The Fair Work Ombudsman (FWO) 2012-13 annual report
reveals that pregnancy discrimination topped the list of
discrimination complaints for the first time. The majority of
complaints have previously related to physical or mental
The FWO report is timely. The new "family-friendly
measures" which were introduced as part of the recent
amendments to the Fair Work Act took effect on 1 July 2013. See our
Those measures include an express right for parents returning
from leave in relation to the birth or adoption of a child to
request part-time employment. Significantly the right is to make
the request; falling short of an actual right to part-time
employment. That said, the "right to request" is a step
towards acknowledging the realities of balancing work and family
While employers are not obliged to grant the request, any
refusal must be based on "reasonable business grounds".
These can include whether the new working arrangement would be too
costly and whether it would be impractical to change the
arrangements of other employees to accommodate the new working
An employer is required to provide its reasons for refusing a
request in writing. Therefore careful consideration ought be had to
whether a part-time arrangement can in fact be accommodated before
putting pen to paper. Any such document would likely serve as a
potent tool for an employee complaining to the FWO or otherwise
bringing a discrimination claim.
The FWO's report suggests that employers are either unaware
of, or are disregarding, their obligations when considering a
request for part-time employment. But employers ought beware.
Penalties for breaching the Fair Work Act go up to $51,000 for
corporations, and $10,200 for individuals involved in a breach.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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