Expecting More: Rethinking the Rights and Protections Available to Pregnant Workers under the Fair Work Act 2009 (Cth)
| Author | Adriana Orifici,Dominique Allen |
| DOI | http://doi.org/10.1177/0067205X221126556 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | ARTICLES |
Article
Federal Law Review
2022, Vol. 50(4) 504–526
© The Author(s) 2022
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DOI: 10.1177/0067205X221126556
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Expecting More: Rethinking the
Rights and Protections Available to
Pregnant Workers under the Fair
Work Act 2009 (Cth)
Adriana Orifici*and Dominique Allen**
Abstract
This article integrates doctrinal and empirical legal research methods to evaluate manifestations of
discrimination experienced by pregnant workers and develops proposals to strengthen labour law to
better support working women. The article commences by mapping the framework of rights and
protections currently applicable to pregnant women under the Fair Work Act 2009 (Cth) (‘FW Act’). It then
analyses court decisions made under parts 3-1 and 3-2 of the FW Act that are relevant to pregnancy, which
builds on the limited scholarship in this area. This is augmented by analysing the findings from a pilot study
into the experiences of a group of pregnant workers in Victoria, which addresses an ongoing deficiency in
the literature of the qualitative examination of workplace pregnancy discrimination. Scrutiny of the
doctrinal and empirical data reveals the common manifestations and patterns of conduct that pregnant
women experience at work. The article then considers how the rights and protections in the FW Act
could be strengthened to better support pregnantwomen who experience unlawful conduct at work. It is
argued that there are three critical gaps in the FW Act, which are leaving pregnant women vulnerable to
detrimental treatment. Legislative reform proposals are formulated to address these gaps, of which the
most pressing is to add pregnancy to s 65(1A) of the FW Act so that it comprises a ground on which
employees can make requests for flexible working arrangements.
Received 5 September 2021
I Introduction
In its landmark review into the prevalence of pregnancy discrimination, the Australian Human
Rights Commission (‘AHRC’) found that nearly one third of mothers experienced pregnancy
*Lecturer, Department of Business Law & Taxation, Monash Business School, Monash University.
**Associate Professor, Department of Business Law & Taxation, Monash Business School, Monash University. We thank
Renee Burns for excellent research assistance.
discrimination at work.
1
Women encounter discrimination because of their ability to become
pregnant and due to the actual or presumed effects of pregnancy on their employment.
2
The AHRC
identified the most common forms of discrimination as changes to pay, conditions and duties and job
loss.
3
Wide-ranging scholarship supports the view that reproduction continues to create enduring
disadvantage for women in the labour market.
4
Traditionally, labour law was constructed around an
‘ideal’subject of the male breadwinner who could commit to long hours at work and uninterrupted
service.
5
Labour law continues to prioritise a normative worker who is a ‘non pregnant’worker,
with reproduction, care and family viewed as part of the private sphere. The standard worker who
occupies the public sphere is unencumbered by these characteristics and responsibilities.
6
Pregnant
women often need to navigate matters such as working patterns, rest time and leave within this
unhelpful framework.
7
The prioritisation of the standard worker, and the relegation of pregnancy to
the private sphere, is reinforced by the structure of many of the rights and protections available to
pregnant workers under Australian labour law. The FW Act prohibits discrimination based on
pregnancy by ensuring a woman’s pregnant status does not affect or inform decision-making to
produce detriment. Moreover, the Act sets out rights for pregnant employees that predominantly
reinforce the separation of work from pregnancy.
8
Pregnant employees are expected to informally
negotiate modifications to the duties of their substantive position to address any physiological
effects or safety concerns.
9
This produces a framework that promotes formal rather than substantive
equality for pregnant employees.
10
With that in mind, this article evaluates whether the FW Act could be strengthened to better
support pregnant women. We examine the manifestations of discrimination experienced by
1. Australian Human Rights Commission, Supporting Working Parents: Pregnancyand Return to Work National Review
(Report, 2014) 26 (‘AHRC Report’).
2. For US based studies see, eg, Jane A Halpert, Midge L Wilson and Julia L Hickman, ‘Pregnancy as a Source of Bias in
Performance Appraisals’(1993)14(7) Journal of OrganizationalBehaviour 649, 562–3; Whitney Botsford Morgan et al,
‘A Field Experiment: Reducing Interpersonal Discrimination toward Pregnant Job Applicants’(2013) 98(5) Journal of
Applied Psychology 799, cited in Deborah A. Widiss, ‘Pregnancy at Work —50 Years of Legal Theory, Litigation, and
Legislation’in Deborah Brake, Martha Chamallas and Verna Williams (eds), The OxfordHandbook of Feminism and
Law in the United States (online edn, Oxford Academic, 2021) 3.
3. AHRC Report (n 1) 27.
4. See, eg, Jill Murray, ‘Introduction’(2005) 23(1) Law in Context 1, 1–7; Belinda Smith and Joellen Riley, ‘Family-
friendly Work Practices and the Law’(2004) 26(3) Sydney Law Review 395, 395; David Baker ‘Maternity Leave and
Reduced Future Earning Capacity’(2011) 89 Family Matters 82.
5. See also Rosemary Owens, ‘The Traditional Labour Law Framework: A Critical Evaluation’in Richard Mitchell (ed)
Redefining Labour Law: New Perspectives and the Future of Teaching and Research (Monograph No 3, Centre for
Employment and Labour Relations Law,University of Melbourne, 1997) 3–28, 14. On the persistence of this model, see,
eg, Murray (n 4); Anna Chapman, ‘Work/Family, Australian Labour Law, and the Normative Worker’, in Joanne
Conaghan and Kerry Rittich (eds), Labour Law, Work, and Family: Critical and Comparative Perspectives (Oxford
University Press, 2005) 79.
6. The dualism of the public/private realms, of course, has gendered dimensions.For a recent discussion, see, eg, Margaret
Thornton, ‘Coronavirus and the Colonisation of Private Life’(2021) 1(1) Legalities 44, 45–6.
7. See Murray (n 4) 2–3.
8. We explore this in section III.
9. One exception is where an employee is covered by an enterprise agreement that deals with this subject. See also Joellen
Riley ‘Contracting for Work/ Family Balance’(2005) 23(1) Law in Context 182, 182–201.
10. On the distinction between formal andsubstantive equality, see, eg, Dominique Allen, ‘An Evaluation of the Mechanisms
Designed to Promote Substantive Equality in the Equal Opportunity Act 2010 (Vic)’(2020)44(2) Melbourne University
Law Review 459; Anna Chapman, Beth Gaze and Adriana Orifici, ‘Substantive Equality at Work: Still Elusive Under
Australia’s Fair Work Act’(2017) 30(3) Australian Journal of Labour Law 214.
Orifici and Allen 505
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