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Returning to work after parental leave? Here are five things you should know

in Workplace Law by Kathryn Presdee on

Returning to work after parental leave can be a daunting time for parents.

Will I face discrimination? Can I work part-time? How can I balance my work and family life? These are just some of the questions mums and dads raise when considering the difficult transition back to work. So if you’re a new parent returning to work after parental leave, here’s five things you should know.

1) You have the right to return to work

The Fair Work Act guarantees anyone the right to return to work immediately after parental leave. This guarantee under the National Employment Standards entitles parents to return to their pre-parental leave position, or, if that positions no longer exists, an available position they are qualified and suited to which is nearest in status and pay to your pre-parental leave position.

2) You are entitled to request flexible work

The Fair Work Act entitles any parent or carer of a child who is of school age or younger to request flexible working arrangements; including working part time. The employer must seriously consider the request, but they may refuse on reasonable business grounds including consideration given to costs, impact on other staff, productivity or efficiency, or impacts on customer service. If the request is refused, reasons must be provided in writing.

However there is no automatic remedy available if the employer does not comply with this section of the Act.

3) You may have extra rights

You may have other rights under your respective award, agreement or employment contract.  For example, you may have the right to be consulted if changes are made to your position while you are on parental leave.  You may also have the right to use a formal dispute settlement process, including going to the Fair Work Commission, if there are difficulties in resolving return to work issues.

4) You are protected against discrimination

State and Commonwealth anti-discrimination regimes also provide some protection for pregnant women or women returning to work after pregnancy. For example, the Sex Discrimination Act 1984 (a Federal law) makes it against the law to treat a person unfairly because they are pregnant, breastfeeding, or have family responsibilities. Discrimination can be direct or indirect.

Direct discrimination occurs when someone is treated less favourably than another person in the same or similar circumstances because of an attribute they have (or are thought to have).  In the case of breastfeeding, for example, it would be direct discrimination if an employer refuses a promotion because a woman is breastfeeding and requires a number of small breaks during the day to express milk.

Indirect discrimination occurs when there is a requirement or practice that is the same for everyone, but disadvantages someone with a particular attribute. For example, if an employer does not allow staff to take short breaks at particular times during the day, this would have the effect of disadvantaging women who are breastfeeding and may therefore be indirect discrimination.

5) Get it in writing!

While there are a number of laws in place to protect parents’ rights when returning to work, it is crucial that any new working arrangements are clarified, the expectations are known and it is all put in writing. This can help prevent any uncertainty or disputes down the track.  It is important to seek advice from your union or the Fair Work Ombudsman to check what your rights are under your Award.  You could also seek legal advice from a lawyer or contact the Human Rights Commission if you believe your rights at work have been infringed because of your family responsibilities.

Read more: When do you have to tell your boss you are pregnant?

Kathryn Presdee is an Industrial & Employment lawyer 

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