Expecting More: Rethinking the Rights and Protections Available to Pregnant Workers under the Fair Work Act 2009 (Cth)

A General Protections

The General Protections set out in part 3-1 of the FW Act include prohibitions against detrimental treatment at work for eligible employees. Among other things, the General Protections prohibit ‘adverse action’ against employees ‘because of’ one or more proscribed grounds. ²⁷ Adverse action against an employee is defined to include a range of actions by an employer. These actions include dismissal, injury to the employee in their employment, alteration of the position of the employee to the employee’s prejudice ²⁸ or discrimination between the employee and other employees of the employer. ²⁹ Adverse action also includes threatening to take one of these actions. ³⁰

There are three grounds on which a claim of adverse action can be made which are relevant to pregnant employees. Firstly, under s 340, an employee is protected against adverse action on the ground of a ‘workplace right’. ³¹ An employee has a workplace right where the employee is entitled to the benefit of, or is able to initiate or participate in a process or proceeding under, a ‘workplace law’ or ‘workplace instrument’. ³² The FW Act is a workplace law and modern awards and enterprise agreements are workplace instruments. ³³ In the context of a pregnant employee, a relevant workplace right includes the right to take personal leave in connection with a pregnancy-related illness. ³⁴ Furthermore, a workplace law includes ‘any other law of the Commonwealth, a State or a Territory that regulates the employment relationship (including by dealing with occupational health and safety matters)’. ³⁵ Decisions of the (then) Federal Magistrates Court and Federal Court confirm that anti-discrimination laws, which prohibit discrimination on the basis of sex and pregnancy, ³⁶ comprise workplace laws. ³⁷ Pregnant employees are therefore conferred workplace rights via anti-discrimination laws, so an employer cannot subject them to adverse action because they enjoy the benefit of, or are entitled to initiate a process or proceeding under, an anti-discrimination law.

Secondly, an employee is protected under s 351 from adverse action on a discriminatory ground, including pregnancy and/or sex. ³⁸ Discrimination, pregnancy and sex are not defined in the FW Act. Courts have established that discrimination can encompass direct and indirect discrimination. ³⁹ Chapman has suggested that the absence of a definition of discrimination opens up the potential for a ‘more nuanced understanding of that concept’. ⁴⁰ Furthermore, the Explanatory Memorandum relevantly highlights that discrimination on the ground of pregnancy under s 351(1) includes denying a pregnant employee a promotion because she can only do the job for a short time before commencing parental leave. ⁴¹ This example illustrates that s 351(1) prohibits discrimination on the basis of the attribute of pregnancy, as well as on the basis of any attendant incapacity. Arguably, this can extend to manifestations or symptoms of pregnancy, ⁴² such as morning sickness, although this has not been explicitly addressed by the courts. ⁴³

The protection conferred under s 351(1) is subject to exceptions, one of which is where the adverse action is taken ‘because of the inherent requirements of the particular position concerned’. ⁴⁴ The inherent requirements are factually specific and, as was observed by Flick J in Robinson v Western Union Business Solutions (Australia) Pty Ltd, the outer limits are difficult to define. ⁴⁵ This exception mostly arises in the context of claims by employees of adverse action on the ground of a disability. ⁴⁶ While it could apply to the ground of pregnancy, this is yet to be judicially considered. The potential application of this exception comprises a limitation on the protection on pregnant employees.

Thirdly, an employee is protected from adverse action under s 352 on the basis of temporary absence from work due to illness or injury. ⁴⁷ The nexus between this protection and the circumstances of pregnancy was examined in Mahajan v Burgess Rawson & Associates Pty Ltd, in which the Federal Circuit Court determined that the employer contravened s 352 when it took adverse action against an employee because of ‘perceived … unreliability consisting of … frequent absence on personal or annual leave, due to pregnancy-related illness’. ⁴⁸ This is the only decision to date where a court has considered the application of s 352 to the circumstances of pregnancy. It highlights that the protection applies equivalently to employees who are absent on authorised annual, as well as personal, leave in connection with pregnancy-related illness.

To succeed in a claim under part 3-1, an employee must first establish that one or more protected grounds apply and that they were subjected to adverse action. The onus then shifts to the employer to demonstrate that it did not take the adverse action against the employee because of the protected ground. The question of whether adverse action was taken because of a proscribed reason, or for reasons that included a proscribed reason, is a question of fact to be determined on the whole of the evidence. ⁴⁹ As we explore, courts have often taken a strict approach to applying this test including in the context of pregnancy discrimination. Among other things, this approach has entailed courts seeking evidence that it was the proscribed ground itself, rather than any organisational impact, effect or consequence of the ground existing that comprised the basis of the adverse action. ⁵⁰

B National Employment Standards

The National Employment Standards (‘NES’) set out in part 2-2 of the FW Act include rights applicable to eligible pregnant employees in prescribed circumstances and obligations that apply to the employers of eligible pregnant employees. ⁵¹ These provisions can be divided into two categories. Firstly, the NES sets out provisions that either enable, or require, eligible pregnant employees to access types of paid or unpaid leave, ⁵² or be transferred to a safe job, ⁵³ where the physiological effects of pregnancy, or hazards connected to an employee’s position, affect the employee’s work capacity. An employer is also entitled to direct an employee to take unpaid parental leave within 6 weeks before birth where the employee is declared medically unfit for work or does not provide a medical certificate verifying fitness on the employer’s request. ⁵⁴ Secondly, the NES imposes obligations on employers of eligible pregnant employees who are absent from work on approved leave. Specifically, these obligations require employers to: take reasonable steps to consult with employees who are on unpaid parental leave whenever the employer makes a decision that significantly effects the status, pay or location of the employee’s pre-parental leave position; ⁵⁵ inform an employee, who has been engaged to perform the work of an employee (including a pregnant employee) who is going to take (or is taking) unpaid parental leave of information including that the engagement is temporary; ⁵⁶ and return an employee to the employee’s pre-parental leave position or, if that position no longer exists, offer an available position for which the employee is qualified and suited nearest in status and pay. ⁵⁷ The Federal Circuit Court has determined that if neither the employee’s pre-parental leave position nor another suitable available position exists, an employer is not obliged to make any position available to the employee. ⁵⁸ That is, it is possible to declare an employee’s position redundant in these circumstances and terminate her employment. Each of these comprises a civil remedy provision. ⁵⁹

The various paid and unpaid leave entitlements reinforce the separation between the public sphere of work and the private sphere, where maternity is treated as residing. To the extent that an employee’s pregnancy does not alter the employee’s capacity to resemble the ‘ideal’ worker, the first category of provisions, as described above, is not enlivened. However, where physiological effects of pregnancy or hazards connected with the employee’s position arise, these rights either operate to transfer the employee to a safe job or out of the workplace (on types of paid or unpaid leave), with the requirements of the employee’s position remaining unaltered. There is no obligation for an employer to alter the requirements of an employee’s position. This reinforces the separation of reproduction from the sphere of work in circumstances where it affects the capacity of an employee to resemble an unencumbered worker. Moreover, the obligations under ss 83, 84 and 84A recognise that while on unpaid leave in connection with pregnancy or childrearing, an employee’s position is distinctly vulnerable. This highlights that for a pregnant employee, the option of continuing to work in her position, with temporary adjustments made to accommodate the circumstances of pregnancy, might be preferable to taking approved paid or unpaid leave. As will be discussed in section V, while the NES includes a right to request flexible working arrangements, ⁶⁰ pregnancy is not an eligible circumstance. ⁶¹

C Industrial Instruments

While modern awards do not generally include any enhanced rights or obligations to the NES with respect to pregnant employees, many enterprise agreements include additional beneficial terms, such as broader rights to paid and unpaid leave. For example, the Victorian Public Service Enterprise Agreement 2020 includes rights for eligible pregnant employees to access surrogacy leave, ⁶² pre-natal leave ⁶³ and incremental pay progression ‘foregone as a result of being on parental leave’. ⁶⁴ Many enterprise agreements also set out terms allowing the FWC to determine disputes about matters arising under the enterprise agreement including via arbitration. ⁶⁵ In a limited number of determinations, the FWC has arbitrated disputes brought by pregnant employees. ⁶⁶ This framework of additional entitlements and expedient and low cost mechanisms for enforcement of terms in enterprise agreements by the FWC highlights the potential for equality bargaining to operate as a mechanism for enhancing labour standards for pregnant employees, ⁶⁷ although the conferral of these benefits is uneven and confined to employees covered by relevant enterprise agreements.

D Unfair Dismissal Protections

The unfair dismissal jurisdiction in part 3-2 of the FW Act provides an additional mechanism for a pregnant employee, who meets prescribed criteria, to lodge a claim in the FWC where they are subject to a dismissal that was unfair. The FWC must determine if the dismissal was unfair on the basis of the criteria set out in s 387, which include whether there was a ‘valid reason for the dismissal related to the person’s capacity or conduct’, ⁶⁸ as well as various procedural, ⁶⁹ and enterprise-specific, ⁷⁰ factors. Relevantly, a dismissal will not be an unfair dismissal where it was ‘a case of genuine redundancy’. ⁷¹ This term is defined as being where an employer: no longer requires a job ‘to be performed by anyone because of changes in the operational requirements’ of the enterprise; has complied with obligations to consult about the redundancy under any applicable industrial instrument and could not redeploy the person within the enterprise or an associated entity. ⁷² There are two central bases for claims made by pregnant employees under part 3-2. Firstly, claims assert that the actual reason for the dismissal was the employee’s pregnancy, including where the employer asserted that the termination was based on concerns about conduct or performance. Secondly, claims assert that a pregnant employee’s position was declared redundant in circumstances where it was not a genuine redundancy. The FWC has made explicit that pregnancy is not a valid reason for dismissal in this context, in that it is not related to the employee’s capacity or conduct. ⁷³

A Separating Pregnancy from Employer Decision-Making in Claims Involving Pregnancy Discrimination

One prevalent manifestation of unlawful employer conduct is the initiation of unfounded or deficient redundancy, underperformance or disciplinary processes in relation to an employee who has announced her pregnancy. ⁸⁶ In many of these cases, the evidentiary connection between an employee’s announcement of pregnancy and an employer’s decision to exercise managerial prerogative to initiate one of these processes is elusive.

Six of the nine General Protections decisions involved a pregnant employee who was dismissed on the basis of an allegedly unfounded or deficient redundancy, misconduct or underperformance process. ⁸⁷ Within this sub-category of decisions, only one application was unsuccessful. ⁸⁸ However, the court only found the employer had breached s 351 on the ground of pregnancy or sex in two of these cases, based on explicit evidence that the employer initiated a detrimental process because of the employee’s pregnancy. ⁸⁹ In the remaining three successful cases, an explicit evidentiary connection between the employee’s pregnancy and managerial decision-making, which led to dismissal, was absent. The courts declined to infer any connection existed. ⁹⁰ Overall, these decisions reveal reluctance by courts to determine that managerial actions taken because of pregnancy-related entitlements also, by inference, comprise adverse action taken because of the employee’s pregnancy or sex in contravention of s 351. This compartmentalisation of managerial responses to the effects of, and workplace rights associated with, pregnancy reflects a confined interpretative approach to the protective provisions set out in part 3-1. ⁹¹ Courts have tended to treat unlawful adverse action that was based on the impact of an employee’s protected attribute (such as pregnancy) on the organisation as beyond the scope of the protection. ⁹² While this tendency is most apparent in decisions involving adverse action on the basis of industrial activity, ⁹³ the cases about pregnancy discrimination considered herein point towards the continuation of this approach.

Given this trend, the reasoning of the Federal Circuit Court decision in Power v BOC Ltd (‘Power’) ⁹⁴ is revealing. The court determined that BOC Pty Ltd (‘BOC’) breached s 340 by bringing forward the date that the redundancy of Ms Power’s position took effect to 2 days prior to her commencing maternity leave. ⁹⁵ The court accepted evidence that the managers’ actions were motivated by a desire to avoid causing Ms Power ‘stress’ while pregnant, ⁹⁶ and had been ‘incompetent, ignorant and patronising’. ⁹⁷ However, the court rejected Ms Power’s claim that BOC had breached s 351 because her pregnancy and/or right to take parental leave were reasons her position was selected for redundancy. ⁹⁸ The court accepted that the managers’ ‘clear and unequivocal’ denial of this claim was sufficient to discharge the onus of proof under s 361. ⁹⁹ This was despite evidence that the managers selected Ms Power’s position for redundancy in preference to an equivalent position, which was occupied by a male employee who had previously been chosen to manage Ms Power’s files while she took parental leave. ¹⁰⁰ The court only focused on how the managers’ assumptions about Ms Power’s capacity and state of mind while pregnant impacted how they applied policies to her. The court did not also consider how the same assumptions impacted upon how they approached implementing other policies in the context of an organisational restructure. Severing the existence of a protected ground from (perceived or actual) organisational impacts narrows the scope of the protection under part 3-1. ¹⁰¹ As a high proportion of reported judgments involving the dismissal of pregnant employees under the FW Act involve unfounded or deficient redundancy or disciplinary procedures, this approach may particularly impact this vulnerable group.

In many decisions under part 3-2, the FWC did not scrutinise the influence of an employee’s pregnancy on managerial decision-making, absent of explicit evidence. Of the twelve claims of unfair dismissal brought by pregnant employees since 2009, eight related to dismissal on the basis of redundancy or the outcome of a disciplinary procedure. ¹⁰² While the FWC granted seven of these applications, ¹⁰³ it did so on the basis of defects in procedure on each occasion. ¹⁰⁴ As discussed further below, the FWC accepted that the employee’s pregnancy was the reason for the dismissal on one occasion. ¹⁰⁵ In two other decisions, the FWC declined to comment on the connection between the employee’s pregnancy and her selection for redundancy, ¹⁰⁶ or infer any connection between the employee’s pregnancy and the employer’s conduct. ¹⁰⁷ The prevalent approach to evaluating evidence in these disputes can be somewhat explained by the scope of the jurisdiction conferred by s 387, which does not extend to determining whether an employee was discriminated against, as well as the onus of proof, which rests wholly with the employee.

The finding of the FWC in Das resists this approach, however, and provides a counterpoint to the reasoning in Power and other decisions. In this unfair dismissal application, a physiotherapist claimed she was dismissed because of her performance two months after advising her manager that she was pregnant. Ms Das’ manager provided evidence that she had not discriminated against Ms Das, nor would she ever do so, and asserted that Ms Das was ‘simply failing in her capacity as an employee and had been doing so since at least mid-2017’. ¹⁰⁸ Wilson C accepted evidence of some underperformance by Ms Das but not that her manager had clearly communicated her expectations or provided opportunities for improvement prior to dismissing her. Rather, Wilson C determined that, once she had learned about the pregnancy, the employer ‘was no longer prepared to engage someone she saw as underperforming or at least not developing quickly enough and so, from that point forward became somewhat hypercritical about Ms Das’. ¹⁰⁹

Accordingly, Wilson C contextualised the manager’s denial of discrimination on the basis of pregnancy within a framework of factual evidence that Ms Das’ announcement altered how she was treated going forward and, effectively, diminished her manager’s motivation to invest in her continued employment. This decision suggests a different and more nuanced approach to evaluating evidence about the connection between an employee’s pregnancy and subsequent detrimental treatment within the framework of part 3-2.

B Exclusion Rather than Accommodation of Pregnant Employees

Another manifestation of unlawful employer conduct is the unreasonable temporary or permanent separation of pregnant employees from their positions. ¹¹⁰ In some of these cases, this conduct is underpinned by outdated assumptions regarding pregnant workers. Other decisions reveal unwillingness by employers to implement relatively simple adjustments to work requirements to address the circumstances of pregnancy, which sometimes culminates in offensive or humiliating conduct or remarks being made towards pregnant employees. ¹¹¹ Specifically, three General Protections cases relate to claims involving detrimental treatment by employers who either demonstrated unwillingness to accommodate an employee’s work capacity between pregnancies, ¹¹² or acted on unfounded assumptions that the employee’s pregnancy meant that she was no longer suitable for work in her position. ¹¹³ Four unfair dismissal decisions relate to the exclusion or non-accommodation of pregnant employees. ¹¹⁴ The decisions indicate that some employers continue to exclude, rather than accommodate, pregnant employees even where only modest adjustments are required to accommodate their circumstances. As we explore in section IV, the FW Act does not include an obligation to accommodate pregnancy.

Within the statutory parameters, the courts and FWC have exhibited reluctance to comment on employers’ obligations to accommodate pregnant employees’ requests for accommodation. Decisions arising in this sub-category provide illustrations of judicial reluctance to suggest that the FW Act requires employers to reasonably adjust the duties of pregnant employees. For example, in the case of Leutton, the applicant, who was a bottle shop attendant, claimed that when she announced her pregnancy she was subjected to adverse action by her employer. Specifically, the court accepted evidence that Ms Leutton’s managers responded to her announcement with such actions as: advising Ms Leutton that they could not prevent her from undertaking the heavy-lifting requirements of her job; ¹¹⁵ refusing to transfer her to a safe available job as a bartender because it was a ‘bad look’; ¹¹⁶ refusing to provide her with unpaid no safe job leave ¹¹⁷ and ultimately terminating her employment. ¹¹⁸ Egan J accepted that the conduct of the managers comprised unlawful adverse action including contravening s 351 on the basis of pregnancy and/or sex. ¹¹⁹ His Honour did not, however, examine in detail why Ms Leutton considered it necessary to make the request to transfer to a safe job or take unpaid leave. That is, the court did not engage in the interpretative step of determining whether s 351 required the employer to implement modifications that would have enabled Ms Leutton to continue to work in her position, which she had told her managers was her preference. While this decision reflects the capacity of s 351 to provide protection to pregnant employees in circumstances of explicitly detrimental treatment, it also implies that the offending conduct does not extend to refusing to make relatively minor changes to enable pregnant workers to continue to work in their positions.

Similarly, the FWC has exhibited reticence in decisions arising under part 3-2 regarding employers’ duties to reasonably accommodate the physiological or safety requirements of pregnant employees. This is exemplified in the decision of Owens, where the employee asked her manager to consider reducing her work ‘on the road’ because she had experienced extreme tiredness due to pregnancy. Ms Owens’ employer then unilaterally varied her contract of employment to reduce her travel duties but also substantially reduced her salary. ¹²⁰ Hampton C found that the contractual variation imposed on Ms Owens led to her constructive dismissal. ¹²¹ The tribunal observed, however, that the attempts to accommodate Ms Owen’s pregnancy ‘were not in themselves inappropriate, however there was no basis to change her role or remuneration package in light of her refusal to accept those changes’. ¹²² In this decision, the FWC therefore implicitly endorsed employers attempting to reasonably accommodate pregnant employees, while also acknowledging that it was not mandatory to do so. Yet, this decision also provides an example of the high stakes for women who only have recourse to informal negotiation to secure adjustments to working conditions during pregnancy: in this case, these negotiations culminated in Ms Owens being faced with either agreeing to permanent, detrimental variations to her employment contract or loss of employment.

A Research Method

In 2019–20, we collaborated with legal centre JobWatch ¹²³ to conduct a pilot study about an issue affecting women at work. We confined the study to pregnancy discrimination and Victorian workplaces and, on this basis, sought to interview women who phoned JobWatch for information. Privacy restrictions meant we could not approach the women directly. We developed a two-stage process whereby JobWatch phoned women located in Victoria ¹²⁴ who had contacted its Telephone Service in the 2018/19 and 2019/20 financial years for information about an incident they experienced at work which JobWatch classified as relating to ‘pregnancy’. ¹²⁵ JobWatch invited the women to receive an invitation to participate in an interview for the research project. Of the 112 callers it contacted, 53 received an invitation by email and four agreed to be interviewed. ¹²⁶ We also approached three women who had lodged a pregnancy discrimination claim through the FW Act or an equality law. One woman agreed to be interviewed. None of the participants were involved in legal action.

In total, five women participated in a semi-structured interview (‘participants’). The size of the group was impacted by timing. Invitations were issued and interviews were conducted in July and October 2020 during which time Melbourne and much of Victoria was locked down due to the COVID-19 pandemic. This, coupled with the fact that the women we sought to interview had recently given birth undoubtedly affected the rate of participation. It is not unusual to have a small participant group in research on equality law, particularly when the target group is potential or actual complainants. ¹²⁷ While the participant group is comprised of five women, this is suited to the research method employed and produced rare and valuable data about a hard-to-access group.

The interviews were recorded, transcribed and analysed thematically with NVivo software using a grounded theory approach. Participants were given pseudonyms, which are used herein, or they are referred to collectively as ‘participants’. We use the phrase ‘alleged pregnancy discrimination’ where relevant as the study reports on the participants’ descriptions of their experiences.

One of the objectives of the pilot study was to gather empirical data about conduct that may constitute pregnancy discrimination. The following reports on the nature of the treatment these women stated they were subject to, how their employer responded to their pregnancy and any adjustments they sought either during the pregnancy or when returning to work following the birth of their child.

B Findings

A Pregnancy, Parental Leave and Redundancy Under the FW Act

The experiences of pregnant women captured in the cases and empirical data highlight that termination of employment on the grounds of redundancy during pregnancy, and after commencement of parental leave, remains a prevalent issue. Among other things, the cases provide examples of employers dismissing employees on the basis of redundancy in anticipation of, or while taking, approved parental leave. A surprising aspect of this situation, from the perspective of labour law, is that employers were previously prohibited from dismissing employees during parental leave under the WR Act. Specifically, as Lucev FM observed in Liquor Hospitality and Miscellaneous Union v Cuddles Management Pty Ltd, the effect of s 279(1) of the WR Act was that ‘an employee on approved leave, and specifically maternity leave, cannot have that leave interfered with by a period of notice’. ¹³¹ In effect, this decision recognised that under the WR Act, termination of employment during approved parental leave for any reason deprived the employee of the right to their accrued entitlement to leave. ¹³² This position changed, however, when s 279(1) was repealed in 2009. The Explanatory Memorandum to the FW Act is absent any explanation for the repeal of this important provision. The Federal Circuit Court has recently affirmed that the current position under the FW Act is that it is permissible for an employer to lawfully terminate an employee who has commenced approved paid or unpaid parental leave, ¹³³ provided the employee was provided pay in lieu of notice. ¹³⁴ Despite this concession, the failure to include a provision like s 279(1) in the FW Act clearly leaves employees who exercise their right to take paid or unpaid parental leave in a considerably worse position.

There are two key arguments that support reinstating a provision like s 279(1) of the WR Act, at least with respect to employees taking approved parental leave. Firstly, the absence of a prohibition against termination of employment during parental leave overlooks the distinct disadvantages employees on parental leave can experience during redundancy processes. ¹³⁵ The cases and empirical findings provide illustrations of various challenges, including lack of consultation and impeded capacity to seek alternative employment. ¹³⁶ In Lee v Mission Australia, for example, which was an application for an interim injunction to prevent termination, the advocate for the employee noted:

‘the applicant is specifically disadvantaged due to her pregnancy and her parental leave in relation to this process. … The first [reason] is quite simply that obviously the applicant is on leave, so she is out of the workplace, and I don’t think that should be understated. It is very difficult to participate in the process fully whilst not being in the workplace and it’s difficult to have those meetings.

While these matters were not specifically addressed in the reasoning, Johns C made the interim order on the basis that the applicant had established a prima facie case that her absence on parental leave prevented the employer from discharging its consultation obligations under the enterprise agreement. ¹³⁸ Reinstating a provision equivalent to s 279(1) would have the practical effect of obviating the compounding of disadvantage for employees whose positions are declared redundant during parental leave.

Secondly, permitting termination of employment during a period of approved parental leave overlooks the non-monetary value of that leave. The non-monetary component of the value of annual leave has recently received considerable attention in disputes regarding the misclassification of part-time employees as casual employees. ¹³⁹ In that context, a Full Court of the Federal Court has recognised that ‘any form of paid leave involves both a payment and an authorised absence from work’ and that annual and personal leave ‘entitlements [have] a temporal dimension either wholly or substantially driven by the employee’s needs or convenience’. ¹⁴⁰ Arguably, the dualism underpinning the benefit of parental leave is just as pronounced: the leave is not always paid but always has as its central function an entitlement to the benefit of permitted absence from the workforce including to prepare for birth, give birth and care for a newborn child. By permitting termination of employment due to redundancy during parental leave, the statutory framework of the FW Act deprives affected employees of the intended primary purpose of an accrued statutory entitlement.

B Pregnancy and s 65 of the FW Act

The FW Act gives a variety of workers the right to request flexible working arrangements but this does not include pregnant employees. This gap reflects a presumption that family and carer responsibilities only begin to intersect with the sphere of work when a pregnant employee commences caring for a child, rather than from pregnancy. That is, until that time, the standard worker model reinforces that reproduction is not to have any impact on the naturalised pattern of work unless the physiological effects of a pregnancy constitute a ‘disability’. As the case law and empirical research discussed in sections III and IV reveals, however, pregnant women are one of the categories of workers who might require an adjustment to how they perform their work for a relatively short term (such as for physical activities which are restricted in the third trimester, for example) or longer term (such as for ongoing morning sickness) and these circumstances might not fall within the ground of ‘disability’ under s 65(1). ¹⁴¹ This gap could be addressed by amending s 65(1A) of the FW Act to include ‘pregnancy’ as one of the circumstances where an employee can seek flexible working arrangements. While data from the FWC indicates that the Right to Request is generally underutilised by employees, ¹⁴² the impact of extending s 65(1) to include the ground of pregnancy arguably has both a functional and symbolic purpose in better promoting substantive equality at work.

Relatedly, modern awards include additional terms, which apply where an employee covered by the modern award makes a request under s 65. ¹⁴³ This arose in the Family Friendly Working Arrangements Decision ¹⁴⁴ and led to a Model Term being inserted in all modern awards, which augmented the right to request flexible working arrangements for employees covered by s 65. ¹⁴⁵ The Model Term includes a requirement that employers consult and genuinely attempt to reach agreement with an employee who requests flexible working arrangements. ¹⁴⁶ An employee who believes their employer has not correctly consulted can initiate a dispute under the dispute resolution clause in the applicable modern award. The case law and empirical findings illustrate various instances where pregnant employees have sought to consult with employers regarding proposed flexibilities and have been denied the opportunity to do so or experienced unreasonable delays. Amending s 65(1A) to include the ground of pregnancy would mean that eligible employees covered by modern awards could also access an enhanced, enforceable consultative process via the Model Term, which would improve the capacity to request flexible working arrangements.

C Rethinking the Absence of Positive Duties to Pregnant Workers

While s 65 of the FW Act has functional and symbolic utility, it comprises a right to request flexible working arrangements, rather than a right to obtain, and it is not enforceable. ¹⁴⁷ Section 65 gives employees and employers the opportunity to consult about changing working arrangements but only an enforceable obligation could guarantee changes. Under the FW Act, an employer is not required to accommodate an employee’s pregnancy ¹⁴⁸ and there is no explicit requirement for an employer to take positive steps to reasonably accommodate an employee on any of the grounds in s 351 by making modifications to her position, ¹⁴⁹ nor has this type of requirement been expressly addressed by courts in relation to sex or pregnancy. As the cases and empirical research discussed in sections III and IV indicate, pregnant employees seeking to informally negotiate necessary adjustments with employers can face invidious choices and outcomes. No equality law imposes a positive obligation either. This constitutes a significant gap in the legislative rights and protections available to pregnant women and reinforces a narrow, formalistic approach to equality at work. ¹⁵⁰

For some time, scholars have argued that equality laws need to depart from the traditional model of prohibiting discrimination to a model that encourages equality by placing a duty on employers to address discrimination. ¹⁵¹ The EO Act has moved in that direction. Employers are required to accommodate a person’s responsibilities as a parent or carer unless the accommodation would be unreasonable. ¹⁵² Section 19(2) lists the factors to be considered in determining reasonableness including the nature of the job and the workplace, the employer’s financial situation, the accommodation sought and the impact on the workplace. The discussion in this article shows that the approach used to address pregnancy discrimination in the FW Act by prohibiting detrimental treatment is deficient and does not capture the types of unlawful behaviour pregnant women are experiencing in the workplace. This is most stark regarding the (often minor) changes women require in order to continue to perform their work. Imposing an obligation on an employer to make reasonable modifications to the nature of the work or the workplace under the FW Act would contribute to addressing this deficiency.