The federal government likes to present itself as a big supporter of parental leave, with its generous paid parental leave scheme one of Tony Abbott’s flagship policies.
While commentators argue about how generous paid parental leave should be, how much of a cost it is to business, and even if it’s a valid way to increase women’s participation in the workforce, they are overlooking some fundamentals.
Two of the most important rights regarding parental leave are in danger of being undermined because many employers are not complying with their existing legal obligations.
The first is the right of an employee on parental leave to return to their previous position, or if the position doesn’t exist, to return to an available position that is the closest in status and pay to their previous position.
The second is the right of an employee on parental leave to be consulted about any decision made by their employer that will have a significant effect on their employment – including their status, their pay or the location of their work.
These rights are guaranteed by the Fair Work Act and are fundamental to job security for people who take parental leave.
Crucial aspects of the employment – including its existence – cannot just be changed by an employer without a proper discussion.
In addition, the knowledge that they will have a job to go back to after parental leave is arguably the most important form of security available to parents taking time out from the workforce.
However, employers are finding ways to get around these important guarantees.
Discrimination against parents returning to the workforce is the most common form of discrimination we see in our practice, easily outnumbering other forms 5 to 1.
We hear countless stories of employers telling their employees that there is no job for them to come back to and no other positions available either.
This anecdotal evidence is backed up by data released by the Australian Human Rights Commission recently.
As part of their national review on discrimination related to pregnancy, parental leave and return to work, the AHRC conducted a survey on the prevalence of such discrimination.
The resulting data shows that one in two mothers experience discrimination in some form when they are pregnant, seeking or taking parental leave or when they return to work.
One in five mothers were made redundant/restructured, were dismissed or did not have their contract renewed.
The survey found that such discrimination has wide-ranging consequences, including negative impacts on finances, mental and physical health and career and job opportunities.
Yet the majority of women do not make a formal complaint about the discrimination they experience.
Given the existence of valuable return-to-work rights protected by law, how is this happening?
Many employers are getting around these guarantees by having a discussion with their employees, but ensuring that those discussions have no hope of influencing any outcomes.
Technically, they appear to be complying with the law, whilst in reality they render the discussion hollow and meaningless, as the decision has already been made.
Although this approach might appear to comply with the law, in reality it falls far short.
The courts have looked at this issue in a number of cases and come up with a number of principles about what constitutes “consultation”.
The requirement to consult should never be treated as a mere formality – the party to be consulted must have a meaningful opportunity to express their views and point to problems. In the words of one judge, “consultation is no empty term.”
Consultation is not an opportunity for decision-makers to allow those being consulted to make ineffective representations – rather, they must enable points of view to be put forward which may result in changes to a proposal or even its withdrawal.
Consultation should be done at a formative stage of proposals, before the mind of the decision-maker has become fixed.
Employees on parental leave have a right to be meaningfully heard on any decisions that significantly affect their job, which includes the opportunity to influence the outcome of that decision.
If an employer orchestrates a pre-determined outcome dressed up as “consultation”, this does not satisfy their legal requirements and employees are entitled to demand something better.
If the federal government is truly committed to security for employees on parental leave, they should do more than score political points about being family-friendly but seek to strengthen these very important legal protections, and ensure employers understand their obligations to employees.