Australia: Parental leave — Important responsibilities as an employer

Last Updated: 16 September 2019
Article by Mark Cox and Gemma Little

Key parental leave employer obligations explained

An employee has requested to work on a part-time basis on return from parental leave. Or a workplace change has resulted in an employee's position being removed while they are on parental leave. As an employer, what are your obligations? This article outlines the key obligations an employer has while an employee is on, and when they return from, parental leave.

WORKPLACE CHANGES DURING PARENTAL LEAVE

If, while an employee is on parental leave, you make a decision that will have a significant effect on the employee's pre-parental leave position (for example, on the status, pay or location of the position), then you must give the employee information about and an opportunity to discuss the effect of the decision.

This usually involves advising the employee of the decision in writing and offering them the opportunity to discuss this over the phone or in person.

It is important to note that all modern awards require employers to consult with employees about major workplace changes, such as restructures and redundancies—parental leave does not alter or remove these employer obligations.

RETURN TO WORK GUARANTEE AND EMPLOYER OBLIGATIONS

On completing a period of parental leave, an employee is entitled to return to their pre-parental leave position. If that position no longer exists, then the employee is entitled to return to an available position for which they are qualified and suited, and that is nearest in status and pay to the pre-parental leave position.

If there is no available position to offer the employee, then they may be terminated on the ground of redundancy.

REQUESTED CHANGE IN WORKING ARRANGEMENTS

Where an employee is returning from parental leave, they may request a change in working arrangements due to new family responsibilities. This may involve a request to work on a part-time or casual basis, start or finish at different time to accommodate child care, or to undertake some work from home. This is known as a 'flexible work arrangement'.

To be eligible to request a flexible working arrangement:

  • a permanent employee must have completed at least 12 months of service with the employer before the employee commenced unpaid parental leave; and
  • a casual employee must have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment.

The employee must set out the details of the change and the reasons for the change in writing. As an employer, you must respond to the employee's request in writing within 21 days.

As an employer, you do not have to agree to the employee's request. However, you may only refuse the request on reasonable business grounds, which could include the requested working arrangements:

  • requiring impracticable changes to the working arrangements of other employees or recruitment of new employees;
  • resulting in a significant loss in efficiency or productivity; or
  • having a significant negative impact on customer service.

If you refuse the request, the written response must include details of the reasons for the refusal.

It is important to check whether any applicable modern award provides for further parental leave employer obligations. For example, some awards require employers and employees to discuss the request and genuinely try to reach an agreement on a change in working arrangements that will reasonably accommodate the employee's circumstances, even if the change is different to that initially requested by the employee.

THE IMPORTANCE OF APPROACH

You must not treat an employee adversely or prejudice them in their employment because they are or were on parental leave, have family responsibilities or have requested (or may request) a change in working arrangements. These factors are protected under both the Fair Work Act 2009 (Cth) and anti-discrimination legislation and doing so could give rise to legal claims.

You can further mitigate the risk of legal claims by addressing the circumstances in an empathetic and personal manner, particularly when delivering unfavourable news. Even where an employer has acted lawfully, an aggrieved employee may be prompted to commence a legal claim. Demonstrating empathy and dealing with employee queries promptly and directly is likely to minimise the grievance experienced by the employee and could avoid the cost of having to defend a legal claim.

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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