Australia: Working parents: Understanding the discrimination and supporting their entitlements

The Australian Human Rights Commission has recently released a report into workplace discrimination related to pregnancy, parental leave and associated return to work. The report, Supporting Working Parents, details findings of a comprehensive national review that looked into the experiences of employees and employers.

The review was the first of its kind in 15 years and sadly illustrated the prevalence of discrimination in the workplace due to pregnancy and parental responsibilities. The review confirmed that:

  • one in two mothers and one in four fathers reported experiencing discrimination, and
  • only one in 10 of the individuals affected by this discrimination made a formal complaint (either within their organisation or to an external body).

The review said the discrimination against working parents ranged from negative attitudes through to dismissal, and has enduring consequences for the physical and mental health of these employees, their career, their financial situations and their families. It said the discrimination resulted in higher absenteeism, lower productivity, higher staff turnover, recruitment and training costs as well as potential reputational damage.

The review attributed the discrimination to a lack of understanding of legal requirements and entitlements. While it is generally known that you can't discriminate on the basis of pregnancy or parental responsibilities, many are unaware of the specific protections afforded under the Fair Work Act 2009 (Cth).

Relevant provisions

The Fair Work Act contains the minimum entitlements that apply to all employees, known as the National Employment Standards (NES). Parental leave and related entitlements make up a big part of the NES. These include:

  • Transfer to a safe job or no safe job leave—If a pregnant employee is fit for work but provides reasonable evidence that it is inadvisable for her to continue in her present position due to illness or risks of harm arising out of pregnancy and/or her position, then the employer must transfer them to a safe job with no other change to their conditions of employment (including remuneration). If this cannot be accommodated, the employee is entitled to "no safe job leave" (paid or unpaid).
  • Unpaid parental leave—An employee (who has at least 12 months service) is entitled to 12 months unpaid parental leave if associated with the birth of a child or a child adoption and the employee will have responsibility for the care of the child. This leave may commence up to six weeks before the expected date of birth (or earlier by agreement) and is to be taken as a continuous period. Employees may also request a further 12 month period of unpaid parental leave (cumulative total to 24 months) and may also access paid leave entitlements (such as government paid parental, annual and long service leave) during this period.
  • Keeping in touch days—An employee on parental leave is entitled to request and utilise up to 10 "keeping in touch" (KIT) days. As the name suggests, these days are to help employees to keep in touch with their employment during parental leave to facilitate their eventual return to work. KIT days do not break the continuity of a period of parental leave and employees using them are to be paid their ordinary pay.
  • Consultation—Employers have a positive obligation to take reasonable steps to give employees on parental leave information and the opportunity to discuss the effects of any significant changes to the status, pay or location of the employee's position.
  • Return to work guarantee and temporary appointment—An employee on parental leave is entitled to return to their pre-leave position. An employer has a reciprocal obligation to notify the replacement employee that their engagement is temporary and that the absent employee is entitled to return to their role.
The review said the discrimination against working parents ranged from negative attitudes through to dismissal, and has enduring consequences for the physical and mental health of these employees, their career, their financial situations and their families.
  • Request flexible work arrangements—An employee who is a parent, or person who has responsibility for a school aged child, is entitled to request flexible work arrangements (such as flexible hours, patterns or location of work). Employers can only refuse these requests on reasonable business grounds.

Non-compliance with these provisions can result in litigation and enforcement proceedings. These actions may be pursued against the employing entity and any individuals involved. There is also a risk of penalties of up to $51,000 per breach, as well as orders for damages. To date, the financial orders made in these types of matters have been relatively modest. However, given the prevalence of these issues, we anticipate that these will increase in future cases.

What does this mean for employers?

Employers need to be aware of their obligations and the entitlements of working parents to facilitate a supportive and inclusive workplace.

It is crucial that employers implement appropriate policies and run adequate training and education programs that provide employees with practical guidelines on their obligations and entitlements.

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.

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