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 their businesses.

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 situation.

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 unnecessary.

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 without.