A recent landmark decision by the Fair Work Commission has reinstated a pregnant warehouse worker who was dismissed shortly after informing her employer of her condition. The ruling, which also awarded the worker A$15,000 in backpay, underscores the critical legal protections for pregnant employees in Australia and the serious consequences for employers who breach them.
The case that highlights a common dispute
The case involved a contractor for Adecco working at an Amazon facility in Sydney. The worker informed her employer she was newly pregnant, citing safety concerns after experiencing dizziness while using a ladder. Her doctor provided a certificate stating she was fit for work but recommended she avoid lifting more than 12kg and refrain from ladder use.
After completing just two light-duties shifts, she was informed no further suitable shifts were available and her future work was placed "on hold." This included shifts for training in a different role. Following unanswered attempts to contact her employer via text and email, she was effectively dismissed. The Fair Work Commission found this constituted an unfair dismissal, ordering her reinstatement.
What pregnant employees need to know about their rights
This case brings to light the frequent confusion surrounding pregnancy and work. Under Australian law, the protections are clear and robust.
You are not obligated to disclose a pregnancy during a job application or interview. In fact, the Sex Discrimination Act prohibits employers from asking questions about pregnancy or future family plans. This extends to indirect questioning.
Similarly, there is no legal requirement to inform your current boss immediately. The timing is a personal choice, often influenced by job requirements and individual health. However, disclosure becomes necessary if you require workplace adjustments.
Since June 2023, a significant update to the Fair Work Act has granted pregnant employees the right to request flexible work arrangements. Eligible employees (those with at least 12 months of service) can make a written request, which employers must respond to within 21 days. Refusals are only permitted on reasonable business grounds following a discussion.
Furthermore, pregnant workers can request a transfer to a "safe job" if their current role poses a risk due to illness, pregnancy-related hazards, or workplace dangers. If no safe alternative exists, they may be entitled to paid or unpaid "no safe job" leave. These rights also apply to casual employees.
The evolving obligations for Australian employers
For employers, the legal landscape has become more proactive. A "positive duty" introduced into the Sex Discrimination Act in late 2022 requires businesses to take reasonable and proportionate steps to eliminate sex discrimination, including that related to pregnancy.
This means employers must actively consider how to accommodate a pregnant worker's needs, which may change as the pregnancy progresses. They cannot unilaterally decide an employee can no longer work safely; they must engage in a collaborative process to find solutions, which may include modifying duties.
A 2022 study led by Professor Dominique Allen of Monash University revealed that approximately 14% of calls to a Victorian employment service were about pregnancy discrimination. The research found confusion on both sides, with some pregnant women feeling forced to leave due to minor, unaccommodated requests, and some employers unsure of their legal duties.
For smaller businesses without dedicated HR support, navigating these obligations can be challenging. The key takeaway from the recent Fair Work ruling is that communication and documented processes are essential. Employers can request medical evidence to inform adjustments, but they must engage with the employee and explore all possible options before making decisions that adversely affect their employment.
The reinstatement of the Sydney warehouse worker serves as a powerful reminder that Australian law firmly protects against pregnancy discrimination, and employers who fail to comply face significant legal and financial repercussions.
