Download Report

Pregnancy
& work
> your rights and obligations
A Guide for Employers
- Second Edition
Three agencies have participated in the development of this guide.
Job Watch Inc (JobWatch)
JobWatch is an independent employment rights community legal centre funded
by the Victorian State Government. It assists and advocates on behalf of Victorian
workers, particularly those in disadvantaged or vulnerable circumstances. JobWatch
also provides a free and confidential telephone information and referral service for
workers across Victoria.
The Victorian Equal Opportunity
and Human Rights Commission (VEOHRC)
The VEOHRC is an independent statutory authority that informs and educates the
community. It helps resolve complaints of discrimination, sexual harassment and
racial or religious vilification by offering a free and impartial complaint resolution
service with the aim of achieving mutual agreement.
Workforce Victoria (WV)
Workforce Victoria aims to foster fair, cooperative and productive workplaces,
and to ensure that businesses and the public sector have access to a skilled and
flexible workforce. These are essential components for supporting communities,
ensuring long-term economic growth and attracting investment to the State.
JobWatch, VEOHRC, and Workforce Victoria are committed to promoting work and family balance by raising
awareness about workers and employers’ rights and obligations.
Important disclaimer
This guide provides general information only and is not intended to be comprehensive or a substitute for legal advice. Employers and workers
should seek legal advice about their particular circumstances before relying on any of the information provided. JobWatch, the VEOHRC and
Workforce Victoria disclaim any liability in respect of any action taken or not taken in reliance on the contents of this guide. The information
provided in this guide was compiled in December 2009.
Contents
> Introduction to this Guide
02
> Employers’ obligations in the workplace before, during and after pregnancy
04
Unpaid parental leave
05
Discrimination in the workplace
07
Job interviews
09
Pregnancy at work
10
On unpaid parental leave
11
Returning to work
12
Terminating employment
14
Complaints and claims
15
> Frequently asked questions (FAQs)
16
Job interviews
17
Pregnancy at work
17
On leave
18
Returning to work
18
Dismissal
19
> Who to contact for further information
20
List of contacts
21
> Appendices
23
Appendix A – Sample letters for use from 1 January 2010
24
01
Introduction
to this guide
Introduction
This guide has been prepared as a result of a
recommendation contained in a research report
prepared by Dr Sara Charlesworth and Fiona
Macdonald of RMIT University. The report titled
‘Hard Labour? Pregnancy, Discrimination and
Workplace Rights’ identified the difficulties
women workers experience before, during and
after maternity leave. This guide is intended
to assist employers by providing an overview
of their rights and obligations in relation to
employees who are pregnant, on unpaid parental
leave or are returning from unpaid parental leave.
Employers have rights and obligations relating to
pregnancy in the workplace under several different laws.
This guide provides a broad overview of these rights and
obligations in Victoria in an easy-to-understand format.
It draws primarily on the following sources of federal
and Victorian law:
• Fair Work Act 2009 (Cth);
• Sex Discrimination Act 1984 (Cth);
• Disability Discrimination Act 1992 (Cth);
• Equal Opportunity Act 1995 (Vic).
This guide is not intended to be a comprehensive
statement of the law applying in Victoria.
Employers should also note that this guide does not
deal with particular awards, enterprise or workplace
agreements that may be binding on an employer, nor
does it deal with policies or contractual arrangements
that may exist between employers and their employees.
These should be checked in case they create entitlements
or obligations in addition to those in this guide.
The focus of this guide is birth-related leave. It does not
deal with adoption related leave or leave for partners.
To find out more about these types of leave, see the
‘Who to contact for further information’ on page 21.
02
Important note:
a system in transition
Australian workplace laws have recently changed. The
minimum standards relating to maternity leave are now
set by the National Employment Standards (‘the NES’).
The main changes introduced by the NES are:
1. the term ‘unpaid parental leave’ is used, rather
than referring separately to maternity, paternity
and adoption leave;
2. same-sex de facto partners are entitled to unpaid
parental leave; and
3. a person who has taken 12 months unpaid parental
leave will have the right to request a further 12 months
leave, or their spouse or de-facto spouse can then
take up to 12 months unpaid parental leave if that
person has responsibility for the care of the child.
The federal system of Modern Awards complements the
minimal standards set by the NES but cannot exclude or
contravene the NES.
What happens if an employee has made a leave
request or partly taken unpaid parental leave before
1 January 2010?
The law on unpaid parental leave changed on
1 January 2010. If an employee has already started
leave, they continue on that leave under the NES,
for the rest of the leave period.
If the employee has applied for leave, but has not started
the leave until after 1 January 2010, the employee must
be treated as if they had applied for leave under the NES.
The employee does not have to make another application
for leave.
For example, if an employee applied for, or commenced
leave before 31 December 2009, as of 1 January 2010
the employee can request an additional 12 months
unpaid leave under the NES.
INTRODUCTION
Changes to discrimination law
Victorian equal opportunity legislation (the Equal
Opportunity Act), and federal anti-discrimination law
(the Sex Discrimination Act) have for many years provided
that employers cannot discriminate on the basis of
pregnancy. Other pregnancy-related characteristics such
as breastfeeding or parent and carer responsibilities are
also protected in Victoria.
The Fair Work Act provides additional protection from
discrimination. To find out more see the ‘Discrimination
in the Workplace’ section of this guide on page 7.
03
Employers’ obligations in
the workplace before,during
& after an employee’s pregnancy
04
YOUR OBLIGATIONS
Unpaid parental leave
Under the National Employment Standard (NES)
‘maternity leave’ is known as ‘birth-related leave.’
‘Birth-related leave’ may be made up of ‘unpaid
parental leave’ or ‘unpaid special maternity leave’.
Eligibility for unpaid
parental leave
‘Unpaid parental leave’ means a single, unbroken period
of unpaid leave taken due to the birth or expected birth
of a child. ‘Unpaid special maternity leave’ means leave
taken because of a pregnancy-related illness or due to
the pregnancy ending within 28 weeks of the due date
without the birth of a living child.
An employee is entitled to unpaid parental leave
if she has:
• worked on a permanent (full-time or part-time) basis
for her current employer for at least 12 months before
the expected due date of her child (casual employees
must have 12 months regular and systematic service
with their employer and a reasonable expectation of
continuing regular and systematic work); and
The NES allows up to 52 weeks unpaid parental leave for
those who meet the eligibility and notice requirements,
explained below. The NES provides for minimum safety
net entitlements only. Employers are free to offer more
favourable options for their employees.
Employees also have the right to request a further 12
months unpaid parental leave. This is discussed in more
detail in the ‘Varying the leave’ section of this guide on
page 11.
Note: Even if an employee does not meet the eligibility
requirements for unpaid parental leave under the NES,
an employer can still agree to an employee taking
unpaid parental leave or other forms of leave in relation
to the birth of their child.
Just because an employee may not be eligible for unpaid
parental leave under the NES it does not mean that they
cannot make a claim of discrimination or unlawful dismissal
if they, for example, lose their job or are disadvantaged in
their employment for reasons that include pregnancy or
their parental responsibilities. See ‘Complaints and claims’
on page 15.
• given her employer a written application for unpaid
parental leave.
An employee’s spouse or defacto partner can also apply
for unpaid parental leave associated with the birth of a
child. This leave is only available if the employee
requesting the leave has or will have responsibility for
the care of the child. This form of unpaid parental leave
is available to both opposite sex and same-sex partners.
Sometimes, both partners take concurrent leave for the
birth of the child. This is different to the unpaid parental
leave described above and is limited to 3 weeks or less
for partners.
The above sets out minimum requirements. An employer
can make variations to arrangements if these are more
favourable for the employee.
05
Women sometimes face unfair treatment and / or
discrimination in the workplace because of their
role as mothers.
Applying for unpaid parental leave
An employee wishing to take unpaid parental leave must
provide their employer with:
• written notice of the taking of unpaid parental leave,
including the intended start and end dates of leave.
This must be provided at least 10 weeks before
starting the leave or if that is not practicable,
as soon as practicable;
• confirmation of the dates or change of dates at least
four weeks before the intended start date of leave;
and
• further evidence of the date of birth or expected date
of birth if the employer requires it. This may include a
medical certificate if required by the employer.
(See sample letters at Appendix A from page 24)
Is there a minimum period of leave?
There is no minimum period of leave that must be taken
after the birth of the child.
When must leave begin?
An employee may start leave at any time within six
weeks before the expected birth of her child.
Can an employee work up until the birth?
If an employee wishes to continue working during the
six weeks prior to the expected birth, her employer may
ask for a medical certificate stating that the employee is
fit to work.
If the employee does not provide the medical certificate
within seven days, or if the medical certificate indicates
that the employee is not fit for work, her employer may
require the employee to start leave or take a period of
unpaid leave as soon as practicable.
06
Special maternity leave
Special maternity leave is unpaid leave due to a
pregnancy-related illness or because the pregnancy
ended within 28 weeks before the due date without
the birth of a living child.
To be eligible for special maternity leave, the employee
must be eligible for unpaid parental leave and provide her
employer with an application for special maternity leave.
Special maternity leave counts as unpaid parental leave
so it reduces the amount of unpaid parental leave to
which an employee is otherwise entitled.
Special maternity leave application
An employee wishing to take special maternity leave will
need to provide her employer with:
• notice of the taking of the leave. This must advise the
employer of the period or expected period of the leave
and be provided as soon as practicable.
• if the employer requires it, evidence of a pregnancyrelated illness or that the pregnancy ended within 28
weeks before the due date without the birth of a living
child. The employer may request a medical certificate.
If so, the employee must provide one.
Women sometimes face unfair treatment and/or
discrimination in the workplace because of their
role as mothers. Discrimination can occur before,
during or after pregnancy and can have serious
consequences.
In Victoria, it is against the law for an employer to
discriminate against an employee because of actual or
presumed pregnancy. It is also against the law for an
employer to discriminate against an employee because
she is breastfeeding or because of her parental or carer
status, marital status, disability or impairment, parental or
carer responsibilities or her sex (amongst other attributes).
Apart from some limited exceptions below, this applies
to all stages of employment, including recruitment,
pay and other conditions while in a job, and termination
of employment.
Discrimination may be direct or indirect and may also
consist of an unreasonable failure by an employer to
accommodate parent or carer responsibilities.
Direct discrimination occurs, for example, where an
employer treats an employee less favourably than another
person because she is pregnant, or because of her carer
or parental status. For example, it is against the law to
dismiss or demote an employee because she is pregnant.
‘Adverse action’ protection
In addition, the federal Fair Work Act protects employees,
including prospective employees, from adverse action
and discrimination, on several grounds. In addition to
pregnancy, other grounds which may be relevant to
pregnancy, include sex, sexual preference, disability,
marital status, and family or carer’s responsibilities.
Adverse action includes a range of conduct such
as refusal to employ, injuring a person in her or his
employment, altering a person’s position to her or
his prejudice, and termination of employment.
For example, an employee asks her employer for access
to a private space at work where the employee can
express breast-milk twice a day. In response, her employer
moves the employee’s workspace to a location where no
private space is available. No other employees are moved.
The employee feels her employer is discriminating against
her and has done this because the employee asked for
access to a private space to express milk.
Adverse action is also prohibited in relation to a person’s
workplace rights or industrial activities.
For more information call Fair Work Australia. See ‘Who
to contact for further information’ on page 21.
Indirect discrimination may occur, for example, where an
employer imposes, or proposes to impose, a condition,
requirement or practice that is harder for pregnant
women to comply with and is unreasonable in the
circumstances. For example, a workplace may allow
staff to take only two scheduled toilet breaks per shift.
While this may seem fair because it applies to everyone
equally, pregnant women may find it difficult to comply
with because they may need to use the toilet more
frequently, especially as their pregnancy progresses.
This requirement may therefore be discriminatory if it can
be shown that it is not reasonable in the circumstances.
07
YOUR OBLIGATIONS
Discrimination in the Workplace
An employer must not unreasonably deny an applicant
a job or offer a job on less favourable terms and conditions
because the applicant is pregnant.
Discrimination and
family responsibilities
The Victorian Equal Opportunity Act also provides
specific protections for working parents and carers
trying to balance their work and responsibilities as a
parent or carer.
Under the Equal Opportunity Act, an employer must
not refuse, unless it is reasonable to do so in the
circumstances, flexible arrangements for an employee
with parental or carer responsibilities.
Circumstances that may be relevant to determining
whether a refusal is or is not reasonable include:
• the nature of the employee's work and parental or
carer responsibilities;
• the nature and cost of the arrangements required for
an employee to fulfil their family or carer responsibilities;
• the financial circumstances of the employer;
• the size and nature of the workplace and the
employer's business;
• the effect of the flexible work arrangements on
the workplace, including the financial impact on
the business;
• the consequences for the employer of having the
flexible work arrangements; and
• the consequences for the employee of not having
the flexible work arrangements.
08
Other factors that might be relevant in a particular
case include:
• when the arrangements are to commence;
• how long the arrangements will last;
• information that has been provided by the employee
about their situation;
• the accrued entitlements of the employee, such as
personal or carer's leave, or annual leave; and
• whether any legal or other constraints affect the
feasibility of the employer accommodating the
responsibilities, such as occupational health and
safety laws or award penalty rates.
The Victorian Equal Opportunity and Human Rights
Commission and Workforce Victoria have prepared
guidelines titled ‘Family Responsibilities – Guidelines
for Employers and Employees’. These are available on
the Victorian Equal Opportunity and Human Rights
Commission website. See ‘Who to contact for further
information’ on page 21.
The NES provides for the right to request flexible
working arrangements. This is discussed further under
‘Returning to work’ on page 12. This gives employees
who have at least 12 months continuous service, with
responsibility for care of a child under school age, or for
care of a child under 18 with a disability, the right to
request flexible working arrangements.
The request must be in writing, setting out the details of
the changes sought and the reasons for the changes.
The employer must provide a written response granting
or refusing the request within 21 days but may refuse
only on reasonable business grounds and must detail
these in the refusal.
YOUR OBLIGATIONS
Job Interviews
Exceptions
In very limited situations, an employer can discriminate
against a worker because an exception or exemption
applies. For example, exceptions to Victorian discrimination
laws may mean an employer can decline to offer a position
to a pregnant woman if:
• she is unable to perform the essential tasks of the
position and it is unreasonable to modify the role;
It is against the law for a prospective employer
or recruitment agent to discriminate against an
employee due to pregnancy in the recruitment
process. This means an employer must not
unreasonably deny an applicant a job or offer
a job on less favourable terms and conditions
because the applicant is pregnant.
• she or the baby will be affected by occupational health
and safety issues that cannot be addressed;
Further, it is against the law for a prospective employer,
in relation to the work arrangements offered, to
unreasonably refuse to accommodate the prospective
employee’s responsibilities as a parent or carer.
• the position is temporary and requires the completion
of a project within a timeframe which she cannot
meet; or
• the employer employs the equivalent of five or fewer
full-time employees.
Discriminatory questions
However, it is important to note that federal discrimination
laws may still apply to small employers even though
Victorian laws do not.
It is against the law for a prospective employer to ask a
prospective employee a question about her pregnancy
or assumed pregnancy where the answer could be
used to discriminate against the employee, unless the
information is required for a non-discriminatory purpose.
An exception or exemption may constitute a defence
in the event that a complaint of discrimination is made
to the Victorian Equal Opportunity and Human Rights
Commission but generally will not prevent such a
complaint being made in the first place.
For example, a prospective employer should not ask a
prospective employee if she is pregnant and then refuse
to give her a job if she answers yes.
For more information about exceptions and exemptions
that may apply to employers, contact the Victorian Equal
Opportunity and Human Rights Commission. Employers
may also be referred to an appropriate lawyer and
receive half an hour free legal advice via the Law Institute
of Victoria’s Legal Referral Service. See ‘Who to contact
for further information’ on page 21.
Sometimes a prospective employer may ask a potential
employee about her pregnancy for non-discriminatory
reasons, such as ensuring workplace safety or in order
to work out what special services and facilities might be
necessary. This is not unlawful. In general, employers
should only ask questions that are directly relevant to
the position and an employee’s ability to do the job.
09
An employee is entitled to 12 months unpaid parental leave.
Pregnancy at Work
It is against the law for an employer to discriminate
against an employee because of her pregnancy.
This means that an employer must not treat an
employee unfairly because of her pregnancy by:
• denying or limiting a pregnant employee’s access to
opportunities for promotion, transfer or training or to
any other benefits connected with employment; or
• terminating the employment; or
• denying access to a guidance program,
an apprenticeship training program or other
occupational training or retraining program; or
• subjecting the employee to any other detriment.
Derogatory remarks relating to an employee’s
pregnancy may also be discriminatory. For example,
making comments about a person’s size and how much
she is eating or criticising her because she needs to
take frequent rest breaks may amount to unlawful
discrimination. If the derogatory remarks are of a sexual
nature, they may also constitute sexual harassment.
Workplace safety
Employers must provide and maintain a working
environment for their employees, including pregnant
employees, that is safe and without risks to health so
far as is reasonably practicable. For more information
contact WorkSafe Victoria. See ‘Who to contact for
further information’ on page 21.
Transfer to a safe job
If an employee is fit for work but unable to do her usual
job because of her pregnancy she may be entitled to be
transferred to a safe job if she is:
• entitled to unpaid parental leave and has provided her
employer with the notice and evidence required; and;
• has provided her employer with evidence that she is
fit for work but that it is inadvisable to continue in her
current position for a period (the risk period) because
of illness or risk due to the pregnancy or hazards
connected with that position.
10
An employer is entitled to request a medical certificate
as evidence.
If these requirements are met an employer must transfer
the employee to a safe job for the risk period for the
same ordinary hours of work and rate of pay as the
employee’s substantive position unless the employee
agrees otherwise. If there is no safe job available then
the employee is entitled to take paid ‘no safe job’ leave.
This must be paid at the employee’s base rate of pay for
her ordinary hours of work.
For example, a doctor might advise a woman who
works in a pesticide factory mixing chemicals that she
should not work around hazardous chemicals during
her pregnancy. In this case, the employee can ask her
employer to transfer her to a safe job, such as doing
office duties, without any other changes to her hours
of work or rate of pay.
If an employee takes paid ‘no safe job’ leave, that leave
ends when unpaid parental leave, or special maternity
leave if applicable, begins.
After the employee commences ‘no safe job leave’ an
employer may ask an employee to provide a medical
certificate during the six weeks before the expected
birth stating whether the employee is fit to work. If the
medical certificate is not provided within seven days or
if the certificate says the employee is not fit for work
the employer may require the employee to take unpaid
parental leave as soon as practicable.
Even if an employee is not eligible for unpaid parental
leave, the employer must consider options for the
pregnant employee to be able to continue to work safely.
It is against the law to discriminate against a person
on unpaid parental leave, including sick leave taken
due to a pregnancy-related illness. This includes
protection from less favourable treatment due to
her pregnancy, sex, disability or status as a parent
or carer.
Employers should consult with employees who are on
unpaid parental leave about significant changes to the
employers' business or organisation that might affect
them, such as a restructure or the introduction of new
technology.
In addition, if, while an employee is on unpaid parental
leave, an employer makes a decision that will have a
significant effect on the status, pay or location of the
pre-unpaid parental leave position, the employer must
take all reasonable steps to inform the employee and
discuss the effect of the decision.
Replacement Employees
An employer is entitled to employ a worker on a
temporary basis to do the work of an employee who
is on unpaid parental leave or to temporarily replace
an employee who has been transferred to do the work
of an employee who is on unpaid parental leave.
Varying the leave
An employee is entitled to 12 months unpaid
parental leave. An employee on unpaid parental leave
may vary her leave by giving at least four weeks notice
prior to the end date of the original leave period.
In addition, an employee may request to extend the
leave beyond the general 12 month entitlement for a
further period of up to 12 months. This request must
be in writing and given to the employer at least four
weeks before the end of the original 12 months unpaid
parental leave.
There is no obligation for an employer to agree to such
a request, however, the employer must provide a written
response to the employee within 21 days and may
refuse only on reasonable business grounds. If the
request is refused the written response must include
details of the reasons for refusal.
A period of unpaid parental leave may be reduced
or varied by agreement between the employer and
the employee.
It is good practice for employers to inform the
replacement employee that their temporary employment
is to replace a person on parental leave, who is entitled
to return to their position.
Working while on leave
By agreement with the employer, an employee may
undertake work while on unpaid parental leave. If this
occurs, the original return to work date may still apply,
unless an extension to the date is agreed with the
employee. It is important to confirm a return date with
the employee prior to them undertaking work whilst on
unpaid parental leave.
Whilst on unpaid parental leave, an employee should
not undertake any activity that is inconsistent with their
employment contract, and must remain the primary
carer of the child.
11
YOUR OBLIGATIONS
On unpaid parental leave
Employers should be willing to discuss an employee’s
options or entitlements for flexible working arrangements
before the employee returns to work.
Returning to Work
An employee is required to give at least 10 weeks
written notice of starting unpaid parental leave,
specifying the start and end dates of the leave,
as well as confirming the start and end dates at
least four weeks before the intended start date.
There is no further requirement to give written
notice of the return to work date while on leave.
If an employee ceases to have any responsibility for the
care of the child the employer may give the employee
four weeks written notice of the requirement to return
to work on a specific day. If the employee is the birth
mother this notice must not be given to the employee
earlier than six weeks after the birth.
Employees on special maternity leave are entitled to
return at the end of the leave period without giving
notice of their return (see ‘sample letters’ in Appendix A,
from page 24).
Which position?
An employee returning from unpaid parental leave is
entitled to return to the position she held immediately
before going on leave or immediately before transferring
to a safe job or reducing work hours due to pregnancy.
If that position genuinely no longer exists, the employee
may return to whichever other available position for
which the employee is qualified and suited, that is
nearest in status and remuneration to the pre-unpaid
parental leave position.
This includes a right to return to a position to which
an employee was promoted before going on unpaid
parental leave. However, it does not include right to
return to any temporary safe job or part-time position
provided due to her pregnancy or a pregnancy related
illness. For example, if an employee was employed
in a permanent capacity in a senior role before the
pregnancy, it is against the law for her employer to only
offer casual employment in a lower paid position on the
employee’s return from unpaid parental leave if the
employee’s old position still exists.
12
Request to work part-time
When an employee returns to work following unpaid
parental leave they do not have an automatic right to
convert from full-time to part-time employment.
However, an employee can request flexible work
arrangements, including part-time employment,
under Victorian and federal legislation.
It is important to note that a policy requiring all
employees to work full-time may be discriminatory
if it is harder for parents, carers or those with family
responsibilities to comply with and the policy is not
reasonable in all the circumstances.
Requests for flexible work
arrangements upon return
to work
Employers should be willing to discuss an employee’s
options or entitlements for flexible working arrangements
before the employee returns to work.
Some employers already offer flexible work arrangements
such as working from home, changing start or finish times
or roster arrangements that allow employees to fulfil their
parental or carer responsibilities. Such arrangements
should be discussed with employees.
Further, employees may have access to flexible work
arrangements under an award, enterprise or workplace
agreement or common law contract. Employers should
always seek advice about this.
Always remember that it is against the law for an
employer to discriminate against employees because
of their parental or carer status. For example, it may be
against the law for an employer to dismiss an employee
or offer fewer shifts because the employee is unable
to work on weekends due to parental responsibilities.
The Fair Work Act general protection provisions may
also apply here.
YOUR OBLIGATIONS
Federal law
Employees who have at least 12 months continuous
service with an employer, and with responsibility for care
of a child under school age, or for care of a child under
18 with a disability, have the right to request flexible
working arrangements under the NES.
The request must be in writing, set out the details of
the changes sought and the reasons for the changes.
The employer must provide a written response granting
or refusing the request within 21 days. The employer
may only refuse on reasonable business grounds and
must detail these in the written refusal.
Victorian law
Under the Victorian Equal Opportunity Act employers
must not unreasonably refuse to accommodate the
responsibilities of an employee as a parent or carer.
This will be relevant when considering an employee’s
request for flexible working arrangements, or other
accommodation for family or caring responsibilities.
All relevant facts and circumstances must be considered
before refusing such a request. See ‘Discrimination in the
Workplace’ at page 7.
It may also be against the law for an employer
to prohibit an employee from breastfeeding in the
workplace. Employers are legally obliged to ‘reasonably
accommodate’ breastfeeding mothers and this may
include providing lactation breaks, shorter working
hours or flexible work options. The options available
to assist employees to continue breastfeeding at work
will be determined by the sort of work undertaken by
the employee.
13
Even if an employee is not dismissed but is treated less
favourably because of, for example, her pregnancy or
parental status, she may be able to make a complaint.
Terminating employment
An employee dismissed or not offered employment
for a reason including a discriminatory reason such
as pregnancy or parental or carer status may have
legal recourse against his or her employer or
prospective employer.
If employment is terminated by an employer for reasons
connected with pregnancy, the employee may challenge
the termination in a number of ways.
These include:
• a general protections claim under the Fair Work Act; or
• a claim of unfair dismissal under the Fair Work Act; or
• a discrimination claim under the Sex Discrimination Act
or Equal Opportunity Act.
For further advice about employers’ obligations in
dismissing an employee, contact Fair Work Australia,
your employer association, your lawyer or the Law
Institute of Victoria Legal Referral Service. See ‘Who to
contact for further information’ on page 21.
14
If the employee believes their dismissal from
employment was harsh, unjust or unreasonable but
not necessarily discriminatory, they may, if eligible,
make an application to Fair Work Australia to
challenge it. Fair Work Australia can assist with
a conference to reach a settlement. However,
if that is not successful a hearing can be held.
It is a good idea for employers to have written policies
and procedures regarding discrimination and sexual
harassment. Employees should always be made aware
of and given access to these policies and procedures
and they should be reviewed on a regular basis.
The Victorian Equal Opportunity and Human Rights
Commission can assist employers to comply with
their equal opportunity obligations.
If the dismissal is in breach of the general protections
under the Fair Work Act, the employee may make
an application to Fair Work Australia to challenge it.
Fair Work Australia can, in most cases, assist with a
conference to try to reach settlement but if that is not
successful, a hearing can be held by a federal court to
decide the matter.
Defending a complaint of discrimination can be very
costly, inconvenient, time consuming, damaging to
productivity, staff morale and reputation. Employers who
ensure they have solid policies and practices in place are
better placed to successfully defend complaints.
However, if the dismissal involved discrimination,
a complaint may be made to the Victorian Equal
Opportunity and Human Rights Commission or to
the Australian Human Rights Commission.
Even if an employee is not dismissed but is treated less
favourably because of, for example, her pregnancy or
parental status, she may be able to make a complaint
of discrimination in employment to the Victorian Equal
Opportunity and Human Rights Commission, the
Australian Human Rights Commission, or a federal
Court under the Fair Work Act.
Even if an employee is not dismissed but experiences
adverse action because of, for example, her pregnancy
or parental status, she may be able to make a complaint
to Fair Work Australia or the Fair Work Ombudsman or
make an application to the Federal Court or Federal
Magistrates Court.
A complaint of discrimination can be made against both
the individual who discriminates against the employee
and the employer who may be vicariously liable for the
discrimination. In addition, complaints can be made
against an individual who allegedly authorised or assisted
another person to discriminate against an employee.
Further, if a complaint is made against an employer
and/or an employee or employees of the employer
it is against the law for the employer to victimise
the complainant, for example, by terminating their
employment or reducing their working entitlements
for making such a complaint.
A discrimination complaint to the Victorian Equal
Opportunity and Human Rights Commission can be
resolved by mutual agreement. Possible outcomes include:
• an apology;
• financial settlement;
• job reference or reinstatement;
• access to previously denied job opportunity;
• an agreement to change or stop behaviour;
• an agreement to adopt equal opportunity policies;
• equal opportunity training.
A complaint that is not resolved at the Victorian Equal
Opportunity and Human Rights Commission can be
referred to the Victorian Civil and Administrative Tribunal
for determination or if the complaint was lodged with the
Australian Human Rights Commission and is not resolved
it will go either to the Federal Magistrates Court or the
Federal Court for determination.
Depending on the jurisdiction, if an employee’s complaint
is upheld, an employer may be ordered to do one or
more of the following:
• pay the employee compensation for lost wages;
• reinstate the employee;
• pay the employee damages for injury to feelings; and
• pay a penalty.
Additionally, there are penalties for breaching the NES
and the employer may be investigated and prosecuted
by the Fair Work Ombudsman.
15
YOUR OBLIGATIONS
Complaints and claims
Frequently asked
16
questions
FAQs
Job interviews
Pregnancy at work
Q. Can an employer ask an employee whether
she plans to get pregnant?
A. It is against the law for an employer to ask a
Q. Can unpaid parental leave be extended
or varied?
A. Generally unpaid parental leave must be taken
Q. Upon receiving an offer of employment,
can a prospective employee ask for
part-time arrangements to accommodate
their responsibilities as a carer of a
pre-school aged child?
A. Under the Victorian Equal Opportunity Act a
prospective employer cannot unreasonably refuse to
accommodate an employee's carer responsibilities.
The employer must consider all the relevant facts
and circumstances to determine if the request is
reasonable. Regard must be given to a range of
factors including the employee's circumstances, the
role offered, the employer's financial circumstances,
and the size and nature of the workplace (see
‘Discrimination in the Workplace’ on page 7).
Employees also have the right to request flexible
work arrangements under the NES. An employer
may refuse the request, but only on ‘reasonable
business grounds’.
in a single continuous period.
If an employee has taken less than 52 weeks leave,
they can extend their unpaid parental leave once to
the 52 weeks maximum by giving four weeks notice
prior to the end of the original leave period.
An employee may request an additional 52 weeks
unpaid parental leave from their employer. This
request must be given to the employer at least four
weeks before the end of the original 52 weeks
unpaid parental leave.
There is no obligation for the employer to agree to
the request, however, the employer must provide a
written response within 21 days and may refuse only
on reasonable business grounds. If the request is
refused the written response must include details of
the reasons for refusal.
Q Can an employee take annual leave
in addition to parental leave?
A. Yes, but this must be agreed with the employer.
Q. What if an employee’s baby dies or the
pregnancy ends?
A. Leave can be shortened by written agreement
between the employer and employee. Employees
must still give their employer at least four weeks
written notice in order to be protected by the return
to work guarantee. If the employee ceases to have
responsibility for a child, the employer may give
the employee at least four weeks written notice to
return to work or if the employee has given birth,
the return to work must not be earlier than six
weeks after the birth.
17
FAQs
potential employee if they plan to get pregnant and to
discriminate against her on the basis of her answer.
Questions about pregnancy and related matters
should only be asked if relevant to the employment
and if they are being asked for a non-discriminatory
purpose, for example, in order to accommodate the
potential employee’s safety or to assess what special
services or facilities might be required.
Concurrent unpaid parental leave is available
to opposite sex and same-sex partners,
for a maximum period of three weeks.
If an employee’s pregnancy ends before she starts
unpaid parental leave then her leave is automatically
cancelled. However, the employee may still be
entitled to take unpaid special maternity leave.
Q. Can a pregnant employee and her partner
both take unpaid parental leave?
A. Concurrent unpaid parental leave is available to
opposite sex and same-sex partners, for a maximum
period of three weeks.
Q. Can sick leave be used by employees to
attend prenatal medical appointments?
A. Paid sick leave is not usually available for the purpose
of attending medical appointments such as prenatal
check ups where the employee is otherwise fit to
attend work unless the particular terms of employment
allow for this. However, an employer can agree to pay
sick leave in these circumstances.
On leave
Q. Can an employee on unpaid parental
leave do work for their employer or other
employers during leave?
A. An employee cannot be required to do work during
unpaid parental leave. If an employee agrees to do
work, her original return date may still apply unless
she applies to extend it. Any arrangements of this
sort should be documented in writing. An employee
should not undertake any activity during leave which
is inconsistent with the employment contract and
they should remain responsible for the care of the
child. Nevertheless, an employer may consent to
an employee performing work for another employer
during unpaid parental leave.
Returning to work
Q. What are an employer’s obligations to
employees returning from unpaid parental
leave if their position no longer exists?
A. An employee returning from unpaid parental
leave is entitled to return to the position she held
immediately before going on leave or immediately
before transferring to a safe job or reducing work
hours due to pregnancy. And, if that position
genuinely no longer exists, to whichever other
available position for which the employee is
qualified and suited, that is nearest in status
and remuneration to the pre-unpaid parental
leave position.
If the position no longer exists, employers are not
required to create a new position especially for the
returning employee. Nevertheless, if the reason the
position no longer exists is because of, or partly
because of the taking of unpaid parental leave,
the employee may be entitled to make an unfair
dismissal claim or a general protections dispute
– adverse action claim.
Q. What happens if I sell my business while
an employee is on leave?
A. Employees on unpaid parental leave must be treated
no less favourably than other employees and should
be offered no less favourable redundancy or new
employment options.
Any step a transferring employee has taken with
their previous employer, including going on unpaid
parental leave, is deemed to have been taken with
the new employer.
Q. Can an employee resign while on unpaid
parental leave and if they do can they
change their minds?
A. Employees can resign while on unpaid parental
leave but they must give their employer the required
notice of resignation. Generally, employees cannot
withdraw their resignation once it has been
accepted unless their employer agrees.
18
Q. Can an employer refuse to accommodate
an employee’s responsibilities as a carer
of a pre-school aged child?
A. Under the Victorian Equal Opportunity Act,
FAQs
an employer cannot unreasonably refuse to
accommodate an employee's carer responsibilities.
The employer must consider all the relevant facts
and circumstances to determine if the employee’s
needs can be accommodated. Regard must be
given to a range of factors including the employee's
circumstances, the role offered, the employer's
financial circumstances, and the size and nature
of the workplace.
Employees who have at least 12 months continuous
service with an employer, and with responsibility for
care of a child under school age, or for care of a
child under 18 with a disability, have the right to
request flexible working arrangements.
The request must be in writing, set out the details
of the changes sought and the reasons for the
changes. The employer must provide a written
response granting or refusing the request within 21
days, but may refuse only on reasonable business
grounds and must detail these in the refusal.
Dismissal
Q. What consequences might an employer
face for dismissing an employee due to the
employee taking unpaid parental leave?
A. Employees may be able to challenge the termination
of their employment if they are dismissed for a
discriminatory reason or if the dismissal is harsh,
unjust or unreasonable. Employers wishing to know
their obligations in dismissing an employee should
contact their employer association or a lawyer.
19
Who to contact for
further information
20
List of contacts
INFORMATION
CONTACTS
Unpaid parental leave advice
> Employer association
> Fair Work Australia or the Fair Work Ombudsman
> A lawyer
Discrimination, including dismissal, because
of pregnancy, breastfeeding, parental or carer
status, family responsibilities; temporary
absence from work because of illness or injury
>
>
>
>
>
Superannuation while on unpaid parental leave
> Superannuation Helpline
Unsafe workplace
> WorkSafe Victoria
> Employer association
Award and workplace instrument entitlements
and the NES
> Fair Work Australia or the Fair Work Ombudsman
Long Service Leave entitlements
> Workforce Victoria
Flexible return to work negotiations.
Practical information and procedures for
continuing breastfeeding and returning to work
arrangements
> Department of Justice Dispute Settlement Centre
> Australian Breastfeeding Association
> Fair Work Australia or the Fair Work Ombudsman
Private Solicitor
> Law Institute of Victoria Legal Referral Service
(Free advice for the first 30 minutes)
Victorian Equal Opportunity and Human Rights Commission
Australian Human Rights Commission
Fair Work Australia
Employer association
A lawyer
WHO TO CONTACT
21
ORGANISATION
TELEPHONE
WEBSITE
EMAIL
DETAILS
Australian
Breastfeeding
Association
(03) 9885 0855
www.breastfeeding.asn.au
info@breastfeeding.asn.au
An information and counselling
service for women and their
families. Also provides
breastpump hire, breastfeeding
education classes, telephone
helpline service and online forums.
Australian
Human Rights
Commission
1300 656 419
complaintsinfo@humanrights.gov.au
The federal body that deals with
complaints of discrimination and
sexual harassment.
Fair Work
Australia
1300 799 675
www.fwa.gov.au
inquiries@fwa.gov.au
Fair Work Australia is the national
workplace relations tribunal. It is an
independent body with power to
carry out a range of functions such
as dealing with complaints of unfair
dismissal, resolving individual
workplace disputes and ensuring
compliance with workplace laws
about pregnancy and work.
Fair Work
Ombudsman
13 13 94
www.fwo.gov.au
administration@fclc.org.au
The Fair Work Ombudsman
investigates workplace complaints
and enforces compliance with
Australia's workplace laws.
Law Institute of
Victoria Legal
Referral Service
(03) 9607 9550
www.liv.asn.au/directory/firmsref/
lawinst@liv.asn.au
Contact for referral to a solicitor
(first 30 minutes free advice).
Superannuation
Hotline
13 10 20
Victorian Equal
Opportunity and
Human Rights
Commission
(03) 9281 7100
or 1800 134 142
(toll free for
country callers)
www.humanrightscommission.vic.gov.au
information@veohrc.vic.gov.au
Helps to resolve complaints of
discrimination, sexual harassment,
and racial and religious vilification
in Victoria.
(03) 9280 1995
(interpreters)
Workforce
Victoria
(03) 9651 9200
WorkSafe Victoria
(03) 9641 1444
or 1800 136 089
(toll free)
22
On website follow the links below
for factsheets:
Pregnancy and the Workplace PDF
Discrimination – Pregnancy Factsheet
www.humanrightscommission.vic.gov.au
/types of discrimination/Pregnancy and
Breastfeeding/Publications/default.asp
www.workforce.vic.gov.au
www.workcover.vic.gov.au/wps/wcm/
connect/WorkSafe
info@worksafe.vic.gov.au
Victorian WorkCover Authority
can assist with complaints
about health and safety issues,
unsafe working conditions and
compensation enquiries.
Appendices
WHO TO CONTACT
APPENDICES
23
Appendix A
Sample letters for use
Sample Letter 1 – Advance notification of unpaid parental leave
Employees should provide a letter like this example at least 10 weeks before the expected date of birth of the child.
Remember to keep a copy of all letters to and from your employees.
Employee’s name
and address here
Employer’s name
and address here
Write the date here
Dear (insert employer's name)
This letter is to notify you that I am pregnant and wish to take unpaid parental leave.
I plan to take (enter number of weeks here up to a maximum of 52) weeks unpaid parental
leave. The start date is (insert date here). The return to work date is (insert date here).
I will write a second letter confirming the date I plan to start leave, closer to the time.
I would appreciate it if you could provide me with any information about the company's
policies on unpaid parental leave and/or flexible working arrangements.
Yours faithfully,
(Employee to sign here)
24
Sample Letter 2 – Confirmation of unpaid parental leave dates
Employees applying for unpaid parental leave should provide their employer with a letter such as this, notifying their
employer how much unpaid parental leave they intend to take 4 weeks before the leave is planned to commence.
Remember to keep a copy of all letters to and from your employees.
Employee’s name
and address here
Employer's name
and address here
Write the date here
Dear (insert employer's name)
I plan to take (enter number of weeks here up to a maximum of 52) weeks unpaid
parental leave. I write to confirm the start date is (insert date here). The return to work
date is (insert date here).
As part of my unpaid parental leave I will be taking (eg. 3 weeks annual leave),
commencing (insert date here) and finishing (insert date).
Yours faithfully,
(Employee to sign here)
APPENDICES
25
Sample Letter 3 – Special maternity leave – pregnancy-related illness
Employees applying for special maternity leave on the basis of a pregnancy-related illness should provide their employer
with a letter such as this, notifying them as soon as practicable.
Remember to keep a copy of all letters to and from your employees.
Employee’s name
and address here
Employer's name
and address here
Write the date here
Dear (insert employer's name)
I plan to take (enter number of weeks here) weeks unpaid special maternity leave due
to a pregnancy related illness. The start date is (insert date here). The end date is
(insert date here).
Please find attached a medical certificate.
Yours faithfully,
(Employee to sign here)
26
Sample Letter 4 – Special maternity leave – end of pregnancy
Employees applying for special maternity leave due to the end of the pregnancy should provide their employer with
a letter such as this, notifying them as soon as practicable.
Remember to keep a copy of all letters to and from your employees.
Employee’s name
and address here
Employer's name
and address here
Write the date here
Dear (insert employer's name)
I plan to take (enter number of weeks here) weeks special maternity leave due to the
end of my pregnancy. The start date is (insert date here). The return to work date is
(insert date here).
Yours faithfully,
(Employee to sign here)
APPENDICES
27
Sample Letter 5 – Return to work arrangements
If you and your employee agree to flexible arrangements on the employee’s return to work following your unpaid parental
leave it is wise to document that agreement and send a copy to the employee to ensure you both have the same
understanding.
Remember to keep a copy of all letters to and from your employees.
Employee’s name
and address here
Employer's name
and address here
Write the date here
Dear (insert employer's name)
As previously discussed and agreed, I will return to work on (insert date here)
in the (insert flexible arrangement eg. part-time/jobshare/homebased) position of
(insert classification or job position).
The total hours worked will be (insert total number of hours) to be worked on
(insert days).
The start and finishing times will be (insert times).
This flexible arrangement is ongoing/or for (enter period of time).
It is agreed that I can give 4 weeks notice to terminate this flexible arrangement and
return to full-time work.
Yours faithfully,
(Employee to sign here)
28
Workforce Victoria
Department of Innovation, Industry and Regional Development
GPO 4509 Melbourne 3001
December 2009
This guide can be downloaded from the Victorian Government’s
work and family online resource ways2work.business.vic.gov.au