If you’re pregnant, do you have to tell your boss? And what are the rules for employers?
- Written by Dominique Allen, Professor, Business Law & Taxation, Monash University
A Sydney warehouse worker fired by text message within two weeks of telling her employer she was pregnant has won her job back[1], along with A$15,000 in backpay.
The recent Fair Work Commission ruling[2] about an Adecco contractor working at an Amazon warehouse highlights how employers and employees can interpret the rules on pregnancy and workplace discrimination very differently – sometimes leading to disputes.
Whether you’re newly pregnant or you’re a boss trying to look after your staff, these are the legal rights and obligations you need to know about.
I’m pregnant and applying for work. Do I have to mention it?
No, you don’t. As the Sex Discrimination Act[3] makes clear, an employer can’t ask you about it either.
Even indirect questions – “Are you planning to have a baby in the future?” – are not allowed.
I’ve found out I’m pregnant. Do I have to tell my boss?
No. When you tell them will depend on your job, your pregnancy and your preferences.
But you might want to tell your boss if you need some adjustments for the pregnancy, such as if you do a lot of physical work or travel that’s not possible in your particular circumstances.
I’ve had fewer opportunities since telling work I’m pregnant. Is that allowed?
Under the law, employees can’t be discriminated against because they’re pregnant[4].
But discrimination often isn’t as obvious as being fired or demoted.
In a 2022 study[5], we found about 14% of calls to a Victorian employment rights service were about pregnancy and breastfeeding discrimination.
We found pregnant women felt they had to leave work because their jobs weren’t being modified, even when they weren’t asking for much – such as reduced travel during periods of bad morning sickness.
But things have changed for the better in just the past few years.
Can I ask for flexible work?
Yes – and that’s new.
Since June 2023, pregnant women have been able to ask for flexible work arrangements[6], after an update[7] to the Fair Work Act.
You have to have worked for your employer for 12 months and you need to put your request in writing, detailing what you’d like to change and why. Then your employer has to reply within 21 days. They can only refuse on reasonable business grounds after a discussion with you.
That’s a significant change and applies[8] right across Australia.
Can I ask for my job to be modified?
Yes, you can ask for a “safe job” or “no safe job leave”. That’s true for casual workers[9] too.
A pregnant employee who’s generally fit for work, but can provide evidence that they can’t do their current role because of illness, risk to their pregnancy or hazards at work can ask to be transferred to a “safe job[10]”.
Your employer can ask for evidence, such as a medical certificate. And that’s reasonable: the employer has workplace health and safety obligations to meet too.
If there’s a safe alternative role, the business has to transfer you to it.
But if none is available, you can ask to be placed on paid or unpaid “no safe job[11]” leave.
Check if there’s an enterprise agreement in place at your work; that may include other requirements on how you document any requests.
The challenge for employers – especially smaller businesses
There are lots of good employers wanting to do the right thing. But especially for smaller businesses without a human resources department, it isn’t easy.
Our 2022 study[12] not only found pregnant women were struggling to understand the law; they told us their employers weren’t always sure either.
The following are two common questions employers ask.
My employee’s told me they’re pregnant. Do I have to do anything now?
The Sex Discrimination Act now contains an obligation known as a “positive duty[13]”. It came into force in late 2022.
It means employers need to take reasonable and proportionate measures to eliminate sex discrimination – including discrimination because of pregnancy.
Now you need to be proactive and look for ways to eliminate potential discrimination and accommodate a worker’s pregnancy. This may well change as the pregnancy progresses.
Start by asking yourself if you need to modify the job so your employee can continue to work.
What if I’m worried my worker can’t safely do the job while pregnant?
In the recent Adecco unfair dismissal case[14], the warehouse worker told her employer she was newly pregnant because she had safety concerns after getting dizzy on a ladder.
Her job required her to be able to lift 12kg. Her doctor recommended she lift less and not use a ladder, but gave her a medical certificate saying she was otherwise “fit to work”.
She did two light-duties shifts. Then she was told no other light-duties shifts were available and her future shifts were “on hold” – including shifts to train to work in a different position. No one from Adecco responded to her subsequent text or email.
If you’re an employer, even if you have genuine safety concerns you can’t unilaterally decide a pregnant worker can’t do their job.
Many jobs can be adjusted for pregnancy. Employers need to work with their employees to figure out the best solutions.
References
- ^ won her job back (www.afr.com)
- ^ ruling (www.fwc.gov.au)
- ^ Sex Discrimination Act (www5.austlii.edu.au)
- ^ because they’re pregnant (humanrights.gov.au)
- ^ 2022 study (www.monash.edu)
- ^ flexible work arrangements (classic.austlii.edu.au)
- ^ update (www.legislation.gov.au)
- ^ applies (www.youtube.com)
- ^ true for casual workers (www.fairwork.gov.au)
- ^ safe job (www.fairwork.gov.au)
- ^ no safe job (www.fairwork.gov.au)
- ^ 2022 study (www.monash.edu)
- ^ positive duty (humanrights.gov.au)
- ^ Adecco unfair dismissal case (www.fwc.gov.au)
Authors: Dominique Allen, Professor, Business Law & Taxation, Monash University
