Despite more than a decade of legislative and policy reforms, pregnancy, breastfeeding and family responsibilities discrimination remain widespread in Australian workplaces, with some employers reportedly misusing workplace health and safety obligations to exclude pregnant workers from employment.
A new Australian Human Rights Commission (AHRC) report, The Balancing Act, identifies a significant gap between workers' legal protections and their everyday experiences, particularly during pregnancy, parental leave and the return to work.
The findings of the report suggest limited progress since the Commission's 2014 national review, which found 49% of mothers had experienced pregnancy-related discrimination. A 2024 University of South Australia survey found that 91.8% of 1,048 respondents reported discrimination when returning to work following pregnancy.
Drawing on a literature review and consultations with 84 stakeholders, the latest AHRC report identifies recurring problems including workers losing shifts, having duties reduced, missing out on promotions and training, being made redundant or having contracts terminated after disclosing a pregnancy or taking parental leave.
Of particular concern from a safety perspective is the reported misuse of fitness-to-work assessments and WHS obligations. Employers have a responsibility to assess risks associated with pregnancy, consult affected workers and review duties and working conditions to ensure appropriate controls are implemented. However, rather than assessing workplace risks and identifying reasonable adjustments or suitable alternative duties, some employers are reportedly using the assessment outcomes to justify excluding pregnant workers from work altogether.
The report warns that refusing reasonable adjustments and removing pregnant employees from work can create financial hardship, health issues and psychosocial distress.
The report also highlights inadequate breastfeeding facilities, insufficient breaks and a lack of suitable arrangements for expressing and storing breast milk. These shortcomings can make returning to work particularly difficult for breastfeeding parents.
Workers in insecure employment and male-dominated industries face additional barriers, while gendered assumptions about caring responsibilities can disadvantage both mothers and fathers seeking flexible working arrangements.
The Commission has identified 18 areas for reform to reduce workplace pregnancy discrimination, including:
· changes to both the Fair Work Act 2009 and the Sex Discrimination Act 184 to provide stronger protections against family responsibilities discrimination
· greater access to flexible work, including varied shift lengths, shift-sharing arrangements, flexible start and finish times, and increased employee control over rostering
· improved job design to better accommodate caregiving responsibilities, including parenting, disability support and elder care, particularly in male-dominated industries
· improved access to justice and information, including increased investment in legal aid, the Fair Work Commission, and the AHRC to reduce delays in complaint handling and conciliation processes
· the funding of a national review examining the rates of pregnancy, breastfeeding and family responsibilities discrimination and barriers to shared care in Australia, with a focus on the experiences of people with disability, culturally and racially marginalised communities First Peoples, and LGBTIQA+ communities
The findings of this report are a reminder that pregnancy must not become a reason for exclusion from the workplace. Employers need to manage pregnancy-related risks through proper consultation, risk assessment and appropriate control measures, rather than using safety obligations as justification for removing workers from employment.
Read more: Balancing act: Supporting Working Parents and Carers