Q. We have an employee who will be returning from parental leave at the end of next month. She has contacted her manager requesting part-time employment. Her job immediately preceding taking parental leave was full-time. The full-time job is available and at this stage cannot accommodate the employee’s request for part-time employment. Does the employee have a right to insist on returning to part-time work or does the guarantee only apply to her previous full-time position? 

A. The National Employment Standard (s.84) provides that an employee returning from unpaid parental leave is entitled to return to work to the position held immediately prior to commencing that leave or, where that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. In this case, the return to work guarantee applies to the employee’s full-time position immediately preceding taking parental leave. 

If the employee was transferred to a safe job before taking parental leave or the hours of work were reduced due to the pregnancy, the employee is entitled to return to the job they had before the transfer or reduction in hours occurred. An employee returning to work after taking parental leave may have the right to request a flexible working arrangement under the National Employment Standards, which could include part-time instead of full-time work, changing starting and finishing times of work or working from home.  

 

The right to request flexible working arrangements 

The National Employment Standards prescribed by the Fair Work Act (s.65) provide employees, who are a parent, or have responsibility for the care of a child of school age, or under the age of 18 with a disability, with a right to request a change in working arrangements. The employee’s request must be in writing and set out details of the changes sought and the reasons for the change. The employer must give the employee a written response to the request within 21 days, stating whether the employer grants or refuses the request. If refused, the employer then must provide written reasons for the refusal.  

An employer may lawfully refuse a request for flexible work, in this case part-time work, on ‘reasonable business grounds’. Reasonable business grounds include that: 

  • the new work arrangements requested by the employee would be too costly for the employer 

  • there is no capacity to change the work arrangements of other employees to accommodate the new work arrangements requested by the employee 

  • it would be impractical to change the work arrangements of other employees, or recruit new employees, to accommodate the new work arrangements requested by the employee 

  • the new work arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity, and 

  • the new work arrangements requested by the employee would be likely to have a significant negative impact on customer service. 


 What if the employee challenges the decision?

A key change is that employees can now escalate disputes. If agreement can’t be reached:

  • Either party can apply to the Fair Work Commission (FWC)

  • The FWC can assist through mediation, conciliation, or arbitration

 

Bottom line 

While the return to work guarantee applies to the job the employee held immediately before taking parental leave, an employee has the right to request part-time work under a flexible working arrangement. The employer can only refuse such a request on reasonable business grounds.