In 2013, the Australian Government asked the Sex Discrimination Commissioner, on behalf of the Australian Human Rights Commission, to undertake a National Review into discrimination related to pregnancy, parental leave and return to work after parental leave.
The aims of the National Review, entitled Supporting Working Parents: Pregnancy and Return to Work National Review have been to:
- provide national benchmark data and analysis on the prevalence, nature and consequences of discrimination at work related to pregnancy, parental leave, or on return to work after parental leave
- engage stakeholders (including government, industry and employer groups, unions and workers) to understand perspectives and experiences, and consider the prevalence data and its implications
- identify leading practices and strategies for employers supporting pregnant employees and men and women returning from parental leave
- provide recommendations for future actions to address the forms of discrimination identified through the project.
Australia has entered binding international human rights obligations to prohibit pregnancy/return to work discrimination. Australian laws, such as the Sex Discrimination Act 1984 (Cth), implement these obligations by prohibiting discrimination on the grounds of pregnancy, potential pregnancy, breastfeeding and family responsibilities. For ease of comprehension, the Report uses the term ‘pregnancy/return to work discrimination’ to mean ‘discrimination in the workplace related to pregnancy, parental leave and return to work after parental leave’. The key federal laws that protect pregnant women and new parents from workplace discrimination in Australia are: the Sex Discrimination Act 1984 (Cth), the Fair Work Act 2009 (Cth), and Work Health and Safety laws.
In conducting the National Review, the Commission collected quantitative data through a National Prevalence Survey. This survey provided the first representative data on the experiences of pregnancy/return to work discrimination by working mothers. It has also provided data on the experiences of discrimination of fathers and partners who have taken time off to care for their child.
In terms of qualitative data, the Commission undertook a wide-ranging consultation and submission process. The National Review team conducted more than 50 face-to-face group consultations with stakeholders (including individuals affected by discrimination, unions and community organisations, employers and business and industry peaks) in the capital cities of every state and territory across Australia, as well as in some regional areas.
Through the consultations, the National Review team met with over 430 individuals, employers, and representatives of community organisations, unions, employer associations and business or industry peaks. In addition, over 440 written submissions were received from individuals affected by discrimination, as well as from community organisations, unions, employers, employer associations and business or industry peaks. This enabled the voices of both employees and employers to be heard directly, providing an insight into their experiences and the challenges they faced in the workplace. Roundtables were also held with academics, government departments and agencies and other stakeholders.
Despite longstanding prohibitions against pregnancy/return to work discrimination, the National Review found that it is pervasive. One in two (49%) mothers reported experiencing discrimination in the workplace at some point. Further, over a quarter (27%) of the fathers and partners surveyed reported experiencing discrimination related to parental leave and return to work despite taking very short periods of leave.
Both the quantitative and qualitative data confirmed that pregnant employees and working parents experience many different types of discrimination in the workplace. These range from negative attitudes and comments from colleagues and managers, through to loss of opportunities for further training and career advancement, reduction in pay and conditions, as well as redundancy and job loss.
This discrimination has significant short-term and long-term negative impacts on individuals and their families, including effects on their mental and physical health and long-term career advancement and earning capacity. Some groups of individuals, such as sole parents and young mothers, may face particular vulnerabilities and more acute consequences.
As well as these individual effects, the National Review found that discrimination has a tangible impact on women’s workforce participation. The National Prevalence Survey revealed that experiences of discrimination in the workplace during pregnancy influence whether women return to work following the birth of their child – 32% of all mothers who were discriminated against at some point went to look for another job or resigned. Further, almost one in five (18%) mothers indicated that they were made redundant or that their jobs were restructured, that they were dismissed or that their contract was not renewed during their pregnancy, when they requested or took parental leave, or when they returned to work. Such discrimination, particularly where it results in job loss or the withdrawal from the workforce, can have significant long-term effects.
Overall, the Survey’s findings demonstrate that discrimination towards pregnant employees and working parents remains a widespread and systemic issue which inhibits the full and equal participation of working parents, and in particular, women, in the labour force.
Discrimination places an economic impost on employers, industries and individual organisations and on the Australian economy, particularly to the extent that it contributes to women’s under-participation or withdrawal from the workforce.
It has been estimated that increasing women’s workforce participation in Australia by 6% could increase the national GDP by $25 billion. Increased participation of women and greater gender diversity at senior levels in an organisation has tangible benefits in terms of better efficiency, performance and innovation, as well as increased access to the female talent pool and improvements to organisational reputation.
The National Review also identified the structural barriers that women and men face. These include the limited availability, affordability and accessibility of early childhood education and care services, as well as the underlying stereotypes and assumptions about childbearing, parenting and the roles of women and men in the home and in the workplace.
Workplace cultures that are informed by the existence of pervasive harmful stereotypes about ‘the pregnant employee’, ‘the employee with family or caring responsibilities’, ‘the flexible worker’ and stereotypes about the ‘ideal worker’ contribute to this discrimination.
Many employers also shared the difficulty they encountered in understanding their legal obligations – from the multiplicity of legislation with which they must comply, through to challenges in implementing their obligations. This was particularly evident in relation to accommodating the specific needs of pregnant employees, managing return to work for parents after parental leave (such as managing flexible work), and shifting ingrained stereotypes and attitudes that can impede the successful implementation of policy for, and management of, working parents.
Although the existing legal framework is reasonably comprehensive, better protection against discrimination could be provided by strengthening it in a number of areas.
However, the strategy with the highest impact in reducing discrimination in this area is to address the gap that currently exists between the law and its proper implementation within organisations. Several complementary strategies and actions are necessary to address this gap. These include ensuring employers and employees gain an increased understanding of the legislative framework, improving the clarity and dissemination of information, conducting effective training, changing workplace cultures to remove harmful stereotypes, practices and behaviours, and monitoring the implementation of policies. With strong leadership within organisations, reforms that shape more supportive and successful workplaces can occur.
Many workplaces in Australia recognise both the importance of supporting working parents and the cost of discrimination to their organisations. The National Review met with and heard from workplaces that were implementing leading practices and strategies. They agreed that removing discrimination is a business imperative.
The principal finding of the National Review is that pregnancy/return to work discrimination is pervasive and has a cost for everyone – the person affected, their family, their workplace, on employers and on the national economy. Its existence is limiting the participation of women in paid work and the productivity of organisations and the national economy. Addressing workplace discrimination in this area is therefore not only a human rights imperative, but also a business priority. Managing pregnancy, parental leave and return to work in the workplace is not a discretionary option. It is absolutely critical to the growth of a strong economy and a cohesive society.
It is up to all of us – government, employers, unions, peak bodies, community organisations and men and women in workplaces around Australia – to play a role in addressing such discrimination and preventing its continuation.
The National Review’s recommendations identify key strategies and actions for:
- addressing the high prevalence of discrimination;
- strengthening the adequacy of existing laws, policies, procedures and practices;
- promoting leading approaches; and
- identifying focus areas for further monitoring, evaluation and research.
The recommendations are directed towards government, workplaces and the wider Australian community, all of whom have an interest in increasing women’s participation in the workforce and in shaping family supportive workplaces.
In addition to these recommendations, based on the findings, the National Review identified a number of areas requiring further consideration.
Four overarching principles frame the recommendations and provide the foundation for reform. These principles centre on strengthening the implementation of legal obligations through the development of resources and accessible information, as well as through strategies designed to help dismantle stereotypes and drive cultural change within workplaces.
Principle 1: Understanding rights and obligations is the starting point
Employers and employees need clear, comprehensive and consistent information that will assist them to increase and enhance their understanding of their obligations and their rights and how they should be applied in the workplace.
This information needs to cover all relevant jurisdictions and explain the interaction of obligations under different laws. It should be disseminated to all pregnant women, and mothers and fathers returning to work. It should also be disseminated to employers and line managers – to people who have day-to-day interaction with, and make decisions about, the continuing role of pregnant employees and parents returning to work after parental leave.
The following government and statutory agencies should collaborate to produce this information and guidance material, and disseminate it through their agencies:
- Department of Social Services
- Australian Human Rights Commission
- Fair Work Ombudsman
- Fair Work Commission
- Safe Work Australia and relevant state and territory regulators
- state and territory anti-discrimination and equal opportunity authorities.
These agencies should work with peak bodies from business, community, unions and community organisations to develop these materials and assist with their dissemination.
For the first time in Australia, the national Paid Parental Leave scheme has created a mechanism through which information can be automatically disseminated to working mothers, fathers and employers. This should be better utilised, as should other existing mechanisms through peak employer bodies, unions, community legal organisations, working women’s centres, employee advice organisations and anti-discrimination and equal opportunity authorities.
Innovative practices and strategies for preventing and addressing these forms of discrimination in the workplace can accelerate change and provide productive benefits to organisations, including reducing the loss of working parents from the workforce. Special measures are a useful tool for reducing existing inequality and for helping to drive cultural change. Other measures can include:
- developing and implementing policies and programs to support pregnant employees and working parents
- ensuring good communication and information sharing between management and employees throughout the continuum of pregnancy, parental leave and on return from parental leave
- promoting flexible work opportunities, and
- identifying and measuring key metrics, such as return to work rates and promotion rates for flexible workers.
Organisations and government should share information about leading practices and strategies that will help drive change and build productive workplaces.
- Coordinate across all relevant government and statutory agencies the production and dissemination of clear, comprehensive and consistent information about employer obligations, employee rights and leading practices and strategies.
- Collaborate with peak bodies from the business community, unions and community organisations, to develop these materials and assist with their dissemination.
- Automate the delivery of guidance material to employees and employers through the national Paid Parental Leave scheme and other existing mechanisms.
- Allocate funding to conduct a national education campaign on employer obligations and employee rights and highlight the benefits to the workplace and the Australian economy.
- Ensure the effective delivery and communication of guidance material and leading practices and strategies throughout the organisation, particularly to line managers who have responsibility for managing pregnant employees, employees on parental leave and those returning from parental leave.
Principle 2: Dismantling harmful stereotypes, practices and behaviours about pregnant women and working parents is critical to eliminating discrimination related to pregnancy, parental leave and return to work
The National Review found that harmful stereotypes and attitudes in the workplace about ‘the pregnant employee’ and ‘the employee with family or caring responsibilities’, ‘the flexible worker’, as well as stereotypes about ‘the ideal worker’, are pervasive in Australian workplaces.
The stereotype of an ‘ideal worker’ as someone who is male, has no caring responsibilities and is available to work 24 hours seven days a week is commonly found to operate in workplaces. Such stereotypes create unsupportive workplace cultures that are detrimental. Dismantling these stereotypes requires challenging organisational norms and culture.
Identifying and ‘calling-out’ the harmful stereotypes in operation within a workplace is the first step to dismantling them. This will bring visibility to how these stereotypes are impeding the capacity of the workplace and workforce. Leaders within an organisation play an important role in naming the harmful stereotypes that exist and taking steps to remove them from the workplace.
The second critical step is to challenge those stereotypes within the workplace, including through exposing and removing the stereotypes and unconscious bias underlying the organisation’s policies and practices for leave, flexible work, and promotion and performance indicators.
Educating and training managers and employees on stereotyping and unconscious bias is, therefore, critical to changing workplace culture. This can prevent harmful stereotypes from being perpetuated in the practical implementation of policies and programs.
Finally organisations should monitor and evaluate the implementation of legal obligations for supporting pregnant employees and working parents.
- Leaders within organisations should make strong statements identifying the harmful stereotypes and take steps to remove practices and behaviours that perpetuate harmful stereotypes.
- Organisations should identify and remove harmful stereotypes and eliminate practices and behaviours that perpetuate harmful stereotypes including through:
- reviewing/auditing existing policies
- revising policies and practices
- reviewing how information is provided to managers and employees
- training all employees, including line managers
- monitoring and evaluating the implementation of policies and practices which support pregnant employees and working parents.
Principle 3: Strong standards and improved implementation drives change and helps to create productive workplaces
For both employees and employers, effective legal standards are critical to providing clarity about rights and obligations in the workplace. They also help to drive the development of social norms and to provide a framework from which to build and sustain healthy and harmonious workplaces.
While the legal framework in Australia is extensive, some key reforms would assist in strengthening protection against discrimination in the workplace and providing greater clarity for employers on their obligations.
The continuing prevalence of pregnancy/return to work discrimination illustrates that there is a significant gap between the legal framework and the implementation of the law. There is therefore a need to focus on strategies which bridge the gap between law and practice. The starting point is having strong standards and these standards need to be effectively implemented in the workplace.
Address gaps in the protection of rights within the current legislative and policy framework. This includes:
- amending the Sex Discrimination Act 1984 (Cth) (SDA) to:
- extend the discrimination ground of ‘family responsibilities’ under the SDA to include indirect discrimination, and
- include a positive duty on employers to reasonably accommodate the needs of workers who are pregnant and/or have family responsibilities.
- strengthening the ‘right to request’ provisions under s 65 of the Fair Work Act 2009 (Cth) (FWA) by:
- removing the qualification requirements in section 65(2)(a) of the FWA (ie the requirements for 12 months continuous service)
- introducing a positive duty on employers to reasonably accommodate a request for flexible working arrangements
- establishing a procedural appeals process through the Fair Work Commission for decisions related to the right to request flexible working arrangements to ensure processes set out in the FWA have been complied with.
- clarifying the provisions under the National Employment Standards of FWA to:
- allow employees to use existing personal/carer leave entitlements under s97 of the FWA to attend prenatal appointments (including IVF)
- allow employee breaks from work for the purposes of breastfeeding or expressing.
Increase understanding of legal requirements to not discriminate on the basis of pregnancy and return to work including by:
- developing guidance material for employers in relation to their legal obligations and in relation to the work, health and safety needs or requirements of pregnant employees, employees undergoing IVF and employees returning to work after miscarriage or childbirth (including employees who are breastfeeding). This guidance material should be developed with a view to introducing a ‘code of practice’ to have effect under Work Health and Safety laws in every jurisdiction.
Principle 4: Ongoing monitoring, evaluation and research will help to shape effective action
At both the organisational and national levels, ongoing monitoring, evaluation and research are vital tools for assessing progress in reducing discrimination.
At the national level, prevalence surveys should be carried out at regular intervals to map our nation’s progress in reducing pregnancy/return to work discrimination. This will also assist in identifying the ongoing nature and impacts of discrimination. We must also identify the benefits to workplaces of attracting and retaining pregnant women and working parents.
The collection of national data on dismissal, redundancy and retention of pregnant employees and working parents is vital to monitoring the extent to which discrimination may be contributing to the low level of women’s workforce participation, particularly through the child bearing years. Such data can be collected through the existing gender equality reporting framework overseen by the Workplace Gender Equality Agency.
The National Review found that there is a need for further research including, on the costs of pregnancy/return to work discrimination, to business and other workplaces and the national economy. As a priority, further research is needed to identify the most effective mechanism for reducing the level of vulnerability to redundancy and job loss of pregnant women, employees on parental leave and working parents.
- Allocate funding to conduct a regular national prevalence survey on discrimination related to pregnancy, parental leave and return to work after parental leave (every four years)
- Conduct further research into identified gaps, such as the most effective mechanisms for reducing the vulnerability of pregnant women, employees on parental leave and working parents to redundancy and job loss.
 The Model Work Health and Safety (WHS) Act forms the basis of the WHS laws being enacted across Australia to harmonise work health and safety laws.
 Grattan Institute, Game-changers: Economic reform priorities for Australia (2012), p 39