Government response to pregnancy inquiry

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Government response to pregnancy inquiry

In announcing proposed changes to the Sex Discrimination Act 1984(SDA), the federal Government has signaled that the legislation will specifically prohibit discrimination against breastfeeding mothers and prohibit the asking of questions by employers of female applicants regarding whether or when they intend to become pregnant.

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In announcing proposed changes to the Sex Discrimination Act 1984(SDA), the federal Government has signaled that the legislation will specifically prohibit discrimination against breastfeeding mothers and prohibit the asking of questions by employers of female applicants regarding whether or when they intend to become pregnant.

On 1 November 2000, the federal Attorney-General, Mr. Daryl Williams, released the Government's response to the Human Rights and Equal Opportunity Commission's report 'Pregnant and productive: it's a right not a privilege to work while pregnant'.

The Government endorsed the majority of the report's recommendations, and according to the Minister Assisting the Prime Minister for the Status of Women, Senator Newman, the focus of the response is on providing a framework to support employer and employee rights and responsibilities through education and public information campaigns.

The Government response postulated that '...the most effective means of promoting and protecting the rights of individuals is by means of education and dissemination of material'. In this regard the Government response focused upon educating employers about the rights of pregnant women and rejected the recommendation to establish enforceable penalties.

At the centre of the Government's response is the proposal that a set of Guidelines on managing pregnancy and potential pregnancy at work be developed by the Sex Discrimination Commissioner in consultation with other relevant organisations. It is envisaged that the Guidelines would provide a clear, practical and educative guide for reaching agreement about the handling of pregnancy and work issues in a non-discriminatory manner. The Guidelines will be distributed and promoted jointly by the Sex Discrimination Commissioner and the Equal Opportunity for Women in the Workplace Agency.

The Government's response also canvassed recommendations relating to consultative networks; the elicitation of certain information by employers; medical examinations; breastfeeding and unpaid maternity leave for casual employees. These issues are briefly mentioned below.

Consultative network
 
The Government accepted in principle HREOC's recommendation that the Department of Employment, Workplace Relations and Small Business establish a regular consultative network made up of the Department, the Office of the Employment Advocate, the Equal Opportunity for Women in the Workplace Agency, the Attorney-General's Department, the Sex Discrimination Commissioner's policy unit and the Office of the Status of Women. The purpose of the network would be to exchange information pertaining to sectoral and industry specific pregnancy and potential pregnancy discrimination in AWAs, certified agreements and awards.

 

Prohibiting the elicitation of certain information

The Government accepted the recommendation that s27of the SDAbe amended by inserting a specific provision that prohibits the asking of questions about whether or when a woman intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities. The Government expressed the view that it considered that the SDAalready prohibited such questions. Nonetheless the insertion of a specific amendment would be valuable in addressing potential confusion.

Medical examinations of pregnant women

The Government also concurred with the Report that the SDAneeded to be amended so as to clarify that it is unlawful to discriminate in medical examinations of pregnant women during the recruitment process.

Breastfeeding

The other significant recommendation endorsed by the Government is the proposal to amend the SDAto specifically cover breastfeeding as a ground of unlawful discrimination.

Unpaid maternity leave for casuals

The Government rejected HREOC's recommendation that the Workplace Relations Act 1996be amended to extend unpaid maternity leave to casual employees employed for more than 12 months. The Government claimed that the Workplace Relations Act 1996already provides flexibility that facilitates the negotiation at the workplace level of conditions such as maternity leave, and a Maternity Allowance subject to a means test, is available to all women who give birth.

 

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