Report of the National Inquiry into Pregnancy and Work - HREOC assessment of Government Responses to Recommendations

Report of the National Inquiry
into Pregnancy and Work

Pregnant and Productive: it's a right not a privilege to work while pregnant.

HREOC assessment
of Government Responses to Recommendations

1 November 2000

Recommendation
1:

That the Attorney-General amend the Sex Discrimination Act 1984 (Cth)
to empower HREOC to publish enforceable standards in relation to pregnancy
and potential pregnancy.

Response: No

Recommendation
2:

That HREOC and the Affirmative Action Agency, with the assistance of State/Territory
anti-discrimination bodies, distribute and promote the Guidelines, by
organising and conducting a series of workshops throughout Australia.

Response: Yes, but
no additional funding to be provided.

Recommendation
3:

That the Attorney-General's Department fund and coordinate the production,
in consultation with HREOC, of an educative video on pregnancy and work
based upon the Guidelines.

Response: No, HREOC
should undertake this project. No additional funding provided.

Recommendation
4:

That the Department
of Employment, Workplace Relations and Small Business ensure that the
Australian Workplace Industrial Relations Survey is conducted on a regular
five year basis and include questions covering pregnancy and potential
pregnancy. Useful questions could include - the number of women who work
during pregnancy - the distribution of pregnant employees by industry
- the incidence of discrimination on the ground of pregnancy or potential
pregnancy, - the management of pregnancy at work, and - the attitudes
of employees and employers regarding pregnancy at work.

Response: No, the
continued existence of AWIRS is still in doubt.

Recommendation
5:

That the Australian Bureau of Statistics develop, in consultation with
HREOC, a set of questions on workplace pregnancy and maternity experiences
for distribution in appropriate, regular, national surveys of workplaces
(such as the Labour Force survey) and households. In particular, the Australian
Bureau of Statistics should consider the creation of a new specialist
survey on these issues as well as the inclusion of relevant questions
in future censuses.

Response: Yes

Recommendation
6:

That the Australian Institute of Family Studies conduct a quantitative
and qualitative study into pregnancy and maternity in Australian workplaces.

Response: Yes

Recommendation
7:

That the Attorney-General examine the issues of coverage for federal statutory
appointees, judicial office holders and Members of Parliament, to provide
clarification of coverage and, if necessary, extend the provisions of
the Sex Discrimination Act 1984 (Cth) to cover these positions formally.

Response: No, government
considers that federal statutory office holders and judicial office holders
are already covered by the SDA. (*note: HREOC maintains its position that
judicial office holders and members of parliament are not covered by the
SDA)

Recommendation
8:

That the Attorney-General amend the Sex Discrimination Act 1984 (Cth)
to ensure coverage of unpaid workers.

Response: No.

Recommendation
9:

That those
federal Government Departments and agencies conducting formal unpaid work
schemes ensure that participants in those schemes are provided with protection
from discrimination on the ground of pregnancy and potential pregnancy.

Response: Yes, Government
maintains that arrangements for these schemes are adequate.

Recommendation
10:

That the Attorney-General amend section 13 of the Sex Discrimination Act
1984 (Cth) to remove the exemption of employment by an instrumentality
of a State.

Response: No, but
further views of state/territory governments are being sought.

Recommendation
11:

That the Attorney-General amend the Sex Discrimination Act 1984 (Cth)
to remove the exemption contained in section 38 for educational institutions
established for religious purposes in relation to pregnancy and potential
pregnancy.

Response: No.

Recommendation
12:

That the Minister for Employment, Workplace Relations and Small Business
specifically consider the position of pregnant and potentially pregnant
employees in any future workplace relations reform to ensure that such
employees are not exposed to the possibility of direct or indirect discrimination.

Response: Yes.

Recommendation
13:

That the Department of Employment, Workplace Relations and Small Business
and the Office of the Employment Advocate ensure that information is available
to all workplace participants in relation to their rights and responsibilities
in relation to pregnancy and potential pregnancy under the Workplace Relations
Act 1996 (Cth), awards, and in relation to making certified agreements
or AWAs.

Response: Yes.

Recommendation
14:

That information
provided by the Employment Advocate pursuant to section 170VO Workplace
Relations Act 1996 (Cth) include information about anti-discrimination
laws and the role of the agreement making process in achieving a workplace
free from discrimination and harassment. The information should include
particular reference to discrimination on the ground of pregnancy and
potential pregnancy.

Response: Yes.

Recommendation
15:

That the Minister for Employment, Workplace Relations and Small Business
fund each Working Women's Centre to provide specific advice and education
about pregnancy and work, specifically targeting employees in small business.

Response: No.

Recommendation
16:

That the Office of the Employment Advocate be required to collect and
regularly publish information about the provisions in AWAs concerning
pregnancy and maternity issues.

Response: Yes.

Recommendation
17:

That the Office of the Employment Advocate undertake a research initiative
in close consultation with the Sex Discrimination Commissioner to assess
the progress of AWAs in contributing to the prevention and elimination
of discrimination in the workplace in relation to pregnancy and potential
pregnancy.

Response: Yes.

Recommendation
18:

That the Department of Employment, Workplace Relations and Small Business
establish a regular consultative network comprising that Department, the
Affirmative Action Agency, the Office of the Employment Advocate, the
Attorney-General's Department, the Sex Discrimination Commissioner's policy
unit and the Office of the Status of Women to exchange data and review
trends in relation to systemic sectoral and industry specific discrimination
in AWAs, certified agreements and awards in relation to pregnancy and
potential pregnancy and maternity leave issues, with a view to policy
development and monitoring of workplace relations reform.

Response: No.

Recommendation
19:

That the Sex Discrimination Act 1984 (Cth) be amended to allow the Sex
Discrimination Commissioner to refer discriminatory awards or agreements
to the Australian Industrial Relations Commission of her own initiative
without the requirement to receive a written complaint.

Response: No, but
the AIRC could accept them on an informal basis.

Recommendation
20:

That the Sex Discrimination Commissioner and the Australian Industrial
Relations Commission establish formal links and protocols for information
sharing and exchange of expertise, with specific reference to sex and
pregnancy discrimination issues.

Response: No.

Recommendation
21:

That the Department of Health and Aged Care, in consultation with the
National Occupational Health and Safety Commission and HREOC, develop
an education campaign that reflects the expectations and needs about the
type of information and advice employees and employers want and need to
ensure better care of pregnant or potentially pregnant employees.

Response: Yes.

Recommendation
22:

That the National Occupational Health and Safety Commission make available
on the national OH&S database all available practical advice on risk control
issues surrounding pregnancy at work. Such material could include the
New South Wales Draft Code of Practice and Guidelines on Pregnancy and
Work when adopted in that state and relevant excerpts of the Guidelines.

Response: Yes.

Recommendation
23:

That the National Occupational Health and Safety Commission, Comcare and
state/territory Occupational Health and Safety Commissions work with HREOC
and other relevant agencies and organisations to review the New South
Wales Draft Code of Practice and Guidelines on Pregnancy and Work, once
that Code is finalised, with a view to implementing such a Code nationally.

Response: Yes.

Recommendation
24:

That business and industry take the opportunity provided by this inquiry
to consider closely the need for any further lead exemptions under anti-discrimination
legislation and to take appropriate action in this regard.

Response: Yes.

Recommendation
25:

That the Workplace Relations Act 1996 (Cth) be amended to extend unpaid
maternity leave to casual employees employed for over 12 months.

Response: No.

Recommendation
26:

That State
governments extend unpaid maternity leave rights to casual employees employed
for over 12 months under their respective legislation.

Response: N/A, sent
to state/territory governments for their attention.

Recommendation
27:

That the Department of Employment, Workplace Relations and Small Business
establish a working party including the Aboriginal and Torres Strait Islander
Commission, HREOC and the Working Women's Centres, to be responsible for
the creation of culturally specific education material on pregnancy and
potential pregnancy discrimination in the workplace for Indigenous women,
and formulate an effective distribution program for the material produced.

Response: Yes.

Recommendation
28:

That the Departments of Agriculture, Fisheries and Forestry - Australia
and of Transport and Regional Services, in consultation with the Office
of the Status of Women and the Aboriginal and Torres Strait Islander Commission,
jointly provide education and services in rural and remote areas to assist
pregnant and potentially pregnant employees and their employers. In particular,
the provision of improved communication facilities and medical information
should be a priority.

Response: Yes.

Recommendation
29:

That the Department for Education, Training and Youth Affairs, in consultation
with the Sex Discrimination Commissioner, develop a pamphlet on the Sex
Discrimination Act 1984 (Cth) for all Year 9 to Year 12 students covering
their rights and responsibilities at school, while in vocational education
programs and in casual or part time work.

Response: No.

Recommendation
30:

That the Department of Education, Training and Youth Affairs produce material
in consultation with the Sex Discrimination Commissioner providing advice
and assistance for managing pregnancy at school.

Response: No

Recommendation
31:

That the Chief Executive Officer of the Australian National Training Authority
work with the Sex Discrimination Commissioner to develop a strategy to
inform policy about the circumstances of pregnant and potentially pregnant
apprentices and trainees.

Response: Yes, to
some extent.

Recommendation
32:

That Group
Training Australia, in consultation with the Sex Discrimination Commissioner,
develop an information sheet to advise all apprentices, trainees and host
employers of the law regarding pregnancy and potential pregnancy discrimination.

Response: N/A, government
encourages Group Training and the other bodies involved to implement this
recommendation.

Recommendation
33:

That the Department of Immigration and Multicultural Affairs translate
the Guidelines into six major community languages.

Response: No

Recommendation
34:

That Recommendation 22 and 23 include consideration of male partners'
reproductive health.

Response: Yes

Recommendation
35:

That Attorney-General
amend the Sex Discrimination Act 1984 (Cth) to make clear that a complaint
about a discriminatory advertisement may be made under section 14(1)(a)
of the Act notwithstanding that the complainant is not a person directly
affected by the advertisement.

Response: No

Recommendation
36:

That the Attorney-General clarify section 27 of the Sex Discrimination
Act 1984 (Cth) by the insertion of a specific provision that prohibits
the asking of questions (whether orally or in writing) which might reasonably
be understood as intended to elicit information about whether or when
a women intends to become pregnant and/or her intentions in relation to
meeting her current or pending family responsibilities.

Response: Yes

Recommendation
37:

That the Attorney-General amend Sex Discrimination Act 1984 (Cth) to clarify
that it is unlawful to discriminate in medical examinations of pregnant
women during recruitment processes.

Response: Yes

Recommendation
38:

That the federal Department of Health and Aged Care and the Australian
Medical Association, in consultation with the Sex Discrimination Commissioner,
develop a strategy to assist medical practitioners provide advice that
contributes to the appropriate management of pregnancy at work.

Response: Yes

Recommendation
39:

That the Attorney-General amend the Sex Discrimination Act 1984 to include
protection for employees who intend to, or are in the process of, adopting
a child, from discrimination on this basis.

Response: No

Recommendation
40:

That the Advisory Board of the Affirmative Action Agency consult the Sex
Discrimination Commissioner when developing minimum standards and educative
materials to ensure that they reflect the legislative requirements of
the Sex Discrimination Act 1984 and legal precedents with particular regard
to pregnancy and potential pregnancy.

Response: Yes

Recommendation
41:

That, in accordance with recommendation 18 of the Unfinished Business
report, the Director of the Affirmative Action Agency, in consultation
with the Advisory Board, and the Sex Discrimination Commissioner develop
protocols for the referral of certain systemic, sectoral or occupational
sex-based discrimination issues, which may properly be the subject of
an inquiry or report, to the Sex Discrimination Commissioner for consideration.

Response: No, it
is up to the Agency and the Commission.

Recommendation
42:

That the Attorney-General amend the provisions in relation to award of
compensatory damages in the Sex Discrimination Act 1984 to also enable
award of punitive damages.

Response: No

Recommendation
43:

That the Attorney-General amend the Sex Discrimination Act 1984 to specifically
cover breastfeeding as a ground of unlawful discrimination.

Response: Yes

Recommendation
44:

That the federal Government remove its current reservation to article
11(2)(b) of the Convention on the Elimination of All Forms of Discrimination
Against Women on paid maternity leave.

Response: No

Recommendation
45:

That Australian
Governments, in particular through the federal Office of the Status of
Women, its State/Territory counterparts and State/Territory anti-discrimination
bodies, encourage broad national debate regarding the amended draft text
of ILO Convention 103 with a view to ratifying and implementing the resultant
Convention.

Response: Yes

Recommendation
46:

That the Minister for Employment, Workplace Relations and Small Business
provide funding to the Sex Discrimination Commissioner to undertake economic
modelling and analysis of possible paid maternity leave options. The project,
to be conducted in consultation with the Department of Employment, Workplace
Relations and Small Business, would also involve extensive and close consultations
with all relevant interested parties.

Response: No

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To view the Government's
response to the recommendations of the National Pregnancy and Work Inquiry
visit: http://law.gov.au/aghome/legalpol/cld/human/Govt_response.html.

To view HREOC's
Media Release click here.

To view the Minister
for Family & Community Services and Minister Assisting the Prime Minister
for the Status of Women's Media Release click
here.