Most employees returning to work will need some flexibility in order to work and manage their family commitments. Eligible employees who are the parent or have responsibility for the care of a child who is of school age or younger may request a flexible working arrangement under the Fair Work Act.
An employee returning from unpaid parental leave under the Fair Work Act is entitled to their pre-parental leave position. If the employee’s pre-parental leave position no longer exists, they are entitled to an available position for which the employee is qualified and suited, nearest in status and pay to the pre-parental leave position.
Even if an employee is not covered by the entitlements in the Fair Work Act, it may, in certain circumstances, be discriminatory to refuse to return an employee to their pre-leave position or to allow flexible working arrangements.
Under the Fair Work Act, an employee may take personal/carer’s leave if the leave is taken because the employee is not fit for work, because of personal illness or injury. The employee may also take personal/carer’s leave to provide care or support to a member of the employee’s immediate family (e.g. their child) or household who, due to personal illness, injury or an unexpected emergency, requires care or support.
Consider flexible work
Be open to ideas about creating a more flexible workplace. Flexible work 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.
If you do reach an agreement on a flexible work arrangement with an employee, make sure you record it in writing, and agree on the exact duration of the arrangement. If in doubt, have a trial period, and agree to assess the arrangement at the end of the trial period.
What are my obligations when an employee returns to work from parental leave?
An employee on unpaid parental leave under the Fair Work Act has the right at the end of the leave to return to their pre-parental leave position. This is known as the return to work guarantee.
The pre-parental leave position is the job the employee held before any changes were made to accommodate their pregnancy (such as moving to a safe job or reduced hours of work).
If their pre-parental leave position no longer exists the employee is entitled to an available position for which they are qualified and suited, nearest in status and pay to the pre-parental leave position. For example, an equivalent full-time role if their pre-leave position was full-time.
Employers should also consider requests for employees to return to work in a different capacity (such as part-time or transfer to a different role).
You should also consider return to work requests from employees who are on negotiated leave and who are not covered by the unpaid parental leave provisions of the Fair Work Act (because they do not meet those eligibility requirements). Care must be taken to ensure that the employee’s sex, pregnancy or family responsibilities do not unfairly influence your consideration of their request.
Unless the employment contract or other documentation states otherwise, a pregnant woman who is employed on a fixed term contract is not entitled to return to the pre-parental leave position if the contract ended while she was on leave. If the contract ends after the employee returns from the leave, she is entitled to the pre-parental leave job until the end of the fixed term contract.
How do I best manage flexible work requests?
Under the Fair Work Act, employees are entitled to request that their employer create a flexible working arrangement if they, for example:
- have completed at least 12 months of continuous service with their employer; or
- are a casual employee with 12 months of continuous employment and have a reasonable expectation of continuing employment with the employer on a regular and systematic basis; and
- are a parent (or a person with responsibility for the care of a child) who is of school age or younger.
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.
Requests for flexible working arrangements must be in writing and must set out the details of the change sought and the reasons for the change.
Flexibility can include:
- part-time work;
- different working hours or
- working from different locations, instead of the traditional full-time, work-site based week.
Whether an employer grants or refuses a request, the employer must respond to a request in writing within 21 days of receipt of the request.
Employers should assess each request fairly and consider if it would be reasonable to approve the request.
If an employer approves such a request, it is good practice to have regular, periodic reviews of the arrangement to ensure it continues to work for both the employer and employee.
If an employer refuses a request for flexible work, the employer must include details of the reasons for the refusal. A request can be refused only 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 has the right to reasonably refuse a request for flexible work under the Fair Work Act, they should also be mindful of their obligations under anti-discrimination laws as such a refusal may be discriminatory. This means, for example, that an employer must ensure that the employee’s sex or family responsibilities has not unfairly influenced a decision.
Employees are protected from being treated unfairly because they have requested flexible work. See the Fair Work Ombudsman fact sheet on general protections for more information.
Victoria and Northern Territory anti-discrimination laws
Under state anti-discrimination laws in Victoria, there is a duty not to unreasonably refuse to accommodate family and carer responsibilities.
Also, under territory anti-discrimination laws in Northern Territory, there is a positive obligation on employers to reasonably accommodate special needs an employee may have because they are, for example, breastfeeding or are a parent.
Does an employee have the right to part-time work?
While certain employees have a right to request flexible work arrangements such as part-time work under the Fair Work Act, you can refuse a request on ‘reasonable business grounds’ as outlined in How do I best manage flexible work requests? above. However, an unreasonable refusal to accommodate a request for flexible work arrangements for an employee who has family responsibilities may be discriminatory. This means an employer must ensure that the employee’s sex or family responsibilities has not unfairly influenced a decision.
Employers can provide greater rights than the Fair Work Act. This may be stated in an applicable award, agreement, contract or policy.
What if the flexible work arrangement is not working out or I want to change it?
Speak with your employee and explain why the flexible work arrangement is not working for you or why you would prefer to change the arrangement. Try to be specific about why it is not working and how the situation could be improved.
If the employee has a contractual right to the flexible work arrangement, you need to seek agreement from the employee if you want to change the arrangement.
How can I support employees who are breastfeeding?
To support a breastfeeding employee make sure that she has suitable facilities to breastfeed, express and store any breast milk. For example, a private room with a comfortable chair, a fridge and somewhere to store a breast pump. You should also ensure that she has appropriate breaks in order to breastfeed or express.
Breastfeeding is a protected ground of discrimination. Failure to provide adequate facilities may constitute discrimination and a breach of work health and safety laws. Also, failure to allow an employee to have breaks to facilitate breastfeeding or expressing milk may constitute discrimination.
Work health and safety laws require businesses to ensure, so far as is reasonably practicable, the provision of adequate facilities for workers’ welfare while at work.
The Australian Breastfeeding Association’s ‘Breastfeeding Friendly Workplace’ accreditation program can assist you to develop policies that support breastfeeding women.
Fair Work Ombudsman
- Parental leave Best Practice Guide
- Work and Family Best Practice Guide
- The Right to Request Flexible Work Arrangements Best Practice Guide
- Returning to work from parental leave
- Workplace discrimination fact sheet
- Request for flexible working arrangements templates