Employers told to play fair with parents

The Fair Work Ombudsman has told employers to check their workplace agreements to ensure they comply with pregnancy discrimination laws.

The warning follows the recent discovery that supermarket giant Coles unwittingly contravened the law by transferring pregnant employees to lower-paid “safe jobs”.

Coles had a Collective Agreement, made before the introduction of the National Employment Standards (NES), that contained the following subclause: “Where a team member is pregnant … (she can be) transferred to a safe job at the rate and on the conditions attached to that job with no other change to the team member’s terms and conditions of employment”.

The Fair Work Act stipulates that where a pregnant employee with at least 12 months service is transferred to a safe job, it must be with no change to her terms and conditions of employment.

Fair Work Ombudsman Executive Director Michael Campbell urged other employers to check their own Collective Agreements as he believed it could be a common provision in hundreds of agreements, placing employers in a similar position to Coles and in breach of Section 81(3) of the Fair Work Act.

“The Coles experience should serve as a reminder to other employers to check their own compliance. While the subclause may be lawfully relied on where the employee has less that 12 months service, the NES entitlement exists for those workers who have been employed for more than a year,” he said.

Coles has admitted contravening workplace laws in October 2009 when it transferred a fresh produce manager at one of its stores in NSW to the role of service assistant on $67.40 a week less pay.

The company took the action on the basis that it was a “safe job” after the employee produced medical evidence regarding lifting restrictions associated with her pregnancy.  

“When we alerted Coles to the problem, the company promptly took steps to conduct an audit, undertake training and change the company policy,” Mr Campbell said.

After an investigation by the Fair Work Ombudsman, Coles voluntarily took a number of steps including:

Ensuring its management teams in all stores understand the National Employment Standards (NES).

Completing a review of company policy in relation to the transfer of pregnant employees to safe jobs to ensure it complies with the NES.

Launching online training for all line managers regarding the company’s obligations to pregnant employees.

Auditing its payroll system to determine if any other pregnant employees transferred to safe jobs were also underpaid.

Apologising to the affected employees for taking action against them.

Coles was also obliged to:

Reimburse other pregnant workers found to have been underpaid as a result of the former policy.

Agree to post a notice about the rights of pregnant employees in all its stores for a period of at least 30 days.

Train supervisors on company obligations to pregnant employees, and

Agree to donate $20,000 to Jobwatch Australia to fund educational activities for pregnant employees about their rights under the Fair Work Act.

Article supplied by the office of the Fair Work Ombudsman, March 2011.