‘Things have changed’. We hear this quite a lot from women preparing to return to work, where their employer is wanting to change the terms of their role. It can be quite a stressful time for many women as they navigate their return, but what should you do if you are in this situation where your role is changing? What are your rights? And who can you turn to for support? We went to legal experts, Holding Redlich, for some practical advice.
Being told by your employer that ‘things have changed’ whilst you were on leave attending to the needs of the newest member or members of your family is always unsettling. This is particularly true when your employer tells you that the ‘change’ means that your responsibilities or the nature of your job have also changed. The good news is that Australian law provides protections in this scenario. Here’s a summary of those key protections:
The Return to Work Guarantee
If you have met the 12 month continuous service requirement to qualify for unpaid leave under the Fair Work Act, your employer has a responsibility to return you to the same job that you had immediately before going on leave. This is the ‘Return to Work Guarantee’. The Guarantee applies even where an employer has temporarily filled your role with another employee whilst you are taking parental leave. If you were transferred to a safe job before you took unpaid parental leave, or you reduced your hours as a result of the pregnancy, you are still entitled to return to the job you had prior to the transfer or the reduction. You are entitled to your usual job, not the adjusted job.
For example, prior to taking 12 months unpaid parental leave Karen worked four full days a week. In the last month Karen worked 4 half days because she was unwell towards the end of her pregnancy. Upon her return to work her employer must return her to the four full-days position. The employer cannot impose a requirement that she comes back and works five full days a week or four half days a week. Karen must return to the same pay and conditions as she enjoyed before taking the leave.
Things have changed
But what if ‘things changed’ while you were on leave? This is very common and while disconcerting, it should not be the end of the story. If, while you are on leave your employer makes a decision that will have a significant impact on the pay, status or location of your position, your employer must take all reasonable steps to consult with you about the change.
If your pre-leave position no longer exists because your employer no longer requires this position to be performed (i.e. the position has become ‘redundant’), your employer must return you to an available position for which you are qualified and that is as similar in pay and conditions as your pre-leave position. If no such alternative role is available then it may be the case that you will be lawfully dismissed on the basis of a redundancy, subject to the employer going through the normal lawful process of considering redeployment options as an alternative to termination of your employment and otherwise terminating your employment lawfully.
Flexible working arrangements
So, the law entitles you to return to your normal job, but it is often the case that this is not feasible for parents returning to the workforce. What if you need to return on a different arrangement to accommodate your new responsibilities? There are protections that assist you here as well.
For example, Sarah worked full time prior to taking 12 months unpaid parental leave. Sarah wishes to return to work in a part time capacity so she can manage family and work. The Return to Work Guarantee would only operate to return her to the full time position. However, Sarah may request her employer to implement a ‘flexible working arrangement’ which could allow her to reduce her overall hours and/or structure her working hours differently to make her return to work possible or easier. Her employer can only decline a request for flexible working arrangements under the Fair Work Act on ‘reasonable business grounds’. The grounds of refusal must be explained in writing. These reasons can be, amongst other things, that;
- the new working arrangement would be too costly;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the request would be likely to result in a significant loss in efficiency or productivity; or
- the new request would be likely to have a significant negative impact on customer service.
Separate to the Fair Work Act are similar protections arising in state and territory-based equal opportunity and discrimination legislation. These laws (for example, the Equal Opportunity Act 2010 in Victoria) make it unlawful for employers to unreasonably refuse to accommodate their employees’ parental responsibilities, regardless of their length of service. In Victoria, whether it is unreasonable to refuse to make accommodations takes into consideration similar matters as the Fair Work Act including costs and inconvenience to the employer but also requires balancing against the employee’s circumstances. In this sense, the state legislation can require more of the employer.
In summary, if you are thinking about (or will be) taking parental leave you should appreciate the extent and limit of protections provided by state and federal laws for the circumstances of your return to work. Understanding the limits of these protections will give you the tools and capacity to get you back to work and accommodate the added responsibilities of being a new parent.
Further information on your rights when returning to work from parental leave can be found on the Fair Work Ombudsman website. You can also check out a video from Holding Redlich on your rights and entitlements.
Hannah Pelka-Caven, lawyer at Holding Redlich.