Andrew Tobin - Special Counsel - Workplace
As a footnote to the Hopgood Ganim seminar held earlier this
month about 'accommodating family
responsibilities' in the workplace, on 21 May the Full
Federal Court upheld an earlier decision of the Federal
Magistrates Court, fining an employer $33,000 for breaching the
parental leave provisions of the Workplace Relations Act. The
fine was the maximum available under the legislation.
Participants in our family responsibilities seminar will
recall that one of the risks we spoke of, associated with
'mishandling' employees with family
responsibility issues, was the risk of prosecution for a civil
penalty under the Workplace Relations Act.
That risk crystallised for Sterling Commerce (Australia) Pty
Ltd, which was found by the Federal Court, and the Federal
Magistrates Court before it, to have refused a new mother her
right to return to any position with the company following her
completion of a period of parental leave. The company tried to
justify its position upon the basis that the employee's
position had become redundant while she was on leave, but the
Court found that that proposition was a sham. Instead, their
agenda was simply to replace the employee, on a permanent
basis, with another employee engaged originally to cover the
maternity leave period.
The employer appealed the original decision upon several
bases, including that the penalty imposed was manifestly
excessive. The Federal Court rejected this. Justice Michelle
Gordon determined that the $33,000 penalty was appropriate in
all of the circumstances, which included a deliberate course of
conduct by the company's senior management to seek to
avoid their statutory obligations to the returning employee.
She found that the company deserved to be penalised in a
Lessons for Employers
Obvious, aren't they?
Employer's obligations to employees with family
responsibilities are significant, and will become increasingly
so under the Labor Government once their National Employment
Standards take effect in January 2010. Additions to the safety
net will include:
The right of parents to request up to 2 years'
The right of parents with children under school age to
request 'flexible working arrangements'
The right of parents on parental leave to be consulted
about workplace changes that will affect their substantive
Some employees already have these rights, or similar rights,
under existing industrial arrangements or anti-discrimination
legislation. Contact us for further information.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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