Understanding the law

Key points

  • Employees and employers have rights and responsibilities relating to pregnancy, parental leave and return to work under several different laws including the federal Sex Discrimination Act 1984, state and territory anti-discrimination laws, the federal Fair Work Act 2009  and federal, state or territory work health and safety legislation.
  • Refer to the glossary if there is a term you don’t understand.

Top Tip

Know your rights

Understand your rights under anti-discrimination laws, the Fair Work Act   and work health and safety lawsand find out whether you have any additional rights by reading your employment contract (if applicable), the award or enterprise agreement that applies to your workplace and any workplace policies.

What laws apply to me?

LegislationWho

Sex Discrimination Act

All  employees including full-time, part-time, casuals, independent contractors, commission agents, contract workers (such as labour hire) and prospective employees, except state and local government employees.

Fair Work Act

Provisions in the Fair Work Act relating to parental leave and related entitlements apply to all employees in Australia.

Other provisions of the Act, including those relating to flexible working arrangements, apply to all employees except those employed by:

  • state government in Tasmania
  • state and local government in New South Wales, Queensland and South Australia, and
  • state government in Western Australia or those employed by private sector employers and local government entities that are not trading or financial corporations (such as sole traders, partnerships, or other unincorporated entities).

See:  http://www.fairwork.gov.au/about-us/the-fair-work-system if you are unsure whether the Fair Work Act applies to you.

Employees who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons (such as pregnancy) by the unlawful termination provisions.

Work health and safety legislation

All workers including employees, contractors, labour hire workers, apprentices and trainees.

State and territory anti-discrimination legislation

ACT: Discrimination Act 1991 (ACT): all employees in all sectors and industries including paid and voluntary work, full time, part time, contract or casual and those involved with an organisation (such as board or management committee members); except Commonwealth government employees. 

NSW: Anti-Discrimination Act 1977 (NSW): all employees and applicants, commission agents and contract workers - full-time, part-time and casual workers; except Commonwealth Government employees.

NT: Anti-Discrimination Act 1992 (NT): all workers (full-time, part time, casual, permanent and temporary); also includes those under a contract for services, persons employed in whole or in part on a commission basis, a statutory appointment, a person with an impairment employed in a work program, or a person under a guidance program, vocational training program or other occupational training or re-training program.

QLD: Anti-Discrimination Act 1991 (Qld): all people applying for work and protects most workers  including full time, part time, casual, contractors, subcontractors, trainees, apprentices and volunteers; except Commonwealth Government employees.

SA: Equal Opportunity Act 1984 (SA): all types of workers, including full-time, part-time, casuals, independent contractors, commission agents, partners in a firm, contract workers, unpaid workers and prospective employees, irrespective of the size of the organisation; except Commonwealth government employees.

TAS:Anti-Discrimination Act 1998 (TAS): all employees in all sectors and industries - paid or voluntary, full time, part time, contract, casual and those involved with an organisation (such as board or management committee members); except Commonwealth government employees.

VIC: Equal Opportunity Act 2010 (VIC): all types of workers, including full time, part-time and casual employees, trainees, probation and contract workers. Some aspects of the law also apply to volunteers and volunteer organisations. The Act applies to all stages of employment, including recruitment, returning to work after injury, illness or pregnancy, and dismissal and retrenchment.

WA: Equal Opportunity Act 1984 (WA): all employees in all sectors and industries –
paid or voluntary, full time, part time, contract, casual and those involved with an organisation (such as board or management committee members); except Commonwealth government employees.

What is pregnancy or return to work discrimination?

Under the Sex Discrimination Act, it is unlawful to discriminate against an employee on the basis of, for example, their sex, pregnancy, potential pregnancy, family responsibilities and breastfeeding.

It is discrimination to treat an employee less favourably or disadvantage an employee because of a characteristic that is thought to apply to someone because of these grounds (such as not allocating a project to an employee who is pregnant because of an assumption that she will be unable to concentrate and unable to complete certain tasks).

Discrimination can be direct or indirect:

  • Direct discrimination occurs when a person is treated less favourably than another person because of, for example, their sex, pregnancy or potential pregnancy, breastfeeding or family responsibilities.

    Example of direct discrimination:

    Refusing to employ a woman because she is pregnant or may become pregnant.

  • Indirect discrimination occurs when there is a rule, policy, requirement or practice, which appears neutral on its face but actually disadvantages a certain group of people (e.g. those who are breastfeeding), and is not reasonable in all of the circumstances.

    Example of indirect discrimination:

    A policy requiring that all managers must work full-time might disadvantage women who are more likely to need to work part-time due to family responsibilities.

The Fair Work Act also makes it unlawful to discriminate on the basis of pregnancy, sex, family or carer’s responsibilities, or to take adverse action against an employee because they have the right to take parental leave, have exercised the right to take parental leave or propose not to exercise the right to take parental leave.

Can I take parental leave?

Under the Fair Work Act, employees with at least 12 months of continuous service with their employer immediately before the birth or expected birth of their child are entitled to take 12 months of unpaid parental leave if they will have a responsibility for the care of the child. This applies to both the pregnant employee and the spouse or partner of a pregnant woman.

Casual employees are also entitled to up to 12 months of unpaid parental leave if:

  • they have been employed by the employer on a regular and systematic basis for 12 months immediately before the date of birth or expected date of birth, and
  • but for the birth of the child, they would have a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

Parental leave entitlements for members of an ‘employee couple’ are set out at Employees and Leave.

Notice requirements and extensions to the initial 12 months are set out in When do I have to tell my employer that I want to take, shorten or extend my unpaid parental leave under the Fair Work Act?.

Anti-discrimination laws apply both to employees who are and who are not entitled to unpaid parental leave under the Fair Work Act. This means that an employer must ensure that the employee’s sex, pregnancy or family responsibilities does not unfairly influence a decision to reject the employee’s leave application.  For example, it may be discrimination if an employer provides long periods of unpaid leave to employees for a variety of reasons but refuses an application for leave by a pregnant employee.

An employee may also be entitled to a period of paid parental leave under an applicable award, enterprise agreement, policy or their contract of employment.

There is also the Government Paid Parental Leave scheme which provides two payments - Parental Leave Pay and Dad and Partner Pay. See What is the Australian Government Paid Parental Leave scheme?.

What work health and safety protections do I have?

Under work health and safety laws, businesses have an obligation to ensure, so far as is reasonably practicable, the health and safety of all workers, including pregnant or potentially pregnant workers and staff returning to work after childbirth.

This also requires businesses to consult so far as is reasonably practicable with workers who are, or are likely to be, directly affected by a matter relating to health and safety at work.

Additional requirements may apply in relation to higher-risk work, for example lead-risk processes, aviation, underwater diving and working with chemicals.

Under the Fair Work Act, regardless of an employee’s status or length of service, if you provide your employer with evidence that you are fit for work (e.g. a medical certificate) but that it is inadvisable for you to continue in your present position because of illness or risks arising out of your pregnancy or hazards connected with your job and there is an appropriate safe job available, you are entitled to be transferred to the appropriate safe job.

For information about transfers to a safe job and no safe job leave under the Fair Work Act see What should I do if I am worried about my health or safety at work while pregnant?.

Do I have any other rights?

Many organisations provide additional rights and benefits above the minimum conditions set out in law to further value and support pregnant employees and their return to work. These additional rights may be found in employment contracts, organisational policies and practices, enterprise agreements or awards.

State and territory laws may also provide additional rights. For example, in addition to rights under the federal Sex Discrimination Act, in Victoria, under the Equal Opportunity Act 2010 (Vic)employers must not unreasonably refuse to accommodate the parental or caring responsibilities of an employee or prospective employee.

Also, the Northern Territory Anti-Discrimination Act 1996 (NT) provides a positive obligation on employers to reasonably accommodate any special needs an employee may have because they are pregnant, breastfeeding or are a parent.

Where can I get help?

The ‘assistance and making a complaint’ section sets out where to access assistance and the various avenues for making a complaint.

More information?

Australian Human Rights Commission

Fair Work Ombudsman