Can My Employer Change My Role After I Return From Parental Leave?

Returning to work after parental leave is a significant transition and can raise complex legal and practical issues such as job security, flexibility, workplace rights, etc., for both employees and employers. Australian law provides strong protections around return to work rights, but it also recognises that businesses may undergo operational changes while an employee is away. It is important to understand how these rights and obligations intersect as this can help prevent disputes and ensure a smoother return to work.

Below are common questions employees and employers ask when navigating role changes after parental leave.

Am I entitled to return to my pre-parental leave role?

In most cases, yes. If you were entitled to parental leave under the Fair Work Act, you generally have the right to return to the position you held before going on leave. This “return to work” guarantee applies even where a replacement employee was engaged during your absence. Employers must plan workforce arrangements with this obligation in mind.

However, if that exact role no longer exists, the employer must offer an available position for which the employee is qualified and suited. The role should be comparable with their previous role, both in pay and status. This will need to be analysed in the context of the employer’s operations. A role may become redundant during an employee’s parental leave. An employer would need to show that the redundancy is genuine. 

Can my employer change my duties, reporting line or responsibilities?

Significant changes to duties, seniority or reporting lines or the level of responsibility may be unlawful, particularly if they result in a role of lower status or reduced responsibility and if any consultation requirements under an applicable Award or enterprise agreement were not met. Employers should consult with employees about workplace changes and must ensure that any changes (or adverse impacts for the employee) are not connected to the employee having taken parental leave. 

Important Note: Employers should assess whether any such changes expose the business to adverse action or discrimination claims.

What happens if my job genuinely no longer exists?

If a role has been made redundant or restructured during parental leave, the employer must still consider whether there is another suitable position available, where this is required under an applicable industrial instrument. In most cases, an industrial instrument such as an Award or enterprise agreement will impose obligations to take steps to redeploy the employee to a suitable role. 

Can I request flexible or part-time work when I return?

Eligible employees with at least 12 months of continuous service who have responsibility for the care of a child of school age or younger may request flexible working arrangements, including part-time work, job sharing, changed start and finish times, compressed weeks or working from home. 

Please Note: Such requests must be made in writing and employers must respond in writing within 21 days.

Can my employer refuse my flexible work request?

Yes, provided there are reasonable business grounds for refusal like excessive cost, lack of capacity to adjust other staff members’ arrangements, difficulty recruiting additional employees, impracticality or a significant impact on productivity or customer service.

Word of advice: Employers must balance operational needs with their legal obligations, including employment law and anti-discrimination laws.

Does a replacement employee affect my right to return?

No, replacement employees must be given the parental leave role on a temporary, fixed or maximum-term basis, with clear notice that the employee on parental leave has the right to return to their original role (or a suitable alternative).

Word of caution for employers: Employers remain responsible for managing overlapping roles lawfully once the employee returns. Further, replacement staff should be informed that the position is not permanent.

Am I protected from discrimination when I return from parental leave?

Employees are protected from less favourable treatment because of pregnancy, gender or family responsibilities. Less favourable treatment connected to parental leave may raise issues under federal or state anti-discrimination laws and adverse action claims in addition to workplace laws.

Do I have rights relating to breastfeeding or expressing at work?

Yes, breastfeeding is protected under discrimination law. Employers should provide appropriate facilities and ensure workplace conditions meet health and safety obligations. Areas to enable breastfeeding will reasonably need to offer privacy for feeding or expressing milk, storage of expressed milk and be both physically and psychosocially safe. To be clear, toilet facilities would generally not be considered suitable spaces. 

Did you know? Failing to do so may expose employers to discrimination or work health and safety-related claims.

What if a dispute arises about my role or treatment after I return?

Disputes can arise when role changes, flexibility is refused, restructures are poorly handled, or communication breaks down. Such matters may progress to mediation, the Fair Work Commission or court proceedings. 

Please Note: Proper discussions, seeking expert legal advice early, clear documentation and proactive dispute management are important in reducing legal risk and avoiding escalation to formal proceedings.

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.