New protections for pregnant workers in 2018

Analysis

New protections for pregnant workers in 2018

Removing two exemptions in NSW discrimination law – that allow employers to fire pregnant workers – is more than just a symbolic act, a lawyer says.

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A proposed removal of two exemptions in NSW discrimination law that allow employers to fire pregnant workers is more than a symbolic act, it has been revealed.

NSW anti-discrimination law has exemptions that allow employers to discriminate against pregnant job applicants and even allows pregnant workers to be fired because they are pregnant.

Legislation in first half of 2018


Late last week the NSW Attorney General, Mark Speakman, and the Minister for Women, Tanya Davies, vowed to amend the law.

Mr Speakman told WorkplaceInfo that the NSW government was abolishing Sections 25 (1A) and (2A) of the Anti-Discrimination Act 1977, which allows employers to fire or refuse to hire women who knew they were pregnant when applying for a job.

Legislation is intended to be introduced in the first half of 2018.

Some commentators have pointed out that, as pregnant women already have protection from discrimination at the federal level under the Sex Discrimination Act, then removal of the NSW exemptions is merely symbolic.

Enlivens the Fair Work Act


However, as workplace lawyer Joe Murphy, a director at Australian Business Lawyers & Advisors, makes clear, any reforms will have more than symbolic significance as removal of the exemptions will give additional protections to pregnant women under the Fair Work Act.

“It will not only remove the exemptions as they apply under the NSW legislation but will similarly ‘enliven’ the same protection under the Fair Work Act.

“The Fair Work Act currently provides a broad based protection against discrimination on the basis of gender but this protection is limited in circumstances where particular discriminatory conduct is not unlawful in a particular ‘place’. 

“In these circumstances, the exemptions in the NSW legislation, as they currently stand, have the effect of preventing an individual from bringing a claim under the Fair Work Act. The proposed amendments will remove that barrier and make an action under the Fair Work Act available to aggrieved employees into the future,” Mr Murphy explains.

NSW law


The NSW Anti-Discrimination Act as it currently reads, makes it unlawful for an employer to discriminate against a person on the grounds of his or her gender in respect of a wide variety of matters such as the procedures used for deciding who should be offered a job, actually deciding who should be offered a job, the terms and conditions of employment, denying or limiting access to training or promotion, or being dismissed.
 
However, immediately after those blanket prohibitions, the Act then creates two separate exemptions allowing employers to discriminate against a pregnant woman.

Firstly, there is an exemption allowing an employer to discriminate against a female worker who was pregnant at the date of applying for, or interviewing for, a job when deciding what procedures to use in the recruitment process or who should be offered employment and on what terms.

Secondly, there is an exemption allowing employers to fire a female employee if she was pregnant when she applied for, or interviewed for, a job unless she did not know, and could not reasonably be expected to have known, that she was pregnant.

History


The original Anti-Discrimination Act 1977 (NSW), as enacted by the Australian Labor Party's Neville Wran government, contained a general prohibition on discrimination in the workplace against a person because of his or her gender. However, the original Act was then amended by the Wran administration in 1981. That amending Act massively expanded the areas and situations to which anti-discrimination law would apply; however, it also allowed employers to discriminate against pregnant workers.

A review of Hansard debates did not reveal a reason why it was thought appropriate to allow employers to discriminate against pregnant workers. The discriminatory provisions were largely discussed in a matter-of-fact way. However, there was some resistance from the Leader of the Opposition, Mr Max Frederick Willis (Liberal), who thought that the whole exemption was absurd.

“How, for example, is the potential employer to ascertain whether a female applicant for employment is pregnant or not? Is he to ask her to produce, when she is applying for employment with him, the result of a pregnancy test performed by a medical practitioner?… I am trying to highlight the absurdity of it. What should a girl say in a statutory declaration? Should she reply to the query in this way: 'I do not know', or 'I might be pregnant', or 'I am not telling you'? At that stage the employer would be entitled to say, 'I am sorry dear, but you cannot have the job',” Mr Willis said in the state parliament in a debate back in 1981.

Further reading

“NSW to protect pregnant job seekers from discrimination”

“Sacked for being pregnant and taking leave”

Section 25 of the NSW Anti-Discrimination Act

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