I feel I am being discriminated against due to my pregnancy
and parental responsibilities. What are my rights as a working
parent?
Employers have certain obligations by law when it comes to
dealing with an employee who is either pregnant or who has
parental responsibilities. Employees should be aware of their rights
when it comes to making requests for flexible working
arrangements, as well as their rights when it comes to advising
their employer of a pregnancy or returning to work after parental
leave.
Working parents should also ensure that they are not being
discriminated against because of their gender, pregnancy, parental
responsibilities, maternity leave, request for a flexible working
arrangement or some other right that is protected.
RIGHT TO REQUEST FLEXIBLE WORKING ARRANGEMENTS
Parents of children (who are school age or younger) have the right
to request flexible working arrangements to assist with their
parental responsibilities – provided they have completed at least
12 months of continuous service with their employer immediately
before making the request. This protected right under the Fair
Work Act 2009 (Cth) provides working mothers with the necessary
flexibility to remain in the workforce despite their family
responsibilities.
Flexible working arrangements include changes in hours of work,
changes in patterns of work, or changes in location of work. For
example, a parent might request a later start time or earlier finish
time in order to drop off or pick up kids from school.
In the event the employee’s request is denied, the employer must
have reasonable business grounds to justify its refusal. For
example, an employer may refuse a request because the new
working arrangements would come at too greater cost to the
employer, have a significant negative impact on customer service,
or would result in a significant loss of efficiency or productivity.
ADVISING THE EMPLOYER OF PREGNANCY
Employees are generally entitled to 12 months of unpaid parental
leave under the Fair Work Act 2009 (Cth) where the leave is
associated with the birth or adoption of a child.
The entitlement to unpaid parental leave is conditional upon
whether the employee has, or will have, completed at least 12
months of continuous service with the employer immediately
before the expected date of birth or placement of the adopted
child.
If an employee is planning on taking unpaid parental leave, the
employee is required to notify the employer at least 10 weeks
before the commencement of their intended leave. If required by
the employer, the employee must provide evidence of the
expected date of birth or date of placement This evidence may be
in the form of a medical certificate.
RETURNING FROM MATERNITY LEAVE
The Fair Work Act 2009 (Cth) provides parents with a “return to
work guarantee”. The guarantee provides that employees are
entitled to return to their pre-parental leave position or, if that
position no longer exists, the nearest available position in terms of
status and pay for which they are qualified.
It is unlawful to terminate a female worker’s employment because
of her pregnancy or because she is taking maternity leave. If this
occurs, that employee may be eligible to make a claim for
reinstatement and/or compensation.
WHAT ACTION CAN YOU TAKE IF YOU ARE DISCRIMINATED
AGAINST?
If an employee feels they have been discriminated against due to
their parental responsibilities seeking legal advice is
recommended. There are protections in place under the Fair Work
Act 2009 (cth) which ensure that no adverse action is taken
against an employee due to their parental responsibilities. For
example, a claim may be available for a working mother who is
dismissed or made redundant because of her period of maternity
leave or demoted because of her pregnancy or parental
responsibilities.
