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Published online by Cambridge University Press: 01 January 2025
This article integrates doctrinal and empirical legal research methods to evaluate manifestations of discrimination experienced by pregnant workers and develops proposals to strengthen labour law to better support working women. The article commences by mapping the framework of rights and protections currently applicable to pregnant women under the Fair Work Act 2009 (Cth) (‘FW Act’). It then analyses court decisions made under parts 3-1 and 3-2 of the FW Act that are relevant to pregnancy, which builds on the limited scholarship in this area. This is augmented by analysing the findings from a pilot study into the experiences of a group of pregnant workers in Victoria, which addresses an ongoing deficiency in the literature of the qualitative examination of workplace pregnancy discrimination. Scrutiny of the doctrinal and empirical data reveals the common manifestations and patterns of conduct that pregnant women experience at work. The article then considers how the rights and protections in the FW Act could be strengthened to better support pregnant women who experience unlawful conduct at work. It is argued that there are three critical gaps in the FW Act, which are leaving pregnant women vulnerable to detrimental treatment. Legislative reform proposals are formulated to address these gaps, of which the most pressing is to add pregnancy to s 65(1A) of the FW Act so that it comprises a ground on which employees can make requests for flexible working arrangements.
We thank Renee Burns for excellent research assistance.
1. Australian Human Rights Commission, Supporting Working Parents: Pregnancy and Return to Work National Review (Report, 2014) 26 (‘AHRC Report’).
2. For US based studies see, eg, Jane A Halpert, Midge L Wilson and Julia L Hickman, ‘Pregnancy as a Source of Bias in Performance Appraisals’ (1993) 14(7) Journal of Organizational Behaviour 649, 562–3; Whitney Botsford Morgan et al, ‘A Field Experiment: Reducing Interpersonal Discrimination toward Pregnant Job Applicants’ (2013) 98(5) Journal of Applied Psychology 799, cited in Deborah A. Widiss, ‘Pregnancy at Work — 50 Years of Legal Theory, Litigation, and Legislation’ in Deborah Brake, Martha Chamallas and Verna Williams (eds), The Oxford Handbook of Feminism and Law in the United States (online edn, Oxford Academic, 2021) 3.
3. AHRC Report (n 1) 27.
4. See, eg, Jill Murray, ‘Introduction’ (2005) 23(1) Law in Context 1, 1–7; Belinda Smith and Joellen Riley, ‘Family-friendly Work Practices and the Law’ (2004) 26(3) Sydney Law Review 395, 395; David Baker ‘Maternity Leave and Reduced Future Earning Capacity’ (2011) 89 Family Matters 82.
5. See also Rosemary Owens, ‘The Traditional Labour Law Framework: A Critical Evaluation’ in Richard Mitchell (ed) Redefining Labour Law: New Perspectives and the Future of Teaching and Research (Monograph No 3, Centre for Employment and Labour Relations Law, University of Melbourne, 1997) 3–28, 14. On the persistence of this model, see, eg, Murray (n 4); Anna Chapman, ‘Work/Family, Australian Labour Law, and the Normative Worker’, in Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford University Press, 2005) 79.
6. The dualism of the public/private realms, of course, has gendered dimensions. For a recent discussion, see, eg, Margaret Thornton, ‘Coronavirus and the Colonisation of Private Life’ (2021) 1(1) Legalities 44, 45–6.
7. See Murray (n 4) 2–3.
8. We explore this in section III.
9. One exception is where an employee is covered by an enterprise agreement that deals with this subject. See also Joellen Riley ‘Contracting for Work/ Family Balance’ (2005) 23(1) Law in Context 182, 182–201.
10. On the distinction between formal and substantive equality, see, eg, Dominique Allen, ‘An Evaluation of the Mechanisms Designed to Promote Substantive Equality in the Equal Opportunity Act 2010 (Vic)’ (2020) 44(2) Melbourne University Law Review 459; Anna Chapman, Beth Gaze and Adriana Orifici, ‘Substantive Equality at Work: Still Elusive Under Australia’s Fair Work Act’ (2017) 30(3) Australian Journal of Labour Law 214.
11. The legal rights and protections applicable to pregnant workers under the FW Act are mostly distinct from those applicable to workers who are parents or carers following the birth or adoption of a child. A notable exception is the right to take parental leave, which may be taken in association with pregnancy, childbirth or to provide primary care for a child: Fair Work Act 2009 (Cth) pt 2–2 div 5 (‘FW Act’). See further section III.
12. Between 2016 and 2020, seven pregnancy discrimination claims were heard under s 351 of the FW Act. The Fair Work Commission (‘FWC’) heard two of them and the Federal Circuit Court heard five. By contrast, only one pregnancy discrimination claim was heard under the Sex Discrimination Act 1984 (Cth) (‘SDA’) in the same period. As a point of comparison, no pregnancy discrimination claims were heard under the Equal Opportunity Act 2010 (Vic) (‘EO Act’) in the same period.
13. FW Act (n 11) s 3(d).
14. Ibid s 3(e).
15. See, eg, Dominique Allen, ‘Working Parents: Findings from the AHRC’s National Inquiry into the Prevalence of Pregnancy and Return to Work Discrimination in the Workplace' (2014) 27(3) Australian Journal of Labour Law 281; Anna Chapman, ‘Australian Anti-discrimination Law, Work, Care and Family’ (Working Paper No 51, Centre for Employment and Labour Relations Law, University of Melbourne, January 2012); Margaret Thornton, ‘Women in Discrimination Law’ in Patricia Easteal (ed), Women and the Law in Australia (LexisNexis Butterworths, 2010) 131–51; Sara Charlesworth, ‘Managing Work and Family in the “Shadow” of Anti-discrimination Law’ (2005) 23(1) Law in Context 88; Smith and Riley (n 4). See also Artemis Boyce, ‘Is There a Need for Reasonable Adjustments to Accommodate Pregnant Workers?’ (Student Working Paper No 18, Centre for Employment and Labour Relations Law, University of Melbourne, November 2015) which briefly examines how a duty to provide reasonably adjustments under anti-discrimination law would interact with FW Act rights and protections. See also Sara Charlesworth and Fiona Macdonald, Hard Labour? Pregnancy, Discrimination and Workplace Rights: A Report to the Office of the Workplace Rights Advocate (Report, Office of the Workplace Rights Advocate, 2007).
16. Alexandra Heron and Sara Charlesworth, ‘Effective Protection of Pregnant Women at Work: Still Waiting for Delivery?’ (2016) 29(1) Australian Journal of Labour Law 1. A broader body of scholarship on how the FW Act promotes employees’ family and carer responsibilities includes some consideration of pregnant employees but predominantly focuses on the Act’s application to parents and carers. See, eg, Chapman (n 5) 79; Rosemary Owens, ‘Taking Leave: Work and Family in Australian Law and Policy’ in Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford University Press, 2005) 237; Belinda Smith, ‘What Kind of Equality Can We Expect from the Fair Work Act?’ (2011) 35(2) Melbourne University Law Review 545; Chapman (n 15) 10–26.
17. See discussion in Dominique Allen and Alysia Blackham, ‘Using Empirical Research to Advance Workplace Equality Law Scholarship: Benefits, Pitfalls and Challenges’ (2018) 27(3) Griffith Law Review 337.
18. Charlesworth and Macdonald (n 15).
19. See Paula Macdonald, Kerriann Dear and Sandra E Backstrom, ‘Expecting the Worst: Circumstances Surrounding Pregnancy Discrimination at Work and Progress to Formal Redress’ (2002) 39(3) Industrial Relations Journal 229.
20. Ibid 244–5.
21. Australian Bureau of Statistics (‘ABS’), Pregnancy and Employment Transitions, Australia, Nov 2017 (Catalogue No 4913.0, 29 June 2018) <https://www.abs.gov.au/ausstats/abs@.nsf/mf/4913.0>.
22. ABS, ‘Pregnancy and Work Transitions’ in Australian Social Trends, Nov 2013 (Catalogue No 4102.0, 20 November 2013) <https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/4102.0Main+Features10Nov+2013>.
23. AHRC Report (n 1) 32.
24. Chapman has previously noted a similar distinction with respect to the rights and protections that apply to workers with family and carer responsibilities. See Chapman (n 5) 14. The applicable rights and protections, of course, differ.
25. See, eg, FW Act (n 11) s 65(1).
26. On the distinction between ‘formal’ and ‘substantive’ equality, see, eg, Allen (n 10); Chapman, Gaze and Orifici (n 10).
27. FW Act (n 11) ss 340(1), 351(1), 361. Employees who do not meet the definition of a ‘national system’ employee are alternatively conferred protection against discriminatory dismissal under s 772. See further ss 12, 723. This protection is more confined than in s 351: ss 72(1)(a); 772(1)(f). See also s 772(3), on unlawful termination of pregnant employees in circumstances of redundancy.
28. This has been defined by courts as a broad category of conduct, which covers legal injury as well as any ‘adverse affectation of, or deterioration in, the advantages’ enjoyed by the employee, including acts that affect security of employment: Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650, [33] (Perry J); Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1, 18 [4] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ).
29. FW Act (n 11) s 342(1) Item 1.
30. Ibid s 342(2) Item 1. On the definition of ‘threatened’ with respect to a contravention, see also CFMEU v Victoria (2013) 302 ALR 1, [219]–[222] (Bromberg J).
31. In particular, the protection applies where a person exercises, or proposes to exercise, a ‘workplace right’. See, eg, Sagona v R & C Piccoli Investments Pty Ltd [2014] FCCA 875.
32. FW Act (n 11) s 341.
33. Ibid s 12.
34. Ibid s 96; On Ni Liu v Compuworld Pty Ltd [2020] FWC 2569 (‘Liu’).
35. FW Act (n 11) s 12.
36. See, eg, SDA (n 12); Ibid ss 4B, 7.
37. Bayford v Maxxia Pty Ltd (2011) 207 IR 50, [141].
38. Under anti-discrimination law, it is well-established that discrimination on the basis of ‘sex’ includes discrimination based on a characteristic associated with that sex, with pregnancy being a characteristic of women. This approach has been implicitly accepted by the various federal courts’ adjudication of claims under s 351 where the grounds of ‘sex’ and ‘pregnancy’ have been concurrently pleaded by applicants. See, eg, Fair Work Ombudsman v Austrend International Pty Ltd (2018) 273 IR 439 (‘Austrend’); Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560 (‘Mahajan’).
39. See, eg, Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178, 206 [102] (Gordon J); Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460, 490–1 [155] (Mortimer J) (‘Sayed’). For detailed explanation of the distinction between ‘direct’ and ‘indirect’ discrimination, see, eg, Neil Rees, Simon Rice and Dominique Allen, Australian Anti-discrimination & Equal Opportunity Law (Federation Press, 3rd ed, 2018) ch 3. On the concept of ‘discrimination’ under s 351, see, eg, Dominique Allen, ‘Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees with a Disability?’ (2018) 41(3) University of New South Wales Law Journal 846; Chapman, Gaze and Orifici (n 10).
40. Anna Chapman, ‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (2012) 33 Adelaide Law Review 39, 72.
41. Explanatory Memorandum, Fair Work Bill 2008 (Cth) [1425]. See also discussion of relationship between protected attributes and real or perceived characteristics associated with attributes in: Sayed (n 39) [194]–[195] (Mortimer J).
42. On the analogous circumstance of discrimination because of ‘manifestations’ and ‘symptoms’ of disability as prohibited under s 351(1), see, eg, RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 [124] (Perry J); Shizas v Commissioner of Police (2017) 268 IR 71; Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 [48] (Kerr J).
43. The FWC determined that gestational diabetes comprises a ‘disability’ for the purpose of s 351(1): Liu (n 34). On morning sickness as a disability, see Bevilacqua v Telco Business Solutions (Watergardens) Pty Ltd [2015] VCAT 269 (‘Bevilacqua’).
44. FW Act (n 11) s 351(2)(b).
45. (2018) 284 IR 414 [45]–[53] (Kerr J).
46. For a discussion in this context, see, eg, Allen (n 39).
47. FW Act (n 11) s 352.
48. Mahajan (n 38) [79] (Riley J).
49. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 [41]–[45] (French CJ and Crennan J). The proscribed reason must be a ‘substantial and operative reason’ for the conduct: BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2013) 219 FCR 245 [95] (Flick J).
50. See also section IV.
51. For a pregnant employee to be eligible, she must have completed 12 months’ continuous service. Other rights are also relevant to pregnant workers following the birth of their child, including a right to unpaid parental leave: FW Act (n 11) s 70.
52. See FW Act (n 11) ss 80, 81A, 82A. Pregnant employees are also entitled to access personal leave in connection with pregnancy-related illness or injury, see s 96.
53. ‘Transfer to a safe job’ provisions first originated in the Victorian Employee Relations Act 1992 (Vic), with provisions inserted in the WR Act applying only to pregnant Victorian employees. The Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended the WR Act to extend these provisions to all employees covered by the WR Act. The provisions included in the FW Act in 2009 did not include rights for pregnant employees with less than 12 months’ service. This was addressed via the Fair Work Amendment Act 2013 (Cth) s 81.
54. These circumstances are where: the employer asks the employee to give it a medical certificate containing a statement of whether the employee is fit for work and, if the employee is fit for work, a statement of whether it is advisable for the employee to continue in her present position because of illness, or risks, arising out of the pregnancy or hazards of the position: FW Act (n 11) s 73(1).
55. This obligation applies to employers of employees who are taking ‘a period of unpaid parental leave, other than flexible unpaid parental leave’, including while pregnant: FW Act (n 11) s 83(1).
56. FW Act (n 11) s 84A. See, eg, Heraud v Roy Morgan Research Ltd (2016) 305 FLR 29 (‘Heraud’).
57. FW Act (n 11) s 84. See further Turnbull v Symantec (Australia) Pty Ltd (2013) 280 FLR 196 [50]–[64] (Manousaridis J) (‘Symantec’). The reason for an employee taking unpaid parental leave can, of course, include pregnancy pending birth of a child, as well as for parental and caring responsibilities for that child.
58. Symantec (n 57) [63] (Manousaridis J).
59. FW Act (n 11) ss 44, 539. A court may make any order it considers appropriate if satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Maximum pecuniary penalties apply, see ss 545, 546.
60. Ibid s 65.
61. An employee can access this right are where an employee is: the parent, or has caring responsibility, of a child of school age or younger; a carer (within the meaning of the Carer Recognition Act 2010 (Cth)); providing care or support to a member of their immediate family or household who is experiencing family violence.
62. Victorian Public Service Enterprise Agreement 2020 (‘VPSA’) < https://www.fwc.gov.au/documents/documents/agreements/fwa/ae509129.pdf>, cl 56.
63. Ibid cl 55.7.
64. Ibid cl 55.28.
65. Ibid cl 13.12. Disputes about matters arising under the NES are to be dealt with in accordance with cl. 13: cl. 13.2.
66. See, eg, Australian Municipal, Administrative, Clerical and Services Union v Northern SEQ Distributor — Retailer Authority [2019] FWC 8381; Lee v Mission Australia [2017] FWC 3557; Rind v Australian Institute of Superannuation Trustees (2013) 231 IR 143.
67. On equality bargaining in Australia, see, eg, Marian Baird, Betty Frino and Sue Williamson, ‘Paid Maternity and Paternity Leave and the Emergence of ‘Equality Bargaining’ in Australia: An Analysis of Enterprise Agreements 2003–2007’ (2009) 35(4) Australian Bulletin of Labour 671.
68. FW Act (n 11) s 387(a).
69. Ibid s 387(b)–(e).
70. Ibid s 387(f)–(g).
71. Ibid s 385(a); (d).
72. Ibid s 398.
73. See, eg, Anju Das v Complete Care Physio Health Group [2018] FWC 5883 (‘Das’).
74. In the period between the enactment of part 3-1 in 2009 and 2020, the total number comprises 20 decisions.
75. Liu (n 34); Leutton v Sheralee Hotels Pty Ltd [2019] FCCA 2471 (‘Leutton’); Power v BOC Pty Ltd (No 2) (2017) 273 IR 336 (‘Power No 2’); Mahajan (n 38); Heraud (n 56); Storey v The Monitoring Centre Pty Ltd [2015] FCCA 3310 (‘Storey’); Lei v Chance Trading Pty Ltd [2015] FCCA 441 (‘Lei’). In two further cases, the application was unsuccessful: Austrend (n 38); Wang v Sceats [2018] FCCA 2426 (‘Wang’).
76. In seven of these disputes, the applicants pleaded their claims in the alternative under FW Act ss 340 and 351 (Liu (n 34); Leutton (n 75); Wang (n 75); Power No 2 (n 75); Mahajan (n 38); Heraud (n 56); Storey (n 74)); one claim was brought under only section 351 (Austrend (n 38)) and one further claim pleaded breaches of s 351 and/or 343 (which relates to coercion) in the alternative (Lei (n 75)).
77. Part 3-2 commenced on 1 July 2009. Goldberg v The Advice Spot [2020] FWC 2671 (‘Goldberg’); Bennett v Sentinel Portfolio Management Pty Ltd [2020] FWC 2654 (‘Bennett’); Tuchin v Mills Brands [2020] FWC 583 (‘Tuchin’); Widmer v Kylie Pearce Family Trust [2016] FWC 8097 (‘Widmer’); Dias v Commonwealth Bank [2019] FWC 5479 (‘Dias’); Das (n 74); Balgowan v City of Sydney RSL and Community Club Ltd [2017] FWC 3798 (‘Balgowan’); de Leon v Spice Temple Pty Ltd [2010] FWA 3497 (‘de Leon’); Halpin v Sofiia Evelina Kemp [2017] FWC 3335 (‘Halpin’); Morgan v Heritage Motels and Restaurants [2016] FWC 4842 (‘Morgan’); Drew v Vanilla Slice Pty Ltd ATF Sorrento Family Trust [2016] FWC 3935 (‘Drew’); Owens v Allied Express Transport Pty Ltd [2011] FWA 1058 (‘Owens’).
78. FW Act (n 11) s 389. Goldberg (n 77); Bennett (n 77); Tuchin (n 77); Widmer (n 77).
79. Dias (n 77); Das (n 73); Balgowan (n 77); de Leon (n 77).
80. FW Act (n 11) s 387(a). Halpin (n 77); Morgan (n 77); Drew (n 77); Owens (n 77).
81. See, eg, Charlesworth and Macdonald (n 15); AHRC Report (n 1).
82. See, eg, of 13,928 unfair dismissal applications made to the FWC in 2018–2019, 13,422 were resolved via conciliation. See further Fair Work Commission, Annual Report 2018-2019 < https://www.transparency.gov.au/annual-reports/fair-work-commission/reporting-year/2018-2019-11>. See also Dominique Allen, ‘Behind the Conciliation Doors: Settling Discrimination Complaints in Victoria’ (2009) 18(3) Griffith Law Review 778.
83. Heron and Charlesworth (n 16) 11–8.
84. See further section III A, below.
85. Austrend (n 38); Leutton (n 75); Lei (n 75); Halpin (n 77); Morgan (n 77); Drew (n 77); Owens (n 77).
86. Liu (n 34); Mahajan (n 38); Power No 2 (n 75); Heraud (n 56); Storey (n 75); Wang (n 75).
87. Five of these cases were determined by courts, whereas Liu (n 34) was determined by the FWC (arbitration by consent). It is for this reason that, where relevant, this analysis refers to the ‘adjudicator’ in the case.
88. In Wang (n 75), the court decided the disciplinary process leading to the employee’s dismissal was justified.
89. Liu (n 34); Mahajan (n 38).
90. Power No 2 (n 75); Heraud (n 56); Storey (n 75). In these cases, the courts determined that the employer had breached s 340 by exposing the employee to a detriment because she had exercised a workplace right connected to her pregnancy or parental leave.
91. See, eg, Beth Gaze, Anna Chapman and Adriana Orifici, ‘Evaluating the Adverse Action Provisions of the Fair Work Act: Equality Thwarted?’ in John Howe, Anna Chapman and Ingrid Landau (eds) The Evolving Project of Labour Law: Foundations, Development and Future Research Directions (Federation Press, 2017) 88.
92. Adriana Orifici, ‘CFMEU v Endeavour Coal: Severing Workplace Rights from their Organisational Impact?’ (2016) 29(3) Australian Journal of Labour Law 327, 334. See also Anna Chapman, Kathleen Love and Beth Gaze ‘Reverse Onus of Proof Then and Now: The Barclay Case and the History of the Fair Work Act’s Union Victimisation and Freedom of Association’ (2014) 37(2) University of New South Wales Law Journal 471; Heron and Charlesworth (n 16).
93. Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (‘Barclay’); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (‘BHP Coal’); Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150.
94. [2017] FCCA 1868 (‘Power’).
95. Ibid [93] (Vasta J).
96. Ibid [96].
97. Power No 2 (n 75) [57] (Vasta J).
98. Power (n 94) [59]–[77] (Vasta J).
99. Ibid [66], [72].
100. Ibid [34], [66].
101. Orifici (n 92) 335–6.
102. Dias (n 77); Das (n 73); Balgowan (n 77); de Leon (n 77); Halpin (n 77); Morgan (n 77); Drew (n 77); Owens (n 77).
103. Das (n 73); Balgowan (n 77); de Leon (n 77); Halpin (n 77); Morgan (n 77); Owens (n 77).
104. See Goldberg (n 77); Bennett (n 77); Tuchin (n 77); Widmer (n 77).
105. Das (n 73).
106. The application succeeded because of inadequate consultation: Tuchin (n 77).
107. De Leon (n 77).
108. Das (n 73) [16] (Wilson C).
109. Ibid [85].
110. Austrend (n 38); Leutton (n 75); Lei (n 75); Halpin (n 77); Morgan (n 77); Drew (n 77); Owens (n 77).
111. See, eg, Halpin (n 77); Morgan (n 77).
112. Austrend (n 38).
113. Leutton (n 75); Lei (n 75).
114. Halpin (n 77); Morgan (n 77); Drew (n 77); Owens (n 77).
115. Leutton (n 75) [15].
116. Ibid [24]. See also interviewee ‘Grace’, discussed in part 2, who reported a similar experience.
117. Ibid [22].
118. Ibid [28].
119. Lei (n 75) [15] (Riley J); Leutton (n 75) [28] (Egan J).
120. See FW Act (n 11) s 386; Owens (n 77) [58]. This decision was determined by the predecessor to the FWC, Fair Work Australia (‘FWA’).
121. Owens (n 77) [56]–[58].
122. Ibid [69].
123. JobWatch is an independent, not-for-profit employment rights community legal centre based in Victoria. JobWatch provides assistance to workers in Victoria, Queensland and Tasmania via a Telephone Information Service, which provides information about workplace laws. It does not provide legal advice through this service.
124. In the 2019/20 financial year, the Telephone Service received 1004 calls about workplace discrimination. Pregnancy/breastfeeding was the fifth most common attribute, with 71 inquiries.
125. Importantly, these women contacted JobWatch for information about legal rights and options. They were not given legal advice. JobWatch does not contact callers to learn what they do with information provided.
126. The project received ethics clearance from Monash University Human Research Ethics Committee, Project ID 24766. Interview participants were given a store voucher to thank them for their time.
127. Very few empirical studies about sex or pregnancy discrimination have included views of complainants or potential complainants, not for lack of trying. As most complaints with substance are resolved through confidential settlements, it is very difficult to identify potential interview subjects and for them to speak openly about their claims if they are subject to a non-disclosure agreement. Those that were able to interview complainants have interviewed small numbers due to these restrictions. Charlesworth and Macdonald (n 15) interviewed 13 women in their study of pregnancy discrimination in the workplace. Hunter and Leonard interviewed six complainants across two jurisdictions: Rosemary Huter and Alice Leonard, ‘The Outcomes of Conciliation in Sex Discrimination Cases’ (Working Paper No 8, Centre for Employment and Labour Relations Law, University of Melbourne, August 1995).
128. See, eg, SDA (n 12) s 12.
129. Under both equality laws and the FW Act, the second element is that the detriment was ‘because of’ the pregnancy. Employees are assisted in the FW Act by the shifting onus of proof in s 361.
130. FW Act (n 11) s 65.
131. (2009) 183 IR 89 [117] (‘Cuddles Management’). Specifically, while s 279(1) of the WR Act entitled an employee to terminate employment during maternity leave with notice, it (and the WR Act generally) included no equivalent provision that entitled an employer to terminate employment during maternity leave with notice.
132. Cuddles Management (n 131) [116].
133. Power No 2 (n 75) [17] (Vasta J).
134. Ibid [18]. This is reasoning is consistent with reasoning regarding annual leave and long service leave and the commencement of periods of notice, see, eg, CEPU v Silcar Pty Ltd [2013] FWC 856.
135. Denial of this type of opportunity was recognised by the FWC in Lee v Mission Australia (n 67).
136. See, eg, Goldberg (n 77); Bennett (n 77); Tuchin (n 77); Widmer (n 77).
137. Lee v Mission Australia (n 67) [24].
138. Ibid [43].
139. See, eg, WorkPac v Rossato (2020) 278 FCR 179 [216]–[263] (Bromberg J) (Rossato). The characterisation of employment applied in the decision of the High Court in WorkPac v Rossato [2021] 392 ALR 39 meant that this matter was not discussed by the Court.
140. Ibid [226], [228]. See also WorkPac Pty Ltd v Skene (2018) 264 FCR 536 [93], [125].
141. Initially, the courts interpreted ‘disability’ narrowly in s 351 (see, eg, Hodkinson v Commonwealth (2011) 207 IR 129) and although they have accepted that it may encompass the manifestations of the disability, it is not clear that they would be prepared to accept that it includes temporary ailment resulting from pregnancy. By contrast, in a significant decision, the Victorian Civil and Administrative Tribunal determined severe morning sickness was a disability under the state’s equality law: Bevilacqua (n 43).
142. Re 4 Yearly Review of Modern Awards — Family Friendly Working Arrangements (2018) 276 IR 249 [273] (‘Family Friendly Work Arrangements Decision’).
143. These are distinct from and in addition to ‘flexibility terms’ under modern awards under which parties can make ‘individual flexibility arrangements’: FW Act s 144. See, eg, Australian Municipal, Administrative, Clerical and Services Union v Mildura Rural City Council [2012] FWA 4308.
144. Family Friendly Work Arrangements Decision (n 142).
145. 4 Yearly Review of Modern Awards – Family Friendly Working Arrangements [2018] FWCFB 6863. The Model Term commenced operation from 1 December 2018.
146. The employer and employee must meet within 21 days of the request and the employer must consider: the needs of the employee arising from their circumstances; consequences for the employee if the requested arrangements are not made and any reasonable business grounds for refusal.
147. On weaknesses of s 65, see, eg, Smith (n 16); Anna Chapman, ‘Reasonable Accommodation, Adverse Action and the Case of Deborah Schou’ (2012) 33(1) Adelaide Law Review 39, 50–1; Sara Charlesworth and Iain Campbell, ‘Right to Request Regulation: Two New Australian Models’ (2008) 21 Australian Journal of Labour Law 116, 122.
148. Other than the provisions guaranteeing the right to be transferred to a safe job, discussed above at n 53.
149 For a discussion on the capacity to imply this type of obligation, see also Anna Chapman, ‘Part 3–1, Adverse Action and Equality’ (2020) 33(1) Australian Journal of Labour Law 107, 110–12.
150. The AHRC noted this deficiency and recommended that the SDA (but not the FW Act) include ‘a positive duty on employers to reasonably accommodate the needs of workers who are pregnant’: AHRC Report (n 1) 119.
151. Most recently this has arisen in the context of preventing sexual harassment at work: Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (Report, 29 January 2020).
152. Equal Opportunity Act 2010 (Vic) s 19. See also s 17 which applies to persons who are offered employment.
153. Hazel Genn, Martin Partington and Sally Wheeler, ‘Law in the Real World: Improving Our Understanding of How Law Works’ (Report, Nuffield Foundation, November 2006) 1–3.