New Zealand Prime Minister Jacinta Arden’s pregnancy announcement last week made headlines across the globe with Arden set to be the second Prime Minister to give birth whilst in office.
The Prime Minister set a clear plan of how she would take 6 weeks off and upon return to work her partner will be the full-time caregiver of their child. We thought we would take this opportunity to remind employers of their most important obligations when it comes to employees return to work after parental leave.
1. Return to work guarantee
When an employee notifies you of their intention to take parental leave, as an employer a number of questions come to mind. What happens to their role? How do I plan to replace them? What happens when they want to come back?
One of the most fundamental obligations for employers when it comes to parental leave is the employee return to work guarantee. Under the National Employment Standards (NES) an employee returning from unpaid parental leave has the right to return to work into the position they held immediately prior to commencing the leave.
What if that position no longer exists? If the position no longer exists the return to work guarantee provides the employee is entitled to return to an available position for which he or she is qualified and suited nearest in status and pay to the pre-parental leave position.
It is important to note that the return to work guarantee only exists where the employee is eligible for unpaid parental leave under the NES. For more information on eligibility for unpaid parental leave see our related article here.
2. Replacement employees
Did you know as an employer you also have obligations when it comes to replacement employees who cover the employee taking unpaid parental leave? Before an employer engages a replacement employee section 84A of the Fair Work Act 2009 provides the employer must notify the prospective replacement the engagement is temporary and of the rights of the employee on leave and the employer, including the right of the employee on parental leave to return to the position at the end of their leave.
It is important you keep these obligations in mind before engaging a replacement employee. A breach of your obligations under the NES means you may be exposed to substantial civil penalties.
3. Employee requesting to return to work early
What if your employee wishes to return to work early? Under the NES an employee on unpaid parental leave can shorten their leave and return to the workplace before their planned return date only if the employer agrees. If an employer refuses an early return the employee must return to work on the planned date.
4. Returning to work part-time
An employee returning from a period of parental leave has the right to make a request for a flexible working arrangement, such as requesting to return part time or a change to their start and finish times.
It’s important to keep in mind that whilst an employee with child care responsibilities has a right request flexible working arrangements, an employer may refuse the request on reasonable business grounds.
Reasonable business grounds are set out in section 65(5A) of the Fair Work Act 2009 and may include the working arrangements requested being:
• too costly for the employer;
• likely to result in a significant loss in efficiency or productivity; and
• likely to have a significant negative impact on customer service.
Get proactive with your obligations today!
In addition to the potential claims and penalties that flow from non-compliance, employers should be mindful of the potential for adverse media attention should an aggrieved employee make a complaint where an employer is unfamiliar with an employee’s return to work rights.
HR Assured appreciate employers are required to understand a number of rights and obligations when it comes to unpaid parental leave in Australia. Our 24 hour Telephone Advisory Service is here to provide you with access to immediate telephone advice on your obligations when your employees taken unpaid parental leave. For more information on the benefits of becoming a HR Assured client contact us today.
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