Ongoing employment – Recruitment and related issues

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Frequently Asked Questions

5. Are there any special legislative requirements covering selection of staff on, or anticipating, maternity leave?

While the availability of a person is a matter that can be taken into account in selection decisions under the Act (section 10(2)), the provisions of the Maternity Leave (Commonwealth Employees) Act 1973 and the Sex Discrimination Act 1984 require that decisions that disadvantage pregnant women or women on maternity leave need to be justifiable on the grounds of reasonableness.

The question of reasonableness will depend on the particular circumstances relating to the employment decision.

It would be difficult for an Agency Head to successfully contend that it was 'reasonable' to deny a woman applicant an engagement, movement, assignment of duties at level or promotion on the ground that she was not immediately available to commence work because she was on maternity leave. The woman would suffer significant disadvantage in the circumstances, while it would be possible to overcome or mitigate that disadvantage by assigning another person the duties pending the availability of the woman. The length of time before an applicant completes her maternity leave, however, would be a factor in deciding the reasonableness of denying her the engagement, movement, assignment of duties or promotion.

An Agency Head must also consider the question of reasonableness in making a decision about temporary assignment of duties. Excluding a woman who is pregnant from a temporary assignment that extends into her period of maternity leave, or becomes available when she is on maternity leave, might be justified if it was essential that the same employee perform the duties for the entire period of the temporary assignment. It would be difficult to justify excluding the woman if the duties could be performed by the woman until she commences maternity leave and by another employee for the remainder of the assignment.