There are various safeguards and entitlements in place under the Fair Work Act 2009 (Cth) (‘The FWA’) that are designed to protect pregnant employees in the workplace and to ensure these employees are provided with equal opportunity and protected from discrimination. The FWA provides for a range of entitlements to support this, which includes the right for pregnant employees to be provided with a safe job – an entitlement that is often overlooked by employers but is exceptionally important to be aware of.
What exactly is the right to a ‘Safe Job’?
The right to a safe job applies to all pregnant employees (including casuals), regardless of whether they are eligible for unpaid parental leave or not.
If an employee has raised it is not safe for them to perform their current job due to their pregnancy, they have the right to request to be moved to a safe job. This is quite common in roles where the duties may include intense physical activity, manual labor, working with machinery/dangerous chemicals or working in other high-risk environments. However, can apply to any role in which the duties may pose a risk to the pregnant individual. For example, a pregnant individual who works in warehouse whose duties primarily involve lifting heavy boxes or long periods of standing to perform the role, may put through a request for a safe job where they feel it may no longer be safe to continue their current role during their pregnancy. If this does occur, the employee should place this request in writing and will need to provide evidence that:
- they are able to work, but it is no longer safe for them to perform their current role, (this may also include the reason/s why it isn’t safe), and
- the duration they expect it will be unsafe for them to perform their current role
Additionally, an employer also has the right to request a medical certificate to support the employees request.
The business would then need to consider whether there is a safe job that the employee can perform. Where the employee can be placed into a safe job and provided with alternate duties to perform, it is important to note that the employee will still be entitled to the same conditions from their usual role including the same rate of pay, hours of work and other entitlements. Although, there is flexibility for both parties to agree on different working hours if this is more suitable for the safe job.
Looking again at the example of the warehouse worker – once the employee has placed their request and provided any relevant evidence, if it is operationally feasible, the employer would then transfer them into an alternate role that is safer for them to perform. This could include a role that is substantially different from their usual duties, such as an administrative role where they may be only processing orders for the warehouse, so long as aspects of their usual warehouse role such as pay rate, hours of work and other entitlements remain the same. The employee will be entitled to stay in the safe job until it has been established that it is safe for them to return to their usual role, or until they give birth.
But what if there isn’t a safe job available for them?
In the event the business does not have a safe job available, the employee can take ‘no safe job leave’. No safe job leave is paid if the employee is entitled to unpaid parental leave (even for casual employees). For full-time time and part-time employees who meet the eligibility criteria for unpaid parental leave – no safe job leave is paid at their base rate of pay for ordinary hours worked. For casual employees who may be eligible, this is paid at their base rate of pay (excluding the casual loading), for the average number of hours they would have worked in the period of safe job leave.
For employees that are not eligible for unpaid parental leave, they are still able to take ‘no safe job leave’ but this would be unpaid.
It is important to keep in mind that casual staff are entitled to unpaid parental leave if they have been working for the employer on a regular & systematic basis for at least 12 months, and have a reasonable expectation of continuing work with the same employer on that basis had it not been for the birth/adoption of a child.
The entitlement to a Safe Job and No Safe Job Leave is only one of the entitlements for pregnant employees in the workplace, and it is important for employers to be across these and have adequate processes in place to ensure you are set up to best handle these compliantly in your workplace. Importantly, pregnancy is a protected attribute under anti-discrimination legislation, so it is crucial employers are aware of their obligations to these employees and ensure they are fairly and reasonably responding to such requests like to provide a safe job.
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If you need further help understanding your obligations as an employer in respect to parental leave or other related entitlements in the workplace, please contact HR Connect.