Employment lawyer Emily Lupo regularly meets women who’ve been discriminated against because they’re pregnant . Below, she looks at Cricket Australia’s pregnancy clause, and its impact on other workplaces.
Criticism of Cricket Australia for recently asking female cricketers to declare they are not pregnant when signing their employment contracts has been justified as a genuine health and safety concern.
Yet it’s hard to understand how this does anything more than perpetuate long-outdated misconceptions that pregnancy is an illness and that it is unsafe for expectant mums to play sport.
It is unlawful to discriminate against a women because she is (or because she may become) pregnant. As an employment lawyer, I regularly meet women who are discriminated against because of pregnancy.
The controversial clause contained in both the Cricket Australia and Women’s Big Bash League contracts reads:
8.3 Notification of Pregnancy:
The Player warrants that that, to the best of her knowledge, she is not pregnant as at the date of signing this Contract and undertakes that upon becoming aware that she is pregnant, she will notify the details of the pregnancy (in writing, where practicable) to the CA medical officer (or such other appropriate representative of CA or other person designated by CA) as soon as reasonably practicable. The CA medical officer will not disclose the information to any person prior to the conclusion of 12 weeks pregnancy unless the Player consents to such disclosure.
This clause means that a player who is pregnant and offered employment must either lie by stating she is not pregnant, or disclose her pregnancy to her employer and attempt to negotiate an amended contract.
Lying will inevitably lead to an employment relationship that lacks trust and confidence. In any event, such a lie could later be relied upon by Cricket Australia as a reason to dismiss a player.
The Health & Safety Justification & the Law
Cricket Australia chief executive James Sutherland has defended the inclusion of the pregnancy clause saying that “it’s a health and safety issue” and that the intention is to keep “the health and safety of women, and their babies, first and foremost”.
In Victoria, employers have obligations under the Occupational Health and Safety Act to provide a safe workplace for their staff. As such, there will be some instances in which an employer will be justified to ask questions about matters that relate to workers’ health and safety. But this is not one of those instances.
It is not always unsafe to have a pregnant women playing cricket. With respect to those who believe otherwise, and there has been plenty of discussion about this on social media, only qualified medical practitioners are in a position to assess the risks – if any – to the mother and child in question. Similarly, they are the only ones qualified to provide advice on the action that can be taken to minimise those risks.
Of course, the opinion of medical practitioners will vary depending on the patient and the circumstances so it’s unreasonable to suggest it will always be unsafe for a pregnant woman to play cricket.
It is also concerning that Cricket Australia requires players to declare that they are not pregnant at the time of signing the contract. All this does is suggest that Cricket Australia is making employment conditional upon whether a player is not pregnant.
No legislation exists in Australia requiring an employee to disclose their pregnancy to a potential employer. To the contrary, it is unlawful for an employer to decide not to offer employment to a woman because she is, or may become, pregnant. It is also unlawful to ask a woman if she is pregnant during pre-employment discussions if that information is requested for the purposes of determining whether or not to offer her a job.
The cost of pregnancy discrimination
In reality, there is significant cost, stress and time involved in holding employers to account for discriminatory conduct. This is why many victims choose not to take action and simply live with the injustice they have suffered.
In the present case, the players who will be affected by the discrimination will be particularly vulnerable – pregnant women who work in a small industry in a male dominated sport.
In reality, to take legal action against the governing body, Cricket Australia, for discrimination would probably be career-ending. As we await the outcome of a Fair Work Ombudsman’s review of the pregnancy clause in players’ contracts, the support of the public and the Australian Cricketers Association is crucial for taking a stand against the league. This will also help the players send a clear message that the clause needs to be runout, clean bowled and retired. Over.