A refresher on your legal obligations to parents in the workplace

Key takeaways

• Employers must consider requests for flexible work made by a pregnant employee, or by a parent or someone who has responsibility for the care of a child who is school-aged or younger.  

• Discrimination of parents is sadly too common. It’s important to avoid unlawful actions against parents.  

• There are laws that protect an employee’s right to take and extend unpaid parental leave and return to work after parental leave. It is important to familiarise yourself with these laws.  

Whether your employee is still on leave, or intending to return soon, it's a good time to refresh your understanding of the legal obligations to parents in the workplace.  

Flexibility  

Under the Fair Work Act (FW Act), employers must consider all requests by an employee for flexible working arrangements where an employee is pregnant, is a parent, or has the responsibility for the care of a child who is school-age or younger.  

While any employee who is pregnant, a parent, or has the responsibility for the care of a child who is school-age or younger can make a request for flexibility, under the FW Act, eligibility to make such a request is limited to:

• a permanent employee who has completed at least 12 months of continuous service immediately before making the request, and
• a casual employee who has worked for at least 12 months on a regular basis (and who has a reasonable expectation of continuing work on a regular and systematic basis). 

A request for flexible working arrangements under the FW Act must be in writing and set out the change being requested and the reasons for the change. As the employer you must provide the employee with a written response to the request within 21 days, stating whether the request is granted or refused. You are required to genuinely try to reach an agreement with an employee in relation to their request. A request can only be denied on reasonable business grounds, and you must justify the reasons in writing.  

An alternative to refusing a request for flexible working arrangement is to discuss the request with an employee with the aim of reaching an approach that accommodates the needs of both your busienss and the employee. 

You should also be aware that the Fair Work Commission is now empowered to resolve disputes about requests for flexible working arrangements. 

Discrimination  

One in two mothers and one in four fathers in Australia report they have experienced workplace discrimination at this life stage. This can significantly impact a person's mental and physical health, career trajectory and financial stability.  

To protect your business, avoid taking unlawful actions against parents, such as:  

• Firing an employee or making them redundant (where there is not a genuine redundancy) because they are on parental elave or because they have made a flexible work request. 

• Refusing a parent or carer opportunities for promotion, or treating them differently, because of their parental responsibilities. 

• Preventing parents and carers from using their legal entitlements, such as taking unpaid parental leave. 

• Changing an employee's job scope to their disadvantage due to their status as a parent, such as reducing hours or responsibilities. 

• Refusing a flexible working request without a valid business reason. 

• Not allowing an employee to return to their previous job after parental leave (in the absence of a lawful reason, such as redundancy). 

Return to work guarantee   

All employees returning from parental leave are entitled to return to the job they had before going on leave. If there is a need to employ someone during the parental leave period, that position must be advertised and filled as a temporary parental leave replacement role.  

If the returning employee moved to a safe job before the pregnancy or agreed to a flexible working arrangement (e.g. reduced hours), they are entitled to return to the same position they had before the move to the safe job or flexible arrangement.  

If, while on parental leave, the employee's old job ceases to exist or changes, where available, the employee must be offered a suitable replacement job for which they are qualified and suited nearest in status and pay to the pre-parental leave position. Employees on parental leave are entitled to be notified of, and given an opportunity to discuss, proposed changes to their pre-parental leave role.    

Extending parental leave  

If an employee who planned to take less than 12 months unpaid parental leave would like to extend their leave, they can request one extension stating their new end date of leave in writing, up to 12 months. Your employee needs to notify you of this intent with at least four weeks’ written notice before their original leave period ends. Further extensions to the period of unpaid parental leave up to 12 months may occur by agreements. 

An employee taking a period of 12 months of unpaid parental leave may also request one extension of a further 12 months (bringing the unpaid leave to 24 months in total). This request must also be in writing at least four weeks before their initial 12-month period of leave ends.

You must respond to an employee’s request for an extension to unpaid parental leave in writing within 21 days, stating whether the request is granted or refused (including considering whether there is any other period of extension you would be willing to grant).

You are required to genuinely try to reach an agreement with an employee in relation to their request, and can only refuse a request for a further extension if you have not been able to reach an alternative agreement.  If you have discussed the employee’s request for an extension and have genuinely tried to reach agreement with them (including considering the consequences of refusing an extension) and you remain unable to reach agreement, you can refuse the request for a further extension on 'reasonable business grounds'. 

Please be aware that the Fair Work Commission is now empowered to resolve disputes about requests for an extention to the initial entitlement to unpaid parental leave. 

Employees who extend their unpaid parental leave beyond 12 months are entitled to take 10 additional keeping-in-touch days (any unused keeping in touch days from the previous 12-month period are forfeited).  

Fostering an inclusive environment for all employees  

While we are explicitly covering the parents in your organisation, extending flexible working options to all workers (not just those entitled to request flexible working arrangements under the FW Act) can be particularly impactful to the culture of your business. Asking employees what you can do to support them to do their best work is considered best practice and helps to minimise negative attitudes and bias against parents by making your organisation a fairer workplace for all.  

Next up: What do you need to think about before your employee returns from leave? We've got you covered.