Learn more about a significant amendment to the Fair Work Act 2009, which could oblige employers to provide paid leave to pregnant employees.
One of the most significant changes to the Fair Work Act 2009 (Cth) this year remains largely unpublicised, but should be brought to all employers’ attention. The change provides added protection for pregnant employees in relation to the safety of their working conditions.
Employers must now transfer any pregnant employee to a ‘safe’ job, in the event her usual job is not considered safe during pregnancy. For example, if the employee usually works on a reef boat for a tourist operator, but is concerned about losing her footing in rough water, the employer is obliged to find her a ‘safe’ job on dry land.
To start the process, the employee must produce a medical certificate stating she is fit to work, but not in her usual role. The safe job must come with the full pay, entitlements and ordinary hours of her normal job.
The Sting in the Tail
If an appropriate safe job cannot be found, the pregnant employee is entitled to paid ‘no safe job’ leave, assuming she qualifies for unpaid parental leave following the birth. During this period, the employee must be paid the base rate for the usual ordinary hours of her position until the expiry of the medical certificate.
If the employee is not entitled to unpaid parental leave, she must be sent home on unpaid ‘no safe job’ leave.
The NES prescribes full-time and part-time employees are entitled to unpaid parental leave if they have worked for the employer for at least 12 months before the birth or adoption of the baby in their care.
The same applies to casual employees, if they have been working for the employer on a regular basis for at least 12 months, and have a reasonable expectation of ongoing employment.
The ramifications of these amendments are potentially huge. Employers should carefully respond to any medical certificates provided by pregnant employees and take all possible steps to accommodate their limitations during pregnancy.