With a lockdown baby boom expected early this year, thousands of new parents across the country are preparing to take parental leave for the first time. However even while they are holding their new bundles of joy, some will be worrying about their rights at work, their ongoing income, and whether they’ll have a job to go back to.
“Last year we had almost 500 calls to our Telephone Information Service from parents raising issues around discrimination at work due to their parental status and family responsibilities, discrimination due to breastfeeding or pregnancy, or issues with their parental leave entitlements,” says employment law expert Zana Bytheway, Executive Director of JobWatch.
It’s critical that parents know their rights at work. Broadly speaking, JobWatch categorises breaches of parental rights at work into the categories of parental leave, discrimination, and the right to request flexible work arrangements.
Eligibility for parental leave is generally dependent on the length of service – employees need to have completed at least 12 months of continuous service immediately prior to taking the leave. The leave is unpaid, though individual employers may choose to provide paid parental leave benefits to their employees. If eligible, employees can take 12 months of parental leave, and can requests extensions of a further 12 months – however the employer can refuse the request on reasonable business grounds. Notice periods apply for all leave requests.
“By far the most common issue faced in this category relates to the Return to Work Guarantee,” says Bytheway. “When you end your parental leave, you’re entitled to return to the same position, or if the position no longer exists, an available position that you’re qualified for nearest in status and pay to your previous position.”
“However, many of the calls we get relating to parental leave entitlements are related to people being made redundant during their parental leave.”
Caroline* is one example – she called JobWatch when she returned to work after parental leave and was made redundant two days after. The roles that she was offered as redeployment opportunities were two levels down from her previous role, and she felt they only offered it to get her to accept the redundancy.
Caroline was able access the necessary information about how to lodge claims for unfair dismissal, parental discrimination and general protections dispute.
“Another issue in this category relates to the safety of a job,” explains Bytheway. “For particularly physical jobs or roles that require lots of travel, an employer can ask a pregnant employee to provide a medical certificate stating their continued fitness for work. They have obligations also to transfer employees to an available appropriate safe job where the employee cannot continue in their role.”
Jenny* was working off-shore in an oil rig, and was required to fly in a helicopter and wear a life jacket. When she became pregnant, her employer informed her that there were no suitable alternative duties for her and that she would be made redundant. Jenny believed that there were on-shore tasks that she could do, and sought advice from JobWatch on how to proceed with general protections and discrimination disputes.
“The last thing parents need when they’re preparing for a new arrival or learning how to look after their new babies is to worry about their job security,” says Bytheway.
“Parental leave rights are enshrined in our legislation and it’s critical that people understand what they are.”
Discrimination – Pregnancy and Breastfeeding or Parental and Carer Status
There are two types of discrimination in this category – direct and indirect.
Direct discrimination is when an employer treats someone unfavourably or less favourably because of their parental status, for instance, denying opportunities for promotion, transfer, training or advancement.
Laura* felt she was being targeted because of her pregnancy, with her employer constantly stating that her taking of maternity leave would bankrupt the business, rejecting leave requests, and changing work vehicle arrangements to financially penalise her. JobWatch supported Laura with information on how to commence action based on pregnancy discrimination.
Diane’s* employer denied her request to move to a part-time workload while she had to home-school her three children, and employed a younger male with no children as her replacement. JobWatch explained the relevant provisions of the Victorian Equal Opportunity Act 2010 (Vic.) and gave her information on how to put in a claim for discrimination based on parental and carer status.
Indirect discrimination is when an employer imposes unreasonable working practices that will disadvantage parents and carers, for instance not providing an appropriate environment for breastfeeding mothers to pump breast milk when the facilities are available.
Priyanka* sought advice after she was invited to a meeting to discuss making her role redundant. She believes this was because her employer overheard her on a private phone call scheduling a medical appointment for her pregnancy, though she hasn’t yet formally advised her employer. JobWatch explained to her what the responsibilities of the employer were when it came to proposed redundancies and redeployment opportunities, and what her options would be pending the outcome of the meeting.
“Employers are obliged to not unreasonably refuse to accommodate employee’s parental and carer responsibilities, and they must seriously consider any requests for flexible working arrangements,” says Ms. Bytheway. “This includes flexible working hours, remote working, adjusting work duties, and more.”
“If an employer chooses to not accommodate parental or carer responsibilities, then employees have the right to make a claim for discrimination through either (or both) federal and state-based bodies such as the Fair Work Commission or the Victorian Equal Opportunity and Human Rights Commission.”
“Every case is individual and what you choose to do is highly dependent on your circumstances, so we do recommend that people call our Telephone Information Service for more tailored assistance,” she says.
Do you have other questions about your rights at work as a parent?
JobWatch’s Telephone Information Service provides free and confidential legal information to workers in Victoria, Queensland and Tasmania about their rights at work. Call JobWatch today on 1800 331 617 (regional VIC, QLD, TAS) or 03 9662 1933 (metropolitan Melbourne) or visit www.jobwatch.org.au for more information.