Parental leave – can I return to part time work?

Under the Fair Work Act 2009 (the Act), employees have a statutory entitlement to return to work and to their previous position after taking a period of parental leave.

If the employee’s previous position no longer exists, the employee is entitled to return to a position which is closest in pay and status to the employee’s previous position and to which the employee is most qualified and suited.

On returning to work, an employee who is a parent or carer of a child of school age or younger and who has completed at least 12 months service, can request flexible working arrangements, which includes working on a part time basis.

There is a general right to request to work part time wherever an employee has a child of school age or younger or if the employee has a disability or is an older worker or is suffering domestic violence or is a carer.

Casual employees can only request part time work if the employee is a long term employee and there is a reasonable expectation that the employee will continue to be employed on a regular and systematic basis.

What is the process?

A request to work on a part time basis must be made in writing, setting out the reasons for the request.

Employers must respond to a request for part time work, in writing, within 21 days.

A request can be refused on the basis of “reasonable business grounds” which include:

  • the part time arrangement requested by the employee;
  • the impact on customers/clients or other staff, of the employer; and
  • the cost impact on the employer.

What if my employer refuses?

Whilst employees have no general right to challenge a refusal of an employer, they may seek to challenge a refusal depending on a relevant award or enterprise agreement covering the employment of the employee or the contract of employment.

A request for flexible working arrangements may also be considered an exercise of a "workplace right" by an employee under the general protection provisions of the Act.  

In a recent decision of the Fair Work Commission in which an employer was held to have had reasonable business grounds to refuse an employee’s request for part time work, the employee sought to return to work after three sequential periods of maternity leave. Her employer indicated that, due to changes in the business over that period of time which had reduced the number of employees, there were limited part time roles available so the employee’s request could not be accommodated.

The employee contested the refusal … based upon an enterprise agreement and sought to extend the period of her parental leave. The employer refused that request but advised the employee that she could return to her previous full time position or resign.

The employee resigned and claimed that her employer had “constructively” dismissed her.

The Commission decided that it was the employee’s personal circumstances that had forced her to resign.

Employees who have had a request for flexible work arrangements refused may also have remedies under State and Federal equal opportunity legislation based on “discrimination”.

For example, in one case, it was held by a Federal Magistrate that an employee who had requested to return to work part time but whose request was refused, had been discriminated against by her employer. Whilst the employee was on maternity leave the employer had employed another employee for her position and her employment had thereby been terminated as a result of her family responsibilities.

In considering making a request for part time work, employees should discuss potential arrangements with the employer and confirm the position in writing.

If you or someone you know wants more information or needs help or advice, please contact us on (07) 5443 4866 or email brendanb@gwlaw.com.au.

 

      

 

 

 

 

 

 

       Brendan Bathersby                                                                                                             

       Partner                                                                                                                                    

       (07) 5443 4866                                                                                                  

       brendanb@gwlaw.com.au                                                      

 

If you need help, or have a question get in touch with us today.