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Sex Discrimination Legislation Amendment (Pregnancy and Work) Bill 2000

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1998-1999-2000

 

 

 

 

 

The Parliament of the

Commonwealth of Australia

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

Sex Discrimination Legislation Amendment (Pregnancy and Work) Bill 2000

 

 

 

 

 

Explanatory Memorandum

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Circulated by Ms Macklin



Sex Discrimination Legislation Amendment

(Pregnancy and Work) Bill 2000

 

 

Outline

 

This Bill amends the Sex Discrimination Act 1984 and the Human Rights and Equal Opportunity Commission Act 1978 to ensure pregnant, potentially pregnant and breastfeeding women are not discriminated against in the workplace.

 

 

Financial Impact

 

This Bill will have no financial impact on Government expenditure.

 

 

Background

 

These amendments are based on the recommendations arising from the Inquiry by the Human Rights and Equal Opportunity Commission (HREOC) into pregnancy and potential pregnancy discrimination in the workplace.  The Commission’s Report, Pregnant and Productive: It’s a right not a privilege to work while pregnant was presented to the Government in June 1999.  The Commission found that ‘erroneous tactics and exploitative practices are, to this day, being utilised to remove pregnant women from the workplace or deny pregnant and potentially pregnant women equal employment opportunity’.

 

Whilst discrimination and harassment on the grounds of pregnancy and potential pregnancy are grounds for a complaint under the Sex Discrimination Act 1984 , the Commission found that workplace discrimination and harassment on these grounds remains a real issue for many women and clarification of the Act was needed in a number of areas. 

 

A significant amount of evidence concerning direct and indirect discrimination on the basis of pregnancy and potential pregnancy was raised in the HREOC Inquiry and issues of harassment and victimisation due to pregnancy and potential pregnancy were documented.  Employers and employer organisations also raised difficulties that they believed they faced with the practical day to day management of pregnant workers.  The consultation process also indicated that many instances of pregnancy discrimination go unreported.

 

Despite the Report’s disturbing findings the Government has not acted on the Report’s recommendations. The Opposition has therefore decided to pursue the recommended legislative reforms through this Private Members Bill.



Explanatory Notes on the Bill

 

The legislative reforms contained in this Bill are aimed at clarifying existing protection’s and establishing equity standards that will ensure pregnancy and potential pregnancy are properly managed and workplaces are free from pregnancy discrimination.  The amendments, therefore, strengthen the Sex Discrimination Act 1984 and ensure it is able to respond to the experiences of women.

 

This Bill enhances the rights of pregnant and potentially pregnant women by:

 

·         Empowering the Human Rights and Equal Opportunity Commission to publish enforceable standards in relation to pregnancy and potential pregnancy.  This power enables the Commission to provide guidance and clarity on the provisions of the Sex Discrimination Act and simplifies the plethora of precedents developed on sex discrimination law;

 

·         Ensuring unpaid workers are covered by the Sex Discrimination Act 1984. Whilst unpaid workers are not specifically excluded from the Sex Discrimination Act, they may not be covered by the Act if they are not considered to be employees and an employment contract does not exist.  Unpaid work is increasing in incidence and can provide employers and workers with considerable benefits. These workers should be protected from discrimination on the basis of pregnancy and potential pregnancy;

 

·         Amending Section 13 of the Sex Discrimination Act 1984 to remove the exemption for employment by an instrumentality of a State. A significant number of employees are excluded from the SD Act by this exemption and many others may suffer considerable confusion at the array of anti-discrimination legislation in Australia and the different provisions in the area of pregnancy and potential pregnancy.  The removal of this exemption is an important step in achieving uniform national standards in this area.

 

·         Removing the exemption for prohibition of discrimination contained in Section 38 of the Sex Discrimination Act 1984 for educational institutions established for religious purposes in relation to pregnancy and potential pregnancy.  The current exemption of these institutions applies only to hiring and dismissal practices and does not allow discrimination during the course of employment.  Submissions to the HREOC Inquiry argued that the provisions were too broad and were interpreted to result in unfair use to the detriment of pregnant women.



·         Allowing punitive damages to be awarded where the Federal Court is satisfied that there has been unlawful discrimination relating to pregnancy or potential pregnancy.  At present the Federal Court’s powers to make orders include a declaration that the respondent should pay damages by way of compensation for loss or damage suffered. The awarding of punitive damages would send a clear message about the seriousness of discrimination.

 

·         Specifically including breastfeeding as a ground of unlawful discrimination. Breastfeeding is not specifically covered as a separate ground under the Sex Discrimination Act 1984 and to include it specifically would clarify that discriminatory treatment on this basis is unlawful;

 

·         Allowing the Sex Discrimination Commissioner to refer discriminatory awards or agreements to the Australian Industrial Relations Commission (AIRC) without the requirement to receive a written complaint.   This amendment provides the Sex Discrimination Commissioner with a more pro-active role in referring discriminatory awards and agreements to the AIRC.  At present the Commissioner can only refer the award to the AIRC if there has been a complaint and to date the power has not been used.   The HREOC report concluded that providing the Sex Discrimination Commissioner access to AIRC would lead to a more seamless and better integrated system of audit and protection for workplace participants;

 

·         Clarifying that a complaint about a discriminatory advertisement may be made under section 14(1)(a) of the Sex Discrimination Act 1984 by any person notwithstanding that the complainant is not a person directly affected by the advertisement. Complaints about discriminatory advertising may be made under the Sex Discrimination Act , however, the complainant must show a particular connection to the advertisement that is the subject of the complaint.  It is important that a very clear message be sent that advertising that discriminates or demonstrates an intention to discriminate on the ground of pregnancy or potential pregnancy is unacceptable;

 

·         Clarifying section 27 of the Sex Discrimination Act 1984 by inserting 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 woman intends to become pregnant and/or her intentions in relation to meeting her current or pending family responsibilities. This amendment clarifies the existing provision and will aid all parties by simplifying and confirming the intent of the section.

 



·         Clarifying that it is unlawful to discriminate in medical examinations of pregnant women during the recruitment processes.  Subsection 27(2) of the Sex Discrimination Act provides that it is not unlawful for a person to request or require a person who is pregnant to provide medical information concerning the pregnancy. This may be necessary where an employer has a responsibility to address occupational health and safety aspects of a particular job. Employers may seek to illicit relevant information provided that the information, once received, is not used in a discriminatory manner.  A reading of the current section 27 of the Sex Discrimination Act may lead to the inappropriate conclusion that it is not unlawful to discriminate in relation to medical examinations of pregnant women at the recruitment stage.  The HREOC report concluded that clarification of this point would be useful for employers, employment and recruitment agencies and medical practitioners.

 

The Bill also extends the anti-discrimination provisions to employees who are in the process of, adopting a child.

 

 

Consultation

 

The amendments contained within this Bill are the product of widespread consultation undertaken by the Human Rights and Equal Opportunity Commission as part of its inquiry into pregnancy and potential pregnancy discrimination in the workplace.  The Commission produced an Issues Paper on 1 December 1998 and distributed it widely around the country and consultations were conducted on that paper between December 1998 and April 1999.  The Issues Paper attracted over 100 submissions.  Members of the Sex Discrimination Unit and the Sex Discrimination Commissioner also undertook a wide range of consultations.  Focus groups were also hosted by interested organisations around the country in metropolitan, regional and remote areas. A list of submissions and consultations are contained at the end of the Pregnant and Productive Report.