Babies, Bosses and Bargaining; Returning to Work after Parental Leave
You might have already had your baby but what about negotiating your return to work?
This may be your biggest challenge yet says Alison Dutton, Principal Solicitor at Labour Pains Legal; Employment Law Specialists.
A Right to Request
The right to request a flexible working arrangement is just that, a right to ask for a change in your working hours to accommodate childcare responsibilities.
Unfortunately, this right has been dismissed as toothless and ineffectual, with employers often refusing these requests on the basis of “reasonable business grounds”, which is difficult to challenge.
The right to request a flexible working arrangement arises under Division 4, Part 2-2 of the Fair Work Act 2009 and permits an employee with a minimum period of twelve (12) months continuous service to request a “change in working arrangements”.
The request must be in writing and set out the details of the change sought and the reasons for the change. You may want to speak to someone in your human resources area (if your employer has one) and/or check to see if your employer has any policies on flexible work. The right to request a change in working arrangement is only available to employees who have responsibility for a child of school age or younger, or a child under the age of eighteen (18) who has a disability.
Once you have provided your written request outlining the changes sought and reasons, the employer then has twenty-one (21) days in which to provide you with a written response.
After you have submitted your written request it is recommended that you meet with your employer to discuss and/or negotiate your working conditions in order to come to an arrangement that balances the needs of both parties.
A Right to Refuse
If the employer refuses to accommodate a written request, there is very little an aggrieved employee can do about it. As long as the employer provides a written response to an employee within twenty-one (21) days outlining the basis of its refusal, there are limited remedies available for an employee to seek redress.
If your request is refused you may go to the Fair Work Commission (FWC) under the provisions of a dispute resolution clause contained in your contract of employment, modern award, enterprise agreement or under the National Employment Standards (NES) to have your matter heard before a Commissioner. Your employer must also give its consent to attend.
The FWC has no determinative powers and cannot force an employer to make a flexible working arrangement. Holding a conference with the employer before a Commissioner is simply an opportunity to negotiate and talk through the issues in hope of finding a solution. The Commissioner may make recommendations to both sides in order to come to a mutually agreeable resolution, or the matter may remain unresolved in which case there are limited alternate avenues for the employee.
If your employer has denied your request for a flexible working arrangement, you may invoke federal or state anti-discrimination laws. You may also be covered by the “general protections” in Part 3-1 of the Fair Work Act 2009 which make it illegal for an employer to take any adverse action against you because you have made a request.
It is preferable that you speak to someone if this has happened to you. You may seek assistance (but not legal advice) from the Fair Work Infoline on 13 13 94. The Fair Work Ombudsman website is also a useful tool if you require assistance with drafting a request to your employer and provides templates to do so. These can be found at www.fairwork.gov.au.
If your request has been denied and/or you require legal advice on where you stand, please contact us at Labour Pains Legal: Employment Law Specialists. We provide a first free consultation and “no win, no fee” agreements if your matter is litigated.
Further information can be found at our website: www.labourpainslegal.com.au
 Section 44(2) of the Fair Work Act 2009