By the Carroll & O'Dea Employment and Industrial Relations Group

TABLE OF CONTENTS Overview – Part 1
Who is entitled to parental leave?Part 2
How much parental leave can be taken? Part 2
What is the process for claiming parental leave? Part 3
How can an employee take up to two years leave? Part 3
What about Dad? Part 4
Are employees entitled to paid parental leave? Part 4
Are there special requirements when hiring replacement staff? Part 5
What happens when an employee returns to work? Part 5
What if there is a dispute? Part 6
Where can I get more information? Part 6

WHAT IF THERE IS A DISPUTE ?

Employees who believe that they have been discriminated against by their employers in connection with parental leave or requests for flexible working arrangements may be able to seek legal redress through relevant anti-discrimination legislation. A complaint may be made to the Fair Work Ombudsman, or the employee could commence court proceedings in relation to the discrimination suffered using the 'adverse action' provisions under the Fair Work Act.

Employers are prohibited from discriminating against employees for reasons which include: sex; marital status; family or carer's responsibilities; and pregnancy. Discriminatory action taken against an employee may include: dismissing the employee; injuring the employee in his or her employment; altering the position of the employee to the employee's prejudice; or discriminating between the employee and other employees.

Employers should exercise caution when handling applications for parental leave and requests for flexible working arrangements to ensure that they do not unlawfully discriminate against their employees.

WHERE CAN I GET MORE INFORMATION?

Further information can be obtained from a number of different sources including:

Carroll and O'Dea's Employment and Industrial Relations team can also assist. We have published numerous articles on workplace issues, of which the following are recent examples:

  • "Modern Awards – Mission accomplished? ... Not yet!", by Michelle Wright, June 2010;
  • "'Workplace rights' and 'adverse action' – Fear of the unknown or simply not yet known?", by Claire Bateman, May 2010;

These articles and more are all available from our website: www.codea.com.au

We also invite you to contact our team for any specific advice on any aspect of the Fair Work Act or other employment-related issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.