11.2.17

Cricket Australia's Pregnancy Clause v Netball Australia's Pregnancy Policy

Image source: nritribune

Prior to Christmas 2016, it was heavily reported that Cricket Australia was coming under fire as a result of a 'pregnancy clause' requiring elite female cricketers to confirm that they were not pregnant, upon signing a contract with the governing body. The clause is now being investigated by Australia's Fair Work Ombudsman and negotiations are also reported to be underway between the Australian Cricketers Association and Cricket Australia, with female player involvement.

What is the pregnancy clause?

 

The relevant clause can be found under section 8.3 of the employment contract and reads:

"The player warrants 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 Cricket Australia medical officer (or such other appropriate representative of Cricket Australia or other person designated by Cricket Australia) as soon as reasonably practicable."

What is the problem?

 

Employment law in Australia (and the UK) states that employers cannot discriminate, either directly or indirectly, on the grounds of pregnancy, or on the basis of sex, and any attempt to do so is thus unlawful.  

The pregnancy clause requires a female player to confirm that she is not pregnant, at the time of signing the contract. It is unclear as to what the ramifications would be if a player advised that they were pregnant at the time of signing the contract, but Cricket Australia maintains that a player being pregnant, at the time of signing, would not influence its decision on whether a contract was offered or not. Yet it is difficult to see why such a pregnancy clause, as worded above, is required if that is the case.  Perhaps changing the wording of the clause to require players to notify the medical officer of any 'condition' they may develop, during the length of their contract, and that may affect their health during physical activity, would be more appropriate. This would thus cover male and female players and not discriminate against pregnant players or females in general.

Additionally, the clause has also received intense criticism with the suggestion that the governing body may be trying to avoid paying out on maternity leave - this is a position that has been voiced by advocacy group, Women Sport Australia.

 

Cricket Australia's justification for the clause

 

In defending the clause, Cricket Australia has stressed that it is a duty of care issue and the safety of players is their utmost priority:

"We are committed to providing a safe environment for all cricket players (including pregnant players) and all other cricket participants. We are well aware of and abide by Federal, State and Territory legislation which makes it unlawful to discriminate against a player on the basis of pregnancy or potential pregnancy. Any player who becomes pregnant is encouraged to make her own decision on whether or not to continue playing cricket in consultation with her medical advisers. Our only interest in whether one of our women players is pregnant is to ensure the health of her and her baby"

This is a position that has been shared by Ellyse Perry, All-Rounder for the Australian national team. Perry has praised the governing body for its commitment to women, in cricket, at all levels and has claimed that the pregnancy clause issue, in her opinion, has become 'overblown':

"The clause is in there and it is probably poorly worded but there's really not an issue in terms of the support we get from Cricket Australia. I think they've been wonderful and they're setting the standard  for women's sport in this country."

Is such a clause required to protect players? - A look at Netball Australia's Pregnancy Policy

 

Image source: Netball Australia

In 2003, Netball Australia was ordered to pay a netball player $6750 in damages for discrimination after she was banned, by the governing body, from playing whilst pregnant. Netball Australia had excluded pregnant players for fear of being sued as a result of injuries to either the pregnant player or her unborn child - this is a similar health & safety argument that Cricket Australia has cited in support of the pregnancy clause. The Federal Magistrates Court found Netball Australia had discriminated against the player when it forced her onto the sideline. 

Following the action, the Federal Government introduced guidelines to ensure that women could continue to participate in sport, whilst pregnant, and implemented legal disclaimers for pregnant players to sign to confirm that they wish to continue to play - NB: the disclaimer is very much different from a contractual clause that requires you to confirm that you are not pregnant, upon signing a contract.

Netball Australia learned the hard way but they are perhaps the best body to look at when considering how best to safeguard pregnancy in sport and ensure continued participation, where requested, whilst looking after both mum and baby. 

Netball Australia has now implemented its own 'Pregnancy in Netball' policy which encourages the continued participation in netball and recognises the positive outcome from continuing physical sport, both during and after pregnancy. The guidelines apply to players, umpires, coaches, match officials and other participants. 

It recognises that the decision to participate, or not as the case may be, lies solely with the player on the guidance of their medical practitioner. The policy stresses that the safety of the player and unborn child are of the utmost importance and puts in place protocols and procedures for clubs to follow when they have a pregnant player who wishes to continue participating.

Conclusion

 

As it stands, there have been no reports that Cricket Australia have actually barred any pregnant woman from signing a contract, on the grounds of pregnancy, and it may be the case that the clause is simply poorly worded. Given Netball Australia's experiences it is clear, however, that such discrimination can be an expensive lesson. Cricket Australia should look to Netball Australia and their approach to the participation of pregnant players in sport and perhaps adopt a similar course to Netball's pregnancy policy.

 IMPORTANT: This post is not intended to be a legal briefing, it is not intended to be a statement of the law and no action should be taken in reliance on it without specific legal advice.

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