Workplace watchdog cracks down on maternity discrimination

The Federal Government’s new Fair Work Ombudsman has its first target – employers that discriminate against women returning from maternity leave.

The new agency, set up under the Rudd Government’s Fair Work Act, has established a specialist anti-discrimination team that is already dealing with about 30 calls a week.

Chief Counsel Natalie James told a conference in Melbourne yesterday that the Fair Work Ombudsman had received more than 90 discrimination complaints and is investigating more than 40 of them.

“Our objective is to work towards eliminating systemic workplace discrimination, particularly the more insidious forms that impact on vulnerable employees.”

“We will not only investigate complaints, but educate businesses on how to avoid discrimination in the workplace.”

One of the first problems to emerge in the three months since the agency was created is maternity discrimination.

“Our early cases suggest some employers are attempting to avoid their obligations to women when they return to work after the birth of a child,” James says.

In one example she outlined, a female employee requested maternity leave but was initially refused, as her employer told her he intended to sell the business. The employer eventually agreed to allow maternity leave, but eight months later the woman claims her job was advertised in the paper. She contacted her employer and claims she was told her position was no longer available.

“We investigated this matter and after explaining to the employer his responsibilities under the pregnancy discrimination protections of Section 351 of the Fair Work Act, the case has now been successfully resolved,” James says.

The highlighting of discrimination issues should serve as something of a warning for employers to understand the critical changes to discrimination law introduced under the Fair Work regime.

Firstly, the onus of proof is now on the employer – if a worker makes a claim against you, it will be up to you to prove that you did not offend.

Secondly, the new laws also prohibit employers from taking “adverse action” against an employee, including dismissal, injuring an employee, discriminating against an employee and “altering the position” of an employee to their detriment.

Workplace lawyer Peter Vitale says managers need to understand their responsibilities and be prepared to demonstrate – preferably through good record keeping – that their decisions are not discriminatory towards the employee involved or other employees.