- When you apply for or start a new job, an employer must not refuse to employ you and must not treat you less favourably than another job applicant because of, for example, your sex, pregnancy, potential pregnancy, marital/relationship status, family responsibilities or breastfeeding status.
- While employers can decide to terminate your employment, or make your position redundant while you are pregnant, on parental leave, or after returning to work from parental leave, they must be very careful to ensure that your pregnancy, parental leave or family responsibilities is not one of the reasons for that decision.
- Usual rules and processes around ending employment apply.
- Do not delay taking action if you think you might have a claim as there can be short time frames for lodging certain actions, e.g. 21 days. See ‘Assistance and making a complaint’ for further details.
How do I answer a question about family in an interview?
Employers should not ask about your plans to have children or whether you have children. You do not have to tell an employer of your plans to have children or even if you currently have any children.
Remember that under the law, pregnancy, potential pregnancy, marital/relationship status, family responsibilities or breastfeeding is irrelevant when considering a person’s suitability for the job.
This means that an organisation cannot refuse to hire you because you are of childbearing age - that would be discrimination. Similarly, an organisation cannot refuse to hire you because you are pregnant or have children - this would also be discrimination. The same rules apply for recruiters and labour hire companies.
There may be some instances where the requirements of the job may make it impractical to hire a pregnant person and that would not be discrimination. For example, where there are reasonable concerns about work health and safety issues e.g. in the lead industry.
How can I find out about my rights in my new workplace?
Under the Fair Work Act, your employer must give you a Fair Work Information Statement. This is prepared by the Fair Work Ombudsman and sets out various information including about:
- the National Employment Standards
- modern awards
- termination of employment.
In addition to the Fair Work Information Statement, your employer may give you:
- an employment contract
- a letter which states the Award which applies to your employment.
- an enterprise agreement that applies to your workplace
- workplace policies that cover various issues such as leave, discrimination and pregnancy.
You should be familiar with all documents to see if your employer provides any additional rights to what you already have under the law.
Australian Human Rights Commission case study
Complaint under the Sex Discrimination Act
The complainant found out she was pregnant and informed the recruitment agency and her prospective employer. The complainant alleged that the company then withdrew the offer of employment and the recruitment agency did not contact her about other employment opportunities. She claimed that she was discriminated against because of her pregnancy. The company said that it was a small organisation and the decision to withdraw the employment offer was based on business reasons. The complaint was resolved through conciliation with the company and agency paying money to the woman. The company also provided a written apology and developed an Equal Employment Opportunity policy for the workplace.
Please note that the complainant could have chosen to bring her complaint to another organisation rather than to the Australian Human Rights Commission. Please see ‘Assistance and making a complaint’ for information on the various organisations.
Can I be terminated or made redundant while I am on parental leave?
Yes, employees on parental leave are not immune to genuine redundancy. If your employer is making a number of positions redundant, they need to fairly consider you and any other employees who are on parental leave. It is wrong to either automatically include or exclude employees on leave from the process - they should be considered in the same way as everyone else.
Under the Fair Work Act, your employer must consult with you and discuss any proposed changes to the organisation or your role in accordance with any obligations under an award or enterprise agreement that may apply. Your employer must also comply with the Fair Work Act obligation to discuss changes in roles in respect of employees on parental leave. Failure to treat employees in the same way as others can also amount to discrimination under the Sex Discrimination Act and other anti-discrimination legislation.
What can I do if I feel I have been treated unfairly?
You should raise your concerns with your manager or someone in Human Resources. Your employer may have an internal grievance procedure which can be implemented. It is in both your and the employer’s best interest for your concern to be dealt with promptly and fairly.
In the event, you are unable to resolve the issue internally you may wish to pursue your complaint externally. Just be aware that there can be short time frames for bringing some actions, so do not delay taking action if you think you might have a claim.
Actions to end employment can be the subject of various claims under:
- the Fair Work Act(claims of adverse action, unfair dismissal, breach of an award or enterprise agreement)
- the Sex Discrimination Act,
- state or territory anti-discrimination legislation
- a breach of your employment contract.
The decision of where to bring a complaint is a complex one and legal advice should be sought. It can depend on several factors like the time it will take for a complaint to be dealt with, time limits on lodging the complaint and the range of remedies or relief that are available if the matter has to go to court. Please see the ‘Assistance and making a complaint’ section for information on where you can access assistance and the various avenues for making a complaint.
Australian Human Rights Commission
Fair Work Ombudsman
- Fact sheets:
Fair Work Commission
- General Protections
- Unfair Dismissal