Fair Work watchdog urges employers to check work agreements for pregnancy discrimination after Coles case

The Fair Work Ombudsman has urged employers to check workplace agreements for clauses that may discriminate against pregnant workers, after Coles admitted to cutting the pay of a pregnant worker by moving her to a job that did not involve heavy lifting.

The Coles workplace agreement, which was made before the introduction of the Government’s National Employment Standards in January 2010, contained a clause that stated that pregnant workers could 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”.

However, section 81(3) of the Fair Work Act says that when a pregnant worker with 12 months of employment is transferred to a “safe” job she cannot suffer any reduction in pay or conditions.

Coles admitted that when it transferred a fresh produce manager at one of its stores in NSW to the role of service assistant, it reduced her pay by $67.40 a week less pay.

Fair Work Ombudsman executive director Michael Campbell says he is concerned that the “safe” job provision may be common in hundreds of agreements around Australia, and has urged employers to make sure they are not acting in breach 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 than 12 months service, the NES entitlement exists for those workers who have been employed for more than a year.”

Coles has accepted an enforceable undertaking that will see it donate $22,000 to a website called JobWatch to assist with education about discrimination of pregnant women.

The company has also agreed to reimburse the women involved, run education programs for managers and post notices to staff.

Campbell also says the Fair Work Ombudsman will continue to focus on the issue of discrimination of pregnant workers, which generated the second-most discrimination complaints in 2009-10 at 73 complaints.

Already in 2010-11, the watchdog has received 45 complaints about pregnancy discrimination.

“Some of the allegations are as bad as that these employees have been made redundant or their employment conditions have been changed because of their pregnancy, which is deeply concerning.”