Know Your Pregnancy Rights: How To Tell If You’re Being Discriminated

In Australia the average age that women have their first baby is 29, this also happens to be when we’re hitting our straps career-wise. We’re usually well established in our jobs and have plenty of years of experience under our belts.

This apparent clash can lead to us putting off having children for fear it will impact our career. But you are protected from being disadvantaged in the workplace if you’re having a baby, here is what you need to know.

Close Up Of Pregnant Businesswoman In Office

According to the Australian Human Rights Commission, more than half of women think their careers have been impacted because they took maternity leave.

Most believing they’ve lost pay increases or promotions. What you need to know is that you cannot be fired, demoted or treated differently in the workplace because you’re pregnant.

Your Work Rights When Pregnant

What Does An Employer Have To Do To Accommodate My Pregnancy?

Employers should consider making reasonable changes within the workplace to help accommodate the normal effects of pregnancy. These need to be discussed with pregnant employees so you can come to a solution.

What If I Am Applying For A Job And I’m Pregnant?

An employer can refuse to employ a pregnant applicant if she can’t perform the duties of that position. For example there may be some Occupational Health and Safety issues.

There might also be a specific project that needs completed and you won’t be able to meet the deadline before having your baby.

However, the Commission does say this is an unusual case.

Does An Equal Opportunity Policy Protect An Employer?

Just because an employer has an equal opportunity policy, doesn’t mean they will be protected if they are accused of discrimination on the basis of pregnancy.

I’m Employed As A Casual – Do I Get Maternity Leave?

Employers need to be aware that some casual employees do qualify for unpaid maternity leave.

I Want To Go Back To My Old Job Now My Maternity Leave Is Finished But It No Longer Exists

An employee is generally entitled to come back to the position she had before going on maternity leave. If that job doesn’t exist anymore you are entitled to a similar position.

If an employee wants to return to work part time, there are some state laws that specifically allow for this by agreement with an employer.

maternity leave - pregnant

What Am I Entitled To At Work When I’m Pregnant?

Fair Work says that pregnant employees have a range of entitlements available to them.

1. Sick Leave

If you’re pregnant, you have access to the same amount of sick leave as you have always been entitled to. Obviously, pregnancy isn’t a sickness or injury, but if you do have pregnancy-related illness or injury you can take sick leave.

2. Special Maternity Leave

If you have access to unpaid parental leave, you can take unpaid special maternity leave if:

  • You have a pregnancy-related illness. The leave will end when the pregnancy or illness ends – whichever is earlier.
  • Your pregnancy ends after 12 weeks due to a miscarriage, termination or stillbirth. This leave can continue until you’re fit to return to work.

3. Giving Notice And Providing Medical Certificates

You need to tell your employee as soon as possible if you’re going to be taking special maternity leave. This may even be after the leave has started.

You also need to let them know how long you think you’ll be on leave. The employer can ask you for evidence and a medical certificate.

4. Safe Jobs

If you’re pregnant and working (even as a casual), you are entitled to move to a safe job if the one you usually do is no longer safe for you to do.

You should be getting the same pay, hours and entitlements as you were in your other role. You may come to an agreement with your employer on different working hours.

Usually you can stay in that job until it’s safe to go back to your other role, or until you have your baby.

However, you do need to provide evidence that:

  • You can work but can’t do your normal job, explaining why your normal job is now unsafe for you to do because you’re pregnant.
  • How long you won’t be able to work in your normal job.

Your employer is also entitled to ask for a medical certificate.

What If There Is No Safe Job Available?

Many pregnant employees aren’t aware that if a safe job isn’t available, they can take no-safe job leave. This is paid leave if you’re entitled to unpaid maternity leave.

If you’re a casual, it’s calculated on the average number of hours you would’ve worked during the period you’ll be on leave.

When Do I Have To Start Maternity Leave?

If you want to work in the six weeks leading up to your due date, your employer is entitled to ask for a medical certificate outlining:

  • That you can continue to work.
  • It’s safe for you to do your normal job.
  • If your medical certificate says you’re fit for work but it’s unsafe for you to continue in your current role, then you are entitled to a safe job or no safe job leave.

If you don’t provide your employer with a medical certificate, or you provide one that says you can’t continue to work, your employer can direct you to start unpaid parental leave.

Just remember, if you feel that you’ve been discriminated in your workplace because you are pregnant, contact the Fair Work Commission.

Want to know what government entitlements are available to you while on maternity leave? Take a look at our guide.


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