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Back to work from maternity or parental leave?

The ASU receives many queries and often participates in disputes around members returning to work from maternity leave who are seeking flexible working arrangements in order they can juggle work and family commitments.

Under the Fair Work Act 2009 provisions exist to enable such employees to request flexible work arrangements which the employer can reject only under the following terms:

  • The employer may refuse the request only on reasonable business grounds.
  • Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:
  • that the new working arrangements requested by the employee would be too costly for the employer;
  • that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  • that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  • that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
  • that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
  • If the employer refuses the request, the written response under subsection (4) must include details of the reasons for the refusal.

Whilst there have been decisions around what can be considered as ‘reasonable business grounds’ they have been determined on a case by case basis and the cases have usually involved a scenario where the employee was not offered part time employment upon requesting it when returning to work.

The cases have involved a review of the grounds being relied upon by the employer and whether they constituted reasonable business grounds.

However there is also the problem of when the parties are unable to reach an agreement in regards to what the employer is willing to offer and what the employee is requesting. An example of this might be that the employer accepts a request and offers a three day week from Monday to Wednesday however the employee is seeking a three week from Wednesday to Friday due to family commitments. There could be many variations on this theme: the employer offers four days a week but the employee can only three and so it goes on.

The situation in terms of legal obligations becomes a bit more confused however the ASU has sought to resolve these issues through negotiations with varying success. It is important that members contact the Union when a return to work issue arises for members who have been on maternity leave as the sooner the problem is dealt with the better the chances are for positive outcome.

When faced with these challenges, members should contact the Union before returning to work so that it can be dealt with early with better chances for a positive outcome. Just email us (info@asupsvic.org) or call us on 03 9342 3300.

Date

14 September 2015

Category

Assist

Author

Ingrid Stitt