Tuesday, 5 September 2017

Maternity Leave & Redundancy — Know Your Rights

Author: Rachel Waters is a barrister who commenced her legal career in Employment Law

Australia has come a long way in providing a more equal playing field for women in the workplace. At one stage in the 1960’s, women who worked for the Commonwealth Government who married were forced to resign. Further, it was not until the 1970’s that anti-discrimination laws and parental leave laws began to address the fact that women suffered negative consequences in the workplace as a consequence of the bearing of children. However, Australia still has a long way to go in ensuring women are able to participate equally with men in the workplace in relation to status, responsibility and remuneration.

Parental leave laws are paramount in enabling women and same-sex parents to have children without major detriment to their short and long term careers. In addition, they serve to indirectly and partially address the ongoing gap in pay between men and women.



Unpaid Parental Leave

Today an employee who is the primary carer of a child and has completed 12 months work with an employer is entitled to take one year of unpaid parental leave. If the leave relates to a woman who is pregnant, the leave may start six weeks before the expected birth of the baby. At the end of the 12 months unpaid parental leave the employee is entitled to return to their pre-parental leave position, or if that position no longer exists, one which is closest to the status and pay of the pre-parental leave position.

An employee can request a 12 month extension of parental leave — that is 24 months in total — provided the request is made at least four weeks before the conclusion of the first 12 months of parental leave. An employer may refuse such a request only on the basis of reasonable business grounds. For example, the employer might argue it would be too costly or impractical to the running of the business to grant the request. An employee who has taken 12 months parental leave is also entitled to request to return to work part-time after their parental leave. Again, an employer can only refuse such a request on the basis of reasonable business grounds. Employers who try to rely on spurious “reasonable business grounds” to refuse such applications have been robustly criticised when such matters have proceeded to hearing. Unfortunately, anecdotal evidence suggests that in the majority of circumstances those discriminated against most frequently accept a boss’s decision — as challenging an employer’s decision can be a daunting task.

The law is slightly different in relation to fixed-term contract employees and parental leave. A fixed-term contract employee who is the primary carer of a child and has completed 12 month’s work with an employer is entitled to take one year of unpaid parental leave. However, if the employee’s fixed-term contract period ends whilst they are on unpaid parental leave the employee has no guarantee of return to work or entitlement to have the contract extended. In order to challenge such a decision the employee would have to establish that the employer did not renew or extend the employment because the fixed-term employee was pregnant or had family responsibilities.

Paid Parental Leave

In Australia primary carers of a newborn or adopted child are entitled to up to 18 weeks paid parental leave at the national minimum wage — currently $656.90 gross per week. To be eligible the employee must have worked at least one day a week for at least ten of the 13 months before the birth or adoption of the child, earn $150,000 or less per annum and be an Australian resident. Further, the person is only entitled to the paid leave if they stop working for the period. This leave is paid by the Australian Government. From a logistics point of view these payments are actually made to the employer first, who then pay them to the employee. This is to encourage an ongoing relationship between the employer and employee. An employee can still receive paid parental leave from an employer — i.e. they can be paid both.

Partners of primary carers are also entitled to two weeks paid-parental leave. The same eligibility requirements apply with regard to having worked the appropriate numbers of hours in the previous 13 months, earning less than $150,000 per annum and being an Australian resident.

Parental leave and Redundancy

Whilst on unpaid parental leave, if anything arises that would affect the status, pay or location of the employee’s pre-parental leave position, to avoid the effect of anti-discrimination laws (and consultation provisions in Modern Awards) an employer must consult with the employee. That is, discuss the changes and obtain feedback from the employee. Following this if an issue of redundancy arises whilst a person is on unpaid parental leave, the same rules apply as with any other potential redundancy situation.

First, the employer must discuss with the employee the need to make their position redundant and seek feedback from the employee about other possible options, i.e. any other suitable position in the company. Failing a suitable resolution from such discussions the employer must give appropriate notice of making the person redundant and provide the correct amount of redundancy pay - both of which will depend on how long the person has worked for the employer.

If the position is bona-fide redundant, i.e. the employer no longer requires the job done by the employee to be done by anyone, then the decision to terminate is not discriminatory. It becomes a grey area however if it appears the person on unpaid parental leave has been targeted as a person to be made redundant because they are pregnant or have family responsibilities.

Myths

There are laws that protect women from being discriminated against in the workplace in State and Federal anti-discrimination legislation and the Fair Work Act 2009. However, just because a woman is pregnant, doesn’t mean that she is immune in terms of being disciplined by an employer or, as discussed above, having her role declared redundant.

Even if an employee is pregnant and/or on maternity leave, an employer is entitled to performance manage and discipline if there are valid performance or conduct issues. Rules apply for such procedures. All employees have the right of being provided with particulars of any concerning conduct and the opportunity to rectify their performance or respond to any allegations of misconduct. That is, they should be afforded natural procedural justice. Best practice would dictate the employer should provide written reasons for the final outcome of any performance management or disciplinary process. Any reason that relates to the sex of an employee or their pregnancy status would give rise to a claim on the face of it of discrimination and/or a breach of workplace rights.

Even if an employee is pregnant and/or on maternity leave, an employer is entitled to performance manage and discipline if there are valid performance or conduct issues. Rules apply for such procedures. All employees have the right of being provided with particulars of any concerning conduct and the opportunity to rectify their performance or respond to any allegations of misconduct. 
That is, they should be afforded natural procedural justice. Best practice would dictate the employer should provide written reasons for the final outcome of any performance management or disciplinary process. Any reason that relates to the sex of an employee or their pregnancy status would give rise to a claim on the face of it of discrimination and/or a breach of workplace rights.

The Fair Work Commission and Fair Work Ombudsmen are useful resources for learning more about your rights as an employee.

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