Understanding the legal framework

Key points

  • Employees and employers have rights and responsibilities relating to pregnancy, parental leave and return to work under several different laws including the Sex Discrimination Act 1984 (Cth), state and territory anti-discrimination legislation, the Fair Work Act 2009 (Cth) and federal, state or territory work health and safety legislation.
  • Some organisations provide more than the minimum conditions set out in law. These may be found in employment contracts, organisational policies and practices, enterprise agreements or awards. You should be familiar with these obligations and understand which ones apply to you. 
See Tool 1 Policies to support working parents

Top Tip

Communicate clearly to ensure information is understood

Consider what information or training your organisation can make available to employees and managers.

Support managers as well as any Human Resources personnel so that they can liaise appropriately with employees in discussions about pregnancy, safe work, requests for parental leave and returning to work.

What laws apply?

LegislationWho is covered?
Sex Discrimination ActAll employers and 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 and employers in Australia.

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

  • 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 by the Fair Work Act more generally are still protected from dismissal on discriminatory grounds (such as pregnancy) due to the unlawful termination provisions of the Act.

Work health and safety legislationAll businesses and workers in all jurisdictions, except in Victoria and Western Australia which cover all employers, employees and others at the workplace.

State and territory anti-discrimination legislation

ACT: Discrimination Act 1991 (ACT): all employers and 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. Employers include partnerships (6 or more partners), local government councillors, industrial organisations, qualifying bodies, employment agencies and some voluntary organisations.  Commonwealth organisations are not covered.

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 employers of all sizes and 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 assuming a pregnant employee may be unable to concentrate and therefore not giving her 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 work full-time might disadvantage women, who are more likely to need to work part-time due to family responsibilities.

Vicarious liability

Under the Sex Discrimination Act, employers can be held legally responsible for acts of discrimination or harassment that occur in the workplace or in connection with a person’s employment.

This is known as vicarious liability and to minimise liability, employers need to demonstrate that they have:

  • taken all reasonable steps to prevent discrimination or harassment and
  • responded appropriately to resolve incidents of discrimination and harassment.

For further information see the Australian Human Rights Commission’s Good Practice Good Business factsheet on vicarious liability.

State and territory anti-discrimination laws

The Sex Discrimination Act is Commonwealth legislation but state and territory laws may provide additional obligations in relation to pregnancy and return to work discrimination.

For example, 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 1992 (NT) provides a positive obligation on employers to reasonably accommodate special needs an employee may have because they are pregnant, breastfeeding or are a parent.

The Fair Work Act

This Act 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 pregnant employees and their partners 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 How much unpaid leave are partners entitled to?.

Notice requirements and extensions to the initial 12 months are set out in What notifications are required for an employee to take, shorten and extend unpaid parental leave?.

Where an employee is not entitled to unpaid parental leave under the Fair Work Act, anti-discrimination laws still apply. 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.

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 Australian 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 obligations do I have?

Under work health and safety laws you 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 workers returning to work after childbirth.

This also requires you 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 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 a pregnant employee provides you with evidence that she is fit for work (e.g. a medical certificate) but that it is inadvisable for her to continue in her present position because of illness or risks arising out of her pregnancy or hazards connected with her job and there is an appropriate safe job available, she is 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 if a job is not safe for a pregnant employee?.

More information

The ‘Contact us’ section sets out the various organisations which can provide extensive information on the relevant laws and may be able to assist with resolving workplace issues.

Below are useful publications:

Australian Human Rights Commission

Fair Work Ombudsman