Employ­ees hav­ing Children

In Brief

When employ­ees have chil­dren (either via them or a part­ner giv­ing birth or through adop­tion) there are a num­ber of con­se­quences for the employ­ment space. Under the Fair Work Act 2009 (Cth) employ­ees can access unpaid parental leave and a num­ber of oth­er enti­tle­ments. There are also cer­tain oblig­a­tions for employers.

Unpaid Parental Leave Basics

As a start­ing point, employ­ees who have com­plet­ed 12 months of ser­vice with their employ­er are enti­tled to 12 months unpaid parental leave if:

• They or their part­ner give birth to a child or have accept­ed place­ment of an adopt­ed child; AND
• The employ­ee has or will have a respon­si­bil­i­ty for the care of the child.

It is vital to remem­ber that parental leave can be request­ed and grant­ed to male and female employ­ees and employ­ees can request to extend leave in some cir­cum­stances. There are addi­tion­al enti­tle­ments and require­ments for dif­fer­ent sit­u­a­tions regard­ing child birth, child­care and adoption.

Case Study – Fair Work Ombuds­man v W.K.O Pty Ltd [2012] FCA 1129

Late last year the Fair Work Ombuds­man brought pro­ceed­ings on behalf on an employ­ee at a child care cen­tre. When the employ­ee request­ed unpaid parental leave from her employ­er her hours of work were reduced and she was refused unpaid parental leave.

The employ­er told the employ­ee she had not worked for the employ­er for a peri­od of 12 months and thus was not enti­tled to unpaid parental leave. How­ev­er, there had been a trans­fer of busi­ness and as such the employ­ee’s length of ser­vice with the pre­vi­ous busi­ness car­ried over. This meant she had 2 years ser­vice and was enti­tled to unpaid parental leave.

The employ­er was aware of this trans­fer and mis­rep­re­sent­ed to the employ­ee that she was not enti­tled to unpaid parental leave. The employ­ee was also told by her employ­er that she would need to resign. The Court made an order that the employ­er pay $13,200 in penal­ties for breach­ing the Fair Work Act and $5,000 in com­pen­sa­tion for the employee.

It is sig­nif­i­cant that in the event the employ­er did not pay those amounts with­in 30 days the Direc­tor of the employ­er who was also involved in the con­tra­ven­tions would have to pay the amounts.

What is the return to work guarantee?

Employ­ees on unpaid parental leave are sub­ject to a return to work guar­an­tee. This means an employ­ee return­ing to work from unpaid parental leave is enti­tled to either:

• The employ­ees posi­tion as it was pri­or to going on parental leave; OR
• If that posi­tion no longer exists – an avail­able posi­tion which the employ­ee is qual­i­fied and suit­able that is near­est in sta­tus and pay to the posi­tion they held pri­or to going on parental leave.

As such employ­ers must be care­ful when plan­ning the parental leave peri­od of an employ­ee ensur­ing they keep in minds the require­ment to return the employ­ee to their pre­vi­ous posi­tion or one suit­ably similar.

Con­sult­ing with Employ­ees while they are on Unpaid Parental Leave

While an employ­ee is on unpaid parental leave an employ­er must con­sult with that employ­ee if they make a deci­sion which will have a sig­nif­i­cant effect on the sta­tus, pay or loca­tion of the employ­ee’s pre-parental leave posi­tion. So employ­ers must con­sid­er employ­ees on unpaid parental leave and how any work­place changes will affect them.

In this con­text to con­sult with the employ­ee means an employ­er must:

​“take all rea­son­able steps to give the employ­ee infor­ma­tion about, and an oppor­tu­ni­ty to dis­cuss, the effect of the deci­sion on that position.”

This means employ­ers should be care­ful about the changes they make to their organ­i­sa­tion­al struc­ture which may impact employ­ees on parental leave and should con­tact those employ­ees if such changes occur while they are on parental leave.

Case Study – Fair Work Ombuds­man v Tiger Tel­co Pty Ltd (in Liq) [2012] FCA 479

In this case an employ­er did not con­sult the employ­ee (who was on unpaid parental leave) when they decid­ed to appoint some­one else to her posi­tion. As a result of the appoint­ment the employ­er did not return the employ­ee to the posi­tion she held pri­or to her peri­od of unpaid parental leave. She was offered an alter­nate posi­tion which was how­ev­er locat­ed some 70km’s away from her home.

The Court held these deci­sions were made because of the employ­ee’s preg­nan­cy and/​or fam­i­ly respon­si­bil­i­ties. It is sig­nif­i­cant that the Fair Work Ombuds­man brought the action against the Man­ag­ing Direc­tor and the Court ordered the Man­ag­ing Direc­tor pay a penal­ty of $5,940 to the employee.

How do flex­i­ble work­ing arrange­ment requests work?

If an employ­ee who is a par­ent has respon­si­bil­i­ty for the care of a child who is under school age (or under 18 and has a dis­abil­i­ty) they may request a change in work­ing arrangements.
A change in work­ing arrange­ments (oth­er­wise known as flex­i­ble work­ing arrange­ments) can include:

• Change in hours of work
• Changes in pat­terns of work
• Changes in loca­tion of work

The Fair Work Ombuds­man con­sid­ers that a reduc­tion in the hours of work, job shar­ing arrange­ments and work­ing from home are exam­ples of changed work­ing arrange­ments.

NOTE: casu­al employ­ees are not enti­tled to make a request unless they are a long term casu­al who rea­son­ably expects con­tin­u­ing employ­ment on a reg­u­lar and sys­tem­at­ic basis.

1. The Employ­ee makes a request.

The request must be in writ­ing, set out the details of what changes the employ­ee seeks and the rea­sons why.

1. Employ­er responds

Fol­low­ing the receipt of a request an employ­er must give the employ­ee a writ­ten response with­in 21 days as to why they are grant­i­ng or refus­ing the request. The request must only be refused on rea­son­able busi­ness grounds.

So aside from pro­vid­ing rea­son­able busi­ness grounds, which is not a high thresh­old, there is no require­ment that an employ­er agree to a request for a change in work­ing arrange­ments. How­ev­er, there are sev­er­al rea­sons why employ­ers should seri­ous­ly con­sid­er any such requests:

• The rela­tion­ship of good will between an employ­ee and employ­er can often be enhanced through com­pro­mis­es which result in an out­come which suits both par­ties. While the request may be a nui­sance to the employ­er it may be of the utmost impor­tance to the employee.
• Employ­ees whose requests are refused can bring an appli­ca­tion for the Fair Work Com­mis­sion to medi­ate the dispute.
• Employ­ees whose requests are refused may bring a claim of dis­crim­i­na­tion on account of sex or fam­i­ly respon­si­bil­i­ties. Such a claim can be advanced in a num­ber of forums; using the gen­er­al pro­tec­tions in the Fair Work Act and state or fed­er­al anti dis­crim­i­na­tion legislation.

Things to Keep in Mind

• Be aware of respon­si­bil­i­ty to return employ­ees on unpaid parental leave to their for­mer posi­tion or suit­able alternative.
• Con­sult with employ­ees on unpaid parental leave con­cern­ing work­place changes which will affect their position.
• Direc­tors should be aware that if they con­tribute to dis­crim­i­na­to­ry con­duct under the gen­er­al pro­tec­tions pro­vi­sions of the Fair Work Act they may be per­son­al­ly liable.
• Flex­i­ble work­ing arrange­ment requests must be con­sid­ered and the deci­sion not to grant the request may not be the end of the matter.
• The Fair Work Ombuds­man has and will take employ­ers to Court regard­ing con­tra­ven­tions of the Fair Work Act.