The National Employments Standards (NES) of the Fair Work Act 2009 (Cth) provide for a pregnant employee to be entitled to transfer to a safe job or take paid no safe job leave.

What is a safe job?

A pregnant employee is entitled to transfer to a safe job when:

• the employee gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (risk period) because of illness or risks arising out of her pregnancy, or hazards connected with that position; and
• the employer has an appropriate safe job available, either with the same ordinary hours of work as the employee’s present position or a different number of ordinary hours agreed to by the employee.

In these circumstances, the employer must transfer the employee to that job for the risk period, with no other change to her terms and conditions of employment. The employee must be paid at her full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

What is no safe job leave?

Where there is no appropriate safe job available, the employer must give the employee paid no safe job leave during the risk period. The leave is paid at the employee’s base rate of pay for ordinary hours of work.

Case law

In ARTBU v Metro Trains (2022), the Fair Work Commission (FWC) was required to deal with a dispute about the operation of an enterprise agreement provision dealing with safe jobs for pregnant employees.

The enterprise agreement made provision for transfer to a safe job in different terms to the NES. It provided that the employer will, if it deems it practicable, transfer the employee to a safe job at the rate and on the conditions attached at the employee’s full rate of pay prior to the transfer until the commencement of parental leave. The unions argued this required the employer provide an employee who has been transferred to a safe job with the same number of ordinary hours of work at the same times as the employee’s pre-transfer position, unless the employee agreed to a different number of ordinary hours.

A term of an enterprise agreement has no effect to the extent that it contravenes the NES. Enterprise agreements often contain an NES precedence provision in such terms that effectively guarantees that there shall be no inadvertent or unintended exclusion of the NES, even where an enterprise agreement deals with the same subject matter.

In this case, the unions relied heavily on the NES precedence provision in the enterprise agreement, which also provided that it was to be read and interpreted in conjunction with the NES, and where there is an inconsistency between the agreement and the NES, and the NES provides a greater benefit, the NES provision will apply. Further, the agreement stated that nothing in it is intended to provide for an entitlement that is less than the NES.

The FWC disagreed with the union’s argument and ruled that, because the enterprise agreement provision had the potential to contravene the NES, it should be disregarded. The FWC interpreted the NES provision as not requiring the employer to pay the employee the same take-home pay in the safe job. Rather, the employee was entitled to their pre-transfer full rate of pay (including relevant loadings, penalties and allowances) for the hours the employee works in the post-transfer role but overall pay depended on the hours and rosters worked in the transferred role.