With pregnant women and new parents continuing to be discriminated against at work, we wanted to share a reminder on our legal rights, thanks to employment lawyer Alexandra Targett, from McDonald Murholme Solicitors.
Juggling work and parental responsibilities as a first time parent can be both challenging and rewarding, but it’s also a time when women should be especially aware of their legal rights.
That includes understanding an employer’s obligations around responding to a request for a flexible working arrangement, as well as your legal rights around advising an organisation of a pregnancy, and rights and obligations again when taking and then returning from parental leave.
Unfortunately, working mothers also need to ensure that they are not being discriminated against because of their gender, pregnancy, parental responsibilities, maternity leave, or request for a flexible working arrangement.
Right to request flexible working arrangements
Parents of children (who are school age or younger) have the right to request flexible working arrangements to assist with their parental responsibilities – provided they have completed at least 12 months of continuous service with their employer immediately before making the request. This protected right under the Fair Work Act 2009 (Cth) provides working mothers with the necessary flexibility to remain in the workforce despite their family responsibilities.
Examples of flexible working arrangements include changes in hours of work, changes in patterns of work, or changes in location of work. For instance, a parent might request a later start time or earlier finish time in order to drop off or pick up kids from school. Similarly, a parent might request to work part-time, work from home, or job share in order to spend more time caring for their young children.
In the event the employee’s request is denied, the employer must have reasonable business grounds to justify its refusal. For instance, the employer may refuse a request because the new working arrangements would be too costly for the employer, have a significant negative impact on customer service, or would result in a significant loss of efficiency or productivity.
Many companies have policies and procedures in place regarding requests for flexible working arrangements, therefore employees should familiarise themselves with these prior to making a request.
Advising the employer of pregnancy
Employees are generally entitled to 12 months of unpaid parental leave under the Fair Work Act 2009 (Cth) where the leave is associated with the birth or adoption of a child.
The entitlement to unpaid parental leave is conditional upon whether the employee has, or will have, completed at least 12 months of continuous service with the employer immediately before the expected date of birth or placement of the adopted child.
If an employee is planning on taking unpaid parental leave, the employee is required to notify the employer at least 10 weeks before the commencement of their intended leave. If required by the employer, the employee must provide evidence of the expected date of birth or date of placement This evidence may be in the form of a medical certificate.
Returning from maternity leave
The Fair Work Act 2009 (Cth) provides parents with a “return to work guarantee”. The guarantee provides that employees are entitled to return to their pre-parental leave position or, if that position no longer exists, the nearest available position in terms of status and pay for which they are qualified.
It is unlawful to terminate a female worker’s employment because of her pregnancy or because she is taking maternity leave. If this occurs, that employee may be eligible to make a claim for reinstatement and/or compensation.
What action can you take if you are discriminated against?
If you feel that you have been discriminated against, we recommend seeking legal advice. The Fair Work Act 2009 (Cth) operates to protect employees from their employer taking adverse action against them for a prohibited reason or attribute. For instance, a claim may be available for a working mother who is dismissed or made redundant because of her period of maternity leave or demoted because of her pregnancy or parental responsibilities.
Working mothers may also lodge a complaint with the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010 (Vic) if they have been discriminated against due to their pregnancy or breastfeeding at work.
The information above is not a substitute for independent advice and readers should obtain appropriate professional advice relevant to their particular circumstances.