Australia: Pregnancy discrimination to be addressed by amendment to NSW legislation

Two days before a woman was to begin maternity leave she was made redundant by the gas company where she had worked for two years. The Federal Circuit Court found that while it was legal to sack a pregnant woman in a business restructure, this action was unlawful because her redundancy had been brought forward to meet her maternity leave.

In another case, a real estate firm sacked an employee just one day before her six month probation was due to end after she applied for maternity leave. The Federal Circuit Court said the timing of the sacking was "preposterous". (See Mahajan v Burgess Rawson & Associates Pty Ltd [2017] FCCA 1560.)

Pregnancy discrimination still rife in the workforce

A study undertaken by the Australian Human Rights Commission in 2014 found several such cases and concluded that despite decades of anti-discrimination laws, pregnancy and maternity discrimination were "remarkably pervasive".

In its report, Supporting Working Parents: Pregnancy and Return to Work, the commission found 49 per cent of mothers and 27 per cent of fathers reported discrimination in the workplace.

NSW legislation has allowed employers to discriminate against pregnant women

For years employers have used the little known section 25 (1A) and (2A) of the NSW Anti-Discrimination Act 1977 to discriminate lawfully against women who became pregnant.

These subsections allowed employers to fire or refuse to hire women who knew they were pregnant when they applied for a job.

Often they didn't fire the pregnant woman until just before she took maternity leave. But after much agitation, the NSW government announced that it would amend the law, so that pregnant women would be included in protection from discrimination.

Change to NSW legislation will bring laws into line with other states

In a statement released in December 2017, NSW to protect pregnant job seekers from discrimination, NSW attorney general Mark Speakman said: "We understand the need for employers to plan and be prepared for staff who need to take maternity leave, but an agile workplace that accommodates family commitments is likely to attract and retain the brightest talent."

The change in legislation will bring NSW discrimination law into line with other states, territories and the Commonwealth.

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