It is important that businesses and employees are aware of the processes surrounding taking parental leave and returning to the workforce after taking parental leave.
Under the National Employment Standards, an employee must have had at least 12 months continuous service with the employer immediately before the date of the expected birth.
Back-filling the position.
It is important to ensure that an employee who takes parental leave is able to return to their former position if it still exists, otherwise, the employer may be at significant risk of contravening the Fair Work Act.
Operational requirements may make it necessary for employers to back-fill the position during the parental leave period. In doing so, employers should be careful to make it very clear to any prospective replacement employees that their engagement in the role is intended to be temporary whilst the employee is on parental leave.
It may be wise for any replacement employee to be clearly warned that there is no guarantee of continuing employment when the incumbent employee returns from parental leave.
Returning to work after parental leave.
Section 65 of the Fair Work Act states that an employee may request a change in working arrangements if the employee is a parent of a child who is school age or younger, including a request to work part-time. With respect to the request, it is important to note:
•• The request must be in writing; and,
•• The employer must give a written response within 21 days – if refused, reasons must be given.
Refusing change in working arrangements.
The employer may refuse the request only on reasonable business grounds. The employer must give reasons to the returning parent if they intend to refuse any flexible working arrangement request.
Reasonable grounds may include:
•• That it would be too costly for the employer in the circumstances of that particular business.
•• The employer does not have the capacity to change the working arrangements of other employees to accommodate the new arrangement.
•• That it would be impractical to change the working arrangements of other employees, recruit new employees or accommodate the new working arrangements.
•• That the arrangement would be likely to result in significant loss in efficiency or productivity.
•• That the arrangement would be likely to have a significant negative impact on customer service.
How we can help.
Anderson Fredericks Turner only works in areas of the law where we have a real depth of experience that we can call upon to make a difference in your case.
Call us on 1300 AFT LEGAL to arrange an initial consultation if you are concerned about possible discriminatory or adverse treatment as a result of returning to work following parental leave.
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