Returning to work after parental leave – rights and obligations – a snap shot

Posted on Sep 25, 2017 by Rebecca McKenzie   |   Categories: Employment Law

Workforce participation and raising children are two very significant and crucial things that a lot of us do, so it’s important to know there are laws in place to help the two ‘jobs’ co-exist.

Employees and employers have rights and responsibilities relating to pregnancy, parental leave and return to work under several different pieces of both Commonwealth and State legislation, including the Fair Work Act 2009 (Cth), the Sex Discrimination 1984 (Cth) (and State and Territory anti-discrimination laws) and various work, health and safety (WH&S) laws.

Under the Fair Work Act, employees with at least 12 months continuous service with their employer immediately before the birth or expected birth of their child are entitled to take 12 months of unpaid leave, provided they are responsible for the care of the child. This right applies to both the pregnant employee and the spouse or partner of a pregnant woman. In one form or another, these laws have been around for many years and are well-known. But what happens in relation to the return to work? There’s a guarantee for that.

So what is this guarantee? It is simply that – a guarantee under the Fair Work Act for the worker to return to the pre-parental leave position. If the job no longer exists within the organisation, then the worker is entitled to what is called an ‘available position’, in terms of being suitably qualified and nearest in pay and status to the previous position.

Sometimes though, it’s not so simple, and there have been many cases relating to parents returning from leave to be told they’ve been made redundant due to a re-structure of the business. If this happens, questions can arise as to whether the redundancy was a genuine one and employers can leave themselves open to legal claims relating to ‘adverse action’ and a breach of a ‘workplace right’. These types of claims can be very costly to a business, so the return to work needs to be managed very carefully to ensure the best possible outcome.

Workers returning to work have the benefit of other legal protections, with the Fair Work Act allowing parents or carers of a child who is school-age or younger to request flexible working arrangements. Some examples are a request to work part-time instead of full-time and changing the start and finish times of work, or even working from home. Or people get even more creative than that, and negotiate job-shares, compressed working weeks or 9 day fortnights. It’s really a matter of working out what works for all parties involved, and coming to an agreement.

If a request for part-time work is made, employers must consider it but it can be refused on ‘reasonable business grounds’, and many factors can be considered, like costs to the employer and the capacity of other workers, and the impact on the business as a whole.

So what about ‘replacement employees’? In hiring replacement employees, the new worker must be notified that the role is temporary and that the employee on leave has the right to have their job back.

Another thing for employers to keep in mind, is that they must consult with a worker who is on parental leave if there is going to be a significant change to their pre-parental leave position. This could involve a change in status, pay or location or a business restructure that may result in redundancy.

Unfortunately, discrimination can occur but there are legal protections in place to assist workers making that transition back in to the workplace. It’s against the law to treat a person unfairly because they are pregnant, are breastfeeding or have family responsibilities. This can be in terms of giving a worker lesser status or fewer responsibilities, just because they are a working parent.

Something that many employees may not know is that they are required to comply with notice provisions within the Fair Work Act. An employee must give his or her employer written notice of the taking of unpaid parental leave generally at least 10 weeks before starting the leave (exceptions apply). The notice must specify the intended start and end dates of the leave. In addition, at least 4 weeks before the intended start date specified in the written notice, the employee must confirm the intended start and end dates of the leave or advise the employer of any changes to the intended start and end dates of the leave. The Fair Work Act stipulates that an employee is not entitled to take unpaid parental leave under the Act unless the employee complies with the notice provision.

Here are some key points for businesses and employers to consider:-

• Become familiar with the rights and obligations and try to view parental leave and return to work as a normal and necessary part of life, rather than a hindrance.

• Have written policies and procedures in place to manage ‘return to work’ and ‘replacement’ staff – this is important from the point of view of streamlining processes and also ensuring that staff are treated the same.

• Have ‘keeping in touch’ days with workers on leave, to keep them in the loop with what’s happening in the workplace.

• And finally, employers with staff on parental leave must tread carefully when restructuring their business so as to not fall foul of the return to work provisions and redundancy laws.