Employees have a statutory entitlement to return to work and to their previous position after taking a period of parental leave under the Fair Work Act 2009 (the Act).
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 which the employee is most qualified and suited to.
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 part time.
There is a general right to make such a request to work part time wherever an employee has a child of school age or younger, or if the employee has a disability, is an older worker, is suffering domestic violence or is a carer.
For casual employees, part time work can only be requested 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 for part time work 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”. Such grounds may include the:
- job previously performed by the employee;
- part time arrangement requested by the employee;
- length of the request for part time work by the employee;
- impact on customers/clients of the employer;
- impact on other staff of the employer; and
- cost impact on the employer.
What if my employer refuses?
Employees have no general right to challenge a refusal of an employer. However, employees 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 protections provisions of the Act.
In a recent decision of the Fair Work Commission, an employer was held to have had reasonable business grounds to refuse an employee’s request for part time work.
In that case, 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 and the employee’s request could not be accommodated.
The employee contested the refusal based on an enterprise agreement and then sought to extend the period of her parental leave. The employer refused that request and advised her that she could return to her previous full time position or resign. She resigned and then claimed her employer had “constructively” dismissed her. The Commission held in considering the above matters, 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 a female employee who had requested to return to work part time, and which 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 (03) 9592 3356 or email office@citypacific.com.au.
