
THE IMPACT OF DISCRIMINATION ..............................................................................................70
PREGNANCY DISCRIMINATION AND WORKCHOICES ..............................................................72
VIEWS ON WHAT IS NEEDED .......................................................................................................74
WHERE TO FROM HERE? .......................................................................................... 78
6.1
6.2
6.3
6.4
7
INTRODUCTION ...............................................................................................................................37
PREVALENCE OF PREGNANCY-RELATED DISCRIMINATION ..................................................38
PREGNANCY-RELATED ENQUIRIES ............................................................................................40
PREGNANCY-RELATED COMPLAINTS UNDER THE SDA AND EOA ..................................... 50
EXPERIENCES OF PREGNANCY-RELATED DISCRIMINATION ........................ 55
5.1
5.2
5.3
5.4
5.5
5.6
5.7
6
INTERNATIONAL STANDARDS ......................................................................................................21
ANTI-DISCRIMINATION LAW ........................................................................................................23
INDUSTRIAL RELATIONS LAW ......................................................................................................25
RIGHTS AND LEGAL PROTECTION ..............................................................................................34
PREGNANCY-RELATED DISCRIMINATION AT WORK: AVAILABLE DATA ..... 37
4.1
4.2
4.3
4.4
5
INTRODUCTION .................................................................................................................................6
CASE STUDIES.................................................................................................................................... 7
LEGAL FRAMEWORK .................................................................................................. 21
3.1
3.2
3.3
3.4
4
PREGNANCY-RELATED DISCRIMINATION ................................................................................... 1
BACKGROUND ...................................................................................................................................2
METHODOLOGY ...............................................................................................................................2
INTRODUCTION ...............................................................................................................................78
DATA COLLECTION, DISSEMINATION AND MONITORING .................................................... 79
WORKPLACE RIGHTS .....................................................................................................................80
INFORMATION FOR EMPLOYERS AND EMPLOYEES ................................................................. 82
REFERENCES ............................................................................................................... 84
APPENDIX 1: WORKPLACE RIGHTS INFORMATION LINE DATA ........................... 87
APPENDIX 2
JOB WATCH TELEPHONE SERVICE DATA ........................................ 95
APPENDIX 3
VEOHRC ENQUIRY AND COMPLAINT DATA ...................................105
APPENDIX 4
HREOC ENQUIRY AND COMPLAINT DATA .....................................113
APPENDIX 5
WORKPLACE AUTHORITY INFOLINE DATA .....................................120
Abbreviations Used
Abbreviation
ABA
ABS
ACTU
AFPC standard
AIRC
APCS
ANZSIC
ASU
AWA
CEDAW
DEWR
EOA
EOCV
FSU
HREOC
LSAC
OWRA
SDA
SDAEA
UTAS
VCAT
VEOHRC
WIRE
WRA
WRIL
Australian Breastfeeding Association
Australian Bureau of Statistics
Australian Council of Trade Unions
Australian Fair Pay and Conditions Standard
Australian Industrial Relations Commission
Australian Pay and Classification Scales
Australian and New Zealand Standard Industrial Classification
Australian Services Union
Australian Workplace Agreement
United Nations Convention on the Elimination of All Forms of
Discrimination Against Women
Department of Employment and Workplace Relations
Equal Opportunity Act 1995 (Vic)
Equal Opportunity Commission of Victoria, now the VEOHRC
Finance Sector Union
Human Rights and Equal Opportunity Commission
Longitudinal Study of Australian Children
Office of the Workplace Rights Advocate
Sex Discrimination Act 1984 (Cth)
Shop Distributive and Allied Employees Association
Unlawful Termination Assistance Scheme
Victorian Civil and Administrative Tribunal
Victorian Equal Opportunity and Human Rights Commission,
formerly the EOCV
Women’s Referral Information Exchange
Workplace Relations Act 1996 (Cth)
Workplace Rights Information Line
i
Executive Summary
Background
In 1999, the Human Rights and Equal Opportunity Commission (HREOC) reported on
its wide-ranging national Pregnancy and Work Inquiry. While consideration of
discrimination on return to work after maternity leave was excluded from the Inquiry’s
terms of reference, the Inquiry found evidence of dismissal, demotion, inappropriate and
negative comments and stereotyping of pregnant women, reduction in hours, and less
favourable assessment of work performance. The Inquiry concluded that pregnancyrelated discrimination was a major workplace barrier for working women.
Almost a decade after the HREOC Inquiry, the ‘WorkChoices’ legislation, introduced in
March 2006, changed Australia’s industrial relations regulatory regime significantly. The
WorkChoices amendments are complex; not only in the extent and direction of the
changes made, but also in the interactive effects of different parts of the legislation.
Apart from broad changes to the way wages and conditions are determined and limits
placed on unfair dismissal protection, there have also been some small changes to the
unpaid parental leave standard and to protection against unlawful or discriminatory
dismissal in the Workplace Relations Act 1996 (Cth). Evidence to date suggests that the
effects of WorkChoices are uneven, impacting on workers differently depending on their
location in particular occupations and sectors. However, while there has been some
focus on the impact of the regulatory changes on workers’ capacity to manage their work
and family balance, little is known about how the changes in the parental leave standard
and in protection against dismissal as well as the workplace application of other broader
WorkChoices changes specifically affect or might affect women before, during and after
taking maternity leave.
HREOC has reported a recent increase in complaints related to pregnancy since
WorkChoices was introduced. The Office of the Workplace Rights Advocate (OWRA),
established in March 2006 to provide information to employees about the federal
industrial relations laws, has also noted that a consistent issue raised by callers to the
Workplace Rights Information Line it operates concerns discrimination, potential
discrimination or changes to pay and conditions for employees who are pregnant or who
have taken maternity leave. It was considered timely therefore to examine the extent to
which the WorkChoices changes affect and might affect Victorian women before, during
and after taking maternity leave.
The Research
The main aims of this study were to identify the nature of the difficulties currently
experienced by Victorian women workers before, during and after taking maternity leave;
and to identify whether, and the extent to which, the WorkChoices changes have
exacerbated or might exacerbate these difficulties. A specific analysis of the
WorkChoices regulatory changes to the unpaid parental leave standard and unlawful
termination was also undertaken to assess the adequacy of existing protections for
women workers before, during and after taking maternity leave.
ii
The focus of the Pregnancy, Discrimination and Workplace Rights project is on the real life
issues and difficulties experienced by Victorian women workers before, during and after
taking maternity leave after the WorkChoices changes were introduced. The project
draws on an analysis of the major characteristics of relevant enquiries and complaints
made to the Workplace Rights Information Line (WRIL), the Job Watch Inc. telephone
service, the Workplace Authority Infoline, the Victorian Equal Opportunity and Human
Rights Commission (VEOHRC) and HREOC. It also draws on an in-depth analysis of
the experience of 13 women, who had pregnancy-related difficulties at work or
difficulties after they returned to work from taking maternity leave, focusing particularly
on the employment outcomes for these workers. Their ‘stories’ are set out in summary
case study form and comprise section 2 of the report. Further details about the changes
they experienced, the impact these changes had on them and their views as to how
pregnancy-related discrimination could be reduced and their workplace rights advanced
are set out in section 6.
Pregnancy-related discrimination is used in this report to describe treatment at
work or by the employer that has the effect of disadvantaging women workers
who are pregnant, who are on maternity leave or who have returned to work
after maternity leave.
Legal Framework
The main legislative framework underpinning the workplace rights, including to a
discrimination-free workplace, of Victorian women who are pregnant, on maternity leave
or who have returned to work from such leave, rests on the Sex Discrimination Act 1984
(Cth) (SDA), the Equal Opportunity Act 1995 (Vic) (EOA) and the Workplace Relations Act
1996 (Cth) (WRA).
Both the SDA and the EOA make it unlawful for an employer to discriminate against an
employee on the grounds of pregnancy, breastfeeding and sex. While the SDA only
provides protection against dismissal to those with family responsibilities, the EOA
makes it unlawful to discriminate on the grounds of parental and carer status.
The broad changes introduced by WorkChoices to the WRA that governs the wages and
conditions of Victorian workers do not enhance the rights of women workers who are
pregnant, on leave or who have returned to work. Wide-ranging changes that affect all
Victorian workers include: alteration to the way in which minimum conditions of
employment, including wages, are determined; removal of the former ‘no disadvantage’
test for new Australian Workplace Agreements (AWAs), which are required to provide
only five minimum conditions under the new Australian Fair Pay and Conditions
Standard (AFPC standard); the limiting of unfair dismissal provisions to employees who
work in organisations with more than 100 employees; and limitations on the power of
the Australian Industrial Relations Commission (AIRC) to settle disputes and removal of
its power to set new minimum standards through the test case mechanism.
In respect of unpaid parental leave rights under the AFPC standard, WorkChoices
introduced a number of important changes. The standard extends coverage to on-going
casual employees and provides for a transfer to a safe job or paid leave where a pregnant
employee is unable to continue in her position. However, it excludes the AIRC Family
iii
Provisions test case standard, weakens the return to work provisions and increases
documentation requirements and the risk for employees not meeting these requirements.
Importantly, there are no mechanisms in the WRA for improving the parental leave
standard, such as including antenatal leave, other than legislative amendment. To date,
the only legislative amendments made since the introduction of WorkChoices have
weakened the rights of employees under the parental leave standard by limiting paid
leave to the basic rate of pay where it is not possible to transfer an employee to a safe job
and introducing a right for employers to require a medical certificate from employees
who continue to work beyond six weeks of their due date of confinement. With the
limiting of the AIRC’s powers to resolve disputes, there are also limited practical rights
of redress where an employer breaches the AFPC parental leave standard.
As was the case prior to WorkChoices, terminating an employee’s employment because
of pregnancy or family responsibilities is unlawful under the WRA, SDA and the EOC.
However, under the WRA there are some differences both in eligibility to pursue
unlawful termination and the remedies that can be pursued. The qualifying period for
employees has been extended to six months’ employment or more and any orders for
compensation that may be made by the Federal Court or Federal Magistrates Court are
restricted in terms of quantum. An award for shock, distress or humiliation caused by the
unlawful termination is now expressly prohibited.
Prior to WorkChoices, the AIRC conciliated many claims of unlawful termination as part
of unfair dismissal matters. At a practical level, this provided a quick, low cost avenue for
the settlement of a dispute about the dismissal of a pregnant employee or about the
return to work ‘guarantee’. This option is now effectively cut off for those employees
who can no longer access the unfair dismissal jurisdiction because they work for
organisations where there are 100 or fewer employees. An alternative remedy where a
woman is dismissed because of pregnancy or family responsibilities is to lodge a formal
complaint under the SDA or EOA. However, the alternative remedies via antidiscrimination law are generally seen as much slower and less effective in the case of
termination of employment than the pre-WorkChoices unfair dismissal, grievance and
dispute procedures.
Finally, while one of the principal objects of the WRA remains to help prevent and
eliminate discrimination on a range of bases, including pregnancy and family
responsibilities, there is no mechanism in the legislation to ensure that these obligations
are met, including in respect of the content of AWAs. Nor is information in respect of
how these obligations are being met published or otherwise placed in the public domain.
iv
Extent and Nature of Pregnancy-Related Discrimination
In 1999, the HREOC Pregnancy and Work Inquiry identified a clear and urgent need for
statistical information on pregnancy and maternity issues in the workplace. Such data,
however, remain scarce and there has been no comprehensive analysis since the 1999
HREOC Inquiry of either the prevalence or nature of pregnancy-related discrimination
in Australia.
Prevalence of pregnancy-related discrimination
Two national surveys, the Australian Bureau of Statistics (ABS) 2005 survey Pregnancy and
Employment Transitions, Australia and the 2005 Parental Leave in Australia Survey conducted
by the University of Queensland, provide some aggregate indication of difficulties
experienced by women during pregnancy and of changes in hours and employment
status post maternity leave. The ABS survey indicated that 22 percent of Australian
women who had children aged under two and who had worked in a job while pregnant
had experienced difficulties in the workplace when they were pregnant. The main
difficulties reported included: 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 account
of work performance. Drawing on comparable Victorian labour force survey data, ABS
estimates suggest that in 2005, some 16,280 Victorian women who had children aged
under two and who had worked in a job while pregnant had experienced difficulties in
the workplace while pregnant.
The Parental Leave in Australia Survey indicates that, of women who were employed in the
12 months prior to the birth of their child, took leave and returned to work within 15
months, around a third changed jobs or employers. There was also an increase in the
proportion of women on casual contracts after the birth of their child. The survey does
not indicate whether those who changed jobs did so willingly, whether the new jobs were
at the same level or paid the same. Nor does the survey indicate whether the transfer to
casual contracts was something freely agreed to or not by the mothers who moved from
permanent to casual status.
Types of pregnancy-related discrimination enquiries and
complaints
Disaggregated enquiry data were made available for this project by WRIL, Job Watch,
the VEOHRC and the Workplace Infoline for the period 30 April 2006 to 30 April 2007.
In this period the following enquiries were made by Victorian workers in relation to
pregnancy or maternity-related issues and difficulties in the workplace:
107 Victorian women contacted the WRIL service;
440 Victorian women contacted the Job Watch telephone service;
425 Victorian individuals contacted VEOHRC;
149 enquiries from Victorian employees were received by HREOC; and
657 enquiries by Victorian employees were made to the Workplace Infoline.
Where the enquiry data allow comparisons to be made, it is clear that those who make
enquiries about pregnancy-related issues and difficulties are more likely to be permanent
employees, work full-time, work in larger workplaces and be managers and
v
administrators than is the case for either Victorian women workers generally or for those
in the childbearing age group of 25–44 years.
Where the stage in the motherhood journey could be identified, issues and difficulties
that arose when callers were pregnant represented the largest group of enquiries made.
Some of these enquiries were general queries about workplace rights in respect of
parental leave; the duties of an employer to accommodate pregnant women, including in
respect of light duties; whether the callers were entitled to keep their permanent status;
and queries about employers no longer providing paid maternity leave. Apart from such
queries, the main difficulties raised by callers included:
discrimination and harassment, including derogatory remarks being made about
the callers’ pregnancy, not being allowed to take time off when ill or to attend
antenatal appointments, being disciplined for taking sick leave, having roster
requests refused, not being allowed to take breaks, and not being promoted;
occupational health and safety issues regarding the extent to which a pregnant
woman can be accommodated, either because the employer is concerned about
what a pregnant woman may or may not be able to do, or when a pregnant
woman may experience complications or illness in relation to her pregnancy;
loss of job, where a caller had been dismissed, made redundant or where a
contract was not renewed either after she had advised her employer she was
pregnant or before she went on leave; and
being made casual or having hours reduced.
Issues and difficulties that arose when callers were on paid or unpaid maternity leave
formed the next largest group of enquiries and included those about:
negotiating a return to work, where callers said they had been advised by their
employers that they would not be allowed to return to work on a part-time basis,
their return to work would in a different role, that their return to work would be
to a job of lower status and pay or to a lower status job for the same pay, that
they would only be allowed to return part-time if they became casual, a
contractor or accepted fewer hours than they had requested or agreed to be
relocated to another site; and
loss of job, where callers said they found out they had no job to go back to or
were made redundant while on leave. In all cases these women were permanent
employees.
Issues and difficulties that arose when callers returned to work after maternity leave
included those about:
conditions and status on return to work, including problems of being refused
part-time hours, being made casual, having hours reduced, being returned to a
lesser role rather than being given their job back, working part-time with full-time
work targets and the lack of accommodation of breastfeeding or child care
arrangements; and
loss of job, where callers lost their jobs on their return, were dismissed, made
redundant or resigned.
In the period 30 April to 30 April 2007, there were a total of 79 relevant complaints
lodged by Victorian women in the area of employment on the grounds of sex and or
vi
family responsibilities under the SDA or on the grounds of pregnancy or parental status
under the EOC. Of the complainants who claimed discrimination that had occurred
when the complainant was pregnant, the main issues raised were dismissal and
redundancy, change in hours or status, being made casual; being treated less favourably,
and being denied employment. Of those whose complaint alleged discrimination that
had occurred while complainants were on maternity leave, the main events raised were
refusal of part-time work on return to work, dismissal, redundancy or having no job to
return to and being treated less favourably, such as being returned to a lesser job in
status or pay or in respect of promotion. Of those whose complaint alleged
discrimination that had occurred while complainants returned to work after maternity
leave, the main events raised were being made casual, being demoted, dismissal, being
treated less favourably, being discriminated against in respect of being returned to a
lesser job in status or pay than that held before and not being given enough hours.
The Experience of Pregnancy-Related Discrimination
The 13 women interviewed experienced a wide range of discrimination. They and the
other individuals and agencies interviewed reported such discrimination included:
loss of job through dismissal, redundancy or ‘having no job to return to’;
having employment status or hours changed;
other downgrading of employment conditions including loss of status, lack of
access to promotion, change of work location, and being allocated less-skilled
work;
employer refusal to accommodate pregnancy;
flexible or part-time work not given due consideration;
agreed part-time work arrangements not adhered to or made difficult;
no provision for breastfeeding;
work organisation, performance and rewards systems that disadvantage pregnant
women and women who return to work after maternity leave; and
other discriminatory treatment in the workplace including being excluded from
activities such as staff meetings or strategic planning, not being valued because of
working part-time and being subjected to degrading comments.
Access to advice and actions taken
The women we interviewed sought advice from a wide variety of sources. However, the
process of getting the information and trying to understand their rights and options in
the different human rights and industrial systems was a complicated, time-consuming
and often confusing one for many of the women. While most women were very thankful
for the initial information and assistance they received, a few women felt some
frustration that they were able to get information only rather than advice on the best
course of action in their specific case. Others were disappointed with what they learned
about their rights. In particular, women who were trying to return from maternity leave
on reduced hours were disheartened when they were told their employers only had to
return them to full-time employment. Several women were also disappointed to hear that
there seemed to be little that could be done to address the very clear discrimination they
had experienced. Two women decided to take no action as they feared this might
provoke some kind of retribution from their employer.
vii
The impact of discrimination
The pregnancy-related discrimination experienced by the 13 women had a direct and
negative impact on:
future employment options;
wellbeing;
financial resources; and
employment outcomes. Twelve of the 13 women we interviewed were employed
on a permanent basis prior to becoming pregnant. Of these 12 women, only one
is still a permanent employee with the same employer.
Pregnancy-related discrimination and WorkChoices
A number of the women interviewed believed the changed industrial relations
arrangements under WorkChoices played a part in either the treatment they experienced
or in the avenues through which they could seek a remedy. HREOC and one industrial
advocate interviewed identified an increase in the level of pregnancy-related complaints
since the introduction of WorkChoices. However, feedback from other enquiry and
complaint handling agencies and industrial advocates suggests that the sort of pregnancyrelated discrimination reported is more long-standing. They suggest that there has been a
growing employer perception over time that employers have the right to make decisions
based on their assessment of their operational requirements, notwithstanding the
workplace rights embedded in WRA and award parental leave provisions and in antidiscrimination law. In the view of several of those interviewed, this trend has accelerated
somewhat after the introduction of WorkChoices.
The interviews with the women and much of the enquiry and complaint data suggest that
many employers are breaching the current AFPC standard. While due in part to limited
knowledge both of employers and of employees about the guarantees in the standard, the
workplace rights of women are undermined by the limited practical rights of redress
available where the standard is breached. The changed industrial relations environment is
perceived by a number of agencies as likely to disadvantage pregnant women, those who
are on maternity leave and those who return to work. In particular, government
advertising when WorkChoices was introduced was seen as giving employers an
indication that they would have a lot more control over their employees in those
relationships. This worked, despite the presence of anti-discrimination provisions in the
WRA, the SDA and the EOC, to reinforce the rationale of operational reasons in sacking
or demoting pregnant women, not allowing them to return to their old job, restructuring
that individual job or making it redundant and refusing requests to work part-time. This
change in climate is also seen as discouraging women who are working for employers
with 100 or fewer employees from making a complaint, as they fear the consequences of
doing so both for their current and future employment.
Views on what is needed
We asked the 13 women we interviewed and the individuals and agency representatives
what action could be taken to address pregnancy-related discrimination at work and to
provide effective avenues of redress. They identified the following:
information for pregnant women about their rights at work
information for employers and enforcement of standards
viii
formal workplace procedures or codes of practice
guaranteed return to part-time work
protection against unfair dismissal
workplace contact while on maternity leave
workplace support for breastfeeding
improved processes and access to remedies
Where To From Here?
At the workplace level, the operation of both anti-discrimination and labour law
provisions that are designed to protect working women when they are pregnant, on
maternity leave, or return to work from leave are undermined by the WorkChoices
changes. These changes, which give primacy to operational reasons over workers rights
to protection against unfair dismissal and redundancy, provide an increased space for
conflict between legal obligations under anti-discrimination law and management or
operational decisions. Indeed, the enquiries and complaint data together with the
experiences of the 13 women interviewed would suggest that even the very minimum
AFPC parental leave standard is viewed by many employers as at best an aspirational goal
to be realised only if operational requirements do not get in the way.
Pregnancy-related discrimination has very real costs for the individual women who
experience it, for their families and the economy. In particular, the loss of their
attachment to the labor market or the degradation of the conditions on which they
engage in paid work that is experienced by many women as a result of their pregnancy
has profound implications for women’s careers, their earnings over the life course and
their capacity to provide for themselves in old age. The difficulty many women have in
pursuing any avenue of redress open to them at a time when they are also trying to juggle
the needs of their pregnancy and their baby makes it critical to ensure that pregnancyrelated discrimination in the workplace is prevented to the greatest extent possible.
The recommendations below address some of the key mechanisms that could work both
to reduce the extent of pregnancy-related discrimination experienced by women workers
and to provide practical avenues of redress when such discrimination takes place.
Data collection, dissemination and monitoring
We make the following recommendations:
1. That the federal government resource HREOC to conduct a national survey to
establish the incidence and nature of pregnancy-related discrimination in employment.
2. That enquiry and complaint handling agencies be required by both the federal and
Victorian governments to develop a consistent data collection template for work-related
enquiries and complaints received. That this template include, as a minimum, data on
sex, age, industry, occupation and employment status. Further, that these data be
published and that these agencies meet on an annual basis to identify trends, particularly
in respect of pregnancy-related discrimination, and to facilitate the coordination of
responses including research and monitoring plans.
ix
3. That HREOC recommence regular updating of its Conciliation Register of deidentified complaint summaries and publish these on the HREOC website.
4. That VEOHRC provide de-identified summaries of conciliated complaints and
publish these on the VEOHRC website.
Workplace rights
Improving the AFPC Parental Leave Standard
We make the following recommendation:
5. That the federal government amend the Workplace Relations Act 1996 (Cth) to ensure:
•
•
•
•
Employees have a guaranteed right of return to work to the same position or, if it no
longer exists, to a position of as near as possible similar status and remuneration.
The standard explicitly provides for antenatal leave and breastfeeding and lactation
breaks on return to work.
The standard incorporates the provisions of the 2005 AIRC Family Provisions Test
Case Decision.
That when women advise of their pregnancy, employers should be obliged to give
information setting out their rights and obligations in respect of pregnancy, including
the right to transfer to a safe job or paid leave where necessary, parental leave and
the right to return to the same job. Failure to provide such information constitutes a
breach of the standard.
x
•
•
Critical aspects of the AFPC parental leave standard, including the right to transfer to
a safe job or paid leave where necessary, parental leave and the right to return to the
same job and the return to work guarantee, are included in the AFPC standard
inserted into AWAs.
The AIRC test case mechanism is reinstated to consider other improvements to the
standard over time.
Job security
We make the following recommendation:
6. That the federal government reinstate the right to take unfair dismissal action for all
employees, regardless of size of business or operational requirements.
Anti-discrimination legislation
We make the following recommendations:
7. That the federal government seriously consider amending the Sex Discrimination Act
1984 (Cth) to:
•
•
•
extend the protection under the Act against dismissal on the grounds family
responsibilities to all forms of discrimination on this ground;
provide enforceable standards in relation to all forms of pregnancy-related
discrimination as recommended by HREOC in 1999; and
provide for the fast-tracked resolution of complaints that involve dismissal.
8. That the Victorian government seriously consider amending the Equal Opportunity Act
1995 (Vic) to:
•
•
provide for enforceable standards in relation to all forms of pregnancy-related
discrimination; and
provide for the fast-tracked resolution of complaints that involve dismissal.
Compliance and redress
We make the following recommendations:
xi
9. That the federal government:
•
•
•
require the Workplace Ombudsman to conduct an education and compliance
campaign focusing on pregnancy and return to work including placing priority on
investigation and audits in this area;
resource the Workplace Ombudsman to enable timely investigation and prosecution
where the AFPC standard is breached; and
establish a Small Business Advocate to assist small businesses to comply with the
AFPC standard and with anti-discrimination legislative protection of the rights of
pregnant women, women on maternity leave and women who return to work after
such leave.
10. That the federal government ensure the provision of specialist advice through its
Workplace Infoline in relation to the options for redress where issues of breaches of the
AFPC conditions standard and pregnancy-related discrimination are raised, in order to
address the lack of understanding of such options among employees and employers.
Information for employers and employees
We make the following recommendations:
11. That the federal government:
•
•
resource HREOC to update its 2001 Pregnancy Guidelines and undertake a renewed
information campaign around pregnancy-related discrimination using a wide variety
of media; and
ensure these guidelines be made available on the Government’s Workplace website
as well as the separate websites of the Employment Ombudsman and the Workplace
Authority.
12. That the Victorian government:
•
•
investigate the publication by WorkSafe Victoria of guidelines for managing and
accommodating pregnant and lactating mothers in the workplace, adapting the
guidelines published by NSW Work Cover and HREOC for Victorian employers,
and ensure that these guidelines be made available on websites of the OWRA, Job
Watch and the VEOHRC; and
resource the VEOHRC, Job Watch and the Office of the Workplace Rights
Advocate to jointly develop an information pack on pregnancy discrimination and
workplace rights available on their websites and for distribution to employees and
employers, including through the Victorian Chamber of Commerce and Industry and
the Victorian Trades Hall Council as well as individual employer associations and
unions, and ensure that plain language information sheets for employees regarding
pregnancy and workplace rights be developed and disseminated in the ‘bounty bags’
women typically receive when they make antenatal visits to hospitals or obstetricians,
and through the Australian Breastfeeding Association and infant welfare centres.
xii
1
Introduction
The main aims of the Pregnancy, Discrimination and Workplace Rights research project were
to:
identify the nature and extent of the WorkChoices regulatory changes that might
impact, directly or indirectly, on women before, during and after taking maternity
leave and the adequacy of existing protections for workers in these
circumstances;
identify the nature of the difficulties currently experienced by Victorian women
workers before, during and after taking maternity leave; and
identify whether, and the extent to which, the WorkChoices changes have
exacerbated or might exacerbate the difficulties experienced by many women
workers when pregnant, when they are on maternity leave or when they return to
work.
Known as ‘WorkChoices’, amendments to the Workplace Relations Act 1996 (Cth), which
came into force in March 2006, alter the way in which minimum conditions of
employment, including wages, are determined. The WorkChoices legislative amendments
are complex, not only in the extent and direction of the changes made, but also in the
interactive effects of diverse parts of the regulation that affect workers differently
depending on their location in particular occupations and sectors (Peetz 2007; Elton et al
2007; Charlesworth & Macdonald 2007). There have been some small changes to the
unpaid parental leave standard in the Workplace Relations Act 1996 (Cth). Further, the
provisions that prohibit the unlawful dismissal of women on the grounds of pregnancy
and family responsibilities now only cover women employed for six months or longer by
their employer rather than those employed for three months or more as was the case
before the introduction of WorkChoices. To date, however, little is known about how
these and other broader changes introduced through the WorkChoices amendments
specifically affect or might affect women before, during and after taking maternity leave.
The focus of the Pregnancy, Discrimination and Workplace Rights project is on the real life
difficulties experienced by Victorian women workers before, during and after taking
maternity leave after the WorkChoices changes were introduced. It draws on an analysis
of the major characteristics of relevant enquiries and complaints made to the Workplace
Rights Information Line (WRIL), the Job Watch Inc telephone service, the Workplace
Authority Infoline, the Victorian Equal Opportunity and Human Rights Commission
(VEOHRC) and the Human Rights and Equal Opportunity Commission (HREOC). It
also draws on an in-depth analysis of the experience of 13 women, who had pregnancyrelated difficulties at work or difficulties after they returned to work from taking
maternity leave, focusing particularly on the employment outcomes for these workers.
1.1
Pregnancy-Related Discrimination
What we mean by pregnancy-related discrimination? Both direct and indirect
discrimination have specific definitions under federal and state anti-discrimination and
employment legislation. In this report, however, we use a broad definition of pregnancy
discrimination to denote treatment that has the effect of disadvantaging women workers
1
who are pregnant, who are on maternity leave or who have returned to work after
maternity leave.
Pregnancy-related discrimination is treatment at work or by the employer that has
the effect of disadvantaging women workers who are pregnant, who are on
maternity leave or who have returned to work after maternity leave.
1.2
Background
The Office of the Workplace Rights Advocate (OWRA) was established by the Workplace
Rights Advocate Act 2005 (Cth). The Office operates the Workplace Rights Information
Line (WRIL) which deals with telephone enquiries from callers who have various
employment related issues. Consistently, one of the issues raised by callers to the WRIL
concerns discrimination, potential discrimination or changes to pay and conditions for
employees who are pregnant or who have taken maternity leave.
Two national surveys, the Australian Bureau of Statistics (ABS) 2005 survey Pregnancy and
Employment Transitions, Australia, released in October 2006 and the Parental Leave Australia
Survey conducted by the University of Queensland in May 2005, provide some aggregate
indication of difficulties experienced during pregnancy in relation to paid work. The
Parental Leave Australia Survey also provides aggregate data on changes in hours and
employment status after maternity leave. However, there are no available data in either
survey on the extent to which such changes were mutually agreed, nor on other possible
issues of discrimination before or after maternity leave. Moreover, both were conducted
before the introduction of the significant WorkChoices changes to the federal Workplace
Relations Act 1996, changes that impact directly on Victorian women workers.
Given the recent calls to the WRIL and the recent increase in pregnancy and other
related complaints reported by the Human Rights and Equal Opportunity Commission
(HREOC) (von Doussa 2007), it is timely to consider the extent to which the recent
changes in national employment regulation affect Victorian women. A better
understanding of the impact of these changes on women before, during and after taking
maternity leave would not only be useful to identify the sorts of changes that might be
made to the WorkChoices legislation to protect the rights of such workers in these
circumstances, but would also enhance the Victorian government’s own legislative and
policy responses to protect Victorian workers. It was on this basis that the OWRA
contracted RMIT University to undertake the Project, which was carried out between
April and August 2007.
1.3
Methodology
Ethics clearance for the Project was given by the RMIT University Design and Social
Context Portfolio Human Ethics Research Committee. As part of meeting the
requirements of this ethics approval, pseudonyms are used for the 13 women interviewed
and any data that may identify them have been removed from this report. All participants
gave their informed consent in writing. Further, only de-identified data were accessed
from the Workplace Rights Information Line, the Job Watch telephone service,
HREOC, VEOHRC and the federal Workplace Authority’s Workplace Infoline (formally
2
the WorkChoices Information line). Where the issues raised by callers to the WRIL and
Job Watch services are highlighted in boxes, pseudonyms have been allocated to the
callers.
1.3.1 Analysis of legal protections
The first stage of the project involved an analysis of current protections for employment
rights of women before, during and after maternity leave. This analysis took into
account:
the specific rights this group of women have under both Victorian and federal
anti-discrimination law in the area of employment; and
the employment rights this group of women have under the Workplace Relations
Act 1996 (Cth), including the key features of the WorkChoices changes that
might impact on the employment rights of women before, during and after
maternity leave.
1.3.2 Agency consultation
Discussions were undertaken with representatives of relevant enquiry and complaint
handling bodies and others working in the field to identify informed views on:
the range and nature of issues and difficulties raised by women before, during
and after maternity leave; and
any changes in the nature or extent of pregnancy-related claims or enquiries made
by Victorian workers before and after the introduction of the WorkChoices
changes.
Several industrial advocates and solicitors working in the area were contacted to discuss
issues around pregnancy-related discrimination. The following organisations were also
invited:
Victorian Office of the Workplace Rights Advocate (OWRA)
Job Watch Inc.
Women’s Referral Information Exchange (WIRE)
Victorian Equal Opportunity and Human Rights Commission (VEOHRC)
Human Rights and Equal Opportunity Commission (HREOC)
Australian Breastfeeding Association (ABA)
Australian Council of Trade Unions (ACTU) Workers’ Hotline
Three unions that had made comprehensive submissions around the area of pregnancyrelated discrimination to the 1998 HREOC pregnancy Inquiry and the 2002 HREOC
maternity leave Inquiry were also contacted. These include the:
Shop Distributive and Allied Employees Association (SDAEA)
Australian Services Union (ASU)
Finance Sector Union (FSU)
1.3.3 Analysis of enquiry and complaint data
3
All the relevant organisations that collect data on enquiries or complaints made by
pregnant Victorian women workers and women who are on, or who have just returned
from, maternity leave were contacted and asked to provide de-identified data on the
women who contacted them to make enquiries and complaints and the issues that they
raised.
The most comprehensive sets of data were provided by OWRA from its WRIL service
and Job Watch from its telephone service data (see Appendices 1 & 2). Both services use
an identical data collection protocol. WRIL and Job Watch data were for the period 30
April 2006 to 30 April 2007 on:
the main socio-demographic and employment characteristics of callers, including
age, employment status, occupation, industry of employment and tenure; and
the key characteristics of the issues raised and a brief summary description of the
call.
Both the VEOHRC and HREOC provided data for the same period in relation to
relevant formal complaints lodged with these bodies (see Appendices 3 & 4). The data
provided included the industry of complaint, the grounds of complaint and a brief
summary of the initial event or events complained about. The VEOHRC provided data
on the grounds raised in enquiries made in the relevant period, while HREOC provided
an aggregate figure for pregnancy-related enquiries.
The federal Workplace Authority provided aggregate enquiry data from the Workplace
Infoline (formally the WorkChoices Infoline) (see Appendix 5).
Drafts of the initial analysis of the de-identified data provided by the OWRA, Job Watch,
VEOHRC and HREOC and used in this report were sent back to each of the relevant
agencies to ensure the interpretation of the data was accurate.
In addition, the Victorian branch of the Australian Breastfeeding Association (ABA)
arranged for the completion of a small survey by five of its Victorian telephone
counsellors and the input via a small survey by several members of ABA mothers’
groups.
1.3.4 In-depth interviews
Based on the analysis of data, an in-depth qualitative assessment of the type and
consequences of pregnancy-related discrimination experienced by Victorian women
workers was undertaken. Thirteen women who had experienced difficulties before,
during and after taking maternity leave were interviewed and asked to provide in-depth
information about the workplace difficulties they had experienced as well as the shortterm and long-term impact of these experiences.
The women were referred to the researchers through a number of means. Nine of them
were identified by the OWRA from callers to the WRIL service. To comply with ethics
protocols and Victorian privacy legislation, they were provided with information about
the project and asked if they would be prepared to participate in the interviews. One of
these women referred a tenth woman to the researchers. Two other women had
previously contacted the researchers in response to publicity about an earlier workplace
research project and had agreed to be contacted to participate in the current project. The
4
thirteenth woman contacted the researchers after reading an article about the research in
a WIRE (Women’s Information and Referral Exchange) newsletter.
The interviews took place between July and August 2007. They were of 45 minutes to
two hours duration and, with one exception, were undertaken face to face – in
interviewees’ homes, at RMIT University, or in another preferred place. One interview
was undertaken via telephone. The interviews were designed to focus on the range of
issues experienced by women when pregnant, when on leave and when they returned to
work. A semi-structured interview schedule was used, which included a number of openended questions to ensure that the interviewees could expand on their particular
experiences, perceptions and expectations in the workplace. Interviews were audiorecorded with the permission of the interviewees and were later transcribed. Each
transcribed interview was then analysed and key themes identified. This interview
material is used in the following section and in section 4.
5
2
Pregnancy-Related Discrimination: Case Studies
2.1
Introduction
The lived experience of pregnancy-related discrimination is well illustrated in the indepth interviews undertaken with 13 women for this project. Summaries of those
experiences are set out in this section. These individual case studies highlight a range of
workplace difficulties faced by many women workers when they are pregnant, when they
are on leave and when they return to work after leave. The experiences of the 13 women
and the ripple effects of these experiences on future employment, working conditions,
wellbeing and finances also contribute to the analysis of pregnancy-related discrimination
in section 4.
The key socio-demographic and employment characteristics of the 13 interviewees are
set out in Table 1.
The 13 women were aged from 23 to 38 years at the time of interviews. Most of the
women lived in couple households and most were pregnant or returning to work after
their first child. The women’s occupations included sales/warehouse assistant, call centre
worker, waiter, finance officer, administrative worker, office manager, centre manager,
hospitality manager, sales manager, marketing coordinator, senior policy officer, and
designer. One woman was employed in the public sector, another in a community sector
organisation and the others were employed in the private sector.
The organisations the women worked for ranged in size from six to several thousand
employees. The women’s length of employment with their employer ranged from one
year or less to 10 years. One woman was not employed but was applying for casual work
when she experienced pregnancy-related discrimination. The other twelve women were
employed on a permanent basis prior to experiencing problems at work.
Table 1: Selected Socio-Demographic and Employment Characteristics of
Interviewees
Characteristics
Age
Household type
Sole parent
Couple
Children
1st child
Has other children
Occupation
Sales/customer service
Administrative
Professional
Manager
18–24
25–29
30–34
35–39
1
2
6
4
Total
13
6
4
2
11
5
1
2
2
10
3
1
1
3
1
1
2
1
3
3
3
4
2
1
6
1
2
1
1
1
Table 1: Selected Socio-Demographic and Employment Characteristics of
Interviewees (continued)
18–24
Characteristics
Industry
Health & community services
Construction
Property & business services
Wholesale trade
Hospitality
Government administration
Manufacturing
Employer size
Not applicable
20 or fewer employees
21 to 100 employees
More than 100 employees
Employment type
Permanent
Casual
Length of tenure
Not applicable
Up to one year
2 to up to 5 years
5 to up to 10 years
10 yrs or longer
2.2
25–29
30–34
35–39
2
1
1
1
1
1
2
1
1
1
1
1
1
1
1
1
1
1
1
3
2
1
2
1
1
6
4
1
1
4
1
1
1
2
1
Total
3
2
2
2
2
1
1
1
5
4
3
12
1
1
3
6
2
1
Case Studies
The following case studies outline the nature of the pregnancy-related discrimination
experienced by the 13 women interviewed, the consequences of that experience and any
action the women took in response. Pseudonyms are used for the interviewees as
follows:
Elena
Georgia
Claire
Alison
Cassie
Shelley
Sophie
Lisa
Janine
Jessica
Trudy
Kate
Marita
7
Elena
Elena was pregnant when she was offered a job by one of several companies she had
been providing specialist advice to as part of a service for which her employer was
contracted. She was happy to make the move and signed a contract with the small
construction firm to work full-time up until the birth of her baby, to take unpaid
maternity leave and to return to work on a part-time basis working three days a week.
Elena’s plan had been to leave work two weeks prior to her baby’s birth. However, this
did not work out as her doctor told her she would need to have an emergency caesarean
earlier than this. Elena submitted a new leave form with a revised departure date on it to
her new manager who had just taken over from the manager who had originally
employed Elena. He refused to sign the form and told Elena he was unsure if she would
have a position when she returned from leave. Elena protested that she had an
employment contract and he responded that with the new industrial relations laws her
contract didn’t matter anymore.
Elena sought advice from a family friend who was a human resources adviser and from
an employment lawyer she knew of. The following week on her last day of work she told
her manager that if her employment was to be terminated she wanted to be paid the four
weeks’ notice specified in her contract. Her manager agreed and the payment was made.
Elena wanted a redundancy payment also. She was told she would not be paid this as the
company was a small business and under the new laws her employment could be
terminated without reason.
Elena said the only reason she did not pursue the issue further was because at the time
she felt very stressed about the problems with her pregnancy. She believed it was
discrimination and the two people from whom she had sought advice told her to lodge a
claim with the Australian Industrial Relations Commission. She understood she needed
to lodge something within 21 days, but her baby came even earlier than the planned
caesarean and she ended up with only four days to investigate her options. By the time
she was able to think about it, the 21 days had passed. Elena said:
Now I think I should have taken it further because it is not fair what they did, not for the money, just
for the principle of it. Because it is such a boys’ club like ‘ha ha, got her, don’t care’. That’s the only
reason I think I should have done something…just to stand up for the rights – not only for me but for
other women. But at the time I couldn’t do it. I didn’t have the mental strength or the emotional strength
to go through it.
Elena felt she was pretty well informed about her rights due to having worked in a
human resources position and she said, ‘but if I hadn’t, I would have had no idea’. She
thought women needed information about their rights when they became pregnant and
suggested:
Just general information would be good. You could be given a question and answer type
pamphlet…because everyone seeks medical care when they’re pregnant, so whether it’s an obstetrician or
by the hospital there should be some information that is given out.
8
Georgia
Georgia had been employed as a finance officer in a small construction business for just
over two years. She was employed on a permanent basis to work a minimum of 30 hours
a week, which she worked over four days. Georgia enjoyed her job, she liked her
colleagues and she said her employer had been helpful in assisting her to continue her
professional studies as he had paid her fees and given her flexibility with her working
hours so she could attend classes. When she went on unpaid maternity leave, Georgia
planned to return after about six months and she discussed this with her employer, who
said he was happy with that.
After she had been on leave for six months, Georgia contacted her employer to discuss
her return to work date. He didn’t reply for some time and then he called Georgia and
told her he wanted to keep things as they currently were with Georgia’s job being shared
by two people who each worked three days. He told Georgia she would have to fit in
with the current arrangements. Georgia gave some thought to this and advised her
employer she would be happy to initially return to work three days a week. Her employer
then told Georgia she couldn’t do this and she couldn’t return from maternity leave yet.
Instead she was to be ‘on stand by’.
Georgia said she was ‘disappointed and shocked all at the same time’. She knew she had
a right to return to her job and she knew her employer was aware of this as he had told
her so prior to her going on leave. Conjecturing about why her employer had done this,
Georgia said she thought he didn’t like having to depend on one person to do the job as
it was not a job he understood and he had found it difficult to fill Georgia’s role while
she was on leave. She also thought he was probably paying the two part-time women he
had employed less than he had been paying her and that he possibly thought he could
‘get away with a lot more…with these new IR laws’.
Georgia said she could not really see why he would treat her like this as she had always
worked extra unpaid overtime when it was needed, she had been a reliable worker and
had very positive feedback on her work from professionals who said she had improved
the company’s accounts and saved her employer money. She said, ‘You’ve been too loyal;
what do you get in return?’
After being contacted by Georgia, staff at the Office of the Workplace Rights Advocate
wrote to Georgia’s employer and advised him of his obligation to return Georgia to
work. At the time of the interview it had been a number of weeks after the letter had
been sent and Georgia had not had a response. She thinks her employer might be
keeping her hanging on ‘in the hope he will get away with it’.
Georgia thinks she should start looking for another job as she really needs to return to
work. She and her husband had not planned to be on one wage and cannot manage
financially for long if she is not working. However, she is not sure if she should look for
another job or if that would reduce her chances of getting her job back. She has been
advised by the Office of the Workplace Rights Advocate to lodge a claim for an unlawful
termination with the Australian Industrial Relations Commission and she is also seeking
advice from a lawyer.
9
Claire
At the time she became pregnant, Claire was a senior employee in the small professional
practice where she had worked full-time for 10 years. She planned to return to work
soon after her baby’s birth and to work part-time mainly from home. She did not
anticipate that this would be a problem as she lived close to her workplace and much of
her work was easily done from home. During her pregnancy, Claire discussed this with
her employer and he agreed that she would continue working a minimum of 10 to 15
hours a week from home. He had been relieved and happy when Claire told him that she
needed to keep working and did not really want much of a break after the birth.
Claire had only a few days’ break from work as her baby was born much earlier than
expected. As a result, her baby was in hospital for some time. Claire continued to work
on a project she was finishing up. When this was done, she asked her employer for the
next project. Her employer said that there was no work and that he had not realised she
wanted to keep working.
Claire could not believe this. It was as if their agreement had never been made. She was
shocked, angry and hurt but decided to seek advice before responding. She did not know
if her employer had always intended that she would not return to her job or whether the
company had less work than her employer had anticipated. As the senior employee in the
practice, Claire, with her employer, had recently interviewed prospective employees and
two new professionals had been employed full-time since Claire had become pregnant.
Claire called the Victorian Equal Opportunity and Human Rights Commission and the
Workplace Rights Information Line. She was informed that she only had a legal right to
go back to her full-time job, not to part-time work. She was taken aback and
disappointed to hear this. ‘I was sure that what was happening was wrong and that legally
it couldn’t have been right but when I looked into it, it was. Yeah, so that was a big
shock as well.’
As Claire felt there was nothing she could do to get her employer to let her return parttime she decided to take long service leave to keep some money coming for a few
months. Over the next year Claire and her partner made some significant changes to
their financial arrangements to adjust to having less income than they had planned for.
Twelve months after the birth of Claire’s baby, Claire’s employer offered her some
project work. She is now working from home and is paid on a casual basis. She believes
her employer gave her the project work because the client, with whom Claire had
previously worked, insisted that she be involved with the job.
Asked if she would have done anything differently knowing what she knows now, Claire
said, ‘Yeah, get it in writing.’ It would also have helped if she had ‘just generally been
more aware’. Claire said:
I had no idea about the legislation and…what you were entitled to. I guess I had no idea about my rights
and just went through it blindly, so I think that’s important, that people understand their rights and
obligations.
10
Alison
Alison had worked full-time as the coordinator of a small not-for-profit organisation for
three years when she took maternity leave to have her second child. In her job Alison
was responsible for the day-to-day running of the organisation, including supervision of
the small staff group.
Prior to going on leave she had been assured by the management committee that it
would be no problem for her to return to work part-time. After five months into her
maternity leave Alison wrote to her employers advising them she wished to return to
work after six months’ leave and she was interested in returning part-time. She met with
committee representatives and told them she would like to work four days a week. They
responded that they were not prepared for Alison to return on anything other than a fulltime basis, as this was necessary to ensure the smooth running of the organisation.
Alison could not understand why this had not been discussed before she went on leave,
at which time she had received only positive responses to the idea of her returning parttime. She asked the committee members whether there were other issues influencing
their decision and they then raised some performance issues that had come to their
attention since Alison had gone on leave. Alison responded to the issues raised and said
she would let them know about returning to work full-time.
Alison was angry and frustrated that a part-time return to work had been refused, as this
had been discussed prior to her going on leave. However, she and her husband agreed
they could manage with Alison working full-time and she notified her employers of this
decision. Their response was that the performance issues had to be discussed with the
whole committee before Alison could return to work.
Alison was aware of her right to return to work. However, she became worried about her
employer’s response after another meeting at which new performance issues were raised
while the previously raised issues were not mentioned. She also thought that maybe her
employers might be able to dismiss her without any grounds, as there were fewer than
100 employees in the organisation. She contacted her union, the Office of Workplace
Rights Advocate and the Victorian Equal Opportunity and Human Rights Commission
and her husband contacted a solicitor. At another meeting, Alison’s employers advised
her they were investigating allegations against her. They told Alison she could come back
to work on the same pay as before but to a position with less responsibility. The
allegations raised were not about serious issues that would warrant disciplinary action or
present any serious risk to the organisation. Alison told them she was not prepared to go
back to a lower-level job.
Alison engaged a solicitor who attended lengthy meetings at the request of her
employer’s solicitor. She responded in writing to all the issues raised but by this stage she
believed her employers had decided they just did not want her to return to work. Her
employers told her they wanted her to resign. Alison’s solicitor took the case through the
industrial relations system to the Magistrates’ Court, initially trying to get an injunction to
have Alison returned to work. The matter was settled at a mediation hearing where it was
agreed Alison would resign and receive six months’ pay. This payment was split into
compensation and costs and Alison received about $6,000 after tax, with $10,000 paid to
her solicitor.
11
Cassie
Cassie is in her early 20s and was employed in a very large call centre. Soon after
commencing work there, she became pregnant. She tried to get access to the company’s
leave policies as her AWA gave her little information. It stated only to see the policies
‘for more information’. But as Cassie found, this was not easy:
[I]t was really hard to find out anything to do with maternity leave. I don’t think they had many people
on maternity leave in that particular centre at least and…I got told by some people I could have a look at
it and other people that I couldn’t have a look at it at all, the policies relating to maternity leave, and
eventually I started getting a bit suss about it, all so I asked a manager and she said I could have a look
but only in a small room with a Human Resource Officer person over the top of me. I wasn’t allowed a
hard copy of the documents…and still I have not got hard copies of any policy relating to maternity leave
or parental leave.
Some weeks before she was due to go on leave, she was temporarily moved from her 30hours-a-week job to a full-time role as part of a group of employees. This was a few
weeks after the introduction of WorkChoices and Cassie was asked to sign a new AWA.
Her aunt who had experience in industrial relations told Cassie there were some
problems with the new AWA, including that the full-time hours should be 38 not 40, and
said she should not sign it. In addition, Cassie did not want to sign an AWA that
increased her working week by 10 hours, as the full-time role was supposed to be
temporary and she was due to go on maternity leave in a few weeks.
Cassie questioned the 40 hours and told her manager she did not want to sign the AWA.
She was told that she had to sign it and one manager told her to ‘stop being a pain in the
arse’. She started to feel she was being seen as a troublemaker and felt she was being
ostracised by some of the human resources (HR) staff who had previously been friendly
toward her. She said:
It was incredibly scary and I was so pregnant that, you know, the HR person told my manager that she
understood I was emotional because I was pregnant and so that was also really upsetting, that they all
thought I was causing a fuss because I was pregnant.
Cassie went on leave having appointed her aunt as her bargaining agent. A few days
before her baby was born she was contacted by a manager and told she would be
employed on the conditions of the original AWA and for 30 rather than 40 hours a week.
However, when she returned to work she would be in a different call centre and in a
different and less attractive role.
When Cassie was due to return from leave she tried to talk to the HR people about
helping her to return gradually and returning to her original work location. However,
they would not talk to her. She got a letter stating she would be returning to a 30-hour
role in the new location. Cassie’s aunt suggested she lodge a claim in the Australian
Industrial Relations Commission for a constructive dismissal in the hope they could get
some discussion about a suitable return to work. The company refused to change any of
the conditions of her return and chose instead to settle the matter with a payment to
Cassie.
12
Shelley
When Shelley had been on maternity leave for eight months she contacted her employer
to discuss options for her return to work in four months’ time. She was not sure if she
would be able to get full-time childcare when she returned to work and was thinking
about returning on a part-time basis. As her senior role in the large manufacturing firm
had involved a lot of interstate travel, she was also interested in the possibility of
returning to a role that did not have the same travel requirements. Shelley had worked
for the company for several years. She knew there was a variety of roles she had the skills
and experience for and she was flexible about the sort of work she returned to. She was
aware of other women in the workplace who had returned to part-time positions from
maternity leave.
After many conversations with the human resources department Shelley returned to
work to a part-time project-based position for three months. She was happy to take this
temporary role until something else came up. However, halfway through her threemonth contract, there was a major organisational restructure involving a large number of
redundancies. Shelley was advised that at the end of the three months she would no
longer have a job. She was further advised that, while she was eligible to apply for any
vacancies that came up, if she was unsuccessful she would not receive a redundancy
payment because she was no longer a permanent employee. Shelley had not realised that
the contract she signed when she commenced the three-month role had changed her
status from a permanent employee to a fixed term contract employee.
After more than six years with the company, Shelley left work at the end of her threemonth contract. Asked how she felt about leaving, she said:
I was just devastated. Before I went on maternity leave I had a fabulous job, which I loved, and I loved
working for (the company), and for it to end in such dramatic circumstances and horrible circumstances, it
was just like mixed emotions – upset, sad, angry, everything.
Shelley ‘made a heap of phone calls’ including to solicitors, the Workplace Rights
Information Line and the Victorian Equal Opportunity and Human Rights Commission
(VEOHRC). After speaking to numerous people, she was not sure whether she should
seek a remedy for an unfair dismissal or take up a case of parental status discrimination.
She decided to pursue a discrimination case through the VEOHRC because she only had
21 days to lodge a claim with the Australian Industrial Relations Commission (AIRC) and
because she thought she would need a lawyer if she went through the AIRC. She could
not afford this, nor could she afford the legal fees that might be payable if she was not
successful.
Six months after making her complaint, Shelley had a mediation hearing at which she was
supported by a Job Watch representative. The company settled with a payment for the
amount Shelley would have received had she been paid a redundancy payment. She said,
‘Basically I feel I was sort of successful in that respect but I still feel that…I still would love to be
working.’
13
Sophie
Sophie is in her mid-20s and has worked in the hospitality industry for several years.
When she was about four months pregnant she applied for a casual job advertised by a
large suburban hotel. Sophie met with the bar manager and she was offered the bar job
but she declined it. She thought the bar was very smoky and she told the manager she
was pregnant and did not want to work in such a smoky environment. He suggested
Sophie should meet with the bistro manager, as there was a position in the bistro.
After reading Sophie’s employment references, the manager asked her when she would
like to start work. However, after Sophie told her she was pregnant, the manager said she
was unsure they wanted to have the liability of a pregnant worker. The manager did not
want the hotel to be responsible if Sophie fell over and hurt herself and told Sophie she
would think about it. She did not contact Sophie as promised and Sophie made five or
six unsuccessful attempts to contact the manager.
At about the same time, Sophie applied for another job she saw advertised on a café
window. She got a similar response from the manager there. She was told they would not
have a pregnant worker because in the past ‘it hadn’t turned out’ with pregnant
employees. She was also told there was too much heavy lifting and that staff needed to
carry drinks up stairs. Sophie had a lot of experience working in cafés and believed ‘… it
would have been really easy to work around it; (the manager) just chose not to’.
Sophie phoned the Victorian Equal Opportunity and Human Rights Commission as she
thought perhaps some action could be taken; such as someone going to the workplace to
speak to the employers or instituting a court case against the employers. Sophie was
disappointed to hear it was often difficult to prove discrimination in situations such as
she had experienced.
Sophie was distressed at being unable to get a job and at the fact that she felt she
‘couldn’t get any help from anyone’. She said she had told prospective employers about
being pregnant because she had been sure they were not allowed to discriminate against
women on the basis of pregnancy. Financially, things were difficult and Sophie told us, ‘I
desperately needed money and I was, you know, having to pay for ultrasounds
and…blood tests and all sorts of things’.
Eventually, Sophie did get work when she was almost seven months pregnant. As she
was quite small and her pregnancy was not very obvious she tried to hide it when she
applied for the job. She wore baggy clothes and ‘put bandaids over (my belly button), like
sucked my gut in and held my bag across the front of me and pretended I wasn’t
pregnant’. She had hoped to get a waiting job but found she was working in a smoky bar
on shifts finishing at 3 am. After a couple of shifts, she told her employer she was
pregnant and her employer re-organised her shifts to accommodate her. Sophie worked
in this job and then in another café up until she had her baby. She said:
Well, I suppose the outcome was that instead of working in a café I ended up having to get a job in a
smoky bar, telling them that I wasn’t pregnant, and lifting like heavy cases of beer and walking around
clearing glasses at 2 am in a pub full of people, yeah, when I could have been just doing a nice sort of café
kind of job, which would have been more suited.
14
Lisa
Lisa had been a permanent employee in an import and wholesale business for over two
years when she became pregnant. After some problems early in her pregnancy, during
which time she took sick leave from work, Lisa sought to have her duties changed to
reduce the amount of heavy lifting she did in her job. Her immediate manager, Michael,
suggested she could do some work in the office rather than in her usual role on the floor.
Lisa thought this was a good solution. She had worked in a variety of different roles in
the business, she had some experience in general office functions and knew she could do
the work.
However, the company owner did not agree to Lisa doing some work in the office and
said that she was going to advertise Lisa’s job. The owner said she was extremely worried
that the company would be responsible if something happened to Lisa at work and she
wanted Lisa out of the place as soon as possible. She said she did not want to change
Lisa’s duties, that she believed it was not good for the business to have a pregnant
woman and that Lisa should do what was best for her baby, which would be not to work.
She told Lisa she should resign. Lisa said:
(My employer) said that to work in the office I’d need retraining and she said that was a complete waste
of time. She also said she didn’t want me sitting around with my feet up while I was pregnant because
that would set a bad example to the other people that work there…I was told that ‘well your appearance
and the way that you walk has already changed and as you get bigger and your pregnancy
continues–basically we don’t want a big pregnant woman walking around the workplace’.
Lisa then discovered that her job had been advertised and realised her employer was
going to terminate her employment. She did not think this was legal but was not sure
given the recent workplace industrial relations changes. She sought advice from the
Office of the Workplace Rights Advocate and subsequently obtained a medical certificate
advising she was fit to continue to work. She gave this to her employer along with a letter
stating that she planned to take maternity leave. Her employer continued to try and
replace Lisa who was feeling pressured to leave her employment. A new employee was
recruited to the role but was not told it was a maternity leave replacement position. Lisa
says she was ‘allowed’ to work for a couple of weeks after her replacement started. Lisa
left work 10 weeks before her baby was due, which was some weeks earlier than she had
planned.
In her two years with the company Lisa had been happy in her workplace. However, for
a long time, she had felt that her employer did not value her highly as an employee
because she had family responsibilities. She said on one occasion her employer had told
her that another woman was an asset to the company because she did not have any
family.
Lisa plans to seek advice before she contacts her employer about returning to work from
maternity leave. Her employer has already said to her that if she comes back they may be
able to offer her one or two days’ work.
15
Janine
Janine’s manager was very keen to have her back at work from maternity leave,
particularly as another employee who had only recently been recruited to do the same
work had not stayed. Janine was not ready to return when she was asked to after she had
been on 8 months’ unpaid maternity leave. However, she agreed to come back after 10
months. Before she returned, another permanent full-time employee was also appointed
to work in the small specialist department of the company.
Prior to her return, Janine met with her manager and told him she wanted to work three
days a week with one of these days working from home. She had undertaken work for
the company on a contract basis from home while she was on maternity leave and she
knew that this arrangement worked well and that her manager had been happy with it.
However, her manager would not agree to her working at home. Janine did not think she
could get childcare for three days and she and her husband agreed she should continue to
try to negotiate to work a day at home. However, when she next met with her manager
he told her she would come back to work as a contractor instead of as an employee.
Janine felt really disappointed and angry. She believed she had been loyal and helpful to
the company, as she had continued to do work for them while on maternity leave,
starting two weeks after her baby was born. Her career had always been very important
to her and she had worked really hard to establish a new department. Janine said her
employer’s treatment ‘threw my confidence a lot’ and, when asked why she thought this
was, she said, ‘Because you feel a sense of rejection, you feel rejected. You try not to take
it personally, it’s the circumstances, but it’s hard not to.’ She also said:
I just assumed that I’d be fine because I just knew they wanted me back and they liked me. Maybe they
didn’t at the end of the day; who knows? I just assumed everything would be fine…because they were so
casual and we’d been talking about my return off and on, and then came to the crunch and they wanted
me back on their terms.
After seeking advice from the Equal Opportunity and Human Rights Commission and
from Job Watch, Janine then wrote to her manager stating she wanted to be returned to
work as an employee on a permanent part-time basis. Her employer agreed to this and
Janine returned to work.
Janine believed her manager wanted her to return from leave as a contractor to save
money and to give the company a ‘way out’ if it eventuated that they could not afford
two permanent employees undertaking a function that had previously only been
performed by Janine. Since she has returned to work, her manager has referred several
times to Janine ‘probably going off and having another baby soon’. Janine believes her
manager thought that by making her a contractor he would not be obliged to provide her
with work on her return from if she took maternity leave again. When asked how things
could have been handled better for her at work, Janine said:
I just think there needs to be more structure, more set structure for businesses to go by in support of
women… The situation should have been managed better from [my manager’s] behalf in regards to
sitting down, discussing what was going to happen and perhaps a clearer date when I was required to
start back at work and on what terms. Because there was a lot of assumptions there.
16
Jessica
Jessica is not sure if she experienced discrimination on the basis of her pregnancy, which
coincided with a change of ownership in the hospitality business where she was
employed as a manager. However, she does not understand why she lost her job. Jessica
is in her late 20s and had worked her way up to the position of manager over four years,
usually working 60 to 70 hours a week in the business that she said ‘was my life’.
When the new owners took over, she continued to manage the establishment and also
trained new staff in the management functions. When she told her employer she was
pregnant her employer’s response was very positive. Over the next few weeks, however,
Jessica found many of her management responsibilities were being reduced. It became
difficult for her at work as she thought one member of the new management team did
not like her and her commitment to the business was starting to be questioned.
At several meetings, Jessica raised concerns about her diminishing responsibilities and
then her employer started to raise issues about Jessica’s performance. Jessica knew she
did her job well and thought if anything had changed it was that she was not prepared to
hang around talking about the business for hours after work as she had done in the past.
She also found it increasingly difficult to act like a manager when she was having her
responsibilities reduced. She was becoming very uncomfortable and unhappy at work.
Nothing was resolved at numerous meetings with the owners. So Jessica decided she
would just get her job done as well as she could until she went on maternity leave.
Jessica was then told she had to relocate to a new worksite and new position. She refused
saying she did not want to move to a completely different job in what was a very
different business where she would have to establish herself as manager only a few
months before she was due to go on leave. Later that week she was told she no longer
had a job. Her employer said, ‘I feel really bad about what’s happened,’ and told Jessica,
‘This is not your fault; this is circumstantial.’
Jessica called Job Watch and another advice line. She understood from the information
they gave her that it would be easier to claim a remedy for unfair dismissal than for
unlawful termination on the basis of pregnancy as the latter would be harder to prove,
although an unfair dismissal claim could only be made if her employer had more than
100 employees. Jessica was not sure if she had been discriminated against. She said all she
knew was that what had happened was wrong. She had done nothing wrong but she no
longer had her job.
It turned out that Jessica’s employers had fewer than 101 employees in their several
establishments. After an Australian Industrial Relations Commission conciliation hearing
to hear her claim of unlawful termination Jessica had mixed feelings. She felt it was
positive to have been able to voice her opinion about what had happened but she also
felt that she did not have any rights. She understood she could take the matter to court
but did not think she could risk having to pay legal fees. She knew that if she was
successful the court would only consider loss of earnings. This would not be helpful to
her as she had found another job straight away. However, now she is employed on a
casual basis with a new employer and no longer in a management role. She is finding the
work a lot harder and is on her feet for her entire shift.
17
Trudy
Trudy accepted a very senior role in a large public sector organisation on a six-month
fixed-term contract after which time the position was to be advertised as a permanent
job. Trudy had been hesitant about resigning from her permanent position elsewhere in
the same organisation to take up this role; however, she had been headhunted and
‘pushed’ to take the contract and it was in a fairly narrow specialised field.
Trudy got very positive feedback from her managers and received a pay rise on the basis
of an excellent performance review. While the selection process for the permanent
position was underway Trudy told her manager she was pregnant. Trudy’s application for
the job was not successful and an external candidate was appointed. Trudy was shocked
and, at the time, she thought it was a very odd decision. She believed she should never
have said she was pregnant:
I mean it was stupid…I don’t know what I was thinking, but I had mentioned to her when I was only
sort of twelve, fourteen weeks pregnant or something when the recruitment process was going on…and
part of it was explaining why I was in the bathroom the whole time and, you know, why I wasn’t a
hundred percent on the ball. But I just didn’t for the life of me think that it would’ve had, I was so naïve,
that it could’ve actually impacted on those decisions, and I do think in my heart of hearts…that it did.
Trudy said ‘it felt really discriminatory’ and she considered lodging an internal complaint.
She had been headhunted for the job, knew she had the skills and drive, got on well with
her managers and said, ‘I don’t know, I was the little golden girl and then I wasn’t.’
However, her initial determination to take the matter up faded quickly as she thought,
‘Who am I kidding? Like if I have a short-term win on this, I’m going to have a longterm loss.’ She said, ‘If you jump up and down in an organisation like that then it doesn’t
augur well for you in the long term.’
Trudy returned to the area where she had previously worked although she no longer had
permanent employment status. She was pleased with the flexibility and support provided
by her employer on her return from maternity leave when her baby was a few months
old. She was assisted to work part-time from home and to gradually build her hours up
and return to work in the office. However, she considered she was being given ‘very
menial work’ for someone employed at her level and knew she had been passed over for
a higher-level job, something that would have been unlikely had she been working fulltime. A manager telephoned her to let her know the role had been offered to a more
junior person. Trudy said she was told, ‘It’s really just a time thing, that she can do
fulltime and she can be in this office when we need her to be.’
Trudy was also finding there were barriers to working effectively in the long hours’
culture where she needed to have the ‘corridor conversations’ to get things done and
where ‘during the day you’re busy at meetings and being seen and you actually get the
work done after hours’. A management colleague explained to Trudy that an effective
strategy for getting rid of unwanted part-timers in a restructure was to exclude them by,
for example, scheduling meetings when they were not at work. Trudy resigned soon after
becoming aware that some of the problems she was experiencing were due to these sorts
of actions being taken to shut her out of decision-making for projects on which she was
working.
18
Kate
Kate was on maternity leave when she was approached by a specialist private health care
provider to apply for a newly created project role. She was successful and accepted the
job on a three days per week permanent part-time basis. Kate put in fairly long hours and
often worked from home on her non-work days. She often made and received work
telephone calls on these days and had a laptop computer so she could take work home.
She said she didn’t mind this and accepted the need to be flexible. She loved her job and,
after several months in the role, felt things were going really well. She said, ‘I know that
they were very happy with my quality of work. Only a couple of weeks previously [my
manager] said she could see me having quite a bright future within the organisation.’
After being asked to attend a meeting on a day she was not scheduled to work ,Kate
pointed out to her manager that this had happened several times and she was finding it
difficult and had to pay for additional childcare. Her manager responded that being
flexible was part of the deal if Kate was to work part-time, and Kate said she understood
this but felt that it had become an expectation that she would work on her non-work
days. The conversation finished with Kate agreeing to make an interstate trip on one of
her non-scheduled days in the coming week. However, Kate was unable to make the trip
due to one of her young children suffering an injury the day before, which resulted in a
late night at the hospital and a follow up appointment the next morning. When Kate next
saw her manager she apologised again and explained that she needed to stay with her
son. However, she felt her manager was ‘still quite sort of agitated’.
The next time Kate met her manager was at a regular progress meeting at which she was
told her position had been made redundant. Kate knew her manager was angry about the
day she had been unable to work and again explained that she really had not been able to.
Kate said her manager responded by saying she ‘had made her decision and there was no
point going back on it’. She told Kate she had spoken to the Chair of the Board who
‘had checked it out legally and there’s no recourse here’. Kate was to finish immediately.
Kate believes she lost her job because she questioned her manager. She said:
All the women were working part-time. We all appreciated part-time work. But it was pointed out to me
on my second or third day, ‘Beware, she’ll start scheduling meetings on the days you’re not here; you do it
once, you’ll do it twice.’ There’s one lady who has worked there for many years and she was paid for four
days but she was always in there five, but it was like a, I believe it was a tactic…she had people who
wanted to be able to balance (work and family) but she really made that work for her or work for the
wider organisation.
Kate sought legal advice and was told that her redundancy payment was equivalent to the
amount she might have received had she been able to claim unfair dismissal, which she
couldn’t have done as the organisation had only 60 employees.
She is now working full-time and says, ‘It is early days but I plan to get in there, work
really hard, make my mark, prove what I can do and then maybe discuss the part-time.’
She says her new job is quite flexible as she can do some work from home. About
working full-time Kate said, ‘Yes, it is harder. I do things like work crazy hours all hours
of the night so that I can have more hours with the children or start a little bit later.’
19
Marita
Marita had been with her employer for seven years when she went on maternity leave
from her permanent role as officer manager with a small health services provider. The
understanding was that she would return to work two days a week. While she had been
employed to work four days a week, her manager was interested in expanding the role to
five days on Marita’s return. So when Marita and her manager interviewed candidates for
the maternity leave position they advised them of the possibility of an ongoing two to
three day a week job share after Marita returned to work. Marita planned to return to
work after nine months and her replacement’s contract was for this length of time.
A couple of months prior to the agreed date of her return, Marita started filling in
occasionally at work, sometimes covering days when her replacement was not there and
at other times coming in to deal with a backlog of work. When she was in the office
during this period, Marita tried to catch up with her employer to discuss her return to
work but found it difficult to pin her down to talk about it. She eventually resorted to
emailing her employer.
Eventually Marita’s employer said she could return to work one day a week on a casual
basis and that she would employ her for 40 weeks a year. Marita was really unhappy
about his given their many earlier discussions about her returning to work two days a
week and she was annoyed that her employer presented the one day a week offer as an
alternative to her working four days a week when the latter had never been an option.
Marita said:
I let her know I wasn’t happy. She said to me, ‘I don’t think you should come back full-time; you
probably wouldn’t cope and anyway you’re probably going to go and have another baby soon.’
However, Marita did not really protest, for a number of reasons. In addition to feeling a
little uncertain about returning to work after her first child, she only had a guarantee of
childcare one day a week at the time. She was also worried that if she told her employer
that one day a week wasn’t acceptable she might lose even this day’s work:
I didn’t want to, I suppose I didn’t want to lose that one day. I knew that if I pushed it I would have to
walk away…and I suppose mentally I wasn’t ready to look for another job.
Six months after Marita’s planned return to work, she is still employed one day a week as
a casual and is on the same hourly pay rate she received as a permanent employee. She
said she feels ‘disposable, like I am not valued. I am just a bum on a seat’. She
understood her employer’s motives, commenting, ‘She wants me there in the background
as a safety net, a person who steps in for holidays and that sort of thing. I know the place
inside out.’ Asked if she thought she had been discriminated against, Marita said:
I think so. The fact is now she sees me as being unreliable because I’ve got a child. I think that was her
whole thing when she said, ‘I don’t think you will cope with the job.’ I think it was more, ‘What if [the
child] gets sick?’ You know obviously she knows that he is my main priority and I think that was her
way of saying, ‘I need the [business] to be your main priority rather than the child.’
20
3
Legal Framework
In this section we sketch out the main legislative framework underpinning the workplace
rights, including to a discrimination-free workplace, of Victorian women who are
pregnant, on maternity leave or who have returned to work from such leave. We briefly
set out the main international standards that underpin this legal framework, and both
federal and Victorian anti-discrimination law. We then turn to the industrial relations
legislation that underpins conditions for Victorian workers, the Workplace Relations Act
1996 (Cth) (WRA), focusing specifically on the WorkChoices regulatory changes to the
WRA including those in relation to parental leave and termination that might impact,
directly or indirectly, on women before, during and after taking maternity leave. Finally,
we consider the adequacy of existing protections for workers in these circumstances.
3.1
International Standards
There are three international instruments, to which Australia is a signatory, that are
relevant in any consideration of pregnancy discrimination and workplace rights. The
United Nations Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW), ratified by Australia in 1983, is the key international human rights instrument
relating to women. Article 1 of CEDAW defines discrimination as:
Any distinction, exclusion or restriction, made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
In article 11 (2), CEDAW specifically requires signatories to take appropriate measures to
prevent discrimination against women on the grounds of marriage or maternity and to
ensure their effective right to work and:
(a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of
pregnancy or of maternity leave and discrimination in dismissals on the basis of
marital status;
(b) To introduce maternity leave with pay or with comparable social benefits without
loss of former employment, seniority or social allowances;1
(c) To encourage the provision of the necessary supporting social services to enable
parents to combine family obligations with work responsibilities and participation in
public life, in particular through promoting the establishment and development of a
network of child-care facilities;
(d) To provide special protection to women during pregnancy in types of work
proved to be harmful to them.
The International Labour Organisation (ILO) Convention (No 156) Concerning Equal
Opportunities and Equal Treatment for Men and Women Workers: Workers with Family
Responsibilities (ILO 156) was ratified by Australia in 1990. ILO 156 seeks to create
Australia has a reservation to Article 11(2)(b) that has been in place since Australia ratified CEDAW in
1983.
1
21
equality of opportunity between men and women workers with family responsibilities,
and between men and women with such responsibilities and workers without such
responsibilities. Amongst other things, ILO 156 obliges Australia to:
take account of the needs of workers with family responsibilities in terms and
conditions of employment;
make it an aim of national policy to enable persons with family responsibilities
who are engaged or wish to engage in employment to exercise their right to do so
without being subject to discrimination and, to the extent possible, without
conflict between their employment and family responsibilities; and
ensure that family responsibilities shall not, as such, constitute a valid reason for
termination of employment.
ILO Convention (No 111) Concerning Discrimination in respect of Employment and Occupation
(ILO 111), ratified by Australia in 1974, also deals with principles of non-discrimination
in employment. ILO 111 is aimed at preventing and eliminating discrimination in
employment on a number of grounds, including sex. Article 5(2) of ILO 111 provides
that governments may determine that special measures, designed to meet the particular
requirements of persons who, for reasons such as sex, or family responsibilities, are
generally recognised to require special protection or assistance, shall not be deemed to be
discrimination.
A fourth relevant international convention, ILO Maternity Protection Convention 183
(ILO 183), has not yet been ratified by Australia. This Convention, among other things,
requires signatories to make it unlawful for an employer to terminate the employment of
a woman during her pregnancy or absence on maternity leave and guarantee a woman
the right to return to the same position or an equivalent position paid at the same rate at
the end of her maternity leave. It also requires signatories to adopt appropriate measures
to ensure that maternity does not constitute a source of discrimination in employment.
Importantly in respect of breastfeeding mothers ILO 183 requires in article 10 that:
a woman shall be provided with the right to one or more daily breaks or a daily
reduction of hours of work to breastfeed her child; and
the period during which nursing breaks or the reduction of daily hours of work
are allowed, their number, the duration of nursing breaks and the procedures for
the reduction of daily hours of work shall be determined by national law and
practice. These breaks or the reduction of daily hours of work shall be counted as
working time and remunerated accordingly.
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3.2
Anti-Discrimination Law
3.2.1 Federal Sex Discrimination Act 1984
The Sex Discrimination Act 1984 (Cth) (SDA) prohibits sexual harassment and
discrimination on the grounds such as sex, marital status and pregnancy in a number of
areas including employment, education, the provision of goods and services and
accommodation. Under the SDA it is unlawful for an employer to discriminate against an
employee on the grounds of the employee's sex, pregnancy or potential pregnancy:
in the terms or conditions of employment that the employer affords the
employee;
by denying the employee access, or limiting the employee’s access, to
opportunities for promotion, transfer or training, or to any other benefits
associated with employment;
by dismissing the employee; or
by subjecting the employee to any other detriment.
The SDA prohibits both direct and indirect discrimination. In relation to pregnancy, direct
discrimination occurs when a woman is treated less favourably because she is pregnant or is
potentially pregnant or because she has taken maternity leave. Indirect discrimination occurs
when there is a requirement or practice that disadvantages pregnant women or
potentially pregnant women. It should be noted that under the SDA a failure to
accommodate a woman on her return from maternity leave may be framed as an indirect
discrimination claim on the grounds of sex.
The SDA has been amended to provide that it is unlawful for an employer (or potential
employer) to discriminate against a woman on the basis that she is breastfeeding, which
would be considered unlawful sex discrimination under the Act.
Under the SDA it is now also unlawful:
to dismiss an employee on the basis of the employee’s family responsibilities;2
to question employees (or potential employees) about current or future
pregnancies; and
to use medical information collected from pregnant women inappropriately – it
can only be used for appropriate processes and purposes, such as for
occupational health and safety reasons.
The Human Rights and Equal Opportunity Commission (HREOC) is the body that
handles both enquiries about and complaints of discrimination under the SDA. Where a
formal complaint is lodged alleging discrimination on one of the grounds covered under
the SDA, HREOC will investigate the complaint and decide whether the matter is
conciliable. If the complaint is not conciliated, it may be pursued in the Federal Court of
Australia (the Federal Court) or the Federal Magistrates Court of Australia (the Federal
Magistrates Court) for determination.
3.2.2 Victorian Equal Opportunity Act 1995
2
This ground limited to direct discrimination only.
23
The Equal Opportunity Act 1995 (Vic) (EOA) prohibits sexual harassment and
discrimination on the basis of certain attributes or grounds such as sex, race and
impairment in a number of areas including employment, education, the provision of
goods and services and accommodation. In respect to pregnancy-related discrimination,
the EOA makes it unlawful for an employer to discriminate against someone because of
their actual or assumed:
breastfeeding
carer status
pregnancy
parental status
sex
The EOA also prohibits both direct and indirect discrimination on these grounds or
attributes. Discrimination in employment may include:
refusing to employ someone;
setting unfair terms of employment;
denying access to a training program;
refusing or limiting access to opportunities for promotion, transfer or other
employment benefits; and
dismissal or other termination of employment.
The Victorian Equal Opportunity and Human Rights Commission Victoria (VEOHRC)
is the body that handles both enquiries about, and complaints of, discrimination under
the EOA. Where a formal complaint is lodged alleging discrimination on one or more of
the grounds covered under the Act, the VEOHRC will investigate the complaint and
decide whether it should proceed to conciliation. If the conciliation fails, the complaint
may be pursued in the Victorian Civil and Administrative Tribunal (VCAT) for
determination.
3.2.3 The limits of anti-discrimination law
The right to a discrimination-free workplace implicit in both the SDA and the EOC is
effectively only a right to complain about discrimination once it has occurred. Where a
complaint is successful, any redress is limited to the individual worker. Criticism of the
redress provided under such legislation is long standing. Such criticism includes: the
sometimes very lengthy investigation and conciliation process; that the burden is placed
on individual complainants to prove discrimination, often against large employers with
more resources; and that anti-discrimination was not designed to achieve either systemic
change or to prevent repeated instances of discrimination of the same type, often by the
same employer (see HREOC 2007; 56; Owens & Riley 2007: 385).
Moreover, while anti-discrimination provisions such as those in the in the SDA and
EOA have played an important role in naming the gendered treatment of working
women, including on the basis of pregnancy and family responsibilities, their operation
has been limited by the political and policy context in which ‘operational reasons’ are
often offered as a defense to discriminatory practices (see Charlesworth 2005). The
regulatory changes introduced by WorkChoices arguably provide increased space for
conflict between legal obligations under anti-discrimination law and management or
management decisions.
24
3.3
Industrial Relations Law
The Workplace Relations Act 1996 (Cth) (WRA) regulates employment for the vast majority
of Victorian workers and provides the legal and structural framework for the workplace
rights they have, or do not have.
The ‘WorkChoices’ amendments to the WRA, which came into effect in March 2006,
represent a significant shift in national employment regulation in Australia. WorkChoices
alters the way in which minimum conditions of employment, including wages, are
determined by removing ‘fairness’ and living standards from wage setting criteria. The
amendments remove the ‘no disadvantage’ test for new Australian Workplace
Agreements (AWAs), which are required to provide only five minimum conditions under
the new Australian Fair Pay and Conditions Standard (AFPC standard). Further
amendments to the WRA in 2007 introduced a ‘Fairness Test’ for AWAs lodged on, or
after, 7 May 2007. The amendments allow the Workplace Authority to assess if
employees have received fair compensation if their agreement removes or changes their
protected conditions. In essence, the new test leaves the decision as to what is ‘fair’ up to
the discretion of first the employer, and then the Director of the Workplace Authority.
Moreover, the test is a limited one that does not take into account all the protected
conditions of the relevant award nor provide any transparency or avenue for appeal. Nor
is the ‘fairness test’ retrospective (Charlesworth & Macdonald 2007: 46).
The AFPC standard minimum conditions of employment are:
a maximum of 38 ordinary hours of work per week, which can be averaged over
up to twelve months) and reasonable additional hours;
four weeks of paid annual leave (with an additional week for shift workers);
ten days of paid personal or carer’s leave (including sick leave and carer’s leave),
with provision for an additional two days of unpaid carer’s leave per occasion
and an additional two days of paid compassionate leave per occasion; and
52 weeks of unpaid parental leave (including maternity, paternity and adoption
leave).
These conditions, together with preserved Australian Pay and Classification Scales
(APCS) and wages set by the Australian Fair Pay Commission, make up the AFPC
standard.
WorkChoices weakens unfair dismissal provisions through limiting such protection to
employees who work in organisations with more than 100 employees, a count that
excludes casual employees with less than 12 months’ service: s 643(10)(b). Employees
with less than six months’ service are not entitled to seek redress under the new unfair
dismissal provisions. Even where an organisation has more than 100 employees,
employees are excluded from making an unfair dismissal claim in the Australian
Industrial Relations Commission (AIRC) if they were dismissed for ‘operational reasons’.
Where a company becomes insolvent, affected employees are also excluded from the
unfair dismissal process.
The changes limit the power of the AIRC to settle disputes and remove its power to set
new minimum standards through the test case mechanism, for example, in relation to
25
work and family (Charlesworth & Macdonald 2007: 1). Other workplace rights that exist
are generally dependent on the industrial instrument covering the employee (award,
collective agreement, AWA etc), on the employment status (permanent, casual, fixed
term, contractor), and in relation to redundancy and termination, on the size of the
employee’s workplace.
The WRA continues to provide some specific rights for women workers who are
pregnant, on leave or who have returned from maternity leave. These include those in
respect of:
parental leave
unlawful termination
3.3.1 Parental leave
A right for Australian female employees to unpaid maternity leave was won more than 25
years ago in a test case brought by the Australian Council of Trade Unions (ACTU). In
1990 the Australian Industrial Relations Commission (AIRC) reviewed its 1979 test case
decision and extended it to the concept of parental leave (paternity, maternity and
adoption leave), which was introduced into federal awards (O’Neill 2004: 1). Initially,
casual employees were excluded from both maternity and parental leave and only
permanent employees with 12 months or more continuous service were eligible.
However, a further test case decision by the AIRC in 2001 allowed unpaid parental leave
to be extended to casual employees with 12 months continuous service. It should be
noted that prior to WorkChoices this extension of the entitlement to parental leave was
incorporated into the minimum terms and conditions of employment in the WRA.3
However, it only applied to permanent employees, with casual employees having to rely
on their award entitlements in this respect.
In this section and in Table 2 below, the parental leave provisions in the current (August
2007) WRA are compared with those in the Act as it stood in December 2005, just prior
to the WorkChoices amendments, which came into effect in March 2006
The term ‘parental leave’ in the current WRA is used to refer to any of the following:
maternity leave, which includes:
o ordinary maternity leave (OML) defined as a single, unbroken period of
unpaid leave taken because of the birth, or expected birth of a child of an
employee
o special maternity leave (SML) for employees whose pregnancy terminated
within 28 weeks before the expected date of confinement otherwise than
by the birth of a living child
paternity leave
pre-adoption leave and adoption leave.
The focus in the following analysis is on maternity leave and related paid leave taken by
female employees.
The entitlement to parental leave was first incorporated into the former Industrial Relations Act 1998 (Cth)
in 1993 and then the WRA in 1996.
3
26
The parental leave standard post-WorkChoices
The WorkChoices changes to the parental leave standard both expand and limit the
rights of pregnant women. By extending eligibility to casual employees, the WorkChoices
changes ensure that those casual workers with 12 months service, who were not covered
by an award provision as a consequence of the 2001 AIRC test case decision, are eligible
for unpaid parental leave. Another important extension of rights is in relation to a
transfer to a safe job, where a pregnant employee is not able to continue in her current
position. Further, the amendments provide that where it is not reasonably practical for
an employer to transfer an employee to a safe job, an employee is entitled to paid leave,
such leave being in addition to any other leave entitlement and not to be treated as part
of maternity leave.
However, the terms of the parental leave standard also limit or may work to limit the
rights eligible pregnant women had prior to WorkChoices in a number of important
respects. First, in respect of the return to work guarantee, the effect of the WorkChoices
amendments is that if an employee’s pre-parental leave position no longer exists, but she
is qualified for, and can perform the duties of another position for her employer, then
her entitlement is only to return to that position (regardless of its status and
remuneration relative to her former position); or if there are two or more positions, to
whichever of those positions is nearest in status and remuneration to the pre-parental
leave position. Where only one position is available, WorkChoices removes the
obligation that that position be as nearly as possible comparable in status and pay to that
of her former position, as provided for in the WRA prior to WorkChoices. It also
provides an avenue for employer discretion to decide that there are no positions that the
employee is qualified for or able to perform. As highlighted in the parliamentary debate
before WorkChoices was introduced, the right of return is dependent on the employer
determining that the employee is qualified and able to work for the employer. It remains
unclear that there are any rights of redress for an employee where an employer’s
determination in those circumstances is an unreasonable one (see Baird et al 2006).
27
Table 2:
The WRA Parental Leave Standard
Main Pre-WorkChoices Provisions4
Main WorkChoices Changes5
A female permanent employee is entitled to maternity leave if she Formal coverage extended to casuals if they have been engaged by a
would complete at least 12 months continuous service by the particular employer on a regular and systematic basis during a period
estimated date of birth.
of at least 12 months (as at the first day of leave), and who, but for
an expected birth of a child would have a reasonable expectation of
continuing engagement by the employer on a regular and systematic
basis.
The entitlement of an employee and her spouse to unpaid parental
leave is 52 weeks. While an employee can combine different types of
leave to which she is entitled with her parental leave, the maximum
length of parental leave that can be taken in respect of one pregnancy
is 52 weeks.
An employer is obliged to grant maternity leave to an employee if:
If an employee begins leave without having submitted any required
(i) at least 10 weeks before the estimated date of birth, she notifies the
documents, she is taken not to have been entitled to the leave. The
employer in writing of that date;
additional documentation requirements include:
(ii) she applies in writing for leave, including first and last days of
(i) a medical certificate stating the employee is pregnant, as well as
leave period, submitted at least four weeks before the commencement
the expected date of birth, must be given to the employer at least 10
of the period , providing a medical certificate that states that she is
weeks before the expected date of birth.
pregnant and specifies the estimated date of birth or that she has
given birth to a living child and specifies the date of birth;
(iii) she provides a statutory declaration specifying any period of
paternity leave for which her spouse intends to apply, a statement that
she will be the child’s primary care-giver during maternity leave and
that she will not engage in any conduct inconsistent with her contract
of employment while on maternity leave.
Less than 6 weeks to the expected date of birth, the employer
requires the employee to obtain a medical certificate as whether the
employee is fit to work. The medical practitioner’s opinion is that the
employee is not fit to work, the employer may require the employee
to start a continuous period of leave, including special maternity
leave (SML) or ordinary maternity leave (OML), soon as practicable.
4
28
Pre-WorkChoices, the main elements of this standard were incorporated in Schedule 14. The slightly different parental leave provisions covering Schedule 1A workers in Victoria
that are not included in this Table, but are discussed below.
5 Current as at August 2007.
Commencement of
leave
Main documentation
requirements
Length of leave
Provision
Eligibility
6
Main WorkChoices Changes
If, in the opinion of a registered medical practitioner, illness or risks
arising out of the pregnancy or hazards connected with the work
assigned to the employee make it inadvisable for the employee to
continue at her present position:
(i) if the employer deems it reasonably practicable to transfer the
employee to a safe job, the employer must transfer the employee to
the safe job, with no other change to the employee’s terms and
conditions of employment at the rate and on the conditions
attaching to her present work until the commencement of maternity
leave;
(ii) if the employee’s employer does not think it to be reasonably
practicable to transfer the employee to a safe job, the employee may
take paid leave immediately or employer may require the employee to
take paid leave; and
(iii) the rate of paid leave is to be no less than the employee’s basic
periodic rate of pay,6 excluding allowances, overtime loadings or
penalty rates.
When an employee returns from a period of maternity leave:
If the employee’s former position no longer exists:
(i) the employer is obliged to reinstate her in the position she held (i) and the employee is qualified and able to perform in another
immediately before she began maternity leave
position for her employer, the employee is entitled to return to that
(a) if she has been transferred to a safe job because of the pregnancy, position;
then she is to be returned to the position she held before the transfer
(ii) or, if there is more than one such position, whichever position is
(b) if she has been doing part-time work because of the pregnancy, nearest in status and remuneration to the former position.
the position she held before that change is the rightful one;
(ii) in the case that her former position no longer exists, if the
employee is qualified for, and is able to perform the duties of, other
positions in the employer’s employment, the employer has to employ
her in whichever of those positions is nearest in status and
remuneration to the position she held immediately before she began
maternity leave, transfer to a safe job or before change to part-time
work.
Main Pre-WorkChoices Provisions
29
The original WorkChoices amendment provided for ‘the amount the employee would reasonably have expected to be paid by the employer during that period’.
Return to work
guarantee
Provision
Transfer to a safe job
Second, the rate of pay an employee is entitled to if she is unable to be transferred to a
safe job and is on paid leave was changed in further amendments to the WRA in
December 2006 to narrow the rate of pay from ‘the amount the employee would
reasonably have expected to be paid by the employer during that period’ as it was in the
first WorkChoices amendments to the basic periodic rate of pay, expressly excluding any
penalty rates or allowance that may form part of her normal pay. This constitutes a
significant difference to the entitlement originally intended by the first iteration of the
AFPC parental leave standard.
Third, the required commencement of leave provision is new and an employee may now
be required to begin unpaid maternity leave, even if she has already been allowed a
transfer to a safe job or is on paid leave, because such a job could not be provided. If the
requested certificate showing a medical practitioner’s opinion that the employee is fit to
work is not shown within seven days, the employer has the right to require that the
employee begin a continuous period of leave including or constituted by unpaid
maternity leave, as soon as reasonably practicable. Given that such leave is unpaid,
having the opportunity to work for a longer period if she remains fit for work or remain
on paid leave is likely to be important financially for a pregnant employee.
Finally, the notification and documentation requirements are specified in considerable
detail in the AFPC parental leave standard. Under the WorkChoices changes, if these
requirements are not satisfied there is a risk that the entitlement to both SML and OML
is not triggered, a risk that was realised in the case of one of the WRIL callers as noted in
section 4. Similarly to the situation pre-WorkChoices, such requirements do not apply if
the child is born prematurely, or there is another compelling reason. Post-WorkChoices,
an additional documentation hurdle has been added and the employee must present a
medical certificate as soon as reasonably practicable before or after the birth of the child,
whether or not maternity leave has started. As Owens and Riley note, experience in the
United Kingdom has shown that such detailed statutory notification and documentation
requirements can present a minefield for women and ‘have the real potential to render
their employment quite precarious if there is a failure of compliance and yet the leave has
been taken’ (2007: 328).
Schedule 1A
Fenwick points to the fact that the minimum working conditions selected for the AFPC
standard are similar to those in the former Schedule 1A of the Workplace Relations Act
1996 (Cth), which largely reproduced the minimum conditions set by the Kennett
government in the Employee Relations Act 1992 (Vic). This set of minima had been
inspired by the models adopted earlier both in New Zealand and Western Australia
(Fenwick 2006).
Prior to WorkChoices, Schedule 1A of the WRA covered those Victorian employees
who were not covered by a federal award or agreement. These workers faced significant
disadvantage relative to their federal award counterparts in terms of wages and working
conditions, which excluded penalty rates, overtime provisions, rest breaks, rosters,
allowances and personal or carer’s leave. It has been estimated that Schedule 1A covered
around some 356,000 Victorian employees. However, Schedule 1A coverage was
significantly higher for women than it was for men and in 2000, approximately one-third
of women in the Victorian labour force were employed in Schedule 1A workplaces
30
(Victorian Industrial Relations Taskforce 2000: 46). In relation to the parental leave
standard, there were, perhaps surprisingly, two important provisions that were more
generous than the pre-WorkChoices standard in the WRA in Schedule 14.7 Schedule 1A
provided for a transfer to a safe job, as has now been incorporated into the APFC
standard. It also provided that with the agreement of the employer, a female employee
could work part-time in one or more periods during her pregnancy if the need to work
part-time arose because of her pregnancy or in one or more periods after the birth of her
child until the child’s second birthday. There is no available evidence as to how this
particular minimum condition was operationalised or accessed by Victorian workers
covered by Schedule 1A. These provisions were only available to employees with
permanent status and many Schedule 1A female workers worked on a casual basis.
However, since WorkChoices the Schedule 1A provisions have been effectively replaced
by the AFPC standard, which does not incorporate the more generous part-time
provisions.
Relationship with awards and agreements
For the most part, the AFPC parental leave standard only applies to those who are not
covered by provisions that are more generous in their award or workplace agreement. As
HREOC notes, the parental leave standard is well below the standard available in most
awards (HREOC 2005b: 21). The conditions of many Victorian women workers are
currently covered by awards and agreements with more generous parental leave
entitlements. Such entitlements include, for example: paid maternity or parental leave;
explicit provisions for antenatal leave; lactation and breastfeeding breaks; additional leave
without pay immediately following parental leave; and extending eligibility for transfer to
a safe job for all pregnant permanent employees, even if they do not have sufficient
service to be eligible for maternity leave.
As parental leave is part of the AFPC standard, it is no longer an ‘allowable matter’ in
awards. While the parental leave and maternity leave provisions currently in awards are
‘preserved award terms’, over time there is no guarantee that they will continue to exist
(Baird et al 2006). Moreover, current WorkChoices regulations exclude both special
maternity leave and provisions for transfer to a safe job during pregnancy from any
preserved award terms on parental leave (reg 10.2). Thus in relation to these specific
matters, employees are restricted to the AFPC standard and cannot access any superior
award terms (Owens & Riley 2007: 281). As with agreements that provide more generous
parental and maternity leave provisions than those in the AFPC standard, it is likely that
the minimum parental leave standard will become the maximum provision over time. That
is, the AFPC standard is likely to become both the ‘ceiling’ and the ‘floor’ in relation to
parental leave (see Owens & Riley 2007: 343). This is because a central rationale of the
WorkChoices changes is that individual bargaining reflected in AWAs is designed to
‘trump’ the collective bargaining reflected in awards and most enterprise agreements
(Stewart 2005, 2006; Peetz 2007). Consultation undertaken for this project indicates that
in a number of industries employers are very reluctant to consider incorporating any
improvements to the basic AFPC parental leave standard in enterprise agreements.
The provisions in Schedule 1A were also supposed to supplement Schedule 14 provisions. This
arrangement meant that Victorian employees not covered under federal awards or agreements were
covered by both Schedule 1A and Schedule 14 parental leave provisions, to be read in conjunction with
each other (Victorian Industrial Relations Taskforce 2000: 92).
7
31
Other limits of the AFPC parental leave standard
Apart from the direct legislative changes outlined above, there are a number of other
limits to consider in relation to the new parental leave standard. The first is the failure of
this standard to incorporate the 2005 AIRC Family Provisions Test Case decision. The
AIRC decision provided for an employee entitled to parental leave to request:
an extension of simultaneous unpaid parental leave for up to eight weeks when
the baby is born;
an extension of unpaid parental leave for up to 12 months; and
a right to return from parental leave on a part-time basis until the child reaches
school age.
The AIRC decision also adopted a new measure, agreed in the conciliation phase of the
test case, requiring employers to consult with employees on parental leave in relation to
significant changes affecting their jobs. It also imposed a requirement on employees to
inform their employer of ‘significant matters’ including the length of their parental leave,
their intention to return to work and whether they intend to request a return on a parttime basis. As Owens and Riley note, such provisions acknowledge that employees on
parental leave have a vital interest in their job and that an important function of parental
leave is to assist workers maintain their labour force attachment (2007: 326).
This decision was incorporated into a number of awards prior to the commencement of
WorkChoices as well into a number of agreements. The Public Sector Employment (Award
Entitlements) Act 2006 (Vic) was enacted to incorporate the family provisions test case
decision into Victorian public sector awards. However, this offers far from complete
coverage for Victorian workers. An examination of orders varying federal awards made
by the AIRC and available on the AIRC’s website shows that unions varied 435 federal
awards before WorkChoices became operative. This represents less than 20 percent of all
federal awards (Williamson 2007). Thus the majority of awards do not incorporate the
AIRC test case provisions.
Second, the AFPC parental leave standard does not provide for antenatal leave. While
the new AFPC standard does contain the personal or carer’s leave provisions agreed to
in conciliation in the AIRC Family Provisions Test Case – doubling the number of days
of carer’s leave that may be taken as a component of personal leave to ten days – this
leave is explicitly only available in the case of personal illness or injury. A normal
pregnancy involves neither. So it is clear that access to paid leave to attend antenatal
visits is not supported by the AFPC standard. Union consultation for this Project
indicates that prior to WorkChoices and the limiting of the powers of the AIRC to settle
disputes, unions could notify a refusal of sick leave for antenatal visits under the disputes
procedure, which would typically resolve the issue. A number of awards and agreements
provide specifically for antenatal leave, but for pregnant women dependant on the AFPC
standard, the lack of access to antenatal leave leads to workplace difficulties and tensions
as indicated in the enquiry data in section 4.
Finally, there is no machinery in the WRA to improve the current AFPC parental leave
standard, for example by including antenatal leave, paid maternity leave, or elements of
the Family Provisions test case decision, apart from specific legislative amendment.
Historically the test case mechanism of the AIRC has played an important role in
securing minimum entitlements for women workers and to assist workers balance their
work and family responsibilities. Such test case decisions involved the AIRC, usually in
32
response to an application from the peak union body, the ACTU, in holding public
hearings to consider evidence for and against proposed changes in standard award
conditions and then handing down a judgment that would often vary these standard
award conditions (Cooney, Howe & Murray 2006: 229–30). Test case decisions include
not only those in relation to parental leave highlighted earlier, but also those in relation
to carers leave as well equal pay. The removal of the AIRC test case mechanism under
the WorkChoices amendments means that improving standards for pregnant workers is
highly unlikely. We note that the December 2006 legislative amendments to the parental
leave standard, which restricted the rate of paid leave when a transfer to a safe job could
not be accommodated to the basic rate of pay and introduced an additional right for
employers in respect of the required commencement of leave, were not amendments
beneficial to pregnant employees.
3.3.2 Unlawful termination
The one area where the WRA provides remedies to an employee who has been
discriminated against is in relation to termination of employment (Owens & Riley 2007:
401). Those employees excluded from pursuing a remedy where their dismissal has been
unfair, that is ‘harsh, unjust or unreasonable’, are still able to take an action in relation to
unlawful termination. As was the case prior to WorkChoices, terminating an employee’s
employment because of pregnancy or family responsibilities is unlawful. Further,
termination on the basis of temporary absence from work during maternity leave or
other parental leave is also unlawful and the WorkChoices amendments make it clear that
such an absence cannot be used as an excuse to claim that the employee’s position no
longer exists (Owens & Riley 2007: 401).8 Employees who believe their employment has
been unlawfully terminated can make an application to the AIRC. The AIRC must try to
conciliate the matter, and if conciliation is unsuccessful, the AIRC must issue a certificate
on the merits of the application. At that point, the employee has 28 days to elect whether
to proceed to the Federal Court or the federal Magistrates Court.
Post-WorkChoices, however, there are some differences in both eligibility to pursue
unlawful termination and the remedies that can be pursued in respect of unlawful
termination. Prior to the WorkChoices changes, employees who had worked for the
employer for the qualifying period of employment of three months could apply to the
AIRC to deal with unlawful dismissal. Following the WorkChoices changes, the
qualifying period is extended to six months. Under the unlawful termination provisions,
an employee is able to apply to the Federal Court or Federal Magistrates Court for an
order for reinstatement or compensation. Under the WorkChoices changes, orders for
compensation are restricted in terms of quantum and an award for shock, distress or
humiliation caused by the unlawful termination is prohibited.
Prior to WorkChoices, the AIRC conciliated many claims of unlawful termination as part
of an unfair dismissal matter. However, this option is now effectively cut off for those
employees who can no longer access the unfair dismissal jurisdiction because they work
for organisations where there are 100 or fewer employees. As Owens and Riley note,
there are many cases where the AIRC had considered issues in an unfair dismissal
hearing that concerning matters that might also have included a proscribed ground, such
as pregnancy and family responsibilities, under the unlawful termination provisions.
8 However, if the reason for terminating employment was pregnancy, based on inherent requirements of
the particular position concerned, or on the basis of avoiding injury to the staff of a religious institution,
termination of employment is not prohibited.
33
Moreover, cases may well succeed as an unfair dismissal case where they may fail as an
unlawful discrimination case (Owens & Riley 2007: 403). Consultation with solicitors,
complaint-handling agencies and unions for this project suggests that in practice, even in
cases that were finalised in conciliation and did not go to hearing, claims that involved
unlawful termination were often run as both unfair and unlawful termination matters. At
a practical level, this provided a quick, low cost avenue for the settlement of a dispute
about the dismissal of a pregnant employee or of a woman on return to work.
A major disadvantage of pursuing a matter as unlawful termination rather than unfair
dismissal is one of cost, not only in the lodging fees but also in the possibility of having
costs awarded against an employee in a court case. After WorkChoices, the government
established the Unlawful Termination Assistance Scheme (UTAS) to provide financial
assistance to people who believe they may have been unlawfully terminated from their
employment. To be eligible, applicants:
have to go through the conciliation process at the AIRC and the AIRC has to
issue them with a certificate indicating their unlawful termination claim may have
merit or that its merits could not be determined and could not be resolved
through conciliation; and
have to earn less than $54,487 per annum.
Eligible applicants may receive up to $4,000 (including GST) worth of independent legal
advice on the merits of their claim, but the scheme does not cover costs associated with
court action. Not surprisingly, several of complaint-handling agencies interviewed
indicated that many women are fearful of embarking on a course of action that may leave
them worse off financially. This issue is explored further in section 5.
3.4
Rights and Legal Protection
The broad changes introduced by WorkChoices to the regulatory regime that governs the
wages and conditions of Victorian workers do not enhance the rights of women workers
who are pregnant, on leave or who have returned to work. As we noted in an earlier
report, the loss of unfair dismissal protection under WorkChoices for workers who work
in workplaces with 100 or fewer employees has far wider ramifications than just
removing the right of people to question their dismissal and take action where they
believe they have been unfairly terminated. The loss of unfair dismissal protection in
particular not only removes employee rights to pursue reinstatement and compensation,
but also removes the effects of permanency for those workers who are not casual or
fixed term. This in turn works to mute the ‘voices’ of workers in querying wage rates and
entitlements including to maternity leave and returning to work after such leave. It
affects HR practices and procedures, for example in performance management, in
managing disputes between workers, in the giving of first and second warnings, and even
in the provision of reasons for termination (Charlesworth & Macdonald 2007: 58–9).
While one of the principal objects of the WRA remains to help prevent and eliminate
discrimination on a range of bases, including pregnancy and family responsibilities, it is
unclear how this aim can be operationalised given the limited scrutiny of the AIRC.
Further there is no public scrutiny at all of how this is being achieved in respect to
AWAs. In performing her functions relating to workplace agreements, the Workplace
Authority Director must have particular regard to:
34
the needs of workers in disadvantaged bargaining positions, including women;
encouraging parties to agreement-making to take account of those needs;
assisting workers to balance work and family responsibilities; and
the need to prevent and eliminate discrimination, including on the basis of sex,
family responsibilities and pregnancy
There is no mechanism in the legislation to ensure that these obligations are carried out
nor that information in respect of how these obligations are being met is published or
otherwise in the public domain. It remains unknown how many or what proportion of
AWAs registered since WorkChoices contain parental leave provisions in excess of the
AFPC standard. Data on the low incidence of any such provisions in AWAs preWorkChoices, for example, in 2002/2003, only eight percent of AWAs provided for paid
maternity leave, (DEWR 2004: 96), would suggest that AWAs are not a mechanism to
strengthen workplace rights in respect of parental leave and pregnancy related
discrimination.
In respect of parental leave rights under the AFPC standard, we have identified a number
of outstanding issues. While the standard significantly extends coverage to on-going
casual employees, and provides for a transfer to a paid job or paid leave for pregnant
employees, it also excludes the AIRC Family Provisions test case standard, and, on its
face, weakens the return to work provisions. But perhaps more importantly, there are no
mechanisms in the WRA for improving the parental leave standard. Thus WorkChoices
changes do nothing to advance the substantive nature of Australia’s international
obligations in respect of CEDAW, ILO 156, or ILO 111 in preventing and eliminating
pregnancy-related discrimination.
Further, there are limited practical rights of redress where an employer breaches the
AFPC parental leave standard. For example, where an employer refuses to return a
woman who has taken maternity leave to the position she held before she went on leave,
she must take civil action. That is, she may apply to the Federal or Magistrates’ Court for
an order in respect of any contravention of an AFPCS provision. The order may require
the payment of compensation, or any other action it deems necessary to stop the
contravention or rectify the effects of such behaviour. However, in respect of access to
practical remedies, there is no provision in the WRA that enables employees to challenge
what their employer is doing and require the employer to comply with the minimum
AFPC standards (Stewart 2005: 15). In any event, a recent national study into the impact
of WorkChoices on women working in minimum conditions sectors has found that
many women interviewed had little or no idea of their industrial rights and a very limited
knowledge of the industrial instruments that now set their wages and conditions. They
therefore had some difficulty in identifying and pursuing breaches and unlawful acts by
their employers. It was also unclear to them as to whether any action could be taken
under WorkChoices and by whom. The information and advice that they were able to
obtain from unions, community organisations and government agencies was gratefully
received. However, this advice was often conflicting or incomplete and many women
interviewed in the study were confused by differing information (Elton et al 2007: 80).
The unlawful termination provisions outlined above do provide some avenue of redress
for pregnant women. However, in practice, the process involves a more formal AIRC
process, which, if unsuccessful, can lead to costly litigation in the Federal Court or the
federal Magistrates Court, with a risk that costs could be awarded against the employee.
35
Further, remedies for an anti-discrimination claim in respect to termination are slow and
relatively ineffective (Chapman 2006: 257). The national study into the impact of
WorkChoices on women in minimum conditions sectors found that few women were
aware of remedies for unlawful termination or discriminatory treatment and found the
process of finding out their entitlements and the action they could take extremely
confusing. Those who were more aware of their rights saw the remedies for unlawful
termination action under WorkChoices as limited, costly and hard to access. Alternative
remedies for discrimination through the Equal Opportunity Commissions were also seen
as much slower than pre-WorkChoices unfair dismissal, grievance and dispute
procedures (Elton et al 2007: 76).
This section has outlined the broad legal framework relevant to an analysis of pregnancy
discrimination and workplace rights. How the law is operationalised by employers and
experienced by women workers who are pregnant, on leave or who have returned to
work after maternity leave will, however, depend on the level of knowledge of employers
and employees about the rights of pregnant women under both the WRA and antidiscrimination law as well as on the day-to-day decisions and choices employers make.
36
4
Pregnancy-Related Discrimination at Work:
Available Data
4.1
Introduction
In this section we provide an overview of what is known about pregnancy-related
discrimination in Victoria and in Australia, drawing on relevant HREOC Inquiries,
consultations and data provided by a number of agencies specifically for this project.
4.1.1 Past inquiries
In 1999, the HREOC reported on its National Pregnancy and Work Inquiry. While the
Inquiry’s terms of reference excluded discrimination experienced on return to work, it
highlighted a wide range of stereotyping and workplace practices in Australian
workplaces that disadvantaged women who attempted ‘to combine their right to work
with their choice to remain pregnant’ (HREOC 1999: xiv), finding evidence of dismissal,
demotion, inappropriate and negative comments and stereotyping of pregnancy women,
reduction in hours, and less favourable assessment of work performance. One of the key
recommendations of the Inquiry, also supported by the Australian Law Reform
Commission, was for the publication of enforceable standards in relation to pregnancy
and potential pregnancy. As provided for in the Disability Discrimination Act 1992 (Cth),
there would be no exemptions from the operation of the standards and a breach could
be the subject of a complaint to HREOC. However, compliance with the standards
would also provide a defence to certain discrimination provisions under the SDA
(HREOC 1999: 5). The government rejected this recommendation (HREOC 2000).
In 2002, HREOC undertook an inquiry into options for a national paid maternity leave
scheme. In the course of the Inquiry the continuing difficulties experienced by Australian
women, both while pregnant and on return to work, were also highlighted, as was the
persistence of systemic workplace disadvantage and discrimination as a result of women
workers greater responsibilities for caring and caring for children (HREOC 2003: 77).
One of the benefits of a national paid maternity leave scheme was seen to be in
encouraging cultural change in the workplace in respect of recognising and supporting
working women (HREOC 2002: 89–90).
The last major HREOC Inquiry in this area, Striking the Balance: Women, Men, Work
and Care held in 2006, focused on the intersection of gender inequality in paid and
unpaid work. Much of the evidence gathered in this Inquiry once again pointed to the
persistence of discrimination against mothers in employment, including when they were
pregnant and on return to work. These findings contributed to recommendations aimed
at expanded legal rights to assist workers balance their work with family and care
responsibilities, including paid leave, a right to request flexible work arrangements and
carers leave, as well as to the need to educate employers, with a specific focus on small
business, to improve workplace culture and the provision and uptake of family friendly
policies (HREOC 2007: 82–92).
37
As highlighted in the findings of this Project, the type of pregnancy-related
discrimination identified in the HREOC Inquiry remains a significant barrier to women’s
workplace rights almost a decade later.
4.2
Prevalence of Pregnancy-Related Discrimination
In 1999, the HREOC Pregnancy Inquiry identified a clear and urgent need for statistical
information on pregnancy and maternity issues in the workplace. It made specific
recommendations that both the ABS and the Australian Institute of Family Studies
should conduct quantitative studies into these issues (HREOC 1999: 19–21). To date,
however, little is known about the prevalence of pregnancy-related discrimination in
Australia.
Two Australian surveys shed some limited light on this issue.
4.2.1 Pregnancy and employment transitions, Australia
An Australian Bureau of Statistics [ABS] supplementary labour force survey run in
November 2005, Pregnancy and Employment Transitions, Australia, provides some indication
of the difficulties faced by Victorian women who are pregnant while working in a job
(ABS 2006a). The labour force survey conducted at the same time (ABS 2005) estimates
that 1,121,200 Victorian women (57.9 percent of all Victorian women 15 years and over)
were employed at this time. The Pregnancy and Employment Transitions, Australia survey
indicates that of these Victorian women, 76,000 (6.8 percent of all employed Victorian
women) had children aged less than two years and had a job at some time while
pregnant. Of these 76,000 women, nearly all, that is, some 74,000 (ninety seven percent)
worked in that job at some time during their pregnancy. The remaining three percent had
a job that they were away from for the entire period of the pregnancy, such as already on
leave for another purpose (ABS 2006a).
Table 3 sets out Australian data for women who worked in a job while pregnant, and
who did not own the business in which they worked. These women were asked whether
they had experienced any difficulties in the workplace while they were pregnant.
At least one difficulty was reported by 22 percent of women who were asked, with the
most common forms being: nine percent receiving inappropriate or negative comments
(43 percent of those who experienced difficulties); nine percent missing out on training
or development opportunities; and seven percent missing out on opportunities for
promotion (32 percent of those experiencing difficulties). Women were not asked about
the reasons for the difficulties, nor whether the difficulties were associated with the
pregnancy.
It is not possible to obtain disaggregated Victorian data for this survey. However, given
that 22 percent of Australian women who had children aged under two years and who
had worked in a job while pregnant, had experienced difficulties in the workplace, it
could be expected that a similar proportion of Victorian women who had worked in a
job while pregnant would also have experienced such difficulties. This would amount to
an estimated 16,280 Victorian women in November 2005 – who had children aged under
38
two years and who had worked in a job while pregnant – who had experienced
difficulties in the workplace while pregnant.
Table 3: Women Who Worked in a Job While Pregnant: Difficulties experienced
in the workplace while pregnant, Australia, November 2005
Women Who Worked in a Job While Pregnant(a)
Experienced difficulties in the workplace
Received inappropriate or negative comments
Missed out on training or development opportunities
Missed out on opportunity for promotion
Given different duties without consultation
Received less favourable account of work performance
Hours of work reduced without consultation
Demotion
Other difficulties
All who experienced difficulties in the workplace(b)
Did not experience difficulties
Total Employees(c)
'000
%
24
22
18
11
10
*7
*5
12
56
197
253
9
9
7
4
4
*3
*2
5
22
78
100
Source: ABS (2006) Pregnancy and Employment Transitions, Australia, Cat No 4913.0, Table 7
(a) Refers to birth mothers with usual resident child(ren) aged less than 2 years at time of interview.
(b) Sub-components do not add up to total. Respondent may state they have experienced more than one
type of difficulty.
(c) Excludes owner managers of incorporated enterprises.
*Estimate has a relative standard error of 25% to 50% and should be used with caution.
In November 2005 an estimated 16,280 Victorian women, who had children aged
less than two and who had worked in a job while pregnant, had experienced
difficulties in the workplace while pregnant.
4.2.2 Parental Leave in Australia Survey
The Parental Leave in Australia Survey was conducted by the University of Queensland in
May 2005 in conjunction with Longitudinal Study of Australian Children [LSAC] Wave
1.5 (see Whitehouse et al 2007). The survey included a question of mothers of children
born between March 2003 and February 2007 as to their reasons for quitting work
around the birth of their child (some 14 percent of employed mothers). While the
majority (64 percent) indicated that they wanted to look after their family full-time, 20
percent indicated that their job was too demanding or inflexible to combine with
parenthood, while 10 percent cited the lack of a supportive work environment.
The survey also provides data on the changes in employer or occupation after the birth
of a child for women who were employed in the 12 months prior to the birth, took leave
and returned to work within 15 months. While two-thirds (66 percent) returned to the
same employer and same job, 17 percent returned to the same employer but in a
different job, while nine percent returned to a different employer. Another nine percent
continued in or changed to self-employment. Unfortunately these survey data do not tell
39
us if those who changed jobs did so willingly or whether the new jobs were at the same
level, carried the same status or level of remuneration.
Other hints of possible pregnancy-related discrimination in the survey are suggested by
survey data that show that there were some overall changes in permanency of contract
before and after the birth among mothers who returned to work within 15 months.
Before the birth, 85 percent of mothers had been on permanent contracts, 12 percent on
casual contracts and three percent on fixed term contracts. After the birth, there was an
aggregate trend towards casual contracts; 75 percent of the mothers were on permanent
contracts, 21 percent on casual contracts and four percent on fixed term contracts. As
outlined below, the unwilling move from permanent to casual status formed the basis for
a number of enquiries and complaints made to various agencies. However, the available
Parental Leave Survey data do not indicate whether the transfer to casual contract was
something freely agreed to, or not, by the mothers who moved from permanent to casual
status.
4.3
Pregnancy-Related Enquiries
In this section, we look at disaggregated enquiry data made available for this project by
WRIL, Job Watch, the VEOHRC and the Workplace Infoline for the period 30 April
2006 to 30 April 2007. These data sets allows us to explore the sorts of issues that are
raised by Victorian women workers at various points on the ‘motherhood’ journey, from
when a woman becomes pregnant to after she returns to work from paid or unpaid leave.
There are of course a number of limits to these sets of data. Given the resource
constraints of the various agencies involved and of this Project, direct comparisons
cannot be made with either the level and types of enquiries made in previous years.
Indeed two of the enquiry services, the Victorian WRIL and the Workplace Infoline
(formally the WorkChoices Infoline), only started operation after the introduction of
WorkChoices in March 2006. There are also obvious difficulties in comparing or
aggregating the sets of data. The one individual may contact more than one agency and
the coding of enquiries by the different agencies is quite different. Further, in the absence
of decent prevalence data it cannot be claimed that the issues and difficulties raised in
these enquiries are representative of those experienced by all Victorian women who work
while they are pregnant, or who are on maternity leave or return to work after such leave.
As highlighted below, where data are available on occupation, industry, workplace size
and employment status, it is clear that those who make enquiries about pregnancy-related
issues and difficulties are more likely to be permanent employees, work full-time, work in
larger workplaces and to be managers and administrators than is the case for either
Victorian women workers generally or for all those in the childbearing age group of
25–44 years.
In the analysis below we take the WRIL data provided by the OWRA for this project
(see Appendix 1) as a starting point and draw on the separate analyses of the enquiries
received by Job Watch, HREOC, the VEOHRC and the Workplace Infoline set out in
Appendices 2–5.
40
4.3.1 The characteristics of callers9 and their workplaces
Only WRIL and Job Watch keep data on the sex of those who make an enquiry.
In the period 30 April 2006 to 30 April 2007:
107 Victorian women contacted the WRIL service about pregnancy-related issues
and difficulties in the workplace (eight percent of the 1369 female callers who
contacted the WRIL service during this period);
440 Victorian women contacted the Job Watch telephone service about
pregnancy-related issues and difficulties in the workplace (seven percent of the
6355 female callers who contacted the Job Watch telephone service during this
period);
425 Victorian individuals contacted VEOHRC and made enquiries that raised the
attributes of pregnancy, breastfeeding, parental status and carer status in the area
of employment (eight percent of the 5440 individuals who contacted VEOHRC
in this period);
624 enquiries were received by HREOC nationally in relation to pregnancy issues
in employment, of which 149 (24 percent) were from Victoria; and
657 enquiries by Victorian employees were made to the Workplace Infoline that
raised work-related issues relating to ‘pregnancy’ or ‘maternity’.
While a direct comparison cannot be made with earlier published data, there has been at
least a 30 percent increase in pregnancy-related enquiries made to HREOC between
2005/2006 (464 enquiries) and 2006/2007 (607 enquiries).10 This increase is notable
given that there was no increase in pregnancy related enquiries between 2005/2006 and
2004/2005, when there were 466 enquiries in relation to pregnancy (see Appendix 4). On
the other hand, there has been a decline over time in relevant enquiries made to the
VEOHRC.
Characteristics of women who make a pregnancy-related enquiry
Only WRIL and Job Watch keep data on the age, employment status, occupation and the
employment tenure of those who make enquiries. These data (see Appendices 1 and 2)
show that of callers raising pregnancy-related issues and difficulties:
Most were aged between 25 and 44 years (85 percent of WRIL callers and 86
percent of Job Watch callers).
Twenty-three percent of WRIL and Job Watch callers were managers and
administrators; 22 percent of WRIL callers and 23 percent of Job Watch callers
were sales and personal service workers; 18 percent of WRIL callers and 20
percent of Job Watch callers worked in clerical occupations, while 19 percent of
WRIL callers and 16 percent of Job Watch callers were in professional
occupations.
The overwhelming majority (WRIL 93 percent and Job Watch 90 percent) were
employed on a permanent basis, with 65 percent of WRIL and 61 percent of Job
Watch callers employed on a permanent full-time basis.
This refers to calls made directly by women or on their behalf.
See Appendix 4. Published HREOC data in Table 1 relate to all pregnancy-related enquiries in all areas
under the SDA, including but not limited to employment. This means that a direct comparison with the
2006/2007 data provided by HREOC in relation to the area of employment underestimates the increase in
pregnancy enquiries.
9
10
41
The majority had been in their job for two years or more (WRIL 59 percent and
Job Watch 67 percent), with just under a third of both WRIL and Job Watch
callers being employed for six years or more. Only 16 percent of WRIL callers
and 18 percent of Job Watch callers had been in their jobs for less than one year.
Characteristics of callers’ workplaces
The WRIL and Job Watch use identical industry categories to code the industries in
which callers work, which are based on the ABS 1993 Australian and New Zealand
Standard Industrial Classification (ANZSIC) codes. The Workplace Infoline uses the
latest 2006 ANZSIC, which makes comparison somewhat difficult.
While they came from a range of industries, the majority of the WRIL and Job Watch
female callers came from:
property and business services (21 percent of WRIL callers and 24 percent of Job
Watch callers);
health and community services (17 percent of WRIL callers and 18 percent of
Job Watch callers);
retail (10 percent of WRIL callers and 12 percent of Job Watch callers); and
manufacturing (9 percent of WRIL callers and 8 percent of Job Watch callers).
Workplace Infoline callers also came from a range of workplaces with the majority
coming from:
administrative and support services (24 percent of callers);
retail Trade (12 percent of callers);
health care and social assistance (11 percent of callers); and
other services11 (nine percent of callers).
Only WRIL and Job Watch keep data on workplace size of the employees who make
enquiries. In respect of those making enquiries:
the majority came from workplaces with more than 100 employees (54 percent of
WRIL callers and 52 percent of Job Watch callers);
18 percent of WRIL callers and 16 percent of Job Watch callers came form
workplaces with 5–19 employees; and
14 percent of WRIL callers and 15 percent of Job Watch callers came form
workplaces with 20–49 employees.
The Workplace Infoline collects data on the type of industrial instrument that relates to
the coverage of the person the enquiry is about (Appendix 5). In relation to the Victorian
employees who raised work-related issues relating to ‘pregnancy’, or ‘maternity’ and
where type of industrial instrument was identified, almost three-quarters (73 percent)
were covered by a federal award, with 15 percent being covered by the AFPC standard.
Only just over one percent of callers who raised pregnancy-related issues were covered
by an AWA.
This includes a broad range of personal services (including personal care services); religious, civic,
professional and other interest group services; selected repair and maintenance activities; and private
households employing staff.
11
42
4.3.2 Types of enquiries made
The different enquiry services and agencies use various categories to code the issues and
difficulties raised in enquiries. To identify pregnancy-related issues and difficulties raised
in we used the following categories/words in the data provided:
WRIL and Job Watch: pregnancy/breastfeeding discrimination, parental/carer
status discrimination, and maternity (see Appendices 1 & 2);
VEOHRC: attributes of parental status, pregnancy and breastfeeding (see
Appendix 3);
Workplace Infoline: a text search of caller summaries for the words ‘pregnancy’,
‘pregnant’ and ‘maternity’ (see Appendix 5).
Each service or agency codes its enquiries against one or more categories. However, in
the following analysis the focus is on the numbers of callers rather than the numbers of
categories or attributes identified.
The data provided by WRIL and Job Watch contained summaries of the main issues and
difficulties raised in each enquiry. We then coded and grouped enquiries according to
whether these issues or difficulties arose when the caller was pregnant, when she was on
leave or after she had returned to work from maternity leave. There were also a small
group of callers in each data set who had enquiries that related to workplace problems
that arose because of responsibilities for children of unspecified ages or more general
carer responsibilities. These problems have been coded as ‘post-return to work’ and are
not discussed here.
The data provided by the VEOHRC contained only the attributes under the EOA that
had been noted as relevant to the enquiry at the time it was made and the stage of the
motherhood journey to which they relate cannot be determined (see Appendix 3).
However, feedback from VEOHRC in this respect is included in the discussion of the
WRIL and Job Watch data below. The Workplace Infoline data set is set out separately
as the categories used are not comparable with those coded for the WRIL and Job Watch
data sets.
When pregnant
In the period 30 April 2006 to 30 April 2007, the issues and difficulties that arose when
the WRIL and Job Watch callers were pregnant comprised:
42 (39 percent) of the matters raised by callers who contacted WRIL about
pregnancy-related issues (Appendix 1); and
171 (39 percent) of the matters raised by callers who contacted Job Watch about
pregnancy-related issues (Appendix 2).
Of these, a number were general enquiries about rights to leave, accounting for:
16 (38 percent) of the callers who contacted WRIL about issues and difficulties
that arose when they were pregnant; and
51 (30 percent) of those who contacted Job Watch about issues and difficulties
that arose when they were pregnant.
43
In most cases the issues raised by the WRIL and Job Watch callers related to the
statutory provision of 12 months’ unpaid parental leave, about the duties of their
employer to accommodate them including in respect of light duties, or whether they
were able to keep their permanent status. There were also a number of queries about
employers no longer providing paid maternity leave. Other issues raised included rights
to work in the same job or to work on a part-time basis on return to work. A number of
enquiries raised multiple issues that which disclosed both a lack of knowledge and
concern about the practical availability of pregnancy-related workplace rights, such as in
Anna’s case.
Anna12 is a permanent full-time sales worker who has worked for her employer in
the retail industry for more than 11 years. She was pregnant when she contacted
the WRIL service. She wanted to know if her employer could make her take her
accrued long service leave and annual leave out of her entitlement to 52 weeks
parental leave. Anna also wanted to know if she could request to have her hours
reduced as she has to spend 10 hours a day on her feet. She further inquired if
her employer could force her to become casual if she reduced her hours, as had
happened to another employee who had asked to reduce her hours.
Discrimination and harassment
Discrimination and harassment were among the main difficulties reported by callers
while they were pregnant.
Thirteen (just under a third) of WRIL callers reporting difficulties while pregnant
said they had experienced harassment and discrimination; and
Forty-six (27 percent) of Job Watch callers reporting difficulties while pregnant
said they had experienced harassment and discrimination.
Discrimination and harassment included such problems as derogatory remarks being
made about the callers’ pregnancy, not being allowed to take time off when ill or to
attend antenatal appointments, being disciplined for taking sick leave, having roster
requests refused, not being allowed to take breaks, hours being reduced or being asked to
work longer hours, being given additional inappropriate duties like heavy lifting or
climbing a ladder, and not being promoted.
Brenda, who called WRIL, had worked on a permanent full-time basis as a
manager/administrator for more than 11 years in a health and community
services organisation. She was on long service leave when she was offered a 12
month position by the Executive Director on her return. This was not set out in
writing as the Director wanted to talk with HR about a possible salary increase
for Brenda. She then later told the Director that she was pregnant and would
only be able to work for six months, and then would have three months’
maternity leave. The Executive Director then withdrew the offer he had made to
Brenda and told her the job would now go through an open process. Brenda has
been told she can apply for this position. However, this is the only one at her
level that is currently available and she feels that she is being discriminated
against.
12
Pseudonyms have been allocated to the affected women.
44
Dismissal or loss of job
Four of the WRIL callers reporting difficulties while pregnant had been
dismissed or made redundant either after they had advised their employer they
were pregnant or before they went on leave.
Forty-nine (29 percent) of Job Watch callers reporting difficulties while pregnant
lost their jobs after they became pregnant. They were dismissed, made redundant,
and in one case, a woman did not have her contract renewed. Another five
women, who reported pregnancy discrimination, said they were forced to resign
as a result of harassment by their employer or manager.
Cathy, who called WRIL, had worked as a permanent part-time para-professional
in the health and community services industry. She had worked for her employer
on a continuous basis for between one and two years, although prior to this
period she had worked on and off for the company for around 10 years. The
company for which she was working had merged with another one. A week after
she told her employer she was pregnant she was advised that her position was
redundant.
Other difficulties raised by women highlighted in the WRIL and Job Watch data such as
a forced change to casual status and lack of access to parental leave despite more than 12
months’ services are highlighted in the next section.
VEOHRC enquiries
The difficulties recorded in the WRIL and Job Watch data are consistent with those
reported by the VEOHRC in respect of enquiries made by women while they were or
had been pregnant. Feedback from the VEOHRC suggests that apart from general
information about their rights, enquiries made by this group of women include their
rights in respect of:
being made casual;
having their hours reduced;
being dismissed when pregnant; and
occupational health and safety issues that revolve around the extent to which a
pregnant woman can be accommodated, either because the employer is
concerned about what a pregnant woman may or may not be able to do or when
a pregnant woman may experience complications or illness in relation to her
pregnancy.
When on leave
In the period 30 April 2006 to 30 April 2007, the issues and difficulties that arose when
the WRIL and Job Watch callers were on paid or unpaid maternity leave comprised:
42 (39 percent) of the matters raised by callers who contacted WRIL about
pregnancy-related issues (Appendix 1); and
152 (35 percent) of the matters raised by callers who contacted Job Watch about
pregnancy-related issues (Appendix 2).
Of these, general enquiries about workers’ rights while they were on leave and in respect
of their return to work to leave comprised:
45
enquiries by 7 (17 percent) of the callers who contacted WRIL about issues and
difficulties that arose when they were on leave; and
enquiries by 35 (23 percent) of those who contacted Job Watch about issues and
difficulties issues that arose when they on leave.
In most cases, the issues raised by the WRIL and Job Watch callers related to rights on
return to work; that is whether an employer was obliged to return them to the same job,
whether they would be able to request part-time hours or the extent to which their
employer was obliged to accommodate them on their return to work.
The main difficulties reported by callers while they were or had been on leave are
summarised below.
Negotiating a return to work
Twenty-four (57 percent) of WRIL callers reporting issues or difficulties that
arose while they were on maternity leave said they had experienced difficulties in
negotiating the basis of their return to work.
Sixty-two (41 percent) of Job Watch callers reporting issues or difficulties that
arose while they were on maternity leave said they had experienced difficulties in
negotiating the basis of their return to work.
While they were on leave, these women were variously advised by their employers that
they would not be allowed to return to work on a part-time basis; that their return to
work would in a different role or in a job of lower status or pay; that they would only be
allowed to return part-time if they became casual, a contractor, accepted fewer hours
than they had requested or agreed to be relocated to another site; or would only be able
to return on a part-time basis.
Danielle, who contacted WRIL, had worked for more than 16 years as a manager
for a retail industry employer. After her first child was born, her employer agreed
to let her return to work on a permanent part-time basis for three days a week.
When she was on leave and planning to return to work after having her second
child, her employer told her she would have to return on a casual basis.
Having no job to go back to
Ten (just under a quarter) of WRIL callers reporting issues or difficulties that
arose while they were on maternity leave said they found out they had no job to
go back to or were made redundant while on leave.
Forty-seven (31 percent) of Job Watch callers reporting issues or difficulties that
arose while they were on maternity leave said they found out they had no job to
go back to or were made redundant while on leave.
In all cases, these women were permanent employees.
Eva had worked on a permanent full-time basis as a sales/personal service
worker for more than 12 months for her employer in the property and business
services industry. She contacted the WRIL service when she was four weeks into
her maternity leave. Her employer had told her that she did not have a job to
return to as she did not comply with the documentation requirements of the
WorkChoices legislation. She did not provide a medical certificate nor apply for
46
maternity leave in writing and had just told him she was pregnant and when she
would be leaving.
Feedback from the VEOHRC is that the sorts of enquiries that come from women who
are on maternity leave include their rights in respect of:
their particular position being made redundant;
being returned to a lesser job or a role;
the refusal of part-time work; and
not having their return to work accommodated.
On return to work
In the period 30 April 2006 to 30 April 2007, of WRIL and Job Watch callers returning
to work from leave comprised:
six (six percent) of the callers who contacted WRIL about pregnancy-related
issues (Appendix 1); and
55 (13 percent) of the callers who contacted Job Watch about pregnancy-related
issues (Appendix 2).
Conditions and status on return to work
All six of this group of WRIL callers said they had experienced difficulties in
negotiating the basis of their return to work.
Forty-two (76 percent) of this group of Job Watch callers said they had
experienced difficulties in respect of their conditions and status on return to
work.
The problems raised by these women included being refused part-time hours, being
made casual, having hours reduced, being returned to a lesser role rather than being
given their job back, working part-time with full-time work targets and the lack of
accommodation of breastfeeding or child care arrangements.
Frances, who contacted WRIL, is a manager/administrator in the health and
community services industry. She has worked for her employer on a permanent
full-time basis for more than six years. She had wanted to extend her maternity
leave beyond the eight months she had arranged. However, as her employer had
problems filling her role, she returned to work in a job share arrangement that
increased from two to three days. Shortly thereafter her new manager said this
was only a temporary measure. Frances offered to work four days a week or work
a nine day fortnight. Her manager refused both options. She is not sure what to
do. She does not want to work full-time as she wants to spend time with her
baby and with her older daughter.
Loss of job
Eleven of the women who called Job Watch (18 percent of those who had difficulties on
their return to work after maternity leave) lost their jobs on their return, being dismissed
or being made redundant. One of these women resigned after her employer refused to
accommodate her child care responsibilities and another was made partially redundant
and was given part-time hours only.
47
When women return to work after having a baby, the sorts of issues they call VEOHRC
about include their rights in relation to:
part-time work, lack of access to it or the terms on which it is offered;
being made casual; and
hours being cut.
VEOHRC feedback indicates that those returning to work are often business
professionals who have seen themselves as loyal and bound up in their company and are
usually very hurt and upset when something happens, particularly when they return to
work.
Workplace Infoline data
Enquiries to the Workplace Infoline are coded according to a set of categories including
various kinds of leave and working-time conditions, termination, including unfair and
unlawful termination and a variety of other types of enquiries including about workers
compensation. It is not possible, however, to ascertain to which part of the motherhood
journey they relate.
Of the pregnancy-related enquiries made by 657 Victorian employees, the most common
was about conditions, which accounted for well over four-fifths of all enquiries. Of these
enquiries, the most frequent was about ‘other leave’ (59 percent of the conditions
enquiries), the majority of which the Workplace Authority advises relate to entitlements
for maternity leave. Enquiries about wages accounted for 13 percent and those about
parental leave accounted for only 13 (two percent) of the conditions enquiries. The next
most common type of enquiry related to termination, which accounted for 46 or seven
percent of all the enquiries. Well over half of these enquiries were about unlawful
termination. There were 10 claim kit requests. There was only one enquiry about
enforcement matters or agreement making and one about an Australian Fair Pay
Commission minimum wage decision.
Main issues raised
The analysis of the WRIL, Job Watch and VEOHRC enquiry data above point to range
of particular issues and difficulties that women face in the workplace when they become
pregnant. In all data sets, this stage of the motherhood journey accounted for a large
proportion of enquiries. The data also point to the common difficulties experienced by
women across all stages of the pregnancy and motherhood journey with dismissal, loss of
job and being treated less favourably being frequently reported concerns. The data raise a
major concern that that key aspects of the parental leave standard, particularly the
guarantee to return to the same job on return from maternity leave, may not be being
observed by the employers of callers.
These issues and themes are further taken up in section 5.
4.3.3 How representative are these enquiries?
Without decent prevalence data, it is not possible to assess just how representative the
pregnancy related enquiries made to the WRIL, Job Watch and the Workplace Infoline
are of the types of workplace issues and difficulties that arise for women who are
pregnant, on leave or have just returned from maternity leave. As noted above, ABS
estimates suggest that in 2005 more than 16,000 Victorian women, who had children
48
aged under two and who had worked in a job while pregnant, had experienced difficulties
in the workplace while pregnant. The enquiry data outlined above from the main enquiry
agencies operating in Victoria would suggest very few women who may experience
difficulties even ring up to find out about their workplace rights.
A comparison with the Victorian female workforce – where the data provided allow such
a comparison – suggests that those who contacted the WRIL and Job Watch services
were more likely to be in managerial and administrative and professional occupations,
employed full-time, employed on a permanent basis, work in larger workplaces and have
been in their jobs longer than is the case for Victorian female employees generally (ABS
2006b). Even when we focus on Victorian female employees aged 25–44 years, the age
group in which the vast majority of the callers are located, there are there are marked
differences between this group of Victorian employees and the WRIL and Job Watch
callers. In 2006:
only 5.3 percent of Victorian female employees aged 25–44 worked in managerial
and administrative occupations compared to 23 percent of the WRIL callers and
23 percent of the Job Watch callers;
26.7 percent of Victorian female employees aged 25–44 worked in professional
occupations compared to 17 percent of WRIL callers and 16 percent of the Job
Watch callers;
58 percent of Victorian female employees aged 25–44 were employed full-time
compared to 66 percent of the WRIL callers and 61 percent of the Job Watch
callers;
77 percent of Australian female employees were employed on a permanent basis
compared to 90 percent of the WRIL callers and 90 percent of the Job Watch
callers;
77 percent of Victorian female employees aged 25–44 were employed for more
than 12 months compared to 83 percent of the WRIL callers and 80 percent of
the Job Watch callers; and
33 percent of Australian female employees13 were employed in their main job in
workplaces with more than 100 employees compared to 54 percent of the WRIL
callers and 52 percent of the Job Watch callers.
In looking at industry distribution, there were some differences between Victorian female
employees aged 25–44 and the WRIL and Job Watch callers:
14 percent of Victorian female employees aged 25-44 worked in property and
business services compared to 21 percent of the WRIL callers and 24 percent of
the Job Watch callers;
17 percent of Victorian female employees aged 25–44 worked in health and
community services compared to 17 percent of WRIL callers and 12 percent of
the Job Watch callers; and
14 percent of Victorian female employees aged 25–44 worked in the retail
industry compared to ten percent of WRIL callers and 11 percent of the Job
Watch callers.
The Victorian women workers clearly under-represented in the enquiry data are those
working part-time, those working on a casual basis, those working in smaller workplaces
13
Published data are only available for Australian female employees (ABS Cat 6310 May 2006).
49
and those with shorter job tenure. However, it is not possible to draw any conclusions as
to the extent to which they are experiencing pregnancy-related difficulties in
employment. What can be said, however, is that such pregnancy-related issues and
difficulties are not confined to smaller workplaces and small businesses, or to women in
casual or lower status jobs.
4.4
Pregnancy-Related Complaints under the SDA and EOA
In this section we report on data provided by the HREOC and the VEOHRC in respect
of formal complaints lodged by women claiming pregnancy-related discrimination in the
area of employment between 30 April 2006 and 30 April 2007.
Seventy women made formal complaints to VEOHRC under the EOA on the
grounds of pregnancy, parental status and carer status in the area of
employment.14 These 70 women were 12 percent of the 581 women who made
complaints under the EOA between 30 April 2006 and 30 April 2007 (see
Appendix 3).
Ninety-nine women lodged formal complaints with HREOC under the SDA on
the grounds of pregnancy, sex and family responsibilities that raised issues of
pregnancy-related discrimination. These 99 women were 24 percent of the 409
individuals who made complaints under the SDA between 30 April 2006 and 30
April 2007 (see Appendix 4).
Nine of the pregnancy-related complaints made to HREOC under the SDA were made
by Victorian complainants. Four of these were on the grounds of pregnancy and sex and
five on the grounds of pregnancy alone. T o ensure anonymity of the complainants and
the respondents from Victoria, only the aggregated national data are used in the
following analysis.
In many cases complaints made under the EOA and the EOA were also made on the
grounds of other attributes covered under these laws, which points to the
intersectionality of pregnancy-related complaints with issues such as sex, and in the case
of the EOA, with impairment and sexual harassment (see Appendices 3 & 4).
4.4.1 The characteristics of complainants15 and their workplaces
The VEOHRC collects some limited data on the age of complainants and codes the
industry in which they are located. The HREOC collects data only on the industry in
which complaints are located. The industry categories used by VEOHRC and the
HREOC are similar (see Appendices 3 & 4).
In respect to industry, VEOHRC and HREOC complainants came from a wide range of
industries:
14
15
19, 27 percent of the 70 VEOHRC complainants complained about a workplace
in the business and professional industry, eight or 11 percent about a workplace
in manufacturing, seven or 10 percent about a wholesale or retail workplace, and
six or nine percent in a health industry workplace; and
In this time period there were no formal complaints made on the grounds of breastfeeding.
This refers to calls made directly by women or on their behalf.
50
19, 19 percent of the 99 HREOC complainants complained about a workplace
in wholesale or retail, 18 or 18 percent about a public administration or defence
workplace, 14 or 14 percent about a about a workplace in the business and
professional industry wholesale or retail workplace, and 11 or 11 percent about a
workplace in finance or property and business services.
Data on industry of complaints are not routinely published by either the VEOHRC or
HREOC, so it is not possible to distinguish any trends over time.
However, in respect of the level of complaints, data set out in Appendices 3 and 4
indicate the following:
There was an overall decrease in the number of pregnancy complaints in
employment lodged with the VEOHRC between 2002/2003 and 2005/2006 of
some 48 percent (from 109 to 56). There was also a decline in the number of
parental status complaints in employment lodged with the VEOHRC over this
same time period some 52 percent (from 152 to 73).
There was an overall decrease in the number of pregnancy complaints lodged
with HREOC between 2002/2003 and 2005/2006 of some 28 percent.16 While
complaints on the ground of parental status and family responsibility remain
low, due in part to the limitation of this ground to dismissal from employment
under the SDA, there has been some slight increase in such complaints over the
same period from 19 to 24. Between 2004/2005 and 2005/2006, there was also
a slight increase in pregnancy complaints from 158 to 165.17
The numbers of pregnancy and parental status complaints lodged with the VEOHRC
have not increased over the last year. HREOC has, however, seen a substantial increase
in complaints of sex discrimination and pregnancy discrimination over the last year. It
advises that it has had a 30 percent increase in pregnancy-related complaints for the July
to December 2006 period as against the same period in 2005.
4.4.2 Types of complaints made
Brief summary data were provided by VEOHRC on 59 of the complaints, which allowed
some analysis of the main pregnancy-related events complained about. We have coded
these according to whether the main events occurred when the complainant was
pregnant, while she was on leave or after she returned to work. There were 18
complaints that were concerned with events that had to do with parental responsibilities
more generally and where the return to work from maternity leave was not mentioned or
evident. These complaints are not included in the discussion below. There were also 11
complaints where summary information was not provided.
HREOC data record the main ‘event’ complained about when a formal complaint is
lodged. In the relevant period, dismissal was recorded as the main event in over twothirds of the complaints (see Table 4 Appendix 4). The brief summaries provided with
the HREOC data were also coded according to whether the events complained about
occurred when the complainant was pregnant, on leave, had just returned to work or
These data refer to the number of complaints. A complainant may make a number of complaints on
individual grounds under the SDA.
17 It should be noted that these data include all areas of discrimination, although HREOC data indicate that
on average 85 percent of complaints under the SDA are in the area of employment (HREOC 2005, 2006).
16
51
were related to unspecified parental or carer responsibilities. This latter group of six
complainants is not included in the discussion below.
When pregnant
Complaints lodged with VEOHRC and HREOC between 30 April 2006 and 30 April
2007 which were concerned with events that occurred while the complaint was pregnant
comprised:
21 (more than a third) of the VEOHRC complaints where details were provided;
and
58 (59 percent) of complaints made to HREOC.
The main events raised in these complaints were as follows.
Dismissal/redundancy/contract not renewed: This was the main event in 14 of
this group of VEOHRC complaints and 28 of the HREOC complaints.
Being treated less favourably/discrimination: These events were raised in six of
the VEOHRC complaints and 27 of the HREOC complaints. The sort of
treatment complained about included complainants not having their pregnancy
accommodated, not being allowed to use sick leave entitlements, not being
promoted, having their hours or shifts reduced, being made casual, hostile
remarks being made about their pregnancy and being denied access to unpaid
parental leave.
Two of the HREOC complainants claimed they had been denied employment
because they were pregnant.
In a complaint lodged with the VEOHRC, Suzanne alleged that after she told her
employer that she was pregnant and asked him about maternity leave, he replied
that they didn’t have maternity leave in their workplace. Suzanne stated she was
informed that she was being replaced by new staff members, and that her
employment was to end.
When on leave
Complaints lodged with VEOHRC and HREOC that were concerned with events which
occurred while the complainant was on leave comprised:
12 (a fifth) of the VEOHRC complaints where details were provided; and
26 (more than a quarter) of the complaints made to HREOC.
The main events raised in these complaints were as follows.
Refusal of part-time work on return to work: This was the main event raised in
five of this group of VEOHRC complaints and 11 of the HREOC complaints.
Dismissal/redundancy/no job to go back to: This was the main event raised in
six of this group of VEOHRC complaints and ten of the HREOC complaints.
Being treated less favourably/discrimination: These events were raised in one of
the VEOHRC complaints and in six of the HREOC complaints. The sort of
treatment complained about was that complainants were to be returned to a
lesser job in status or pay than the job they held before they went on maternity
52
leave, that they were being treated less favourably in respect of access to benefits
such as promotion or in being demoted.
In a complaint made to the VEOHRC, Gina claimed that while she was on leave
she had requested that she return to work on a part-time basis for approximately
six months, whilst her baby was little, and she would then return to full-time
employment. Gina stated that her employer has advised her that she would not
be allowed to return on a part-time basis, other than working one less hour a day.
On return to work
Complaints lodged with VEOHRC and HREOC that were concerned with events which
occurred just after the complainant had returned to work comprised:
eight of the VEOHRC complaints; and
eight of the complaints made to HREOC.
The main events raised in these complaints were as follows.
Made casual/demoted: This was the main event raised in five of this group of
VEOHRC complaints and 11 of the HREOC complaints.
Dismissal: This was the main event raised in one of the VEOHRC complaints
and in one of the HREOC complaints.
Being treated less favourably/discrimination: These events were raised in two of
the VEOHRC complaints and in six of the HREOC complaints. The sort of
treatment complained about was being returned to a lesser job in status or pay
than that held before, not being given enough hours, being given full-time hours
when the pre-maternity leave job was part-time.
In a complaint lodged with the VEOHRC, Jenny claimed that after she had been
on maternity leave for a year she returned to work to find that her duties were
substantially diminished. She resigned from her employment as a consequence.
VEOHRC and HREOC complaints
Like the analysis of the enquiry data, the analysis of the VEOHRC and HREOC
complaints of pregnancy-related discrimination highlights the type of discrimination and
barriers faced by women workers, particularly when they become pregnant. A large
number of the formal complaints were made by women at this stage of the motherhood
journey. Dismissal and job loss were a feature of the claims made in complaints at all
stages as was being discriminated against or being treated less favourably in respect to
employment conditions and benefits associated with employment. As with the enquiry
data, these complaints suggest that legal protection against unlawful termination on the
basis of pregnancy and the guarantee of a return to work in the parental leave standard
may not be practically accessible in a number of workplaces. These issues and themes are
further taken up in section 5.
It cannot be assumed that formal complaints to VEOHRC and HREOC in the period 30
April 2006 to 30 April 2007 flowed from enquires made to these agencies in the same
period. However, it is clear, given the small number of formal complaints about
pregnancy-related discrimination from Victorian women made to the VEOHRC and to
HREOC (79 in total), that relatively few enquiries are pursued as formal complaints. The
53
HREOC Pregnancy and Work Inquiry report noted that many instances of pregnancyrelated discrimination go unreported, a decision some women make when they feel that
to seek redress by questioning an employer’s authority is risky, and while pregnant,
simply too hard (HREOC 1999: xiii). We take this issue up in section 5.
Feedback from VEOHRC suggests that it is women in higher status occupations who
are more likely to pursue formal complaints, while the data from both organisations
point to the importance of the business and professional services industry as a source of
complaints.
54
5
Experiences of Pregnancy-Related Discrimination
5.1
Introduction
This section draws on the experiences of the 13 women whose stories comprise section 2
of this report. It also draws on the views and experiences of agency and union
representatives, solicitors and industrial advocates with whom consultations were
undertaken as part of this project. A list of consultation sources is provided in section 1.
This discussion of the experience of pregnancy-related discrimination at work is
organised according to the different forms such discrimination takes, such as dismissal,
and changes to employment status or hours. A separate section summarises the ways in
which some experiences of discrimination are linked to WorkChoices changes prior to a
brief description of some of the impacts of discrimination on the women who
experience it.
Action the 13 interviewees took in response to their experience of discrimination is
described as are the views of the women and the individuals and agencies consulted
about the available remedies. Finally, suggested options to better tackle pregnancy-related
discrimination are outlined. These options contribute to the recommendations in section
6.
5.2
The Experiences of Discrimination
Here we set out the main types of pregnancy-related discrimination experienced both by
the women we interviewed and many of those Victorian women who made enquiries and
complaints to the WRIL, Job Watch, VEOHRC and HREOC.
5.2.1 Loss of job through dismissal, redundancy and having no
job to return to
Dismissal and redundancy are significant manifestations of pregnancy-related
discrimination. The loss of a job through dismissal, redundancy or ‘having no job to
return to’ was experienced by several of the women we interviewed. So-called
redundancies occur in all types and sizes of organisations and the Australian Services
Union (ASU) provided an example of a woman working for a medium-sized not-forprofit social and community services agency who was made redundant when she was
pregnant only to be replaced by a new employee doing virtually the same duties.
An industrial advocate working in this area suggests some employers ‘know’ only 50
percent of women will return from maternity leave and that they want to cut their losses
by getting rid of women who may not return or who they believe will not have their
mind on the job if they do. They may rationalise dismissal and redundancy of pregnant
or returning female employees by arguing they would leave anyway. Others we consulted
noted that problems occur where employers put someone permanently into a woman’s
role when she is on leave, something which happened to a number of the women we
interviewed.
55
Elena and Jessica lost their jobs when they were pregnant. Elena had just established a
whole set of new management and administrative procedures and systems for the
construction business in which she worked and Jessica had recently introduced and
trained the new owners and staff of the hospitality business where she was employed as a
manager. Elena believed her manager saw her imminent departure on maternity leave as
an opportunity to replace her with someone who could be paid less.
Just prior to going on maternity leave Elena was told the company might not have a job
for her on her return. Elena had recruited her maternity leave replacement and knew this
person was to be paid a lot less than she had been as there was no requirement for the
person to set up new systems as she had done. It appeared her new manager was taking
the opportunity presented by Elena going on leave to save money. She thought he may
also have been emboldened by the then very recent introduction of WorkChoices. Elena
told us:
[He said] that he wasn’t sure if there was going to be a position for me – this,
that and the other. I said, ‘Well, it is in my contract,’ and he said, well, with
the new laws my contract didn’t matter any more. So bad luck.
While Jessica’s employers cited performance concerns, they also now had other staff
performing the management functions that Jessica had performed. Jessica never really
knew whether the downgrading she experienced in her role under the new owners just
happened to coincide with her pregnancy or whether her pregnancy had prompted the
changes to her job.
Alison lost her job after her employers first refused to allow her to return to work from
maternity leave and subsequently dismissed her. While their initial refusal was ostensibly
about performance concerns, Alison was treated in a way it is hard to imagine an
employee returning from some other kind of leave would be treated.
Allegations had been made about Alison’s performance while she was on leave and,
instead of addressing what were essentially very minor issues on her return to work,
Alison’s employers refused to allow her to return. At first they refused to consider her
returning to work on a part-time basis although they had previously been open to this
and then, when Alison agreed to return full-time, they refused to allow her to return to
work at all. Over a period of weeks, several meetings were held at which Alison answered
all the concerns about her performance. However, her employers continued to refuse to
allow her to return to work. Alison and her employers both engaged lawyers and
eventually, some months after Alison had intended to return to work and at considerable
cost to the small community body, a financial settlement was reached. Alison said:
I didn’t know what was going on. I just thought either they’re not believing
me or they’ve got something else that they’re not telling me about but I was
racking my brains thinking what in the hell have I done that’s been so bad
that I am not entitled to get my job back, which there was nothing that was
severe or that could result in a termination of employment. Plus then I
thought, no, under the Industrial Relations Act and under our federal award that
we come under, which is [name of award], it specifies that after parenting
leave that you are to be returned back to work in the position that you had
56
prior to going on leave. I actually then got in touch with the union just to see
whether they’d be able to step in and do anything.
The treatment of Georgia and Claire by their employers is similar to the treatment of
Elena and Jessica who lost their jobs when they were pregnant. Both Georgia and
Claire’s employers refused to allow them to return to work from maternity leave. Both
women were replaced by less experienced new recruits on lower pay rates. As with
Elena’s and Jessica’s employers it appears that, at best, Georgia’s and Claire’s employers
did not plan properly for the women’s continued employment or, at worst, had never
intended for the women to return to work. This is despite the fact that the women and
their employers had discussed and agreed on the return to work arrangements before the
women went on leave.
While Georgia was on leave her employer had trouble filling her four-day-a-week finance
position in his small to medium construction business. He eventually filled the role with
two new employees each working three days a week. He has told Georgia he is happy
with this arrangement and she can be ‘on stand-by’ but he doesn’t have any work at the
moment. Georgia thinks the current arrangement suits her employer as he is no longer
dependent on one person to perform a function he knows nothing about. She thinks he
may also be saving money as he has employed two women who she understands have
limited work experience in Australia and may be on much lower pay rates than she was.
While Georgia has not given up on her job yet, she is becoming pessimistic about her
chances of getting it back as time is passing and her employer has not responded to
letters stating his obligation to return her to work.
I just thought that you had to have the job open for a year; I mean that by
law you had to keep, and he even mentioned himself, by rights he has to keep
my job open and now he’s totally changed his mind.
5.2.2 Having employment status or hours changed
A solicitor consulted as part of this project noted that when they are ready to return to
work women are often offered ‘substitute’ positions that are in effect demotions, have
less responsibility or are otherwise detrimental to their careers. The enquiry data set out
in section 4 also highlight the problem of women only being allowed to return from
leave to part-time work if they agree to change their employment status to casual. A
particular concern noted by one agency representative was that while women make
enquiries about job loss or changes in hours, they do not realise that the change of
employment status is a significant change.
Among our interviewees, several experienced changes to working hours and changes to
employment status either when pregnant or on returning to work. In Lisa’s workplace, all
the employees who had some months earlier been put on reduced hours due to a
business slow down had their hours reinstated when business picked up, except for Lisa.
She continued working the reduced 20 hours a week instead of her usual 30 hours up
until going on maternity leave:
Yes and I was originally told that was a temporary thing because we weren’t
generating enough business and things like that; a few of us got our hours cut but
what happened was when business picked up this year and I was pregnant, the
57
others that got their hours cut at the same time I did they got hours back and I
didn’t.
Along with her responsibilities being reduced, Jessica also found she was not rostered on
for her full shifts on a couple of occasions. Cassie’s hours were changed from part-time
to full-time a few weeks before she was due to go on maternity leave although this may
have been part of a wider effort to have a larger group of employees sign new AWAs.
Claire and Georgia effectively lost their jobs when their employers told them they could
have some casual work if it became available. Other interviewees also had employers
who wanted to change their employment status on their return to work from maternity
leave. Indeed, an experience shared by many of the women we interviewed was of being
treated as if they had lost any right to permanent employment and were no longer valued
employees, either on their return from maternity leave or once they expressed a desire to
work fewer hours than they previously had been working. This happened to women who
were in high and low-paid jobs and in small and large organisations.
A year after she had intended to return to work after having her baby, Claire, who had
been a permanent employee with the business for 10 years, finally has some work from
her employer, which she does from home. Her status is now very different. She is a
casual and gets paid when there is work.
As had happened to Claire and Georgia, Janine’s employers also took on an additional
employee in a continuing full-time role when she was on leave and it would appear that,
while they wanted Janine to keep working for the company, they also wanted to gain
some flexibility by divesting themselves of any obligations they would have to her if she
remained a permanent employee. Janine refused her managers’ demands to return to
work as a contractor and eventually they agreed to her returning to work as an employee:
But in the end they also asked me to come back as a contractor and not
come back as permanent part-time. That’s when it got a bit ugly on my side
because I wanted to come back permanent part-time because I just saw all
my rights as an employee go out the window. If I went back as a contractor
if work dried up they could just say, ‘See you later.’ I pointed that all out to
them I said, ‘I was loyal to you throughout my maternity leave, I worked
from home and I’m committed to the company. I’m loyal to the company.’
An additional problem identified in consultations was women returning to work parttime and being made redundant but only receiving redundancy pay on the basis of their
current part-time earnings despite having worked full-time prior to their leave. One of
the women we interviewed had her status changed to ‘temporary’ and was told she was
not eligible for any redundancy payment at all after five years’ employment with her
employer.
Shelley lost her job after her employer changed her status from permanent to temporary
on her return from maternity leave. She wanted to return to work part-time and agreed
to undertake a temporary part-time project role with the expectation that on-going parttime work would eventually be found in the very large company in which she was
employed. However, there was a company restructure involving many redundancies and
Shelley’s employment was terminated at the end of the three-month contract. She was
58
not paid a redundancy payment as she was no longer considered to be a permanent
employee:
I signed a three-month contract, unbeknownst to me was that I withdrew
all my rights as a full-time employee, which I wasn’t really made aware of. I
just thought I was signing a contract for a position…then when the
restructure was announced I didn’t have a job and didn’t have access to a
redundancy, so basically I left there with nothing.
5.2.3 Other downgrading of employment conditions
In addition to changes in hours and employment status there are a variety of other ways
in which women’s employment may be ‘downgraded’. Among women we interviewed
several shared the experience of losing their status as trusted and valued senior
employees in their organisations. For some women this occurred during pregnancy
although more commonly it became apparent when women returned to work from
maternity leave. While this was manifested in actions as dramatic as the total withdrawal
of employment, it was also evident in many other subtle and not so subtle changes in the
treatment of women.
Jessica had her duties downgraded when she became pregnant and, as already outlined,
once they had babies, some other women were treated as casuals who could be called on
if needed and to whom there was no obligation to provide on-going or regular work. It
was made clear to these women that their employers would give priority to the full-time
employees.
Trudy is almost certain that her pregnancy was the reason she did not gain a promotion
to a high-level permanent role for which she had been head-hunted and in which she had
been acting for six months. She said she had been ‘pushed’ to take on the role and she
had received very positive feedback and a pay rise on the basis of her performance in it.
She said, ‘I just, I don’t know. I was the little golden girl and then I wasn’t.’
Cassie experienced changes to both her work location and job while on leave. She was
advised there were significant changes being made to her employment only days after she
left work on unpaid maternity leave. She was contacted and told she would be returned
to an entirely different work location that was much harder for her to travel to and to a
different much less attractive job which said she ‘never would have applied for’. The
changes made by her managers came as a response to Cassie’s refusal to sign an AWA
but they were made at a time when Cassie was least able to challenge them and most
likely to perhaps give up altogether on her job with the company.
On returning to work in a part-time role for the first time, Trudy found she was given
less skilled tasks than when she was full-time:
What I found is the work that I was getting post-baby was very menial; it
was getting paid at the higher rate, like I was still on what I was earning
before, but I was just doing shitful unrewarding stuff that had to get done.
5.2.4 Refusal to accommodate pregnancy
Union and agency representatives consulted identified the refusal of employers to
accommodate women’s pregnancies as one of the main problems experienced by women
59
in the retail industry. This issue was also identified in the WRIL, Job Watch and
VEOHRC enquiry data. The sorts of issues raised by the SDAEA include requirements
to lift weights and to stand for long periods and women not being able to sit down and
not being allowed to drink water. Problems also arise where pregnant women need to go
to the toilet more often and managers monitor toilet visits.
According to the SDAEA, problems arise where managers do not give women
information about their rights so that the women do not know that they can consult a
doctor and, if medical restrictions are identified, have suitable duties provided. Another
problem identified is the refusal for use of personal leave to attend antenatal
appointments. In the view of one SDAEA representative, there is a lot of pressure on
women to make appointments for outside work times, something that becomes more
complicated if the woman’s partner also wants to attend the appointments.
Lisa, who became pregnant while she was employed, and Sophie, who was looking for
work, both experienced problems with employers who were unwilling to accommodate
their pregnancies. In both cases, employers appear to have been unprepared to give any
consideration at all to adjustments that could be made. Both Sophie and Lisa were told
that as pregnant women they were not wanted in the workplace. Employers said they did
not want the responsibility or the risk and Lisa was also told a pregnant woman was ‘bad
for the company’s image’. In these women’s experiences it seems it was simply the
presence of pregnant women in the workplace that employers were objecting to. While
health and safety concerns were cited in both cases, these objections were not justifiable
or they related to concerns that could easily have been managed.
One of Lisa’s managers did suggest that some of her warehouse and sales duties could be
changed to accommodate her pregnancy but a more senior manager in the family-owned
business just wanted her to leave. Lisa said:
[The main boss and I] had an initial meeting and she said, ‘I’m advertising your
position.’ She was extremely worried about if something happens to me at work
then they’re responsible but yet not willing to lighten my duties or anything like
that. It was more a case of, ‘I want you out of here quickly so this sort of thing is
over.’ … She tried to make it sound that it was in my best interests if I just left,
it was better for me if I just left quietly and that was it and as far as she was
concerned it wasn’t maternity leave, it was you cease being employed here. She
was saying it’s not good for them, it’s not good for their business, their image
and she was implying that because I was sick and had problems I really should
put what was best for my baby first and that was to not be working.
While her employer was not prepared to make any adjustments, this contrasted greatly
with the support Lisa got from her co-workers:
I would say that the people I worked with were quite supportive and really
good so I think in that respect a lot of employers are completely out of
step… OK, something was taking us longer or you need to sit to do that or
you needed to go to the toilet more often. The people that you actually
worked with were very understanding that this is an out of the ordinary
situation and were quite happy to accommodate those needs. They were
very encouraging about wanting me to return, [saying,] ‘Oh, you will come
back,’ and things like that.
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Sophie was refused two casual hospitality jobs because she was pregnant. She told us
about these incidents, which occurred when she three to four months’ into her
pregnancy and she was applying for jobs:
So the lady from the bistro came out and before I’d had a chance to tell her
I was pregnant, she looked at my references and said, ‘Oh yeah, sure,’ you
know, ‘When do you want to start?’ and then I said, ‘I’m also three months,
nearly four months pregnant.’ It was showing but she just mustn’t have
noticed it. And she said, she said, ‘Oh, that might be. I don’t know if we
want to be responsible for having a pregnant person working here,’ and, ‘It
might be a liability,’ or something and she asked the guy in the bar. She said,
‘Well, what would you do?’ He said, ‘Well, I was going to give her a job. I
don’t care that she’s pregnant.’ … She said she’d think about it and she’d
get back to me and she didn’t ring me back and I tried to contact her on
about, I don’t know, probably five occasions and just heard nothing back
from her at all.
There was a job advertised in the window at I think it was the [restaurant]
in [suburb] and I went out there. This was when I was only like three
months or four months pregnant. I said to the lady, yeah, I told the lady I
was pregnant and she said that she wouldn’t have a pregnant person
working there because she’d had pregnant people work there before and it
didn’t work out or something and yeah, she just wouldn’t do it… She
thought I might fall over or something, the lady at [restaurant]. I think she
said that, she said they do carry drinks up from the fridge room or
something and the heavy lifting wouldn’t work. But I mean there’s only a
pretty small amount of heavy lifting in any sort of café hospitality job so I
think that it would have been really easy to work around it. She just chose
not to.
One theme in the pregnancy-related complaints made to HREOC is the apparent view
that once a woman is pregnant there is an assumption that she cannot do the full range
of duties and her duties are gradually cut back to the point where she is not needed.
Lisa’s experience was also one of being ‘pushed’ out of the workplace once she was
pregnant. Lisa went on leave 10 weeks before her baby was due. This was much earlier
than she had planned to take her unpaid maternity leave but her employer had been
pressuring her to leave work as soon as Lisa informed her of the pregnancy. She stayed at
work for as long as she did because it took her employer some time to find a
replacement for her and then her employer allowed a two-week overlap while there was a
special project on. Lisa is unsure what her employer will do when she is ready to return
to work from maternity leave as her employer has said only that Lisa may be able to get
one or two days’ work.
5.2.5 Flexible or part-time work not given due consideration
The idea of any ‘right’ to return to part-time work was considered by an industrial
advocate we consulted to in reality be ‘a nonsense’. Several individuals and agency
representatives suggested that employers were becoming very resistant to providing
women with part-time work on their return. An SDAEA representative noted employers
were reluctant to provide family-friendly rosters to women for fear that everyone would
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want to work similar hours. Others we consulted related examples of large employers in
the private and community sector that had decided to no longer offer permanent parttime work at all. This is a concern as being unable to negotiate suitable part-time work
often leads to women resigning from their employment.
An experience shared by many of the women we interviewed was of a lack of due
consideration being given by employers to flexible or part-time work after maternity
leave. Several women who had discussed their planned return on a part-time basis with
their employers prior to going on leave were sure they had an agreement to do so. For
example, in interviews with applicants for Marita’s maternity leave replacement, Marita
and her employer raised the possibility of an ongoing job-share role for the person on
Marita’s return. Claire’s employer had been pleased to hear that Claire wanted to
continue her employment on a part-time basis and had agreed to a minimum number of
hours a week. However, the ‘flexible’ employment these two women were offered on
their return was casual work if and when it became available.
Janine’s employer did agree to her returning part-time however when Janine requested to
work one of her days from home his response was to insist she change her status from a
permanent employee to a contractor. He was not prepared to consider her working from
home despite the fact that she had been successfully undertaking work from home for
the company during her maternity leave.
Alison’s employers had said they would be happy to consider her returning to her role
part-time but when the time came, they gave it little consideration. In the very large
company where Shelley was returning to work part-time Shelley said there was a policy
stating part-time work could be possible if it ‘suited the business needs’. However, in
reality it seems a part-time return is only possible if there is an existing part-time vacancy.
While Shelley and the HR department looked for part-time roles in the company that she
could do, it seems there had never been any consideration by line managers that she
might return to her own or a similar role on a part-time basis.
One of the motivators for Cassie and her advocate to go as far as lodging a claim with
the AIRC was to try to get Cassie’s employers to seriously discuss a more gradual return
to work for her on a part-time basis, but the company was not interested.
5.2.6 Agreed part-time work arrangements not adhered to or made
difficult
Both Kate and Trudy had returned to part-time work but found there was either no
commitment to or active undermining of these arrangements, a problem that was
identified by a union representative as occurring in the community sector. In the office
environment where Kate was employed it was common for the manager to demand the
presence of part-time employees on their non-work days. In Trudy’s workplace, a long
hours culture meant it was very difficult for part-time employees to be effective in their
roles and, as Trudy discovered, part-timers could be forced out by purposefully making it
even more difficult.
Kate considered she was fortunate to have secured a three-day-a-week part-time project
role. She loved her job, worked really hard and often worked from home on her nonwork days. However, her manager continually asked her to come in on days she was not
scheduled to work. Other part-time employees had told Kate they believed the manager
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made these demands of part-timers to extract extra effort from them. When Kate
resisted, she lost her job.
After her return from maternity leave to a part-time role, Trudy was struggling to make
progress on a complex project for which she was responsible. In part, she attributed her
difficulties to the fact that she was working part-time in a work culture where it was
necessary to be present outside regular office hours to get things done. It also became
apparent to Trudy that she was being actively excluded from meetings:
And I found in the end what was happening was I was actually not even
privy to the meetings… This was the project that I had worked on for
twelve months and…[a colleague] was scheduling meetings particular to
the project at times that I wasn’t there. It was raised several times that I
can’t be here on those days. It’s like, well.
When asked why she thought she was being actively excluded Trudy said it had
been discussed as an effective strategy for getting rid of part-time employees.
Trudy resigned soon after the following incident:
And it, you know I remember something being said about how we shut
(part-timers) out and they’ll make those decisions, the messages get clearer
or, I can’t remember the words, but effectively it was shut them out from
the meetings and they’ll get the message. And that was what I was
experiencing at that time and it was so raw to me and it was so awful and I
came home and I was flying down the highway, thinking, ‘Oh, my God,’
and I was in tears. It was awful.
5.2.7 No provision for breastfeeding
Problems managing breastfeeding on return to work were only raised in two enquiries to
Job Watch. The complaint-handling and enquiry agencies confirmed that there are very
few breastfeeding enquiries and even fewer formal complaints. In the view of VEOHRC
staff this may be because people’s expectations are quite low about breastfeeding;
whereas there is more general awareness that employers should be accommodating an
employee’s parental status.
Feedback from telephone counsellors working with the ABA indicates that between one
in ten and one in five of all calls made to the ABA in Victoria are in relation to workplace
difficulties around breastfeeding and other maternity related issues. A problem identified
by the ABA representative consulted for this project was that of employers not accepting
women having lactation breaks at work. Feedback from ABA mothers’ group members
indicates a mixture of positive and not so positive experiences on return to work
depending on the manager and workplace. Difficulties included lack of understanding by
a supervisor or manager, inflexible start and finish times, no place to breastfeed and only
being able to access part-time work if a lower position was accepted. Two mothers’
group members have had positive experiences. Although one recognised this was not
necessarily a widespread experience in her workplace. She says: ‘I was very much
accommodated and able to express twice a day whilst at work and had feeding visits.
However, I believe workers on the floor would not be accommodated and would actually
find returning to work and breastfeeding difficult.’
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5.2.8 Work organisation, performance and rewards systems
Some of the problems women experience at work either during their pregnancies or on
return from leave arise from the ways in which their work is organised or rewarded. In
our consultations, concerns were raised about negative impacts on more vulnerable
workers, including women who are pregnant or returning to work and more generally
workers with family responsibilities, in the more individualised bargaining environment
under WorkChoices. Another concern raised in consultations was that a consequence of
organisations having devolved HR functions to line management was that people making
the decisions don’t always have exposure to concepts such as indirect discrimination.
The long work hours culture in the workplace of one of our interviewees provides an
illustration of some of the sorts of problems women may experience. Trudy found it
difficult to be effective in her senior job where she needed to be there after hours when
the ‘core business’ was done. The exclusionary tactics adopted by her colleague appear to
be motivated by the colleague’s desire to get things to happen faster than it was possible
for Trudy to achieve as a part-time employee. In this case, the work organisation and
reward systems appear to work against the acceptance of part-time employees.
The performance system in Cassie’s workplace disadvantaged her as a pregnant worker:
You have targets that you have to work for, which is another thing that
came into it, now I remember. One of the targets was how long you spent
off the phone for things like toilet breaks and stuff like that, and being
pregnant I was having a lot of time off for even just running to the toilet
and the fact that I couldn’t get around the building. So you had like eight
minutes a day or something that you had to be off the phone aside from
your lunch breaks. I wasn’t meeting those targets…
[T]here was also, you’d get incentives for working, for not actually having
sick days at all. So in the one fortnight if you had one sick day you’d lose
that part of your incentive and so even [to use] my sick days to go to
antenatal appointments at the hospital and ultra sounds I was losing an
incentive.
5.2.9 Other discriminatory treatment in the workplace
In consultations other discriminatory treatment identified included being excluded from
activities such as staff meetings or strategic planning, not being valued because of
working part-time and being subjected to degrading comments.
When Cassie became pregnant she tried numerous times to find out about the company’s
parental leave policy with little success. She thought her employers were shocked to have
a pregnant employee in their workplace, a large call centre full of young people, and
weren’t sure what to do. She said, ‘I think they would have just been really happy if one
day I just didn’t go to work at all.’
Other women we interviewed spoke of changed attitudes towards them in their
workplaces once they were pregnant or had returned to work. These included colleagues
or managers suggesting to women were no longer capable or interested in the work or
the organisation. Claire said of her employer:
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Well he’s that sort of person that, yeah, you become a bit of a write off… He’s
a pretty immature person so he just comments and he gets away with a lot, you
know, a lot of comments…yeah, like ‘you wouldn’t be concerned about that
because you’ll be doing baby things’.
Comments made by Marita’s employer led Marita to believe the reason she was not being
allowed to return to work on a permanent part-time basis was because her employer
thought she could no longer be relied on now that she was a mother:
The fact is now she sees me as being unreliable because I’ve got a child. I
think that was her whole thing when she said, ‘I don’t think you will cope
with the job.’ I think it was more, ‘What if (child) gets sick?’ You know,
obviously she knows that he is my main priority and I think that was her
way of saying, ‘I need the (business) to be your main priority rather than
the child.’
5.3
Access to Advice and Actions Taken
5.3.1 Seeking advice
The women we interviewed sought advice from a variety of sources, which is not
uncommon according to the Job Watch representative we spoke to who noted that
typically by the time women call Job Watch they’ve contacted three or four different
agencies for assistance. She suggested women tend to find out about particular agencies
through a family member or friend.
In addition to contacting the WRIL, many of the women we interviewed also sought
advice from either or both of HREOC and the VEOHRC. A couple of women
contacted Job Watch, many of them got advice from lawyers, two women rang their
unions and one sought advice from the Human Resources section of the organisation in
which she worked. In most cases the women contacted one organisation they already
knew about, had a contact in or found via an Internet search and the first person they
contacted suggested that they also seek information from other bodies.
The process of getting the information and trying to understand their rights and options
in the different human rights and industrial systems was a complicated, time-consuming
and often confusing one for many of the women. The partners and husbands of some
women also spent a considerable amount of time seeking out and sifting through
information. Shelley told us:
I made a lot of phone calls ’cause I didn’t really know what my rights were
and rang this one and that one and spoke to Job Watch and then I spoke
to Workplace Advocate and spoke to heaps of people for advice. I spoke
to solicitors and everything like that. Basically after all that, I just went
through a whole process of working out what my best avenue was.
The women were mostly very thankful for the initial information and assistance they
received. Several commented on the helpfulness of individual enquiry staff to whom they
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spoke. A few women including Jessica felt some frustration that they were able to get
information only rather than advice on the best course of action in their specific case:
Yeah, they were really good. It’s difficult because you speak to a different
person every time. They were really helpful. They can’t give you advice so,
you know, and when this sort of stuff happens you really want advice
because you’re only thinking of it from your perspective, so I mean I don’t,
I don’t know what they were thinking, I don’t now.
Of the women we interviewed who sought advice there were several who were quite
disappointed with what they learned about their rights. In particular, women who were
trying to return from maternity leave on reduced hours were disheartened when they
were told their employers only had to return them to full-time employment. Claire called
the VEOHRC:
They were telling me ‘No sorry, you know maternity leave is you can return
to work to your same position… If you want to negotiate a part-time
position it’s a new, it’s basically a new contract.’ They said it’s not the same
position.
A few of the women were also disappointed to hear that there seemed to be little that
could be done to address the very clear discrimination they had experienced. Sophie had
told prospective employers she was pregnant in the belief that they could not
discriminate against her and was distressed that is seemed nothing could be done about
it. Several women said they had been quite confused about the different laws and
jurisdictions that applied and had found it difficult to work out what their best option for
taking action might be.
After seeking information about their rights some of the women we interviewed,
including Claire and Marita, felt they really didn’t have any basis for insisting on returning
to work on reduced hours. These women put what they saw as their employers’ betrayal
down to experience and partly blamed themselves for not getting the agreement in
writing before going on leave.
Both Trudy and Marita decided to take no action as they feared this might provoke some
kind of retribution. Marita thought she might lose the one-day-a-week casual work she
was left with if she argued with her employer. Trudy, who believed she had been
discriminated against in a selection process, considered taking a grievance up within the
organisation and sought advice internally. However, she decided not to as she thought it
would put her longer-term career with the organisation at risk.
After being told she may not have a job when she returned from maternity leave, Elena
sought advice from a lawyer and an HR specialist and demanded a redundancy payment
from her employer. She wanted to pursue an unlawful termination claim but was
deterred by the 21-day time period for lodging her claim with AIRC. She was stressed
and anxious about her pregnancy and when her baby was born prematurely a few days
later she was in and out of the hospital. The 21 days passed before Elena was able to
think about her employment problems again:
So you maybe change that 21 days because there are circumstances, like
fine, I had a week to research it which you normally do, you don’t lodge
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the form straight away. Then I was in hospital for a week, then I took my
baby home, then my baby had to go back into hospital… That couldn’t
work for me so between that I had a week to do it and then the other two
weeks I was in and out of hospital and then I had two days at home and
I’m like I have to decide if I’m going to do this thing or not and then I
went, ‘No, I have a baby. What am I doing?’ and that’s hard enough just
coming to terms with having a baby, for the first baby, let alone…and then
I went, ‘No, it’s too hard.’ If I had of had three months to do it then I
might have done something but 21 days was just…it just didn’t work.
5.3.2 Remedies available and views of these
Industrial advocates – including private advocates, union representatives and solicitors –
consulted for the project had a range of views on the different avenues available to
women seeking a remedy for a pregnancy-related dismissal or loss of job. Problems they
identified with the industrial avenue were primarily the fact that costs could be incurred
if a matter wasn’t settled through conciliation and went to court. One advocate said he
preferred to take matters to HREOC because of costs in the industrial jurisdiction.
Another advocate suggested the VEOHRC route was preferable for the same reason.
Two advocates commented on the slowness of processes, one on the VEOHRC
processes and the other on the HREOC processes. The person commenting on the
HREOC processes believed the agency had a backlog because of people choosing this
route due to costs in the industrial system and the fact that there is no ceiling on
compensation while there is one for unlawful termination in the industrial system. One
person commented that the slowness of the processes was often very stressful for
women and there were practical concerns for women with young babies attending
hearings. However, a HREOC representative identified as a benefit of the HREOC
avenue the fact that it does not have a tight timeframe like the AIRC 21-day limit for
lodging a claim, so people are able get on with finding the next job and then make a
complaint. The longer timeframe also provides people with the opportunity to reflect on
what happened and identify any other issues arising from their treatment which should
be considered. As described elsewhere in this section the 21-day timeframe was identified
by two of our interviewees as a factor in deterring them from lodging a complaint with
the AIRC.
Advocates noted that most matters in the industrial system and through the VEOHRC
were settled, with one advocate commenting that most employers did not like the
matters becoming public. A perceived shortcoming of the State anti-discrimination route
was that awards made by VCAT were small. As highlighted in section 3, prior to
WorkChoices it was common practice to lodge an unfair dismissal claim as well as an
unlawful termination claim. This option is no longer possible given the limited coverage
of the majority of employees by unfair dismissal protection. Feedback through union and
advocate groups is that procedurally the unlawful termination can be tricky if the matter
does not conciliate.
Four of the women we interviewed pursued a formal remedy to the discrimination they
experienced. Shelley, whose status was changed to temporary after she returned from
maternity leave and who then had no job at the end of her contract, lodged a complaint
with the VEOHRC alleging discrimination on the basis of parental status. She had been
weighing up whether it would be preferable to do this or to lodge an unfair dismissal
claim through the AIRC. The 21-day time period for lodging a claim was a deterrent to
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taking the AIRC route and Shelley also feared she would need to engage a lawyer and
possibly pay other costs. It was six months before Shelley’s mediation hearing, at which
she was very relieved to have the support of a Job Watch representative. Her company
settled for an amount equivalent to a redundancy payment.
Three of the women we interviewed pursued their unfair treatment through the
complaints mechanism of the AIRC. All three had been advised that is would be easier
to win a claim of unfair or constructive dismissal than an unlawful termination or a
discrimination complaint. However only one was able to pursue a constructive dismissal
case, the employers of the other two women had fewer than 101 employees.
Alison and her solicitor pursued an illegal termination claim and, at a mediation hearing,
Alison’s employer agreed to pay her the equivalent of six months’ pay, a significant
proportion of which went to pay her solicitor’s fees. With support and advice from a
family member with industrial advocacy experience Cassie lodge a constructive dismissal
claim in the AIRC when she was expected to return to work from maternity leave to a
different job in a new location. Cassie’s adviser thought this strategy was best as she was
familiar with the AIRC and thought it was a way to get the company representatives to
sit down with them to negotiate a suitable return to work for Cassie on reduced hours.
However, the company was not willing to consider a return on reduced hours and opted
to settle with six weeks’ pay.
Jessica, who was dismissed during her pregnancy, lodged an unfair dismissal claim and an
unlawful termination claim with the AIRC. She had been told an unfair dismissal claim
was more likely to be successful as it was difficult to prove discrimination. At the
conciliation hearing she learned her employer had only 60 or so employees and so she
did not have a right to seek a remedy to unfair dismissal under the WorkChoices
changes. The conciliation hearing on her unlawful termination claim did not provide a
resolution but Jessica does not think she could risk having to pay legal fees if she went to
court and does not think a remedy based on loss of earnings would be of much help to
her as she had found other employment straight away.
Women who did not take any action expressed disappointment that there seemed to be
little which could be done for them. For Shelley, Cassie and Georgia, who did
successfully pursue remedies through formal processes, there was, however, little strong
sense of having ‘won’ anything. All three women, whose employers settled with
compensation payments, said they would rather have had their jobs. Shelley’s
ambivalence about the outcome of the process is reflected in her saying: ‘Basically I feel I
was sort of successful in that respect but I still feel that like I still would love to be
working.’ Asked how she felt after her employer settled with a payment to her, Alison
said, ‘I was disappointed, I really was because I had no intention of resigning in any
shape or form, I was very pissed off.’
Cassie thought the company would continue to be a workplace ‘where I do think they
take their employees for granted’; whereas she had hoped her case might have been a
catalyst for broader change. She said, ‘I would really have liked to be able to fight for a
lot more that I could fight for. I would really have liked to be able to you know show
what type of company they are and help all of the people that work there.’ Georgia
suspects her employer would rather settle with a payment to her than let her return to
her job after maternity leave. She says she knows him well and ‘this is how he does
business’. She would rather there was some way to force her employer to return her to
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work. Her job is close to home, she is good at it and she enjoys the work and likes her
colleagues.
One reason Jessica thinks it is not worth her pursuing her claim any further following
unsuccessful conciliation at the AIRC is because any payment to her would only
compensate her for loss of earnings. As she has another job, this would be minimal. She
said: ‘Yeah, I’ve got a job, but it’s a new job. I have to work my way up again.’
5.4
Knowledge of Rights and Views of their Efficacy
Several individuals and agency representatives commented on a general lack of
knowledge about rights. Some of the women we interviewed indicated that, prior to
experiencing problems at work, they had only a vague sense that it was not legal to
discriminate against women on the basis of their pregnancy or parental status. Ten of the
thirteen women were experiencing their first pregnancy and several mentioned that noone in their workplace had ever been pregnant before. Claire told us:
I had no idea about the legislation and how, you know what you were
entitled to, I guess I had no idea about my rights and just went through it
blindly so I think that’s important that people understand their rights and
obligations.
A couple of the women, Shelley and Janine, who had been employed full-time knew they
had the right to return to work from maternity leave and believed their employers were
obliged to offer them part-time employment if they requested it but were never really
very sure. Some comments women made suggest that they believe employment rights
and benefits, including those associated with pregnancy, maternity leave and return to
work only apply to employees who have both permanent and full-time status. For
example, two women, Trudy and Marita, thought their employers had treated them
favourably by continuing to treat them as they would treat a permanent full-time
employee.
Several women we interviewed who encountered problems when they attempted to
return to work were shocked at what seemed to be their employer’s complete change of
attitude. In small workplaces especially the women had trusted that there would be no
problems. Most of the women who worked in small organisations said they had not
taken any steps to formalise arrangements with their employers because they had never
had any problems at work before, because they trusted their employer to keep his or her
word and because arrangements had always been ‘casual’.
Some of the women attributed the discrimination they experienced in part to their
employers or managers being male or ‘old’ or both or being inexperienced in regard to
pregnancy in the workplace. At the same time, some women had expected their
employers not to act as they had ‘because they were women’ or because they were a
‘family person’. Various women suggested the discrimination was more likely to have
occurred because they were in a male-dominated or a youthful work environment,
because they worked for a small employer or because they worked for a large employer.
Jessica’s view is typical: ‘I suppose if you work in a small business that’s what you
expect.’
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5.5
The Impact of Discrimination
5.5.1 Employment outcomes
Twelve of the 13 women we interviewed were employed on a permanent basis prior to
becoming pregnant. Of these 12 women, only one is still a permanent employee with the
same employer. As a result of the problems they experienced at work when they were
pregnant, on maternity leave, attempting to return to work or within months of returning
to work, eleven of these women either lost their jobs or lost their permanent
employment status. Seven of the women lost their jobs, although a year after her planned
return to work, one of these women eventually got some casual work from her employer.
An eighth woman, Trudy, feeling she was being forced out of her part-time job, resigned
some months after her return from maternity leave.
Two other women, Georgia and Lisa, think they may have lost their jobs. Georgia is still
trying to return to work from maternity leave but her employer is currently refusing this
and she is beginning to think her return is unlikely. Lisa is on maternity leave but is
concerned she will not be able to return to work as her employer has already tried to get
her to resign and is suggesting that perhaps the company can offer her one or two days’
work on her return from leave.
Of the remaining three women one, Marita, has returned to work from maternity leave
with fewer hours than she would like and with casual employee status on the same hourly
rate she was paid as a permanent employee. Sophie, who was rejected by employers
when applying for jobs because she was pregnant, eventually found work although she
was unemployed for several months.
Only Janine remains with her employer as a permanent employee. Her employer wanted
her to return to work from maternity leave as a contractor but she eventually got
agreement to return part-time as an employee although she has agreed to return to fulltime work after one year. Janine told us:
I’ll always feel a sort of sense of insecurity now, always. I’ll never feel 100%
secure there. I know if things go a bit bad I’m the first person out the door
because I’m part-time so I feel a sense of insecurity in that way.
5.5.2 Future employment
Several of the women were concerned that their employment and career options would
suffer in the longer term. Jessica, a manager in the hospitality industry, found a waiting
job after being dismissed when she was pregnant. She said she would have to work her
way up again. However, she also told us it was necessary to put in long hours to prove
your commitment if you want to get ahead in the industry. She said, ‘It’s a shame. I’m
young though. I’ll be fine but it wouldn’t always be that way for everyone.’
Shelley is now pregnant with another child and is concerned about the effect of the long
period she will have had out of the workforce due to losing her job soon after her return
from maternity leave:
Yeah, so I’m just concerned about what impact it’s had on my career. Well
who’s going to appoint me after being away for three years out of the
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workforce? Though that shouldn’t be impacted but I reckon it will be.
That’s how I feel as well.
5.5.3 Impact on wellbeing
Women felt angry, hurt, betrayed and even guilty because of the treatment they received
at work. The negative response she received on telling her employer she was pregnant
left Lisa ‘feeling like I’ve done something wrong’. Cassie’s efforts to get a copy of the
maternity leave policy in her workplace had her feeling like ‘a troublemaker’. Lisa spoke
of the stress and anxiety she felt in her workplace where she felt she was not valued:
It has actually had a bigger impact than I anticipated because since I’ve
stopped work and I haven’t been in that environment I am much more
relaxed and happier and comfortable and I had no idea just how stressed
and anxious I was and constantly trying to balance what they were saying
they wanted for me and what my family needed. I had, particularly around
the time when I’d initially told them I was pregnant, I was having trouble
sleeping, its just really stressful and it does actually impact on your selfesteem because there was very much that thing at work of well you’re just a
mum and because your priority is your family well they don’t really place a
lot of value on…even though they had a family of their own their value is
tied up very much in work and if you don’t share that to the exclusion of
your family and yeah.
Kate considers herself a successful career woman and she invested enormously in her
work. She initially found the loss of her job extremely distressing and she remains very
angry.
Work is a big part of people’s lives, it is often part of their identity, I was
lucky I owned my house and had some money in the bank but if I’d found
myself made redundant like that and I had lots of debts it could have been
absolutely devastating.
Yeah, I would have to say even though I tried to see the positives out of it
– spend more time with the children and what have you, it really hurt, it
affected my self-esteem, my self-perception… I just felt really angry that I
tried so hard to not let being a mother and a working parent get in the way
and I delivered above and beyond. But I still felt that that wasn’t enough
and there was a lot of anger around that and around that I worked so hard
to make sure that that didn’t impact on my role and the only time I
couldn’t go to it, the one day I didn’t go and I wasn’t been paid for it, that I
was dismissed on that basis, that really made me angry and still makes me
angry.
5.5.4 Financial impact
There were negative financial impacts for many of the women to whom we spoke. Six of
the 13 women in this study were the main income earner in their household and three of
the women were the only earner during some of the time when they had expected to be
in paid work but were not. Many of the women and their families made significant
changes to their plans in the face of the unexpected income loss as well as having to
71
manage the immediate effects. Sophie, who had never previously had trouble getting
work in the hospitality industry when she needed it, said:
But yeah, it really, really stressed me out, it really upset me when they
[rejected me], because I desperately needed money and I was, you know,
having to pay for ultrasounds and, you know, blood tests and all sorts of
things.
5.6
Pregnancy Discrimination and WorkChoices
Two of those we consulted stated they had not seen any change in the level or types of
pregnancy-related problems since WorkChoices, and it was noted by one industrial
advocate that the law had in fact improved in relation to women’s right to transfer to a
safe job during pregnancy. VEOHRC representatives stated there had been little
significant change in levels and the kinds of enquiries made by pregnant employees since
WorkChoices was introduced. The numbers of enquiries did not increase immediately
after WorkChoices, and VEOHRC is not receiving any more complaints about dismissal
than it did before WorkChoices. However, the number of enquiries has risen sharply
since VEOHRC started advertising in April 2007 about its services, specifically in terms
of sex discrimination and also more generally, in the employment pages of the main
Victorian daily newspapers and local newspapers services. The recent increase in
enquiries has also followed on to the lodging of formal complaints.
On the other hand, Gary Pinchen, an industrial advocate, is reported in the media as
saying he has seen a ‘remarkable shift’ towards pregnant women being sacked, and the
same for those who are ill or recovering from injuries (Bachelard & Shaw 2007).
HREOC President John von Doussa also notes that in the post-WorkChoices
environment HREOC is receiving an increased number of employment-related
complaints under federal discrimination laws. The number of employment-related
complaints has doubled under the SDA for July–Dec 2006 as against the same period in
2005 (von Doussa 2007). HREOC’s investigations of these complaints found no sign
that the increase reflects any change in the proportion of complaints that lack substance
so it appears unlikely to be due to people ‘testing’ the system. On the contrary, von
Doussa points out that the type of employment-related complaints HREOC has been
seeing since WorkChoices suggest that some employers have wrongly interpreted
WorkChoices as a free rein to hire and fire as they please. While many employers know
that direct discrimination in the workplace is unlawful, HREOC still sees cases where
workers are dismissed on the basis or age, sex or pregnancy, illustrating that some
employers either do not understand, or do not respect, the prohibitions on indirect
discrimination (von Doussa 2007).
A number of the women we interviewed believed the changed industrial relations
arrangements under WorkChoices played a part in either the treatment they experienced
or in limiting the avenues through which they could seek a remedy. Elena’s employer
effectively terminated her employment just as she was about to go on maternity leave. He
cited the ‘new industrial laws’ as enabling him to do this, so she sought advice from a
lawyer and a human resources professional. She managed to get her employer to pay her
several weeks’ pay in lieu of notice but could not get him to pay her a redundancy
payment. She was advised that she could not insist on a redundancy payment because
under WorkChoices her employer did not have to give her a reason for her termination
72
as it was a small company. Jessica, who was dismissed when she was pregnant, was
advised to pursue a claim for unfair dismissal rather than unlawful termination, as
discrimination could be difficult to prove. She was unable to do this because her
employer had fewer than 101 employees.
Two women believed WorkChoices had directly influenced their employers’ actions,
including Kate whose employer told her she was redundant and said she had ‘checked it
all out legally and there’s no recourse here’. Georgia said her employer thought he could
‘get away with a lot more…with these new IR laws’. Cassie’s experience was somewhat
different. Because she was pregnant and did not want to sign up to full-time hours when
she was about to go on maternity leave she questioned the new post-WorkChoices
AWA. It appears to have been Cassie’s questioning of the AWA that led to her employer
changing her employment arrangements and move her to a different work location and a
different job. Cassie said:
[A]s soon as the WorkChoices came in, they sent out a letter to everybody
saying you’ll now be given a new AWA and this has to be returned within
seven days… There’s nobody I know of except for one person, that even
asked, ‘What’s the changes? What’s going on? Do I have to give it back to
you?’… Everybody was scared, everybody in the whole, all of my friends
were all sort of scared to say anything.
Feedback from a number of enquiry and complaint handling agencies suggests there has
been a growing employer view over time that employers have the right to make decisions
about their employees working conditions based on their assessment of their operational
requirements. In the view of several of those interviewed, this trend has accelerated after
the introduction of WorkChoices. HREOC’s President has said that individual
complaints received by that agency give cause for concern that discriminatory provisions
are creeping into workplace agreements. The examples he provides are of bonuses for
employees who take no unplanned leave such as carer’s and sick leave. While noting that
such indirect discrimination, where employers impose a requirement or condition that
disadvantages certain groups is not new, von Doussa states that HREOC is seeing
provisions in some AWAs that indirectly discriminate against some workers. He also
raises concern that women may find themselves sacrificing either family-friendly
employment conditions or a better level of remuneration and points to the welldocumented evidence that women are less likely to strike strong bargains on pay than
men (von Doussa 2007). An industrial advocate suggested that the issue of employers
getting rid of rest breaks was one of the untold stories of WorkChoices and he cited an
example of a woman who allegedly worked 18 hours without a break.
The Australian Breastfeeding Association has also expressed concern that the changed
industrial relations environment favouring individual AWAs is likely to disadvantage
lactating women by stalling improvements in workplace support for breastfeeding
mothers, or by narrowing access to paid maternity leave and other employment
conditions that enable women to combine working and breastfeeding (AWA 2007). The
ABA sees the impact of the WorkChoices legislation on breastfeeding-friendly work
conditions such as lactation breaks, supportive workplace policies and practices, and
facilities provided for women to express breast milk or breastfeed their babies as most
likely to be negative. In addition, the ABA notes that women in their childbearing years
may be entering and leaving the workforce regularly, and could be adversely affected
73
because breastfeeding-friendly conditions are more vulnerable to removal during
individual negotiations with their employer under AWAs (AWA 2007).
WorkChoices is also seen by some as changing the environment whereby pregnancy
discrimination has become more blatant. In particular, the focus under WorkChoices on
operational reasons is seen to undercut the requirement to return a woman to the same
job she had before she went on leave. In the view of several of those we consulted, the
government advertising when WorkChoices was introduced gave employers an
indication that they would have a lot more control over their employees in those
relationships. This worked to reinforce the rationale of operational reasons in sacking or
demoting pregnant women, not allowing them to return to their old job, restructuring
that individual job or making it redundant, and refusing requests to work part-time. The
message that other obligations remained, for example, in respect of non-discrimination
and the parental leave standard, was not seen as being promoted as vigorously by the
government (see also Sheldon & Junor 2006).
Employees may also believe that they have fewer rights and access to remedies under the
WorkChoices changes. A Job Watch representative identified changes in the type of
complaints arising from women no longer having unfair dismissal rights, which had
enabled employees to ask their employers for reasons for dismissal. She also noted that
prior to WorkChoices the agency had a greater number of callers from those working for
employers with 100 or fewer employees. She suggested that due to the changing climate
and the loss of job security for many employees who work for employers with 100 or
fewer employees, there are more people who think that they are not able to complain
about their treatment in the workplace or fear the consequences doing so.
5.7
Views on What Is Needed
We asked the 13 women, the individuals and agency representatives we interviewed what
action could be taken to address pregnancy-related discrimination at work and to provide
effective avenues of redress.
5.7.1 Information for pregnant women about their rights at work
The Job Watch representative argued there had not been enough attention paid to
getting information out about pregnancy-related discrimination and, as noted, many of
those consulted commented on a lack of awareness of rights in this area. When we asked
the 13 women what they thought was needed to address pregnancy discrimination, most
responded that there needed to be more information available to women about their
rights. Lisa said if she had been aware of her rights she would have done things
differently:
This is what I would like to do. I would go in right from the start…and just
be more confident and proactive in the process instead of letting the
process happen to me. I’d be just a lot more confident in dealing with the
situation.
Several women suggested information about women’s rights at work could be included
in the pregnancy ‘bounty bag’ that most women receive from the hospital or their doctor
or obstetrician during their pregnancy: For example, Lisa said:
74
Actually at the hospital you get a little bounty bag and it tells you all about
where to buy baby clothes and all sorts of products. I didn’t even know if
there was an ad… I know in some of the baby magazine they have ads
from the family assistance talking about child care benefits and if you get in
touch with Centrelink you may be entitled to…but I haven’t seen anything
that… Perhaps it would be an idea in that little bounty bag that you get
initially early in your pregnancy to have – just to let you know your basic
rights – is it OK for me to ask for a chair to do my job or if by me needing
to sit does that mean that negates my right to do that job? Do you know
what I mean? [Because] you just don’t know.
5.7.2 Information for employers and enforcement of standards
One area in which there was seen to be a need for more information was in relation to
employers’ obligations to reasonably accommodate pregnant employees. The Job Watch
representative identified employers’ responsibilities to pregnant women and to their coworkers in relation to health and safety as a specific area about which more information
is required. It was suggested that Work Safe could provide some information about these
issues both for pregnant employees and for their employers. The Job Watch
representative also suggested a guide on how to be a good employer in this area would be
useful and could be produced through collaboration between various organisations if
funding was available.
The women we interviewed also thought that employers should be better informed of
their obligations in regard to employees who become pregnant. Sophie, the only woman
we spoke to who was looking for work when she experienced discrimination, also said
employers should be informed of their obligation not to discriminate against pregnant
job seekers. In addition to employers being better informed, Cassie suggested there
should be greater enforcement of standards.
I think every company that has women working there should be well aware
of what their policies are and make them available to anybody that wants to
read them… I think every company should know what their own policies
are and should, I think it should be across the board. You know, minimum
standards, which I know it is, but maybe more enforced.
5.7.3 Formal workplace procedures
Most of the women we interviewed suggested there should be some sort of formal
workplace procedure for employees and employers to follow, when women are pregnant,
when they are on maternity leave and when they return to work. It was not just women
in small organisations who saw a need for more formal procedures. Cassie, who worked
for a very large company, said:
I’ve never been pregnant in another workplace so I don’t know what it’s
like but I think everywhere should have formal procedures… They should
have said to me a few weeks before you go on leave, ‘This is when you
should be giving your form in and when you come back, we’ll call you
when you’re on maternity leave and say, you know, you’re due back here,’
and, you know, they should have made it a lot easier for me to come back
to work.
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5.7.4 Guaranteed return to part-time work
As noted earlier many of the women we spoke to were dismayed and surprised to
discover their employer did not have to offer them a return to work on part-time hours.
Several women suggested some kind of guaranteed return from maternity leave on parttime hours is needed. Shelley said, ‘I know a few businesses out there, larger companies,
offer a guaranteed part-time position for two years on returning from maternity leave
and that would be fantastic.’
5.7.5 Protection against unfair dismissal
Some women were aware and others were advised that it would be very difficult for
them to prove the discriminatory treatment they had received if they decided to make a
complaint. As Kate’s experience illustrates, without protection against unfair dismissal, it
is easy for an employer to argue there are operational reasons for terminating a woman’s
employment:
And I was just floored that she could have got rid of me that easily and the
position could have just been made redundant like that but I learnt later
that it is within the law that they can do that… And also the other thing,
having worked with organisations like [name of company] and my previous
employer [name of company], there wasn’t any such thing as bullshit
redundancies.
5.7.6 Contact while on maternity leave
One of the SDAEA representatives we spoke to described a comprehensive ‘stay in
touch’ program the union has for its members who go on maternity leave, which could
be a model for other unions and for employers. It includes newsletter or journal, a
parental leave pack, return to work information and contact with the member before
they return to work and immediately after their return to ensure things are OK. While
some women we interviewed were in contact with their employer during their maternity
leave, those who were not identified lack of contact as a problem.
5.7.7 Workplace support for breastfeeding
The ABA advocates increased workplace support for mothers returning to work after
maternity leave to assist them maintain breastfeeding. The ABA stated in its submission
to the 2002 HREOC inquiry:
Women return to work after the birth of their baby for diverse reasons including
financial need and investment in a career. Many feel they must choose between
breastfeeding and returning to work. Women need to see community and
institutional support for breastfeeding and working to feel that this is an option.
It is inequitable that only women with significant influence or those who have
forward-thinking employers should have the optimal chance of establishing
breastfeeding before a return to work. (ABA 2002)
The ABA recommends developing and implementing strategies that support mothers to
combine breastfeeding and paid work, including by introducing universal paid maternity
leave and mandatory breastfeeding-friendly workplaces.
76
Specific supports needed to support breastfeeding in the workplace identified by women
in ABA mothers’ groups include: access to reduced hours or part-time work, flexible
start and finish times, being able to work from home, access to a breastfeeding and
expressing room, provision of lactation breaks, supportive and understanding bosses and
colleagues, paid carers leave, good practice guidelines and risk assessments while
pregnant, more information about process to make complaints about discrimination, and
a process that publicly rewards employers who support women and families in this way
and penalises ones that do not.
5.7.8 Broader workplace changes
Several women we interviewed thought it would be difficult to prevent discrimination
unless other changes occurred in workplaces to make part-time work more acceptable
and, more generally, to increase flexible work options for women balancing work and
family. In long hours cultures where overwork is common such as in Trudy’s workplace,
the expectation that senior employees give ‘200%’ made it very difficult for women
returning part-time. Other women spoke of being in workplaces where no-one had been
pregnant before, or that were largely structured around the ideal of the full-time worker
without significant caring responsibilities and that, in Lisa’s words, if you’re a mother,
‘you’re just a mum and because your priority is your family well they don’t really place a
lot of value on [that]’.
5.7.9 Improved processes and access to remedies
A number of changes to the WRA and better compliance and auditing regimes policed
by the Workplace Ombudsman and the Workplace Authority have been flagged above
and are set out in more detail in section 6. For example, the Job Watch representative
suggested that reinstating unfair dismissal protection for all employees would help ensure
that when women asked for their entitlements, including in respect of the parental leave
standard, they would be less likely to be sacked for doing so.
The VEOHRC also indicated there may be support for a speeded up process for
complaints involving dismissals. To be effective, such a process would require a change
to the EOA to ensure that enquiry meetings were also covered by confidentiality
requirements. Otherwise complainants and respondents might be reluctant to attend any
meetings, which are legally outside the conciliation process, covered by confidentiality
provisions. Such a proposal would also be supported by Job Watch. A much faster turnaround time in respect of dismissal in anti-discrimination jurisdictions would provide a
better and more effective option than the process for unlawful termination matters.
According to a number of those we spoke to, the turn-around time is something the
people weigh up in relation to which avenue they pursue.
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6
Where To From Here?
6.1
Introduction
There continues to be on-going ambivalence in Australia about maternal employment,
reflected at the policy level in the lack of a national paid maternity leave scheme. This
ambivalence together with misplaced but commonly held attitudes towards pregnant
women, including that they are more emotional, irrational and forgetful than nonpregnant women, and than men, make employed pregnant women particularly vulnerable
to discrimination and disadvantage (McDonald & Dear 2006: 125). At the same time, the
operation of both anti-discrimination and labour law provisions that are designed to
protect working women when they are pregnant, on maternity leave, or return to work
from leave are increasingly limited by the political and policy context in which
‘operational reasons’ are often offered as a defence to discriminatory practices (see
Charlesworth 2005). The regulatory changes introduced by WorkChoices that give
primacy to operational reasons over workers’ rights to protection against unfair dismissal
and redundancy provide an increased space for conflict between legal obligations under
anti-discrimination law and management or operational decisions.
The conflict between women workers’ rights and operational decisions is also seen in the
flagrant disregard for the unpaid parental leave standard reported in many of the
enquiries made to the WRIL, Job Watch and VEOHRC and complaints lodged with
HREOC and VEOHRC, particularly in respect to the right to be transferred to a safe job
and a guaranteed right to return to the job held before the employee went on maternity
leave. Indeed these enquiries and complaints together with the experiences of the 13
women we interviewed would suggest that even the very minimum AFPC parental leave
standard is viewed by many employers as at best an aspirational goal to be realised only if
operational requirements do not get in the way. The lack of any practical rights of redress
when the AFPC parental leave standard is breached means there is no effective means of
enforcing it in the workplace and thus of creating a compliance culture around the
standard.
Pregnancy-related discrimination has very real costs for the individual women who
experience it. The loss of employment in particular disadvantages women when they are
pregnant as the case studies of the women we interviewed demonstrate. Not only have
these women lost a job with all that entails for loss of income, self-esteem and
independence (see also Elton et al. 2007: 84–8), but they are highly unlikely to get
another job while they are pregnant. Further, when they want to return to work they
have no job to return to. The loss of this attachment to the labour market has profound
implications for women’s careers and earnings over the life course and their capacity to
provide for themselves in old age. The women we interviewed and the agencies,
organisations and individuals who work in this area also pointed to the difficulty many
women have in pursuing any avenue of redress open to them at a time when they are
also trying to juggle the needs of their pregnancy and their baby when it is born. It
becomes critical therefore to ensure that pregnancy-related discrimination in the
workplace is prevented to the greatest extent possible.
78
The recommendations below address some of the key mechanisms that could work both
to reduce the extent of pregnancy-related discrimination experienced by women workers
and to provide practical avenues of redress when such discrimination takes place.
6.2
Data Collection, Dissemination and Monitoring
In 1999, the HREOC Pregnancy and Work Inquiry identified an urgent need for
statistical information on pregnancy and maternity issues in the workplace. Yet to date
little is known about the prevalence of pregnancy-related discrimination in Australia, and
the nature of pregnancy-related discrimination has not received the same attention as has
the issue of work and family balance and the need for a national paid maternity leave
scheme.
In 2004, HREOC undertook the first Australian survey into the incidence and nature of
sexual harassment in the workplace workplaces (HREOC 2004). The survey findings
have provided rich material for a code of practice as well as educational material. They
also provide a benchmark against which the success of attempts to prevent such
discrimination can be measured. In the United Kingdom the Equal Opportunities
Commission commissioned a survey of women who had a child aged between nine and
24 months and who were in work during their pregnancy as part of its investigation into
pregnancy discrimination. The findings of the survey highlighted the widespread nature
of pregnancy discrimination, that pregnancy discrimination occurs in all sectors and all
sizes of employer, both public and private, and affects women of all income levels
(Adams et al. 2005). The survey found, for example, that 45 percent of women had
experienced tangible discrimination, such as denial of training opportunities and changes
in job descriptions. Twenty-one percent had faced discrimination that may have led
directly to financial loss and seven percent of women had lost their job as a result of their
pregnancy, maternity leave or return to work following absence for maternity.
There is also a need for consistent data collection across agencies working in this area
both in relation to enquiries and complaints. Many use different industry classifications
and some data such as occupation, employment status and age are not routinely
collected. Further, the publication of de-identified summaries of enquiries and
complaints by the relevant agencies on their websites could provide important
information for women who are looking to better understand the avenues of redress
open to them when they experience or are concerned they might experience pregnancyrelated discrimination.
We make the following recommendations:
1. That the federal government resource HREOC to conduct a national survey to
establish the incidence and nature of pregnancy-related discrimination in employment.
79
2. That enquiry and complaint handling agencies be required by both the federal and
Victorian governments to develop a consistent data collection template for work-related
enquiries and complaints received. That this template include, as a minimum, data on
sex, age, industry, occupation and employment status. Further, that this data is published
and that these agencies meet on an annual basis to identify trends, particularly in respect
of pregnancy-related discrimination, and to facilitate the coordination of responses
including research and monitoring plans.
3. That HREOC recommence regular updating of its Conciliation Register of deidentified complaint summaries and publish these on the HREOC website.
4. That VEOHRC provide de-identified summaries of conciliated complaints and
publish these on the VEOHRC website.
6.3
Workplace Rights
Adequate and enforceable workplace rights are critical for women workers who are
pregnant, on maternity leave or who return from leave. The findings of this report point
to the inadequacy of the current AFPC unpaid parental leave standard leave both in
terms of the minima established in the standard, in its operation in the workplace, and
the lack of practically available avenues of redress when the standard is breached.
Further, at a practical level, workplace rights for pregnant women must be more than
simply the right to pursue individual redress under anti-discrimination laws or indeed a
functional minimum parental leave standard. What workers need is access to labour
markets under terms and conditions that do not disadvantage those who become
pregnant, who take paid or unpaid maternity leave and who seek to maintain their labour
force attachment after they have children. Clearly part of any such conditions includes
the right to paid maternity leave and working-time and leave arrangements that allow all
employees to better balance work and family responsibilities. But just as important are
rights to protection from unfair dismissal, not only where discrimination can be proved.
As we pointed out in section 2, in 1999 HREOC recommended that it be allowed to
publish enforceable standards under the SDA in relation to pregnancy. There would be
no exemptions from the operation of the standards and a breach could be the subject of
a complaint to HREOC. However, compliance with the standards would also provide a
defence to certain discrimination provisions under the SDA. The government rejected
this recommendation on the grounds that education and the dissemination of
information were the best means of changing attitudes that lead to discrimination in the
first place (Human Rights Branch 2000). The data on enquiries and complaints and the
experiences of the 13 women interviewed in this study would suggest that education and
dissemination of information is not enough and that the time has come to consider
enforceable standards of a positive nature.
6.3.1 Improving the AFPC Parental Leave Standard
We make the following recommendation:
5. That the federal government amend the Workplace Relations Act 1996 (Cth) to ensure:
80
•
•
•
•
•
•
•
Employees have a guaranteed right of return to work to the same position or, if it no
longer exists, to a position of as near as possible similar status and remuneration.
to a position of near as possible in status and remuneration.
The standard explicitly provides for antenatal leave and for breastfeeding and
lactation breaks on return to work.
The standard incorporates the provisions of the 2005 AIRC Family Provisions Test
Case Decision.
When women advise of their pregnancy, employers are obliged to give information
setting out their rights and obligations in respect of pregnancy, including the right to
transfer to a safe job or paid leave where necessary, parental leave and the right to
return to the same job. Failure to provide such information constitutes a breach of
the standard.
Critical aspects of the AFPC parental leave standard, including the right to transfer to
a safe job or paid leave where necessary, parental leave and the right to return to the
same job and the return to work guarantee, are included in the AFPC standard
inserted into AWAs.
The AIRC test case mechanism is reinstated to consider other improvements to the
standard over time.
6.3.2 Job security
We make the following recommendation:
6. That the federal government reinstate the right to take unfair dismissal action for all
employees, regardless of size of business or operational requirements.
6.3.3 Anti-discrimination legislation
We make the following recommendations:
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7. That the federal government seriously consider amending the Sex Discrimination Act
1984 (Cth) to:
•
•
•
extend the protection under the Act against dismissal on the grounds family
responsibilities to all forms of discrimination on this ground;
provide enforceable standards in relation to all forms of pregnancy-related
discrimination as recommended by HREOC in 1999; and
provide for the fast-tracked resolution of complaints that involve dismissal.
8. That the Victorian government seriously consider amending the Equal Opportunity Act
1995 (Vic) to:
•
•
provide for enforceable standards in relation to all forms of pregnancy-related
discrimination; and
provide for the fast-tracked resolution of complaints that involve dismissal.
6.3.4 Compliance and redress
We make the following recommendations:
9. That the federal government:
•
•
•
require the Workplace Ombudsman to conduct an education and compliance
campaign focusing on pregnancy and return to work including placing priority on
investigation and audits in this area;
resource the Workplace Ombudsman to enable timely investigation and prosecution
where the AFPC standard is breached; and
establish a Small Business Advocate to assist small businesses to comply with the
AFPC standard and with anti-discrimination legislative protection of the rights of
pregnant women, women on maternity leave and women who return to work after
such leave.
10. That the federal government ensure the provision of specialist advice through its
Workplace Infoline in relation to the options for redress where issues of breaches of the
AFPC conditions standard and pregnancy-related discrimination are raised, in order to
address the lack of understanding of such options among employees and employers.
6.4
Information for Employers and Employees
The findings of this study suggest that there is considerable ignorance both among
employers and employees about the rights of women workers who become pregnant or
take paid or unpaid maternity leave, despite the material available on the federal
government Workplace website. One particular area of confusion is in respect of
occupational health and safety and pregnancy. In 2002, Work Cover NSW published a
guide on pregnancy and work for employers developed in collaboration with the NSW
Anti-Discrimination Board. HREOC also published a set of Pregnancy Guidelines in
82
2001 following the 1999 Pregnancy and Work Inquiry. Another area of concern is the
differing advice that women receive in respect of their rights and options for redress.
We make the following recommendations:
11. That the federal government:
•
•
resource HREOC to update its 2001 Pregnancy Guidelines and undertake a renewed
information campaign around pregnancy-related discrimination using a wide variety
of media; and
ensure these guidelines be made available on the Government’s Workplace website
as well as the websites of the Workplace Ombudsman and the Workplace Authority.
12. That the Victorian government:
•
•
investigate the publication by WorkSafe Victoria of guidelines for managing and
accommodating pregnant and lactating mothers in the workplace, adapting the
guidelines published by NSW Work Cover and HREOC for Victorian employers and
ensure these guidelines be made available on websites of the OWRA, Job Watch and
the VEOHRC; sand
resource the VEOHRC, Job Watch and the Office of the Workplace Rights
Advocate to jointly develop an information pack on pregnancy discrimination and
workplace rights available on their websites and for distribution to employees and
employers, including through the Victorian Chamber of Commerce and Industry and
the Victorian Trades Hall Council as well as individual employer associations and
unions, and ensure that plain language information sheets for employees regarding
pregnancy and workplace rights be developed and disseminated in the ‘bounty bags’
women typically receive when they make antenatal visits to hospitals or obstetricians,
and through the Australian Breastfeeding Association and infant welfare centres.
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7
References
Australian Breastfeeding Association [ABA] (2007) Submission to the Parliamentary Inquiry on
Breastfeeding, Standing Committee on Health and Ageing, House of Representatives.
<http://www.breastfeeding.asn.au/advocacy/bfinquiryabaofficiallsubmission2007fin
al.pdf>
Australian Breastfeeding Association [ABA] (2002) Submission to the Sex Discrimination
Commissioner Valuing Parenthood: Options for Paid Maternity Leave – Interim Paper
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Adams, L., McAndrew, F. and Winterbotham. M. (2005) Pregnancy Discrimination at Work:
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Cat 6202.0
Baird, M., Page A. and Whelen, J. (2006) ‘Maternity and parental leave in Australia –
before and after WorkChoices’. Conference paper from Our Work... Our Lives:
National Conference on Women and Industrial Relations, 12–14 July 2006, Brisbane.
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March 26, 2007.
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30 Victorian Workers in Minimum Wage Sectors, Industrial Relations Victoria,
Melbourne.
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Cooney, S., Howe, J. and Murray, J. (2006) ‘Time and money under WorkChoices:
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in Australia under the Workplace Relations Act 2002 and 2003. A report prepared by
DEWR and the Office of the Employment Advocate, Commonwealth of Australia,
Canberra.
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Macdonald, F., Oliver, D., Pocock, B., Preston, A. and Whitehouse, G. (2007) Women
and WorkChoices: Impacts on the Low Pay Sector, Centre for Centre for Work + Life,
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86
Appendix 1:
Workplace Rights Information Line data
Introduction
In March 2006, the Office of the Workplace Rights Advocate (OWRA) established a
Workplace Rights Information Line (WRIL) to provide information to employees about
the federal industrial relations laws, especially employees who face proposed changes to
their terms and conditions of employment or have been asked to sign a workplace
agreement. The WRIL service also provides information to employers about fair
industrial relations practices.
The WRIL service collects data on those who call the service or on whose behalf the
service is contacted, including on the types of problems raised in these calls. In the sixmonth period to the end of August 2006, the WRIL service was contacted by more than
1,300 callers, the overwhelming majority of calls involving employees seeking advice
concerning an employment problem where they felt that their employer was behaving
unfairly or illegally (Gahan 2006: 8). An analysis of WRIL service callers and the
problems they raised over the first six months of operation indicated that almost half
were women (Gahan 2006: 17) and that apart from dismissal (including the problem
categories of unfair dismissal, unlawful dismissal, constructive dismissal and other
termination), discrimination and harassment accounted for 7.7 percent of reported
problems.
For this project, the WRIL service provided data in respect of the problem categories of
pregnancy or breastfeeding discrimination, parental or carer status discrimination, and
maternity raised by or on behalf of female callers for the period from 30 April 2006 to 30
April 2007. In this report we have designated this cluster of problems or enquiries as
pregnancy-related issues. While many calls involve a single problem, it is possible for a
call to raise a number of problems, including problems such as unfair or illegal
termination, redundancy etc.
Gahan makes a useful distinction between the caller, the person who made the call to the
WRIL service, and the affected person, the person directly experiencing the problem at
work and on whose behalf the call was made. While the caller is typically also the
affected person, this is not necessarily the case (Gahan, 2006: 8). In the data analysis, we
refer to the ‘affected women’, the women who had been affected by pregnancy or
breastfeeding discrimination, parental or carer status discrimination, and maternityrelated issues raised in the calls to the WRIL service.
Affected Women and Pregnancy-Related Issues
In the period 30 April 2006 to 30 April 2007, a total of 107 callers contacted the WRIL
service about work-related problems of or enquiries about pregnancy or breastfeeding
discrimination, parental or carer status discrimination, and maternity.18 These callers
represent eight percent of the 1369 female callers who contacted the WRIL service
during this period.
18
Two employer queries have been excluded.
87
Twenty-six callers raised pregnancy or breastfeeding discrimination, 35 raised parental or
carer status discrimination, and 67 raised maternity problems or enquiries. One caller
raised all three problem categories, while nine callers raised both pregnancy and
breastfeeding discrimination and maternity problems. Eleven callers raised both parental
or carer status discrimination and maternity problems, while two callers raised both
pregnancy or breastfeeding discrimination and parental or carer status discrimination.
The demographic and employment characteristics of affected
women
As set out in Table 1, as might be expected, the overwhelming majority of callers (85
percent) were aged between 25 and 44 years.
Table 1: Age Profile of Affected Women
Age cohort
Frequency
15–18
1
19–24
7
25–34
55
35–44
36
45–59
1
60+
1
Not known
6
Total
107
Percent
.9
6.5
51.4
33.6
.9
.9
5.6
100.0
As set out in Table 2, while the affected women came from a range of occupations,
managers and administrators accounted for almost a quarter of the calls, professionals
and clerical occupations each accounted for just over a sixth of calls and sales and
personal service workers for a fifth of calls.
Table 2: Occupational Profile of Affected Women
Occupational category
Frequency
Managers and administrators
25
Sales/Personal service worker
22
Professional
19
Clerk
18
Para-professional
12
Labourer
4
Tradesperson
1
Not known
6
Total
107
Percent
23.4
20.6
17.4
16.8
11.2
3.7
.9
5.6
100.0
As set out in Table 3, the overwhelming majority of affected women (92.6 percent) were
employed on a permanent basis with almost two-thirds of all affected women employed
on a permanent full-time basis. Only five of the 107 affected women were employed on a
casual basis.
Table 3: Employment Status of Affected Women
Employment Status
Frequency
88
Percent
Permanent full-time
Permanent part-time
Casual part-time
Casual full-time
Job seeker
Not known
Total
70
29
4
1
2
1
107
65.4
27.1
3.7
.9
1.9
0.9
100.0
As can be seen in Table 4, well over half of the affected women (59 percent) had been in
their job for two years or more, with almost half of these women being employed for six
years or more. Only two women had been in their jobs for less than three months and, in
total, only 17 (16 percent) had been in their jobs for less than one year.
Table 4: Tenure of Affected Women
Tenure
< 3 months
3 to 6 months
6 to 12 months
12 months to 1 year
2 to 5 years
6 to 10 years
11 to 15 years
16+ years
Not applicable
Total
Frequency
Percent
2
9
5
26
31
21
6
5
2
107
1.9
8.4
4.7
24.3
29.0
19.6
5.6
4.7
1.9
100.0
Characteristics of workplaces employing affected women
As set out below in Table 5, workplaces in which the affected women had worked or had
sought work (in the case of the two job-seekers) were located in a range of industries.
The two most significant industries were service-related industries. Property and business
services accounted for more than a fifth of callers, and health and community services
for around a sixth of callers. Reflecting the permanent status of most of the affected
women, retail trade accounted for only one in ten callers, with cafés, accommodation and
restaurants, accounting for less than one in 30 callers. Manufacturing accounted for just
fewer than 10 percent of callers.
89
Table 5: Industry Profile of Workplaces
Industry
Property and business services
Health and community services
Retail trade
Manufacturing
Personal and other services
Wholesale trade
Cultural and recreational services
Finance and insurance
Government administration and defence
Accommodation, cafés and restaurants
Communication services
Construction
Education
Transport and storage
Not known
Total
Frequency
Percent
22
18
11
10
8
7
4
4
4
3
2
3
3
3
5
107
20.6
16.8
10.3
9.3
7.5
6.5
3.7
3.7
3.7
2.8
1.9
2.8
2.8
2.8
4.7
100.0
Table 6 sets out the workplace size of workplaces where pregnancy-related issues were
raised with the WRIL service. Small and medium-sized workplaces (less than 50
employees) accounted for more than a third of callers. However, well over half the callers
came from workplaces with more than 100 employees.
Table 6: Workplace Size
Number of employees
< 5 employees
5 to 19 employees
20 to 49 employees
50 to 100 employees
Frequency
Percent
2
19
15
8
58
5
107
> 100 employees
Not known
Total
1.9
17.8
14.0
7.5
54.2
4.7
100.0
Types of pregnancy-related issues experienced
The WRIL service provided the researchers with access to short summaries of the main
problems raised by each of the 107 callers. These problem summaries were coded
according to when the issue arose: when the affected woman was pregnant; when she
was on leave; or after she had returned to work (RTW). There was also a group of callers
who had enquiries that related to workplace problems that arose because of
responsibilities for children of unspecified ages or sometime after the immediate return
to work. These problems have been coded as ‘post-return to work’. The main event
complained about by each caller was also coded as set out in Table 7 below.
90
Table 7: Types of Issues Raised by Affected Women19
Types of problems
Pregnant: Have to advise prospective employer of pregnancy?
Pregnant: Can employer replace?
Pregnant: Rights re leave?
Pregnant: Potential pregnancy discrimination
Pregnant: Discrimination & harassment
Pregnant: Dismissal
Pregnant: Made redundant
Pregnant: Refusal of unpaid parental leave
Pregnant: Refusal of PT work on return to work (RTW)
WHEN PREGNANT TOTAL
On leave: Rights to return PT?
On leave: Rights re returning?
On leave: Rights re removal of PML policy?
On leave: Not promoted
On leave: No job to go back to
On leave: Made redundant
On leave: RTW to be in different role
On leave: RTW same pay / lesser job
On leave: RTW in lesser job with less pay / reduced hours
On leave: Change to contractor when RTW
On leave: Refusal PT when RTW
On leave: RTW PT only if accept casual / contractor
On leave: Refusal of shift change on RTW
ON LEAVE TOTAL
RTW: Not given own job back / lesser job
RTW: Refusal PT
RTW: P/T pay F/T targets / role
RTW: To be made casual / hours reduced
RTW TOTAL
Post RTW: Required to work OT?
Post RTW: Parental status problems
POST RTW TOTAL
Unclear
Total
Frequency
2
1
13
4
13
3
1
3
2
42
2
3
2
1
8
2
5
2
4
1
6
5
1
42
1
2
1
2
6
1
13
14
2
107
Percent
1.9
0.9
11.9
3.7
11.9
2.8
0.9
2.8
1.8
38.5
1.8
2.8
1.8
0.9
7.3
1.8
4.6
1.8
3.7
0.9
5.5
4.6
0.9
38.5
0.9
1.8
0.9
1.8
5.5
0.9
11.9
12.8
3.7
100.0
Enquiries about rights
In all stages, there were general enquiries made about workplace rights in respect of
pregnancy and parental status. Twenty-three affected women made such general
enquiries. For the affected women who contacted the WRIL service when they were
pregnant the most frequent general enquiry was about their rights to leave. In most cases
this was about rights to the statutory provision of 12 months’ unpaid parental leave and
in two cases it was in respect to employers no longer providing paid maternity leave. This
latter issue was also raised in two enquiries by women while they were on leave. The
other five enquiries were about rights to work in the same job or to work on a part-time
basis on return to work. In a number of instances affected women had multiple
enquiries.
19 Where problems had been coded variously as maternity and pregnancy or breastfeeding problems they
tended to relate calls made when the affected woman was pregnant or while she was on leave. Calls coded
as parental or carer status tended to relate to problems experienced on return to work or at some later date
in respect of children by the affected caller. In two cases, while details were provided of problems over the
use of sick leave and carer’s leave, it was unclear if these problems occurred when the affected woman was
pregnant or had returned to work.
91
Anna20 is a permanent full-time sales worker who has worked for her employer in
the retail industry for more than 11 years. She was pregnant when she contacted
the WRIL service. She wanted to know if her employer could make her take her
accrued long service leave and annual leave out of her entitlement to 52 weeks’
parental leave. Anna also wanted to know if she could request to have her hours
reduced as she has to spend 10 hours a day on her feet. She further inquired if
her employer could force her to become casual if she reduced her hours as had
happened to another employee who had asked to reduce her hours.
Problems when pregnant
In addition to those who had made enquiries about their rights, 26 women (24 percent of
all affected women) experienced workplace problems when they were pregnant. Thirteen
of the women said they had experienced harassment and discrimination. This included
such problems as derogatory remarks being made about their pregnancy, not being
allowed to take time off when ill or to attend antenatal appointments, being disciplined
for taking sick leave, not being allowed to take breaks, hours being reduced or being
asked to worker longer hours, and being given additional inappropriate duties like heavy
lifting or climbing a ladder. In one case the woman resigned as a result of such treatment.
Brenda had worked on a permanent full-time basis as a manager/administrator
for more than 11 years in a health and community services organisation. She was
on long service leave when she was offered a 12 month position by the Executive
Director on her return. This was not set out in writing as the Director wanted to
talk with HR about a possible salary increase for Brenda. She then later told the
Director that she was pregnant and would only be able to work for six months,
and then would have three months’ maternity leave. The Executive Director then
withdrew the offer he had made to Brenda and told her the job would now go
through an open process. Brenda has been told she can apply for this position.
However, this is the only one at her level that is currently available and she feels
that she is being discriminated against.
Potential pregnancy discrimination was a concern expressed by four affected women.
They were concerned that their employer was about to discriminate against them because
they were pregnant. For example, in one case, a woman who worked as a labourer in the
wholesale trade industry was worried that her employer might put her in another job and
make her casual. This was because while she was still able to do her own job, she was
finding it a little difficult to bend down.
Another four women had been dismissed or made redundant either after they had
advised their employer they were pregnant or before they went on leave.
Cathy had worked as a permanent part-time para-professional in the health and
community services industry. She had worked for her employer on a continuous
basis for between one and two years, although prior to this period she had
20
Pseudonyms have been allocated to the affected women.
92
worked on and off for the company for around ten years. The company for
which she was working had merged with another one. A week after she told her
employer she was pregnant she was advised that her position was redundant.
In three cases, women said they had been refused access to unpaid parental leave. Three
had worked for more than 12 months in their job while one had worked between six and
12 months in her job. Another two of the affected women’s employers had refused to
consider allowing them to return from leave on a part-time basis.
Problems when on leave
In addition to those who made enquiries about their rights, 37 women (34 percent of all
affected women) had experienced problems when they were on leave related to in the
main to planning to return to work. The most common problem raised by 24 affected
women on leave was when they tried to negotiate the basis of their return to work. They
were advised for example that they would not be allowed to return to work on a parttime basis, their return to work would in a different role, they would only be allowed to
return part-time if they became casual or in one case a contractor or that their return to
work would be in a job of lower status and pay or in a lower-status job for the same pay.
All of these women worked on a permanent basis, 18 on a full-time basis and six on a
part-time basis.
Danielle had worked for more than 16 years as a manager for a retail industry
employer. After her first child her employer agreed to let her return to work on a
permanent part-time basis for three days a week. When she was on leave and
planning to return to work after having her second child, her employer told her
she would have to return on a casual basis.
Another common problem experienced by 10 of the affected women while they were on
leave was finding out that they had no job to go back to or that they had been made
redundant. In all ten cases these women were permanent employees, nine full-time and
one part-time.
Eva had worked on a permanent full-time basis as a sales/personal service
worker for more than 12 months for her employer in the property and business
services industry. She contacted the WRIL service when she was four weeks into
her maternity leave. Her employer had told her that she did not have a job to
return to as she did not comply with the documentation requirements of the
WorkChoices legislation. She did not provide a medical certificate nor apply for
maternity leave in writing and had just told him she was pregnant and when she
would be leaving.
Problems on return to work
Six affected women experienced problems when they returned to work which involved
being refused part-time hours, being made casual, having hours reduced, being returned
to a lesser role rather than being given their job back and working part-time with fulltime work targets.
93
Frances is a manager/administrator in the health and community services
industry. She has worked for her employer on a permanent full-time basis for
more than six years. She had wanted to extend her maternity leave beyond the
eight months she had arranged. However, as her employer had problems filling
her role, she returned to work in a job share arrangement that increased from
two to three days. Shortly thereafter her new manager said this was only a
temporary measure. Frances offered to work four days a week or work a nine day
fortnight. Her manager refused both options. She is not sure what to do. She
does not want to work full-time as she wants to spend time with her baby and
with her older daughter.
Parental status problems
Thirteen affected women called the WRIL service about problems they had experienced
some time after they returned to work. It was not possible to work out exactly when
these problems had arisen. In some cases the problem summary indicated that workplace
problems had arisen because of the affected women’s responsibility for school-aged
children and in other cases the exact nature of the parental or carer responsibility was
unspecified. The problems raised by the affected women were typically around the
employer’s failure to accommodate the parental status of the affected woman. For
example, when a previously arranged flexible working-time arrangement was changed or
when changes in the organisation or location of work made it difficult for the woman to
meet her parental responsibilities.
Grace is a casual sales / personal service worker who works for an employer in
the property and business industry for between eight and 16 hours a week. She
has been in this job for more two years. When she was hired she told her
prospective employer the hours she was available. She told him she could not
work weekends, nights or during January as she had a small son and she had to
care for him. This was fine with her employer. However, her manager, who was
very accommodating, has been made redundant and now the new manager has
told Grace that she must work in January or quit work.
94
Appendix 2
Job Watch Telephone Service Data
Introduction
Founded in 1980, Job Watch Inc. is an employment rights legal centre that provides
information and assistance to Victorian workers about their rights at work. Job Watch is
an independent, not-for-profit organisation funded by the Victorian Government and
operates a dedicated telephone information and assistance service for Victorian workers.
In 2005/2006 Job Watch provided assistance to over 19,000 Victorian callers.
Job Watch collects data on those who call the telephone service or on whose behalf the
service is contacted, including on the types of problems raised in these calls. Women
make up the majority of the Job Watch service callers (56 percent). In 2005/2006, the
main problem enquiries of callers (excluding general enquiries) were: unfair dismissal
(12.8 percent), contract matters (7.0 percent), redundancy (6.0 percent), ‘termination
other’ (people who are excluded from accessing unfair dismissal) (5.5 percent) and
workplace violence (5.4 percent). Discrimination and equal employment opportunity
made up 4.3 percent of calls, with maternity accounting for 1.2 percent of calls (Job
Watch 2005/2006).
For this project, Job Watch provided data in respect of the problem categories of
pregnancy/breastfeeding discrimination, parental/carer status discrimination, and
maternity raised by or on behalf of female callers for the period from 30 April 2006 to 30
April 2007. As in the previous analysis of the WRIL service data, in this section we look
at the ‘affected women’, the women who had been affected by pregnancy/breastfeeding
discrimination, parental/carer status discrimination, and maternity related problems
raised in the calls to the Job Watch telephone service.
Affected Women and Pregnancy-Related Problems
In the period 30 April 2006 to 30 April 2007, a total of 440 callers contacted the Job
Watch telephone service about work-related problems of, and enquiries about,
pregnancy/breastfeeding discrimination, parental/carer status discrimination, and
maternity.21 These callers represent 6.9 percent of the 6,355 female callers who contacted
the Job Watch telephone service during this period.
One hundred and twenty callers raised pregnancy/breastfeeding discrimination, 122
raised parental/carer status discrimination, and 270 raised maternity problems. Four
callers raised all three problem categories, while 32 callers raised both
pregnancy/breastfeeding discrimination and maternity problems. Thirty-eight callers
raised both parental/carer status discrimination and maternity problems, while six callers
raised both pregnancy/breastfeeding discrimination and parental/carer status
discrimination.
Eleven employer queries have been excluded from this data, as have eight calls raising issues of carer
status discrimination where the care responsibilities in issue were not for a child of the affected woman.
21
95
Demographic and employment characteristics of affected women
As set out in Table 1, as might be expected, the overwhelming majority of affected
women were aged between 25 and 44 years.
Table 1: Age Profile of Affected Women
Age cohort
Frequency
15–18
2
19–24
36
25–34
240
35–44
140
45–59
8
Not known
14
Total
440
Percent
.5
8.2
54.5
31.8
1.8
3.1
100.0
As set out in Table 2, while the affected women came from a range of occupations,
together sales and personal service workers and managers and administrators accounted
for almost a half of the affected women. Almost a fifth of the affected women were in
clerical occupations, while professionals accounted for around a sixth of callers.
Table 2: Occupational Profile of Affected Women
Occupational category
Frequency
Sales/Personal service worker
103
Managers and administrators
101
Clerk
87
Professional
68
Para-professional
31
Labourer
24
Plant and machine operators
4
Not known
14
Tradesperson
8
Total
440
Percent
23.4
23.0
19.8
15.5
8.0
5.4
1.0
3.2
1.8
100
As set out in Table 3, the overwhelming majority of affected women were employed on a
permanent basis, with almost two-thirds of all affected women employed on a permanent
full-time basis. Only six percent of the 440 affected women were employed on a casual
basis.
96
Table 3: Employment Status of Affected Women
Employment status
Frequency
Permanent full-time
270
Permanent part-time
125
Casual part-time
15
Casual full-time
11
Fixed term contract
7
Fixed term contract extended or
4
renewed
Independent contractor
1
Job seeker
4
Apprentice
1
Not known
2
Total
440
Percent
61.4
28.4
3.4
2.5
1.6
0.9
0.2
0.9
0.2
0.5
100.0
As can be seen in Table 4, well over two-thirds of the affected women (67 percent) had
been in their job for two years or more, with over a third of these women being
employed for six years or more. Only 7.5 percent of the women had been in their jobs
for less than three months and, in total, only 18 percent in their jobs for less than one
year.
Table 4: Tenure of Affected Women
Tenure
< 3 months
3 to 6 months
6 to 12 months
12 months to 2 year
2 to 5 years
6 to 10 years
11 to 15 years
16+ years
Not applicable
Total
Frequency
Percent
33
12
38
57
177
88
18
11
6
440
7.5
2.7
8.6
13.0
40.2
20.0
4.1
2.5
1.4
100
Characteristics of workplaces employing affected women
As set out in Table 5, workplaces in which the affected women had worked or had
sought work (in the case of the four job-seekers) were located in a range of industries.
The most significant industries were service-related industries. Property and business
services accounted for just under a quarter of callers. Health and community services and
retail trade each accounted for just over 10 percent of callers.
97
Table 5: Industry Profile of Workplaces
Industry
Property and business services
Health and community services
Retail trade
Manufacturing
Personal and other services
Wholesale trade
Cultural and recreational services
Finance and insurance
Government administration and defence
Accommodation, cafés and restaurants
Communication services
Construction
Education
Transport and storage
Agriculture
Not known
Total
Frequency
Percent
106
52
49
33
21
28
19
25
9
25
19
7
14
12
5
16
440
24.1
11.8
11.1
7.5
4.8
6.4
4.3
5.7
2.0
5.7
4.3
1.6
3.2
2.7
1.1
3.6
100
Table 6 sets out the workplace size of workplaces where motherhood problems were
raised with the Job Watch service. Small and medium-sized workplaces (fewer than 50
employees) accounted for just over a third of callers. However, over half the callers came
from workplaces with more than 100 employees.
Table 6: Workplace Size
Number of employees
< 5 employees
5 to 19 employees
20 to 49 employees
50 to 100 employees
Frequency
Percent
14
69
65
44
227
21
440
> 100 employees
Not known
Total
3.2
15.7
14.8
10.0
51.6
4.8
100.0
Types of pregnancy-related issues experienced by affected women
The Job Watch service provided the researchers with access to the short summaries
made of the main problems/issues raised by each of the 440 callers. These problem
summaries were coded according to when the issue arose: when the affected woman was
pregnant; when she was on leave; or after she had returned to work (RTW). There was
also a group of callers who had enquiries that related to workplace problems that arose
because of responsibilities for children of unspecified ages or sometime after the
immediate return to work. These problems have been coded as ‘post-RTW’. The main
event complained about by each caller was also coded as set out in Table 7.
98
Table 7: Problems Raised by Affected Women in Calls to Job Watch
Main problem/enquiry
Frequency
General enquiry about pregnancy rights
2
Pregnant: query re rights inc leave, can employer replace?
49
Potential pregnancy discrimination
6
Pregnant: refusal of unpaid/unpaid parental leave
10
Pregnant: made casual
2
Pregnant: dismissal/made redundant
49
Pregnant discrimination & harassment
46
Pregnant: refusal PT on RTW
3
Pregnant: RTW not to same job/one of lesser status
4
If/When pregnant total
171
On leave: can employer sack me?
1
On leave: right not to attend the workplace while on leave?
1
On leave: rights to or on return to work, inc to PT?
33
On leave: denied PML
4
On leave: not allowed to return before 12 months
1
On leave: not promoted
1
On leave: not paid for past work as not in office
1
On leave: not allowed to access workplace
1
On leave: made redundant
22
On leave: No job to go back to
25
On leave: RTW to be in different role
8
On leave: RTW in lesser job with less pay
9
On leave: refusal to give FT job back only PT
3
On leave: RTW only if work in different city
2
On leave: refusal PT on RTW
28
On leave: PT only if lesser role, casual, less hours, relocate
12
On leave total
152
RTW: rights re restructure?
1
RTW dismissed/made redundant
11
RTW: Not given own job back/lesser job
15
RTW: to be made casual/denied permanency
7
RTW: refusal PT
5
RTW: PT work only in different/lesser job
6
RTW: harassment b/c PT
2
RTW, no accommodation of family responsibilities, inc
8
breastfeeding
Return to work total
55
Post RTW: Query re parent status rights?
1
Post RTW: parental status discrimination
54
Post return to work total
55
No information
7
Total
440
Percent
0.5
11.1
1.4
2.3
0.5
11.1
10.4
0.7
0.9
38.9
0.2
0.2
7.5
0.9
0.2
0.2
0.2
0.2
5.0
5.7
1.8
2.0
0.7
0.5
6.4
2.7
34.5
0.2
2.5
3.4
1.6
1.1
1.4
0.5
1.8
12.5
0.2
12.3
12.5
1.6
100.0
Where problems had been coded variously as maternity and pregnancy or breastfeeding
problems they tended to relate to calls made when the affected woman was pregnant or
while she was on leave. Calls coded as parental or carer status tended to relate to
problems experienced on return to work or at some later date in respect of children by
the affected caller. In two cases, no information was provided about the problem or
enquiry raised.
99
Enquiries about rights
In all stages, there were general enquires made about workplace rights in respect of
pregnancy and parental status. Two women who were not yet pregnant, but intended to
become pregnant at some future date contacted Job Watch about their rights to leave.
Another 54 women, 12 percent of the affected women, made enquiries about their rights
and entitlements. For the 49 affected women who contacted the Job Watch telephone
service with a general enquiry when they were pregnant, the most frequent question they
asked was about their rights to leave. In most cases this was about rights to the statutory
provision of 12 months’ unpaid parental leave or paid maternity leave, about the duties
of their employer to accommodate them including in respect of light duties, whether they
were able to keep their permanent status, or to return after leave. In nine cases women
wanted to know when they were obliged to notify their employers that they were
pregnant and in two about whether their employer could terminate them. This latter
issue was also a concern for one of the affected women who was on leave. The most
frequently raised enquiry for women on leave was about their rights on their return to
work, whether an employer was obliged to return them to the same job, whether they
would be able to request part-time hours or the extent to which their employer was
obliged to accommodate them. One woman on leave wanted to know if she was obliged
to attend the workplace to attend a meeting about a restructure, as she was still
breastfeeding. In a number of instances, affected women made multiple enquiries. As
Lesley’s example shows, many of the enquiries made by affected women are based on a
concern that their rights might be being ignored by their employer.
Lesley22 has worked for as a professional in a health and community services
industry workplace for more than two years on a permanent part-time basis.
When she called Job Watch she was 15 weeks pregnant and her doctor had
advised her to stay on light duties at work. She can still perform 60 percent of her
current role but would need to be given alternative duties for 40 percent of her
role. She went on annual leave as her employer said it could not accommodate
her in this way, and has no alternative job for her. Her union has told her that the
employer can force her to start taking her maternity leave already, or special
maternity leave. But she has also read that if any act during work endangers the
health of the pregnant woman, the employer must transfer her to a safe and
suitable role, and if it cannot do this, must put her on paid leave. Lesley has no
more sick leave and wonders what to do.
22
Pseudonyms have been allocated to callers.
100
Problems when pregnant
Apart from those who had made enquiries about their rights, there were 78 women (18
percent of all affected women) who had experienced workplace problems when they
were pregnant. Forty-nine of the women lost their jobs after they became pregnant. They
were dismissed, made redundant, and in one case, a woman did not have her contract
renewed. Another five of the women who reported pregnancy discrimination said they
were forced to resign as a result of harassment by their employer or manager.
Maria has worked as a manager in a retail enterprise on a regular casual full-time
basis for the past two years. After she became pregnant, she told her employer,
who at first responded by saying that she could work reduced hours if she
needed to at some point. She decided to take him up on this and asked him if she
could work eight hours per day instead of 10 hours per day, as she was finding 10
hours per day too long given her pregnancy. The employer then told her that she
was dismissed, as it was clear that she was no longer physically or mentally
capable of doing her job. One week prior to this, Maria’s employer started urging
her to consider stepping down and commented that she would probably find the
job too hard now that she was pregnant. She has also discovered she has been
underpaid by about $5,000.
Forty-six of the women said they had experienced harassment and discrimination. This
included such problems as derogatory remarks being made about their pregnancy, not
being allowed to take time off when ill or to attend antenatal appointments, being
disciplined for taking sick leave, having roster requests refused, having hours reduced or
being given additional inappropriate duties like heavy lifting. In five cases, as noted
above, on-going harassment led to the resignation of the affected woman.
Nolene is a permanent full-time sales and personal services worker in a retail
chain, where she has been working for more than 12 months. She was pregnant
when she called Job Watch and believes her employer has discriminated against
her. When she told her employer she was pregnant, he said that because she was
pregnant there needed to be two people in the store. She had until that time
worked alone in one of the stores. However, he said that they could not have two
people at her location and transferred her to another shop. Nolene was not given
a new contract and receives the same pay; however, she was demoted from
supervisor to assistant. She has now found out that there are two people working
in her original location. She is also worried about the manager in her new
workplace. He is often verbally abusive and said ‘that’s a good way to get rid of it’
when someone bumped her stomach, and he talks about hitting his wife. Nolene
feels scared the manager is going to hit her. She talked to the area manager and
expressed her concerns. The area manager told her not to worry about it because
she will be on maternity leave in three weeks’ time. Nolene is very stressed and
wonders what she can do about the bullying.
Potential pregnancy discrimination was a concern expressed by six affected women. They
were concerned that their employer was about to discriminate against them because they
were pregnant. For example, in one case a woman who had worked as a clerk on an ongoing casual basis for over five years was concerned that after she became pregnant a co101
worker had been offered permanent part-time work and she had not. She had to do tasks
that she felt were not good for her pregnancy and was worried that her manager wanted
to get rid of her.
In nine cases, women said they had been refused access to unpaid parental leave. Of
these women, two had worked for more than 12 months in their job. While seven had
worked for between six to 12 months in their jobs, one woman had worked between one
to two years in her job and another had worked more than two years in her job. All were
employed on a permanent basis. One women’s employer refused to pay her paid
maternity leave as she worked on a part-time basis. Three of the affected women’s
employers had refused to consider allowing them to return from leave on a part-time
basis, while four women said that their employer had already told them that they would
not be able to return to work to their same job and if they returned would have to accept
a job of lesser status.
Problems when on leave
Apart from those who had made enquiries about their rights, 119 women, well over a
quarter of all affected women, had experienced problems when they were on leave. In
the main these problems were related to planning to return to work. The most common
problem raised by 62 affected women on leave was when they tried to negotiate the basis
of their return to work. When they tried to negotiate their return, 40 affected women
requested part-time hours. Of these women, 38 were refused part-time work and another
12 were allowed to access part-time hours only if they accepted a lesser role, became
casual, accepted fewer hours than they had requested or agreed to be relocated to
another site, in both cases a considerable distance from their original job site. Another
two women who wanted to return to their full-time jobs were only offered part-time
hours.
Rachel had worked as a para-professional on a permanent full-time basis for a
communications services industry organisation for more than 11 years. Her
employer had originally suggested that returning to work on a part-time basis
would be fine. She contacted her employer while she was on leave to arrange her
return to work. She suggested job-sharing her previous position but indicated she
would also be happy to be transferred somewhere else in the business. The
employer took a long time to respond to her and she finally wrote a formal letter.
In response she received an emailed letter advising her that the position was fulltime and that Rachel was expected to return to full-time hours. The letter also
stated that it was now company policy that all part-time positions be turned into
full-time ones.
A common problem experienced by 47 of the affected women while they were on leave
was finding out that they had no job to go back to or that they had been made
redundant. In all 47 cases, these women were permanent employees, 34 full-time and 13
part-time.
102
Sue worked as a manager/administrator in a property and business services
workplace. She had worked on a permanent full-time basis between two and five
years. When she was on leave she went into work for a meeting to discuss her
return to work. She was offered a lesser position and a 20 percent pay cut. She
was told her employer had gone into an administration and was now trading as a
new company that would now be her employer. She had not been informed her
old position was made redundant. She advised her employer by email that she
was unhappy about being offered less pay. She received a response saying she
was not to come into the office on the day she was due to return as the manager
did not want bad feelings in the office. When Sue went on leave she was replaced
by a young woman she had supervised. A temp was employed to cover this
young women. The temp is now working full-time and the young woman has
remained in Sue’s position.
Four women found out that while they were on leave that they no longer had the right to
paid maternity leave, which had existed in their workplace before they went on leave.
One woman had transferred out of the company division where she worked to another
one in the same company. She discovered that the new individual contract she signed
when she started work in the new division excluded paid maternity leave – still available
to employees in her old division, who remained covered by an enterprise agreement.
Problems on return to work
Fifty-four women experienced problems when they returned to work after having their
baby. These involved being refused part-time hours, being made casual, having hours
reduced, being returned to a lesser role rather than being given their job back and lack of
accommodation of breastfeeding or child care arrangements. Ten of these women lost
their jobs on their return through being dismissed or being made redundant and another
woman resigned after her employer refused to accommodate her child care
responsibilities. One woman was made partially redundant and was given part-time hours
only.
Terri had worked as professional in a large retail trade workplace. She had
worked on a permanent part-time basis for between two and five years. While
she was on leave her department had been restructured. She was offered another
role and was told this would make things easier as another girl was doing Terri’s
role. She verbally accepted this other role. When she returned to work she was
presented with a fixed-term contract that expired in six months. The contract
also took away benefits she had had in her old position including a mobile phone
and a laptop.
103
Parental status problems
Fifty-four affected women called the Job Watch service about problems they had
experienced some time after they returned to work. It was not possible to work out
exactly when these problems had arisen. In some cases, the problem summary indicated
that workplace problems had arisen because of the affected women’s responsibility for
school-aged children and in other cases the exact nature of the parental or carer
responsibility was unspecified. The problems raised by the affected women were typically
around the employer’s failure to accommodate the parental status of the affected woman.
For example, when a previously arranged flexible working-time arrangement was
changed or when changes in the organisation or location of work made it difficult for the
woman to meet her child care responsibilities.
104
Appendix 3
Data
VEOHRC Enquiry and Complaint
Introduction
The Equal Opportunity Act 1995 (Vic) (EOA) prohibits sexual harassment and
discrimination on the basis of certain attributes or grounds such as sex, race and
impairment, in a number of areas including employment, education, the provision of
goods and services and accommodation. The Victorian Equal Opportunity and Human
Rights Commission Victoria (VEOHRC) is the body that handles both enquiries about
and complaints of discrimination under the Act. In the Commission’s latest available
annual report for 2005/2006, enquiry data indicate that there were a total of 711
enquiries made on the separate grounds of pregnancy, breastfeeding, parental status and
carer status (VEOHRC 2006).23
As part of the project, VEOHRC provided data on enquiries made and formal
complaints lodged between 30 April 2006 and 30 April 2007 on the grounds of
pregnancy, breastfeeding, parental status and carer status in the area of employment.
Two interviews were also undertaken with senior education and complaint handling staff.
Enquiries
Table 1 below sets out the enquiries made by individuals raising the grounds of
pregnancy, breastfeeding, parental status and carer status in the area of employment. In
many cases, issues raised by the individuals who contacted the Commission raised two or
more attributes covered by the EOA.
There were 425 individuals who contacted VEOHRC who raised a variety of issues
around the attributes of pregnancy, breastfeeding, parental and carer status in the area of
employment between 30 April 2006 and 30 April 2007. Data on the type of caller are not
kept routinely and the data in Table 1 include some men. These 425 people were eight
percent of the 5,440 individuals who contacted the VEOHRC in this 12-month period.
The attribute of pregnancy was most frequently raised by these callers (raised by 253 or
56 percent), followed by parental status (204 or 48 percent), then carer status (79 or 19
percent).24 Only eight callers made an enquiry about the attribute of breastfeeding. Seven
callers made only an enquiry for general information about their rights in respect of
pregnancy, breastfeeding, parental and carer status. The number of individuals who
raised multiple attributes in their enquiry highlights the intersectionality of these issues
with other issues such as sex, sexual harassment and impairment.
Callers may raise a number of issues. This enquiry data represents the number of issues raised rather
than the number of individuals making the enquiries.
24 As seen in Table 1 above, these total to more than 100 percent as callers often raised two or more
attributes.
23
105
It is not possible to compare the number of callers with those from previous years as
published VEOHRC data indicate the number of attributes raised in calls across all areas
covered by the EOA, including not only employment25 but also accommodation, clubs,
education, good and services, local government and sport. However, it is worth noting
that in 2005/2006, pregnancy was raised by 257 callers, parental status by 301 callers,
carer status by 149 callers and breastfeeding by eight callers (VEOHRC 2006: 34).26
Contact is often made with VEOHRC to ask generally about women’s rights when
women are pregnant. Typically, VEOHRC education and complaint handling staff
explain a caller’s rights under anti-discrimination law and if the matter is to do with
awards or agreements, they might refer on to Job Watch or a community legal service.
Feedback from VEOHRC suggests that, apart from information about their rights,
enquiries made by women who are pregnant include enquiries about their rights in
respect of:
being made casual;
having their hours reduced;
being dismissed when pregnant; and
occupational health and safety issues that revolve around the extent to which a
pregnant woman can be accommodated, either because the employer is
concerned about what a pregnant woman may or may not be able to do or when
a pregnant woman may experience complications or illness in relation to her
pregnancy.
VEOHRC education and complaint handling staff inform callers about their options,
including raising the issue first with their employer and then considering a more formal
complaint. VEOHRC also routinely advises people to seek legal advice in relation to
their situations. According to VEOHRC, women who make enquiries about their rights
when they are pregnant are often reluctant to proceed on to making a complaint. This is
because of the extra stress the pursuit of a formal complaint may induce.
Feedback from VEOHRC is that the sorts of enquiries that come from women who are
on maternity leave include enquiries about their rights in respect of:
their particular position has been made redundant;
being returned to a lesser job or a role;
the refusal of pt work; and
have their return to work accommodated.
Feedback from VEOHRC indicates that employment is nonetheless the major area in which enquiries
are made.
26 It should also be noted that of complaints made to VEOHRC, all those made on the grounds of
pregnancy and breastfeeding discrimination were in the area of employment as were 61 of the 73
complaints of parental status discrimination and 58 of the 70 complaints of carer status discrimination.
VEOHRC Annual Report 2006/2007: 34.
25
106
Table 1: Enquiries raising Pregnancy, Breastfeeding, Parental Status & Carer Status
Attributes recorded
Frequency
%
General Information. Pregnancy
3
Pregnancy
187
Pregnancy, Disability/impairment, Physical features
1
Pregnancy, Disability/impairment
14
Pregnancy, Discriminatory information request
2
Pregnancy, Lawful sexual activity, Marital status
1
Pregnancy, Lawful sexual activity
1
Pregnancy, Race
1
Pregnancy, Sexual harassment
2
Mainly pregnancy
212
General Information Breastfeeding
1
Breastfeeding
3
Breastfeeding, Carer status, Parental status
1
Breastfeeding, Parental status, Pregnancy
1
Breastfeeding, Parental status
1
Breastfeeding, Sexual harassment
1
Breastfeeding
8
General Information Parental status, Pregnancy
2
Parental status
77
Parental status, Age
1
Parental status, Age, Marital status
1
Parental status, Age, Race
1
Parental status, Disability/impairment ,
1
Parental status, Industrial Activity ,
2
Parental status, Marital status, Sex, Victimisation
1
Parental status, Marital status
5
Parental status, Pregnancy, Sex, Sexual harassment
1
Parental status, Pregnancy
25
Parental status, Pregnancy, Sex
1
Parental status, Religious belief or activity , Sex
1
Parental status, Sex
6
Parental status, Sexual orientation
1
Parental status, Victimisation
1
Mainly parental status
127
General Information Carer status, Parental status
1
Carer status, Disability/impairment, Parental status
6
Carer status, Disability/impairment, Parental status,
1
Carer status, Industrial Activity, Parental status, Race
1
Carer status, Industrial Activity, Parental status
1
Carer status, Parental status, Age
1
Carer status, Parental status, Age, Marital status
1
Carer status, Parental status, Pregnancy
7
Carer status, Parental status, Pregnancy, Sex
1
Carer status, Parental status, Race
1
Carer status, Parental status, Sex
1
Carer status, Parental status, Victimisation
1
Carer status, Parental status
51
Carer status, Pregnancy
2
Carer status, Race
1
Carer status, Victimisation
1
Mainly carer status
78
Total callers
425
0.5
29.0
0.2
2.2
0.3
0.2
0.2
0.2
0.3
33.1
0.2
0.5
0.2
0.2
0.2
0.2
1.5
0.3
11.9
0.2
0.2
0.2
0.2
0.3
0.2
0.0
0.8
0.2
3.9
0.2
0.2
0.9
0.2
19.9
0.2
0.9
0.2
0.2
0.2
0.2
0.2
1.1
0.2
0.2
0.2
0.2
7.9
0.3
0.2
0.2
12.6
100
When women return to work after having a baby, the sorts of issues they call VEOHRC
about include their rights in relation to:
part-time work, lack of access to it or the terms on which it is offered;
being made casual; and
107
hours being cut.
VEOHRC feedback indicates that those returning to work are often business
professionals who have seen themselves as loyal and bound up in their company and are
usually very hurt and upset when something happens, particularly on return to work.
There are very few breastfeeding enquiries. In the view of VEOHRC staff this may be
because people’s expectations are quite low about breastfeeding whereas there is more
general awareness that employers should be accommodating an employee’s parental
status.
Complaints
The VEOHRC also provided data on the formal complaints lodged with the VEOHRC
between 30 April 2006 and 30 April 2007. Table 2 below sets out the 70 formal
complaints made by women on the grounds of pregnancy, breastfeeding, parental status
and carer status in the area of employment. In many cases, these complaints were made
also on the grounds of other attributes covered under the EOA, and as with the enquiry
data point to the intersectionality of pregnancy-related complaints with other issues such
as sex, sexual harassment and impairment.
Out of these 70 female complainants, 38 percent made complaints on the grounds of
pregnancy, 21 percent on the grounds of parental status, 39 percent on the grounds of
carer status and none on the grounds of breastfeeding. These 70 women were 12 percent
of the 581 women who made complaints under the EOA between 30 April 2006 and 30
April 2007.
While not strictly comparable, because VEOHRC published gender disaggregated data
include all areas of complaint, not just employment, it is worth noting that in 2005/2006,
53 women made complaints on the grounds of pregnancy, 56 on the grounds of parental
status, 52 on the grounds of carer status and 2 on the grounds of breastfeeding
(VEOHRC 2006: 36).
108
Table 2: Pregnancy, Breastfeeding, Parental Status & Carer Status Complaints made by
Women
Attribute/s27
Frequency
Percent
Pregnancy
16
22.5
Pregnancy, Impairment
4
5.6
Pregnancy, Sex
2
2.8
Pregnancy, Sex, Physical features, Parental status, Sexual
1
1.4
harassment
Pregnancy, Sexual harassment, Impairment, Sex
1
1.4
Pregnancy, Victimisation
2
2.8
Pregnancy, Victimisation, Impairment, Marital status, Sex
1
1.4
Parental status
8
11.3
Parental status, Age, Marital status,
2
2.8
Parental status, Personal association
1
1.4
Parental status, Pregnancy, Sex
1
1.4
Parental status, Sex, Physical features, Pregnancy
1
1.4
Parental status, Sexual harassment, Marital status, Physical
1
1.4
features, Sex
Parental status, Victimisation, Marital status, Race, Sex
1
1.4
Carer status, Parental status
11
15.5
Carer status, Parental status, Pregnancy
2
2.8
Carer status, Sexual harassment, Parental status, Physical
1
1.4
features, Pregnancy
Carer status, Sexual harassment, Parental status, Pregnancy, Sex
1
1.4
Carer status, Impairment, Parental status
2
2.8
Carer status, Impairment, Parental status, Pregnancy
3
4.2
Carer status, Industrial activity, Marital status, Parental status
1
1.4
Carer status, Industrial activity, Parental status
1
1.4
Carer status, Industrial activity, Parental status, Race
1
1.4
Carer status, Marital status, Parental status
1
1.4
Carer status, Parental status, Pregnancy, Sex
2
2.8
Carer status, Pregnancy
2
2.8
Total
70
100.0
While data on the age of complainants were only collected in just over a quarter of cases,
the data that was collected indicated that in the main complainants were in the prime
child bearing and rearing years.
Table 3: Age of Complainants
Age Cohort
Frequency
15–24
25–34
35–44
45–54
Unknown
Total
2
8
6
2
52
70
Percent
2.9
11.4
8.6
2.9
74.3
100.0
Data were collected for all the complaints on the industry in which the complainant
worked or had worked. These data are set out below in Table 4. The complainants came
Attributes are listed in the order they appear in the HREOC data except where another non-pregnancyrelated attribute was first; in this case the first listed pregnancy-related motherhood attribute has been
placed first.
27
109
from a wide range of industry sectors. The most frequently identified industry category
was business and professional services, which comprises office-based business and
professional services not included in the other industry sectors. This accounted for more
than a quarter of the complaints, manufacturing accounted for eight complaints,
wholesale and retail for seven complaints, and health for six complaints.
Table 4: Industry in which Complainants Worked
Industry
Frequency
Business/professional services
19
Manufacturing
8
Wholesale/retail
7
Health
6
Construction/transport/storage
4
Hotel/restaurant/club
4
Other government services
4
Community services
3
Insurance
3
Communications
2
Education
2
Employment agencies
2
Finance/property/business services
2
Welfare/charity/religious
2
Agriculture/mining
1
Electricity/gas/water
1
Total
70
Percent
27.1
11.4
10.0
8.6
5.7
5.7
5.7
4.3
4.3
2.9
2.9
2.9
2.9
2.9
1.4
1.4
100.0
Brief summary data were provided by VEOHRC on 59 of the complaints, which allowed
some analysis of the main pregnancy-related events complained about. These summaries
have been coded as occurring when the complainant was pregnant, while she was on
leave or after she returned to work.
As set out in Table 4, of the 59 complainants who lodged a formal complaint and where
summary data were available, 20 claimed they had been dismissed or had been made
redundant because they were pregnant. Five complainants who had been on leave
claimed they had been refused access to part-time work on their return to work, with
another complainant, who had worked on a part-time basis prior to going on leave,
claiming she was forced to work full-time hours on her return. Four complainants
claimed that they had been demoted while they were on leave or on their return to work.
Three complainants claimed they had lost their permanent status and been had been
made casual after announcing they were pregnant or when they returned to work.
110
Table 4: Main Pregnancy-Related Event Complained Of
Main pregnancy-related event
Frequency
Pregnant: dismissed
Pregnant: made redundant
Pregnant: treated less favorably
Pregnant: made casual
Pregnant: hours cut
Pregnant: lack of accommodation
Pregnant: not offered another contract
On leave: refusal RTW P/T
On leave: demoted
On leave: position made redundant
On leave: dismissed
RTW: demoted
RTW: P/T forced to be F/T
RTW: made casual
RTW: dismissed
Post RTW: parental status discrimination
Total
Unknown
Total
10
3
4
1
1
1
1
5
1
2
4
3
2
2
1
18
59
11
70
Percent
14.3
4.3
5.7
1.4
1.4
1.4
1.4
7.1
1.4
2.9
5.7
4.3
2.9
2.9
1.4
25.7
84.3
15.7
100.0
When pregnant
Twenty-one complainants claimed that they had been discriminated against when they
were pregnant. Ten of these women claimed they were dismissed when they were
pregnant, while another three claimed they had been made redundant after they told their
employer they were pregnant. In one case the complainant alleged after she told her
employer that she was pregnant and asked him about maternity leave, he replied that they
didn’t have maternity leave in their workplace. The complainant stated she was informed
that she was being replaced by new staff members, and that her employment was to end.
In another case, a woman claimed that after she told her employer she was pregnant, she
was informed that there was a policy that meant all staff who took extended leave,
including maternity leave, would not be returned to their previous position, but would be
relocated on an organisational ‘as needs’ basis. This meant that the complainant’s
position was effectively redundant and she had to find alternative employment.
On leave
Twelve complainants claimed they had been discriminated against when they were on
leave, with five claiming their employer had refused them access to part-time hours on
their return. In one case, the complainant claimed that while she was on leave she
requested that she return to work on a part-time basis for approximately six months,
whilst her baby was so young. She stated that her employer has advised her that it would
not allow her to return on a part-time basis, other than working one less hour a day.
Return to work
111
Eight complainants claimed they had been discriminated against when they first returned
to work after having their baby. In one case, the complainant claimed that after she had
been on maternity leave for a year she returned to work to find that her duties were
substantially diminished. She resigned from her employment as a consequence. This type
of scenario where complainants have resigned by the time they lodge a complaint is
relatively frequent according to VEOHRC staff.
Post-return to work
Eighteen complainants claimed that sometime after their return to work they had not
been accommodated because of their parental status.28 In some cases, this was claimed to
be where an employer changed the working-time arrangements, for example insisting an
employee revert to full-time hours, and in other cases, where employers refused to
accommodate the work and family responsibilities of the complainant.
28 Data provided in some cases indicated this was when a child was two years old or more and in other
cases, it appeared the children in question were of school age.
112
Appendix 4
Data
HREOC Enquiry and Complaint
Introduction
The Sex Discrimination Act 1984 (Cth) (SDA) prohibits sexual harassment and direct and
indirect discrimination on grounds such as sex, marital status and pregnancy in a number
of areas, including employment, education, the provision of goods and services and
accommodation The SDA also prohibits termination of employment on the grounds of
family responsibilities. The Human Rights and Equal Opportunity Commission
(HREOC) is the body that handles both enquiries about and complaints of
discrimination under the Act.
The Commission’s latest available annual report for 2005/2006 indicates that there were
464 enquiries in relation to pregnancy and 264 which were about issues of marital status,
family responsibilities, parental status and breastfeeding in that financial year (HREOC
2006).29 In relation to complaints, in 2005/2006 there were 347 formal individual
complaints lodged under the SDA, of which 165 were on the grounds of pregnancy, with
25 on the grounds of family responsibilities (HREOC 2006).30
As part of the project, HREOC provided data on enquiries made and formal complaints
lodged on pregnancy-related grounds between 30 April 2006 and 30 April 2007. In
relation to enquiries, HREOC was able to provide data only in relation to pregnancyrelated enquiries. An interview was also undertaken with a senior enquiry and complaint
handling staff member and discussions have been held with several staff from the Sex
and Age Discrimination Unit.
Enquiries
HREOC advised that in the financial year period of 2006/2007, it received 607 enquiries
in relation to pregnancy in employment, of which 142 (23 percent) were from Victoria.
Comparable enquiry data for earlier years are unavailable for Victorian-based pregnancy
enquiries.
In Table 1 the published data on pregnancy-related enquiries made to HREOC between
2002/2003 and 2005/2006 are set out.
This data is not disaggregated any further in the Annual Report and represents numbers of issues raised
in calls in all areas covered under the SDA rather than individual callers.
30 The one complainant may raise a number of grounds and as highlighted below those who claim
pregnancy related discrimination may also claim sex discrimination and discrimination on the ground of
family responsibilities where they have been dismissed. The data is not disaggregated and it is not possible
to tell which of these were in the area of employment, although on average around 85 percent of
complaints received under the SDA are in the area of employment (HREOC 2006).
29
113
Table 1: Pregnancy-Related Enquiries to HREOC
Year
Pregnancy-related enquiries
2002/2003
235
2003/2004
513
2004/2005
466
2005/2006
464
Source: HREOC 2003, 2004, 2005, 2006
It should be noted that pregnancy discrimination does not cover all the instances of
pregnancy-related discrimination under the SDA as an employer’s failure to
accommodate a woman on her return from maternity leave, for example, by not
providing part-time work may be framed as an indirect discrimination claim on the
grounds of sex. In other cases where an employee has been dismissed because of
parental status, a claim may be framed as a family responsibilities claim. Without access
to details of individual enquiries, it is not possible to disaggregate the data and for this
reason only enquiries that raise the ground of pregnancy discrimination are set out
below.
Over that time period the number of calls that have raised pregnancy-related issues has
more than doubled. The number of enquiries peaked in 2003/2004, immediately after
the HREOC inquiry into paid maternity leave.
Published HREOC data in Table 1 relate to all pregnancy related enquiries in all areas
under the SDA, including but not limited to employment. This means that a direct
comparison with the 2006/2007 data provided by HREOC in relation to the area of
employment would underestimate the increase in pregnancy enquiries as they are not
directly comparable. Nevertheless, it is clear that there has been at least a 30 percent
increase in pregnancy-related enquiries between 2005/2006 (464 enquiries) and
2006/2007 (607 enquiries). This increase is notable, given that there was no increase in
pregnancy-related enquiries between 2005/2006 and 2004/2005, when there were 466
enquiries in relation to pregnancy (HREOC 2005).
HREOC advises that in the period between 30 April 2006 and 30 April 2007 it received
624 enquiries nationally in relation to pregnancy issues in employment, of which 149 (24
percent) were from Victoria.
Complaints
In Table 2, the published data on pregnancy and family responsibilities complaints made
to HREOC between 2002/2003 and 2005/2006 are set out.
There was an overall decrease in the number of pregnancy complaints lodged with
HREOC between 2002/2003 and 2005/2006 of some 28 percent. While complaints on
the ground of parental status or family responsibility remain low, due in part to the
limitation of this ground to dismissal from employment under the SDA, there has been
some slight increase in such complaints over the same period. Between 2004/2005 and
2005/2006, there was also a slight increase in pregnancy complaints. It should be noted
114
that these data include all areas of discrimination, although HREOC data indicate that on
average 85 percent of complaints under the SDA are in the area of employment
(HREOC 2005, 2006).
Table 2: HREOC Grounds of Pregnancy and Family Responsibilities
Complaints#
Year
Pregnancy
Parental status and
family responsibility
Total SDA
complainants
Pregnancy and family
responsibility
complaints as % of
SDA complainants
65.5%
2002/2003
230
19
380
2003/2004
177
14
353
54.1%
2004/2005
158
20
348
51.4%
2005/2006
165
24
347
54.5%
Source: HREOC 2003, 2004, 2005, 2006
# One complainant may make a complaint that raises multiple grounds.
HREOC has seen a substantial increase in complaints of sex discrimination and
pregnancy discrimination complaints over the last year. It advises that it has had a 30
percent increase in pregnancy complaints for the July to December 2006 period as
against the same period in 2005.
In the period 30 April 2006 to 30 April 2007, HREOC data provided for this project and
set out in Table 3, show that there were a total of 99 individual women who lodged
formal complaints under the SDA in the area of employment that raised issues of
pregnancy-related discrimination.31 In this period, there 409 individuals who made
complaints under the SDA, of which the selected complainants comprise some 24
percent.
It should be noted that these data refer to individual complaints rather than the number
of separate grounds complainants may claim in their complaint. Under the SDA each
claim of direct or indirect discrimination is a separate ground. For comparison purposes
with earlier data, and recording each direct and indirect claim as a separate ground, there
were a total of 277 separate grounds raised by the 99 complainants in the period 30 April
2006 to 30 April 2007.
Nine of the pregnancy-related complaints were made by Victorian complainants.32 Four
of these were on the grounds of pregnancy and sex and five on the grounds of pregnancy
alone. To ensure anonymity of the complainants and the respondents from Victoria, only
the aggregated national data are used in the following analysis.
The data provided do not distinguish whether complainants were male or female but the very brief
summaries provided by HREOC indicated that all the selected complaints were by women.
32 HREOC suggests that the relatively low number of Victorian complaints is due to the adequacy of the
Victorian EOA in relation to pregnancy-related complaints and the role of the VEOHRC in raising issues
of workplace discrimination.
31
115
Table 3: Complaints on Pregnancy, Sex, and Parental/Family Responsibilities Grounds
Complaints made by individual complainants
Separate
grounds of
complaint
Complaints
Frequency
Percent
Number
Pregnancy direct
7
7.1
7
37
37.4
74
Pregnancy direct, Pregnancy indirect, Sex
indirect
Pregnancy indirect, Sex indirect
3
3.0
9
1
1.0
2
Pregnancy direct, Sex direct
3
3.0
6
30
30.3
120
2
2.0
4
Parental status/responsibility33
2
2.0
2
Parental status/responsibility, Sex indirect
1
Parental status/responsibility, Sex direct, Sex
indirect
Parental status/responsibility, Pregnancy
5
5.0
15
1
1.0
2
Parental status/responsibility, Pregnancy
direct, Pregnancy indirect, Sex indirect
Parental status/responsibility, Pregnancy
direct, Pregnancy indirect, Sex direct, Sex
indirect
Total
1
1.0
4
6
6.1
30
99
100.0
277
Pregnancy direct, Pregnancy indirect
Pregnancy direct, Pregnancy indirect, Sex
direct, Sex indirect
Sex direct, Sex indirect
2
Almost four of every five of the complainants claimed discrimination on the grounds of
pregnancy or pregnancy and sex. Ninety-two of the complaints involved a complaint
about an event that had occurred when the complainant was pregnant, when she was on
leave or when she had just returned to work. Two complaints on the single ground of
parental status or carer responsibility and four on the grounds of parental status or carer
responsibility and sex related to unspecified parental responsibilities. One complainant
claimed discrimination on the grounds of parental status or carer responsibility and sex
related to unspecified carer responsibilities.
HREOC data record the main ‘event’ complained about when a formal complaint is
lodged. This is set out in Table 4. Dismissal was an issue in over two thirds of the
complaints. This included termination of employment, redundancy and situations where
the claim was about a forced resignation or constructive dismissal. Over a third of
complaints involved ‘less favourable terms’. Typically such complaints were claims of less
favourable treatment, such as cutting or increasing hours, refusing access to part-time
work, not being promoted, being made casual or being returned to work in a job of
lesser status or with lesser pay. In two cases, complainants claimed they had not been
employed because their prospective employer found out that they were pregnant. Where
33 While family responsibility is the relevant ground under the SDA, HREOC data refer to parental
status/responsibility.
116
‘conditions benefits’ was the main event complained about, the complainant alleged that
her redundancy payment after she had returned to work from maternity leave was
calculated on the basis of the part-time hours she had worked since then rather than her
full-time service prior to going on leave.
Table 4: Main Event Complained About
Main event
Frequency
Percent
Dismissal
59
59.6
Dismissal/less favourable terms
10
10.1
Less favourable terms
27
27.3
Not employed
2
2.0
Conditions benefits
1
1.0
99
100.0
Total
The brief summaries provided with the HREOC data were coded according to whether
the events complained about occurred when the complainant was pregnant, on leave,
had just returned to work or were related to unspecified parental or carer responsibilities.
In Table 5 it can be seen that 59 percent of the complaints related to when complainants
were pregnant, another 26 percent when they were on maternity leave, eight percent just
after they had returned to work and seven percent to unspecified parental or carer
responsibilities. While loss of job is coded as the main problem in 51 of the complaints
below, in another 18 complaints it was claimed that discrimination, particularly the lack
of accommodation while pregnant or on return to work, ultimately resulted in the loss of
job including via forced resignation or constructive dismissal.
When pregnant
The discrimination claimed when complainants were pregnant related in the main to
being dismissed or being made redundant. Twenty-seven complainants claimed that they
had been discriminated against because of their pregnancy in a number of ways; for
example, not having their pregnancy accommodated, not being allowed to use sick leave
entitlements, not being promoted, having their hours or shifts reduced, hostile remarks
being made about their pregnancy and being denied access to unpaid parental leave. In
one case the complainant claimed she would be returned to a different position after she
returned to work.
On leave
Being refused access to part-time work on their return to work (11 complaints) and
losing their paid employment (10 cases) were the main issues raised by complainants
relating to being on leave. In another five complaints, women claimed that they were to
be returned to a lesser job in status or pay than the job they held before they went on
maternity leave or that they were being treated less favourably in respect of access to
benefits such as promotion.
Table 5: Pregnancy-Related Discrimination Complained About
Pregnancy-related discrimination
Frequency
117
Percent
Potential pregnancy discrimination
1
1.0
28
28.3
Pregnant: not given job
2
2.0
Pregnant: discrimination
27
27.3
When pregnant
58
58.6
On leave: dismissed/redundant
8
8.1
On leave: no job to go back to
2
2.0
On leave: discrimination
5
5.1
On leave: refusal PT
11
11.1
When on leave
26
26.3
RTW: dismissed
1
1.0
RTW: discrimination
7
7.1
On return to work
8
8.1
Post RTW: dismissed
2
2.0
Post RTW: parental status discrimination
4
4.0
Post RTW: carer status discrimination
1
1.0
Post return to work
7
7.1
99
100.0
Pregnant: dismissed/redundant
Total
Return to work
The main return to work issue raised by complainants was less favourable treatment.
This related to being returned to work in a lesser role, not being given enough hours, or
not being accommodated in the workplace. Discussion with HREOC staff indicates that
over the last year HREOC is seeing more return to work enquiries and complaints,
including those about negotiating access to part-time work and job-share arrangements
that were in place before the complainant went on leave or the implementation of new
arrangements.
Industry
HREOC also records the industries in which the complaints were located are set out in
Table 6. Complainants lodged complaints about workplaces located in a wide range of
industries. The wholesale/retail sector accounted for almost a fifth of complaints as did
public administration and defence. This latter industry category includes federal, state
and local government agencies. Together, the industry sectors of business professional,
finance/property & business services and insurance accounted for 26, more than a
quarter of, complaints.
118
Table 6: Industry of Complaints
Industry
Frequency
Percent
Wholesale/retail
19
19.2
Public administration/defence
18
18.2
Business professional
14
14.1
Finance/property and business services
11
11.1
Hotel/restaurant/club
5
5.1
Manufacturing
4
4.0
Education
3
3.0
Construction/transport
3
3.0
Employment agencies
3
3.0
Recreation/entertainment/personal services
2
2.0
Media
2
2.0
Community services
1
1.0
Electricity/gas/ water
1
1.0
Welfare/charity/religious
1
1.0
Health
1
1.0
Insurance
1
1.0
Agriculture/mining
1
1.0
Not specified
9
9.1
99
100.0
Total
119
Appendix 5
Workplace Authority Infoline Data
Introduction
After the introduction of WorkChoices, an information line was established by the
federal government to provide advice and information on the Australian workplace
relations system for employers and employees. Known until May 2007 as the
WorkChoices Infoline, it is now known as the Workplace Infoline and is currently
managed by the Workplace Authority, which replaced the former Office of the
Employment Advocate.
Data are collected on callers who contact the Infoline including on the enquiry type, the
type of enquirer, such as employees and employers, industry and instrument type. For
this project the Reporting and Performance Analysis section of the Workplace Authority
provided de-identified data in respect of enquiries made by Victorian employees between
30 April 2006 to 30 April 2007 in which the words ‘pregnancy’, ‘pregnant’ and/or
‘maternity’ appeared in the brief enquiry description entered at the time of the enquiry.
Where any of the terms were duplicated in an enquiry they were deleted to provide an
accurate number of enquiries.
Victorian Enquiries
In the period 30 April 2006 to 30 April 2007, a total of 657 enquiries by Victorian
employees were made to the Infoline that raised work-related issues relating to
‘pregnancy’, ‘pregnant’ and/or ‘maternity’.
Industry characteristics of enquiries
Workplace Authority industry data are generally captured in accordance with 2006
Australian and New Zealand Standard Industrial Classification (ANZSIC) codes and
titles. As set out in Table 1, the workplaces that were raised in these enquiries were
located across a wide range of industries.
The most significant industry in which the enquiries arose is Administrative and support
services, which accounted for almost a quarter of all enquiries. Retail trade together with
Health care and social assistance accounted for more than a fifth of calls (22.7 percent).
120
Table 1: Industry Profile of Enquiries
Industry division
Administrative and support services
Retail trade
Health care and social assistance
Other services
Professional, scientific and technical services
Manufacturing
Accommodation and food services
Financial and insurance services
Transport, postal and warehousing
Wholesale trade
Education and training
Rental, hiring and real estate services
Construction
Information, media and telecommunications
Government and defence
Electricity, gas and water
Mining
Multiple services
Not specified
Not coded
Total
Frequency
Percent
160
79
70
61
37
33
25
15
13
12
11
11
8
8
5
2
2
6
71
28
657
24.4
12.0
10.7
9.3
5.6
5.0
3.8
2.3
2.0
1.8
1.7
1.7
1.2
1.2
0.8
0.3
0.3
0.9
10.8
4.3
100.0
Types of enquiries
The types of enquiries made by the 657 Victorian employees are set out in Table 2. The
most common type of enquiry was about conditions, which accounted for well over
four-fifths of all enquiries. Of these enquires, the most frequent was about ‘other leave’.
The Workplace Authority advises that that majority of enquiries under this enquiry type
relate to entitlements for maternity leave.34 Enquiries about parental leave accounted for
only 13 (two percent) of the enquiries.
The next most common type of enquiry related to termination, which accounted for 46
or seven percent of the enquiries. Most of these enquires were about unlawful
termination. There were 10 claim kit requests. There was only one enquiry about
enforcement matters or agreement making and one an Australian Fair Pay Commission
minimum wage decision.
34
The Workplace Infoline data collection system does not currently provide a specific maternity field.
121
Table 2: Types of Enquiries Raised
Enquiry type
Conditions
Conditions: other leave
Conditions: wages
Conditions: personal leave
Conditions: other
Conditions: other/parental leave
Conditions: annual leave
Conditions: severance
Conditions: notice and pay in lieu of notice
Frequency
Conditions: public holidays
Conditions: meal break
Conditions: overtime
Conditions: penalties
Total conditions
Termination
Termination: constructive dismissal
Termination: notice period
Termination: redundancy
Termination: unfair
Termination: unlawful
Total termination
Other
Other: workers compensation
Total other
Enforcement matters: agreement making
AFPC minimum wage decision
Claim kit request
Total
Percent
38
340
77
31
28
13
18
16
8
5.8
51.8
11.7
4.7
4.3
2.0
2.7
2.4
1.2
2
1
1
1
574
6
1
9
4
1
25
46
24
1
25
1
1
10
657
0.3
0.2
0.2
0.2
87.4
0.9
0.2
1.4
0.6
0.2
3.8
7.0
3.7
0.2
3.8
0.2
0.2
1.5
100.0
Type of industrial instrument raised in enquiries
Enquiries to the Infoline are also coded by the type of industrial instrument that relates
to the coverage of the person the enquiry is about.
Table 3 sets out the industrial instrument relevant to the enquiry made by the Victorian
callers in the relevant period. Of the total 657 enquiries, some 98 (15 percent) were
unspecified, not captured or not required or not coded. Of the remainder, the most
common instrument type raised in enquiries was a federal award which accounted for
almost three quarters of all the enquiries where an instrument type was coded.
The AFPC Standard was the instrument type at issue in 86 enquiries, with a federal
collective agreement raised in 38 enquiries. Apart from these enquiries there were only
another seven that related to AWAs.
Table 3: Instrument Type Raised in Enquiries
Instrument Type
Federal award
122
Frequency
Percent
408
62.1
The AFPC standard
Federal collective agreement
Schedule 1A
AWA
Regulation
Other jurisdiction
Preserved State award
Preserved State agreement
Unspecified
Not captured/not required
Not coded
Total
86
38
8
7
5
3
3
1
45
17
36
657
13.1
5.8
1.2
1.1
0.8
0.5
0.5
0.2
6.8
2.6
5.5
100.0
Cross tabulation of instrument type and enquiry type (as in Table 2) shows that the
majority of enquiries relating to federal awards were in relation to ‘conditions: other
leave’ (212 enquiries), and to ‘conditions: wages’ (57 enquiries) and to conditions
generally (23 enquiries). The majority of enquiries relating to the AFPC standard were in
relation to ‘conditions: other leave’ (50 enquiries) and to ‘conditions: wages’ (10
enquiries).
The majority of enquiries relating to federal collective agreements were in relation to
‘conditions: other leave’ (22 enquiries). The eight Schedule 1A enquiries were in relation
to ‘conditions: other leave’ (two enquiries), to ‘conditions: wages’ (two enquiries) and
with the remaining four to ‘conditions: annual leave’, ‘conditions: other/parental leave’,
‘conditions: severance’, and other jurisdictions.
The seven AWA enquiries related to ‘conditions/other leave’ (three enquiries),
‘termination’ (two enquiries), ‘conditions: wages’ (one enquiry) and ‘conditions: severance
‘(one enquiry).
123
© Authorised by the Victorian Department of Innovation, Industry and Regional Development
Southern Cross Building, Level 33, 121 Exhibition, Melbourne, Victoria 3000.
Published October 2007
`