Andrew Tobin - Special Counsel - Workplace Relations
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 'meaningful' way.
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' parental leave;
- The right of parents with children under school age to request 'flexible working arrangements' and;
- The right of parents on parental leave to be consulted about workplace changes that will affect their substantive position.
Some employees already have these rights, or similar rights, under existing industrial arrangements or anti-discrimination legislation. Contact us for further information.
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