Pregnancy, Parental Leave and Fixed-Term Contracts: Understanding Your Workplace Rights

For many employees, pregnancy and the arrival of a child should be a time of excitement rather than uncertainty about their employment.

Unfortunately, disputes continue to arise where employees question whether decisions about contract renewals, promotions, flexible work arrangements or continued employment have been influenced by pregnancy or parental leave.

While employers retain the right to make genuine operational and commercial decisions, Australian law provides extensive protections to ensure employees are not disadvantaged because they are pregnant, have taken parental leave or have family and caring responsibilities.

Understanding those protections is critical.

Pregnancy, Parental Leave and Fixed-Term Contracts: Understanding Your Workplace Rights

Pregnancy is Protected Under Australian Law

Pregnancy is a protected attribute under both Commonwealth and State legislation.

Depending upon the circumstances, an employee may have rights under:

• Fair Work Act 2009 (Cth)

• Sex Discrimination Act 1984 (Cth)

• State and Territory anti-discrimination legislation

• Applicable work health and safety legislation

• Modern awards and enterprise agreements

• National Employment Standards (NES)

These protections apply regardless of whether an employee is employed permanently, casually or on a fixed-term contract.

The National Employment Standards

The National Employment Standards provide important minimum entitlements for eligible employees, including:

• unpaid parental leave (ss 70–85, Fair Work Act);

• special maternity leave;

• a guarantee to return to the employee's pre-parental leave position, or if that position no longer exists, an available position for which they are qualified and suited that is nearest in pay and status (s 84);

• requests for flexible working arrangements (s 65); and

• consultation obligations where workplace changes affect returning employees.

These are minimum statutory rights that cannot generally be displaced by contract.

Protection From Adverse Action

One of the strongest protections arises under the general protections provisions of the Fair Work Act.

Sections 340 and 351 prohibit employers from taking adverse action because an employee:

• exercises a workplace right;

• has a protected attribute such as pregnancy;

• takes parental leave;

• proposes to exercise a workplace right; or

• has family or carer's responsibilities in circumstances protected by law.

Adverse action can include:

• dismissal;

• refusing to renew employment for a prohibited reason;

• reducing hours;

• removing responsibilities;

• denying promotion;

• altering duties;

• other conduct that prejudices employment.

Importantly, Part 3-1 of the Fair Work Act contains a reverse onus of proof. Once adverse action is established, the employer bears the evidentiary burden of proving the prohibited reason was not a substantial and operative reason for the decision.

The High Court confirmed the operation of this reverse onus in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, making it clear that courts closely examine the actual decision-maker's reasons for taking the action.

Pregnancy Discrimination Remains Unlawful

The Sex Discrimination Act 1984 (Cth) makes it unlawful to discriminate because of:

• pregnancy;

• potential pregnancy;

• breastfeeding;

• family responsibilities in certain circumstances.

This protection extends across every stage of employment, including:

• recruitment;

• contract renewal;

• promotion;

• training opportunities;

• dismissal; and

• workplace conditions.

One of Australia's leading authorities remains Hickie v Hunt & Hunt [1998] HREOCA 8, where the Human Rights and Equal Opportunity Commission found that decisions disadvantaging a solicitor returning from maternity leave constituted unlawful discrimination. The case remains a significant authority illustrating that seemingly neutral workplace decisions may amount to unlawful discrimination where they disproportionately disadvantage employees because of pregnancy or maternity leave.

Fixed-Term Contracts Do Not Remove Statutory Rights

Many employees mistakenly believe that because they are employed on a fixed-term contract they have fewer workplace protections.

That is incorrect.

Although the contract itself may expire according to its terms, employers cannot make decisions about renewal for reasons prohibited by legislation.

For example, an employer cannot lawfully refuse to renew a contract because an employee:

• became pregnant;

• intends taking parental leave;

• requested flexible work;

• exercised workplace rights;

• made a complaint about discrimination.

Each decision must instead be supported by genuine operational or business reasons.

Employers Must Be Able to Explain Their Decisions

Employers are entitled to restructure workplaces, respond to funding changes and manage operational requirements.

However, where employment decisions coincide with pregnancy or parental leave, transparency becomes particularly important.

Employers should be capable of explaining:

• the operational basis for the decision;

• workforce planning considerations;

• funding arrangements where relevant;

• organisational restructuring;

• objective selection criteria.

Clear documentation often prevents unnecessary disputes.

Returning to Work After Parental Leave

Employees returning from parental leave frequently encounter issues involving:

• altered duties;

• changed reporting arrangements;

• reduced opportunities;

• flexible work requests;

• breastfeeding and expressing facilities;

• workplace restructuring.

The law recognises that returning employees should not be disadvantaged merely because they exercised their entitlement to parental leave.

Flexible Work Requests

Section 65 of the Fair Work Act allows eligible employees to request flexible working arrangements, including where they are:

• pregnant;

• returning from parental leave;

• caring for a young child.

Flexible arrangements may include:

• altered hours;

• hybrid or remote work;

• job sharing;

• compressed working weeks;

• modified start and finish times.

Employers must genuinely consider eligible requests and may refuse only on reasonable business grounds, providing written reasons for any refusal.

Breastfeeding is Also Protected

Returning to work does not end an employee's right to continue breastfeeding.

Employees may require:

• private facilities to express breast milk;

• reasonable breaks;

• hygienic storage facilities; and

• practical workplace adjustments.

Unfavourable treatment because an employee is breastfeeding may also engage protections under discrimination legislation.

Documentation Matters

If concerns arise, employees should retain:

• employment contracts;

• performance reviews;

• emails;

• meeting notes;

• policy documents;

• contract renewal correspondence;

• parental leave approvals.

Contemporaneous documents frequently become important evidence if a dispute later arises.

Ask Questions Before Drawing Conclusions

Not every workplace decision following pregnancy or parental leave is unlawful.

Organisational restructures, genuine redundancy, funding changes and operational requirements may all legitimately affect employment.

However, employees are entitled to ask:

• What business reasons support this decision?

• Has the same approach been applied consistently?

• What objective criteria were used?

• Can the reasons be provided in writing?

Professional dialogue often resolves misunderstandings before disputes escalate.

When Independent Advice May Be Appropriate

Employees should consider obtaining advice where:

• contract renewals appear inconsistent;

• workplace treatment changes significantly after pregnancy is disclosed;

• flexible work requests are refused without adequate explanation;

• duties are substantially reduced;

• adverse action appears linked to parental leave or other workplace rights.

Each matter depends entirely on its own facts and evidence.

Family-Friendly Workplaces Benefit Everyone

Supporting employees through pregnancy and parenthood is more than a legal obligation—it is good organisational practice.

Employers that genuinely support working parents often experience:

• improved staff retention;

• greater employee engagement;

• stronger workplace culture;

• reduced recruitment costs; and

• enhanced organisational reputation.

Transparent decision-making and respectful consultation remain the best way to maintain trust during periods of organisational change.

How MYUNION Can Help

If you are experiencing issues involving pregnancy, parental leave, fixed-term contracts, flexible work arrangements, discrimination or adverse action, MYUNION's Employment and Human Rights Advocates can assist you in understanding your workplace rights and navigating the appropriate employment and human rights processes.

MYUNION – Employment & Human Rights Advocacy

🌐 www.myunion.au📧 gethelp@myunion.au📞 1300 MYUNION

This article provides general information only. It is not legal advice. Every employment matter depends on its own facts, the available evidence and the applicable legislation.