Returning to work from leave

Key points

  • If you are entitled to unpaid parental leave under the Fair Work Act, you have the right at the end of that leave to return to your pre-parental leave position. This is known as the return to work guarantee. If you have taken a negotiated period of leave over the birth of your child, outside of the Fair Work Act entitlements, it may be discriminatory if your employer refuses to allow you to return to your pre-leave position or to allow flexible working arrangements.
  •   If your job no longer exists, you have a right to an available position for which you are qualified and suited, nearest in pay and status to your pre-parental leave position.
  • Under the Fair Work Act, an employee who has responsibility for the care of a child who is of school age or younger may request a flexible working arrangement if they have completed at least 12 months of continuous service with their employer immediately before making the request.
  • While an employer can refuse a request for flexible work under the Fair Work Act, employers should also be mindful of obligations under the Sex Discrimination Act and other state or territory anti-discrimination laws.
  • Under the Fair Work Act, you may take personal/carer’s leave if the leave is taken because you are not fit for work, because of personal illness or injury. You may also take personal/carer’s leave to provide care or support to a member of your immediate family (e.g. your child) or household who, due to personal illness, injury or an unexpected emergency, requires care or support.

Top Tip

Flexible work can take many forms – it is not just working part-time. It can involve job-share, compressed working weeks or 9 day fortnights, reduced hours, working from home, changed start and finish times, different places of work, extended leave or a combination of all these..

What role am I entitled to when I return to work

During leave you should have been in contact with your employer and you should have a specific discussion with your manager as your return date becomes closer.

It is helpful in this discussion to remember that if you were entitled to unpaid parental leave under the Fair Work Act, you are entitled to your pre-leave job back and if that job no longer exists, you are entitled to an available position for which you are qualified and suited nearest in pay and status to your pre-leave job.

If you are pregnant and are employed on a fixed term contract and your contract will end while you are on leave, you are not entitled to return to the same job at the end of the negotiated leave (unless your contract or other documentation states otherwise). If however, the contract ends after you return from the leave, you are entitled to the same job to complete your work under the fixed term contract.

I would like to work more flexibly when I return from parental leave. What are my options?

Under the Fair Work Act, an employee who has completed at least 12 months of continuous service with their employer immediately before making the request and who has responsibility for the care of a child who is of school age or younger may request a flexible working arrangement.

Casual employees are entitled to make a request in circumstances where they are a long term casual employee of the employer (i.e. they have been employed on a regular and systematic basis for a sequence of periods of employment during a period of at least 12 months) and have a reasonable expectation of continuing employment with the employer on a regular and systematic basis.

Under the Fair Work Act, employees who have responsibility for the care of a child and are returning to work after taking leave in relation to the birth of the child may request to work part-time to assist the employee to care for the child.

You must make your request for flexibility in writing and your employer must respond to the request in writing within 21 days. A request can be refused by your employer on ‘reasonable business grounds’ which may include (but is not limited to) considerations such as that:

  • The proposed arrangements would be too costly
  • There is no capacity to change the working arrangements of other employees to accommodate the proposed arrangements
  • It would be impractical to change the working arrangements of other employees or recruit new employees to accommodate the proposed arrangements
  • The proposed arrangements would be likely to result in a significant loss in efficiency or productivity
  • The proposed arrangements would be likely to have a significant negative impact on customer service.

‘Reasonable business grounds’ will vary from business to business and take into account the size of the organisation.

While an employer can refuse a request for flexible work under the Fair Work Act, employers should also be mindful of obligations under the Sex Discrimination Act or other state or territory anti-discrimination laws. This means that an employer must ensure that the employee’s sex or family responsibilities do not unfairly influence a decision to reject the employee’s request.

Employees are protected from being treated unfairly because they have requested flexible work. See fairwork.gov.au for information on general protections. If you think your employer has unfairly refused your request for flexible working arrangements you can seek legal assistance - see ‘Assistance and making a complaint’.

Example

Mary works in Victoria. When she returned from parental leave, she requested to work 3 days a week. This was approved by her manager. However, soon after approval she was moved to a different department with less client contact and fewer responsibilities.
Her employer had potentially breached the law by this unfair treatment.
Mary could seek help from the Fair Work Ombudsman, lodge a claim with the Fair Work Commission, make a complaint of discrimination to the Australian Human Rights Commission or make a complaint to the Victorian Equal Opportunity and Human Rights Commission. Please see ‘Assistance and making a complaint’ for information on the various organisations.

Do I have any rights if I breastfeed/express in the workplace?

Yes, breastfeeding is a protected ground of discrimination. You should request a private room with a comfortable chair, a fridge where you can store breast milk and somewhere to store your breast pump.  

Work health and safety laws also require businesses to ensure, so far as is reasonably practicable, the provision of adequate facilities for workers’ welfare while at work.

Failure to provide adequate facilities may constitute discrimination and a breach of work health and safety laws.

See ‘Assistance and making a complaint’ which sets out where to access legal assistance and the various avenues for making a complaint.

What are replacement employees?

Under the Fair Work Act, a replacement employee is an employee that performs the work of an employee who is on parental leave.

During the hiring process, replacement employees must be notified by the employer that:

  • the role is temporary;
  • the employee on leave has a right to their pre-parental leave job back when they return to work; and
  • the employee and the employer may have a right to cancel or end the leave early in certain circumstances (e.g. stillbirth or infant death).

This means that replacement employees understand that they may not have continuing employment with the employer.

Sometimes an employer will not hire a specific replacement employee, but instead just hire someone generally who has taken over some of the parental leave employee’s tasks. In this case, the employee that returns from parental leave is still entitled to their job back and the employer will have to consider what role the additional employee can do or consider ending their employment according to usual workplace laws.

Example

Unsuccessful return to work

Cynthia was employed as the Marketing Manager looking after four business units. She took 8 months unpaid parental leave provided for under the Fair Work Actand a replacement employee was hired as Assistant Marketing Manager while Cynthia was on parental leave. Cynthia had no contact with her employer while she was on leave, but heard from some work colleagues that the replacement employee was now called the Marketing Manager and the boss really liked her. Cynthia tried to arrange a time to meet her manager to discuss her return to work, but he was too busy. 

Finally he said he could meet her the day before she was due to return. In the meeting he told her there had been a restructure while she was away, and her role had changed. She would still be called the Marketing Manager but would report to the replacement employee, not him, and look after one area of the business only, not the four she had previousresponsibility for.

Cynthia decided to seek legal advice on her rights. Her employer had potentially breached the law such as:

  • failing to consult with her about the significant change to her pre-parental leave position while she was on leave (under the Fair Work Act)
  • failing to return her to her pre-leave position (under the Fair Work Act)
  • taking adverse action (in changing her reporting line and duties) against her because she had taken parental leave (under the Fair Work Act)
  • discriminating against her by changing her role to one of lesser status and with fewer responsibilities on the basis of her pregnancy and sex, giving rise to a claim under the Sex Discrimination Act or state and territory anti-discrimination legislation or an action under the Fair Work Act.

Please see ‘Assistance and making a complaint’ for information on the various organisations.

More Information

Fair Work Ombudsman

Fair Work Commission

Australian Breastfeeding Association