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Beware discriminating against pregnant employees

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In the wake of International Women’s Day, employers are reminded to review their existing employment policies and procedures to ensure that they are not inadvertently breaching federal workplace laws on pregnancy discrimination.

Following an investigation by the Fair Work Ombudsman (“FWO“), supermarket giant Coles was found to have unwittingly contravened the law by transferring pregnant employees to lower-paid ‘safe’ jobs.

In transferring the employees, Coles relied upon a clause in its workplace agreement, made before the introduction of the National Employment Standards (“NES“), which stated “Where a team member is pregnant … (she can be) transferred to a safe job at the rate and on the conditions attached to that job with no other change to the team member’s terms and conditions of employment”.

However, under section 81 of the Fair Work Act 2009 (C’th) (“FW Act“), a pregnant employee with at least 12 months’ service is entitled to be transferred to a safe job without change to her terms and conditions of employment.

Coles has repaid more than $30,000 to the 56 employees subject to the breach.

In relation to one particular employee, Coles admitted its conduct had also breached the “adverse action” provisions of the FW Act.  [Click here to view our earlier summary of these provisions.]

In October 2009, Coles transferred the pregnant fresh produce manager to the role of service assistant, resulting in a $67.40 per week reduction in the employee’s pay. The company took the action on the basis that it was a “safe job” following medical evidence produced by the employee regarding lifting restrictions associated with her pregnancy.

Despite its findings, FWO did not commence proceedings, but instead sought an enforceable undertaking from the employer in relation to the breaches. It is likely that the steps taken by Coles upon becoming aware of the problem (conducting an audit, undertaking training and changing company policy) plus its co-operation throughout the investigation assisted with the decision not to prosecute.

In the enforceable undertaking (available online on the Fair Work Ombudsman’s website) Coles has agreed to:

  • train its supervisors on company obligations to pregnant employees, particularly those existing under the NES;
  • post a notice about the rights of pregnant employees in all its stores for a period of at least 30 days;
  • reimburse pregnant workers who were underpaid; and
  • donate $20,000 to Jobwatch Australia to fund educational activities for pregnant employees about their rights under the FW Act.

MST has extensive experience in assisting its clients to comply with the most current employment laws, including advising on obligations arising from employment agreements.  Please contact one of our Workplace Relations lawyers for further information.

Author: Alexandra Klimovics

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