If a pregnant worker wishes to move to a safer role before going on parental leave, are they entitled to keep the same pay? How about the employer’s obligations when no safe work is available?

The Fair Work Commission has ruled against a pregnant train ticket inspector who called foul when she was paid almost $250 less per week after being transferred to a safer job at the company’s CBD location and on a different roster.

The union representing the employee argued that she should have received the same pay on her new roster as she had in her previous role.

But Deputy President Amanda Mansini ruled that due to the employee signalling her “tacit agreement” to work a different number of hours in the new role, her employer was not at fault when paying an amount less than what she received in the original role.

According to Michael Byrnes, Employment Lawyer at Swaab, a case relating to specific provisions in an employer’s enterprise agreement would not normally prove of too high interest – but this decision has an added layer of complexity.

“This case has broader application because it considers the relevant provisions around transfer to an appropriate safe job in the Fair Work Act,” he says. “That’s where the real relevance lies.”

We’ll delve into Byrnes’ advice for HR later, but first let’s deconstruct the details of the case.

Employee earned less when roster changed

The train ticket inspector, who had been employed since 2014, worked a four-week roster rotation, earning $7802 for the cycle.

In late 2020, the employee became pregnant, and in May 2021 met with her employer to discuss transferring to a safer job due to the potential risks involved in continuing in a high-intensity train station work environment while pregnant.

On 16 June, she informed her employer that she wished to be “taken off the tracks” and temporarily moved to a safer role before commencing parental leave, but was told there were no roles available that would allow her to work according to her existing roster.

As a result, on 24 June she was assigned a desk job at the company’s CBD location, earning a gross amount of $6815 for the four-week roster cycle.

Importantly, this was not the first time the employee had become pregnant and was moved to a different role. According to the decision, a similar circumstance occurred in 2019 when the employee “continued to receive her full rate of pay [at] the amount she would have earned had she not been transferred”.

The clause in the employer’s enterprise agreement that was disputed by the union concerned the transfer of a pregnant employee to a new role.

“Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or risks with the work make it inadvisable for the employee to continue work… the Employee will, if the Company deems it practicable, be transferred to a safe job at the rate and on the conditions attached at the employee’s full rate of pay,” states the agreement.

The union argued that this means an employer must pay “the same wages (including shift loadings, monetary allowances and penalty rates) that the employee would have received had she not been transferred to the safe job.”

Mansini favoured the employer’s view and concluded that the employee should be paid her full rate of pay received in her prior role, but that the payment received by the worker might differ based on actual hours worked.

“The total amount of payment in the transferred role will depend on the hours and rosters worked in the transferred role,” she said. “Any difference in hours worked can only occur by agreement with the employee.”

An expert’s advice for HR

The results of the case are a reminder for HR and employees alike of their respective rights and responsibilities in such a scenario, says Byrnes.

“The case reinforces the idea that it doesn’t necessarily mean that, in an appropriate safe job, the employee is going to receive exactly the same take-home pay that they received in their normal role,” he says.

“They have to be paid the same full rate of pay – but the hours might be different.”

Although it is not mandated, the alternative role would ideally offer the same number of hours to avoid needing to seek the employee’s agreement to those varied hours, he says. Indeed, there is a clear incentive for employers to find appropriate alternative employment for the worker in question.

If, for example, there is no safe job available for a pregnant worker, they can elect to go on ‘no safe job leave‘, which provides them their base rate of pay for the ordinary hours they would usually work – at the cost of the employer.

“That incentive is built into the provisions for the employer to identify an alternative safe job so the employee can still perform their duties and contribute,” says Byrnes.

From a productivity perspective, not only does the employer continue to have a fit-to-work employee producing work, it also avoids having to recruit someone new or reallocate duties to other employees.

When it comes to managing the transfer of an employee, Byrnes advises employers to stay conscious of their obligations under the Fair Work Act.

“Be open to the idea of the appropriate safe job potentially having different ordinary hours,” he says. “If it does, however, it is imperative that the employee’s agreement to those varied ordinary hours be obtained.”

Ideally, such an agreement should be in written form.

And don’t forget why the arrangement has been brought about in the first place, he says. 

“It’s important for the employer to engage with any medical evidence that’s presented by the employee in relation to either a specific illness or condition, or the risks that arise from the performance of duties in their usual role, as a result of the pregnancy,” says Byrnes.

But what if an employee refuses to agree to a change in hours as part of a new role?

“Employers have two options,” says Byrnes. “First, vary the hours of the safe job so those hours match the hours of the employee’s usual job, and then it will be considered an appropriate safe job without the need for the employee’s agreement to varied hours.

“Second, if an appropriate safe job cannot be found or created, then the employee will have a right to go on ‘no safe job leave’ at the base rate on the employee’s ordinary hours.”

The end result? An employee who remains satisfied due to being paid their usual rate, and an employer who can continue supporting its workforce to produce quality work.

Images does not depict the employee in this case.

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