The ACTU's proposal for enhanced rights for parents
returning to work after parental leave may be a laudable attempt to
boost female participation in the workplace, but it would set the
bar very high for employers and have a disproportionate impact on
As part of the current modern award review the ACTU is seeking,
via a claim with the Fair Work Commission, a variation to all 122
modern awards to give employees the automatic right to return to
work after parental leave on a part-time or flexible basis.
Under the proposed amendments, an employer can only refuse a
request if there are "substantial countervailing business
grounds" to do so or if the employee's pre-parental leave
position no longer exists. Absent those business grounds, the
employee must be offered an equivalent position on the reduced
hours. The changes give the unions the right, at an employee's
election, to discuss any request with the employer directly.
They give employees the unilateral right to return to work
full-time or part-time, at their choice, and if part-time, to
revert to their full-time pre-leave position two years after the
birth, by giving notice to the employer. This could make it
difficult for an employer to manage its workforce.
The practical implications and flow-on effects are significant.
The employee's unfettered right to revert to the original role
would make it very difficult for the employer to fill the portion
of the position that the employee returning part-time was not
actually performing. By electing to revert to a full-time position,
the returning employee could well be relieving any temporary
job-sharer from their job, potentially giving rise to a redundancy
The impact on employers of the proposed variations should not be
underestimated. In circumstances where the legislative framework
already provides significant protections to employees returning to
work after parental leave, the additional burdens on employers are
Employees on parental leave have a guaranteed right to return to
their former position at the end of the leave. The Fair Work Act
gives most Australian employees the right to request flexible
working on their return from parental leave. In fact, that request
can be made at any time by any parent of a child under 18, whether
or not they are the primary carer. Employers can only refuse a
request on reasonable business grounds.
The refusal cannot be reviewed by the Fair Work Commission.
However, if an employee is dissatisfied with the response, they may
have redress under federal or state discrimination legislation.
Unreasonably requiring an employee to work full-time could
constitute unlawful discrimination on the grounds of carer's
responsibilities or sex, giving rise to, amongst other things,
damages. Discrimination on the grounds of carer's
responsibilities could also lead to a claim under the general
protections provisions of the Fair Work Act.
Many employers have policies and practices to support and
encourage a successful return to work by parents, and there are
clear benefits in doing so. I work flexibly, as do the majority of
the lawyers in my immediate team, and that flexibility is
invaluable. But another layer of regulation in an already
heavily-regulated environment is a burden employers can do
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3.Courts are imposing larger fines and compensation for non-economic loss for contraventions of the Fair Work Act.
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