Pregnancy, Parental Leave and Return to Work: Know Your Rights

Pregnancy, parental leave and return to work: know your rights

This guide will help employees to:

 Understand the laws that relate to pregnancy, parental leave and return to work  Effectively discuss their rights with their employer

This guide sets out employee entitlements and responsibilities and employer obligations in relation to pregnancy, parental leave and return to work under several different laws including the federal Sex Discrimination Act 1984, state or territory discrimination legislation, the federal Fair Work Act 2009 (Cth) and federal, state and territory work health and safety legislation. These laws apply to most workplaces in Australia.

This project would not have been possible without the generous support of PwC.

This guide provides information based on key questions that arise when:  working while pregnant  requesting and going on parental leave  returning to work  commencing and ending employment.

The guide also sets out:  useful publications produced by the Australian Human Rights Commission, Fair Work Ombudsman and Fair Work Commission  information on where employees can access assistance and  the various avenues for making a complaint.

This guide is the result of extensive consultation and collaboration with all relevant government departments and government agencies.

For a summary of this document, see the Employee Quick Guide, at www.supportingworkingparents.gov.au.

General disclaimer: This guide provides general information only. It is not legally binding and it should not be used as a substitute to individual legal advice. Refer to the glossary for definition of terms used.

Up to date as of July 2015.

1 Contents 1. Understanding the law...... 4 1.1. Key points...... 4 1.2. What laws apply to me?...... 4 1.3. What is pregnancy or return to work discrimination?...... 5 1.4. Can I take parental leave?...... 5 1.5. What work health and safety protections do I have?...... 6 1.6. Do I have any other rights?...... 6 1.7. Where can I get help?...... 6 1.8. More information?...... 6 2. Working while pregnant (or potentially pregnant)...... 8 2.1. Key points...... 8 2.2. When do I need to tell my employer I am pregnant?...... 8 2.3. Can my employer ask me if I am pregnant?...... 8 2.4. How should I handle a negative response from my manager about my pregnancy?...... 8 2.5. What if my manager or colleague keeps making negative comments or jokes about my pregnancy?...... 9 2.6. What should I do if I am worried about my health or safety at work while pregnant?...... 9 2.7. What leave is available for pregnancy related illness?...... 10 2.8. What leave is available for prenatal medical appointments?...... 10 2.9. I’m undergoing fertility treatment. What are my rights?...... 10 2.10. What should I do if my manager is treating me differently now that they know that I am pregnant?...... 10 2.11. What rights do I have under the Fair Work Act if my pregnancy ends?...... 11 2.12. Case study...... 11 2.13. More information...... 11 3. Employees and leave...... 12 3.1. Key points...... 12 3.2. How much unpaid parental leave am I entitled to?...... 12 3.3. What is the Commonwealth Paid Parental Leave Scheme?...... 12 3.4. When must I stop working and go on parental leave?...... 13 3.5. Can I extend my unpaid parental leave under the Fair Work Act?...... 14 3.6. When do I have to tell my employer that I want to take, shorten or extend my unpaid parental leave under the Fair Work Act?...... 14 3.7. My partner is not working. Am I still entitled to unpaid parental leave?...... 15

2 3.8. My partner and I are both working. Can we both take unpaid parental leave under the Fair Work Act?...... 16 3.9. Does my employer have to tell me if my position changes while I am on parental leave?...... 16 3.10. What communication should I have with my employer prior to and when I am on leave?...... 17 3.11. More information?...... 17 4. Returning to work from leave...... 18 4.1. Key points...... 18 4.2. What role am I entitled to when I return to work?...... 18 4.3. I would like to work more flexibly when I return from parental leave. What are my options?...... 18 4.4. Do I have any rights if I breastfeed/express in the workplace?...... 19 4.5. What are replacement employees?...... 19 4.6. More Information...... 21 5. Commencing and ending employment...... 22 5.1. Key points...... 22 5.2. How do I answer a question about family in an interview?...... 22 5.3. How can I find out about my rights in my new workplace?...... 22 5.4. Case study...... 22 5.5. Can I be terminated or made redundant while I am on parental leave?...... 23 5.6. What can I do if I feel I have been treated unfairly?...... 23 5.7. More information...... 23 Assistance and making a complaint...... 24 Glossary...... 34

3 financial corporations (such 1. Understanding the law as sole traders, partnerships, or other unincorporated 1.1. Key points entities). See: http://www.fairwork.gov.au/about-  Employees and employers have rights and us/the-fair-work-system if you are responsibilities relating to pregnancy, unsure whether the Fair Work Act parental leave and return to work under applies to you. several different laws including the federal Employees who are not covered Sex Discrimination Act 1984, state and more generally by the Fair Work territory anti-discrimination laws, the federal Act are still protected from dismissal for discriminatory Fair Work Act 2009 and federal, state or reasons (such as pregnancy) by territory work health and safety legislation. the unlawful termination provisions.  Refer to the glossary if there is a term you Work health All workers including employees, don’t understand. and safety contractors, labour hire workers, legislation apprentices and trainees.

Top Tip – know your rights State and ACT: Discrimination Act 1991 Understand your rights under anti- territory anti- (ACT): all employees in all sectors discrimination laws, the Fair Work Act discrimination and industries including paid and legislation voluntary work, full time, part time, and work health and safety laws and find contract or casual and those out whether you have any additional rights involved with an organisation by reading your employment contract (if (such as board or management applicable), the award or enterprise committee members); except Commonwealth government agreement that applies to your workplace employees. and any workplace policies. NSW: Anti-Discrimination Act 1977 (NSW): all employees and applicants, commission agents 1.2. What laws apply to me? and contract workers - full-time, part-time and casual workers; except Commonwealth Legislation Who Government employees. Sex All employees including full-time, NT: Anti-Discrimination Act 1992 Discrimination part-time, casuals, independent (NT): all workers (full-time, part Act contractors, commission agents, time, casual, permanent and contract workers (such as labour temporary); also includes those hire) and prospective employees, under a contract for services, except state and local government persons employed in whole or in employees. part on a commission basis, a statutory appointment, a person Fair Work Act Provisions in the Fair Work Act with an impairment employed in a relating to parental leave and work program, or a person under a related entitlements apply to all guidance program, vocational employees in Australia. training program or other occupational training or re-training Other provisions of the Act, program. including those relating to flexible working arrangements, apply to all QLD: Anti-Discrimination Act 1991 employees except those employed (Qld): all people applying for work by: and protects most workers  state government in including full time, part time, Tasmania casual, contractors,  state and local government in subcontractors, trainees, New South Wales, apprentices and volunteers; Queensland and South except Commonwealth Government employees. Australia, and  state government in Western SA: Equal Opportunity Act 1984 Australia or those employed (SA): all types of workers, by private sector employers including full-time, part-time, and local government entities casuals, independent contractors, that are not trading or commission agents, partners in a 4 firm, contract workers, unpaid  Direct discrimination occurs when a workers and prospective person is treated less favourably than employees, irrespective of the size of the organisation; except another person because of, for Commonwealth government example, their sex, pregnancy or employees. potential pregnancy, breastfeeding or family responsibilities. TAS: Anti-Discrimination Act 1998 (TAS): all employees in all sectors and industries - paid or voluntary, Example of direct discrimination: Refusing to full time, part time, contract, employ a woman because she is pregnant or casual and those involved with an may become pregnant. organisation (such as board or management committee members); except Commonwealth  Indirect discrimination occurs when government employees. there is a rule, policy, requirement or VIC: Equal Opportunity Act 2010 practice, which appears neutral on its (VIC): all types of workers, face but actually disadvantages a including full time, part-time and certain group of people (e.g. those casual employees, trainees, who are breastfeeding), and is not probation and contract workers. Some aspects of the law also reasonable in all of the circumstances. apply to volunteers and volunteer organisations. The Act applies to Example of indirect discrimination: A all stages of employment, policy requiring that all managers including recruitment, returning to work after injury, illness or must work full-time might pregnancy, and dismissal and disadvantage women who are more retrenchment. likely to need to work part-time due to family responsibilities. WA: Equal Opportunity Act 1984 (WA): all employees in all sectors and industries – The Fair Work Act also makes it unlawful to paid or voluntary, full time, part discriminate on the basis of pregnancy, sex, time, contract, casual and those family or carer’s responsibilities, or to take involved with an organisation (such as board or management adverse action against an employee because committee members); except they have the right to take parental leave, Commonwealth government have exercised the right to take parental employees. leave or propose not to exercise the right to take parental leave. 1.3. What is pregnancy or return to work 1.4. Can I take parental leave? discrimination? Under the Fair Work Act, employees with at least 12 months of continuous service with Under the Sex Discrimination Act, it is their employer immediately before the birth or unlawful to discriminate against an employee expected birth of their child are entitled to on the basis of, for example, their sex, take 12 months of unpaid parental leave if pregnancy, potential pregnancy, family they will have a responsibility for the care of responsibilities and breastfeeding. the child. This applies to both the pregnant employee and the spouse or partner of a It is discrimination to treat an employee less pregnant woman. favourably or disadvantage an employee because of a characteristic that is thought to Casual employees are also entitled to up to apply to someone because of these grounds 12 months of unpaid parental leave if: (such as not allocating a project to an  they have been employed by the employee who is pregnant because of an employer on a regular and systematic assumption that she will be unable to basis for 12 months immediately concentrate and unable to complete certain before the date of birth or expected tasks). date of birth, and Discrimination can be direct or indirect:  but for the birth of the child, they would have a reasonable expectation of 5 continuing employment with the Under the Fair Work Act, regardless of an employer on a regular and systematic employee’s status or length of service, if an basis. you provide your employer with evidence that you are fit for work (e.g. a medical certificate) Parental leave entitlements for members of but that it is inadvisable for you to continue in an ‘employee couple’ are set out at 3.8 your present position because of illness or below. risks arising out of your pregnancy or hazards connected with your job and there is Notice requirements and extensions to the an appropriate safe job available, you are initial 12 months are set out in 3.6 below. entitled to be transferred to the appropriate safe job. Anti-discrimination laws apply both to employees who are and who are not entitled For information about transfers to a safe job to unpaid parental leave under the Fair Work and no safe job leave under the Fair Work Act see 2.6 below. Act. This means that an employer must ensure that the employee’s sex, pregnancy or family responsibilities does not unfairly 1.6. Do I have any other influence a decision to reject the employee’s rights? leave application. For example, it may be discrimination if an employer provides long Many organisations provide additional rights periods of unpaid leave to employees for a and benefits above the minimum conditions variety of reasons but refuses an application set out in law to further value and support for leave by a pregnant employee. pregnant employees and their return to work. These additional rights may be found in An employee may also be entitled to a period employment contracts, organisational policies of paid parental leave under an applicable and practices, enterprise agreements or award, enterprise agreement, policy or their awards. contract of employment. State and territory laws may also provide There is also the Australian Government Paid additional rights. For example, in addition to Parental Leave scheme which provides two rights under the federal Sex Discrimination payments - Parental Leave Pay and Dad and Act, in Victoria, under the Equal Opportunity Partner Pay. See 3.3 below. Act 2010 (Vic) employers must not unreasonably refuse to accommodate the 1.5. What work health and parental or caring responsibilities of an employee or prospective employee. safety protections do I have? Also, the Northern Territory Anti- Under work health and safety laws, Discrimination Act 1996 (NT) provides a businesses have an obligation to ensure, so positive obligation on employers to far as is reasonably practicable, the health reasonably accommodate any special needs and safety of all workers, including pregnant an employee may have because they are or potentially pregnant workers and staff pregnant, breastfeeding or are a parent. returning to work after childbirth.

This also requires businesses to consult so 1.7. Where can I get help? far as is reasonably practicable with workers who are, or are likely to be, directly affected The ‘assistance and making a complaint’ by a matter relating to health and safety at section sets out where to access assistance work. and the various avenues for making a complaint. Additional requirements may apply in relation to higher-risk work, for example lead-risk processes, aviation, underwater diving and 1.8. More information? working with chemicals.  Australian Human Rights Commission

6 o Good Practice Good Business factsheets

 Fair Work Ombudsman o Information for parents and families

o Fact sheets and best practice guides

. Minimum workplace entitlements

. Parental leave and related entitlements

. Workplace discrimination=

o On-line learning centre and course on difficult conversations in the workplace

o Resources on resolving workplace issues

7 Written notification to your employer as early 2. Working while pregnant as possible is advisable for higher-risk jobs (e.g. involving using or handling lead or other (or potentially pregnant) hazardous chemicals) and notification is mandatory if you are pregnant and are 2.1. Key points working with lead in Western Australia. You may need to notify your employer to  Being pregnant does not mean that access certain employee entitlements. For you cannot continue to make a example, if you have worked for your valuable contribution to the business. It employer for at least 12 months before the is against the law to discriminate date of birth or expected date of birth of your against you because you are pregnant. child and you are planning on taking unpaid parental leave under the Fair Work Act, you  You and your employer should discuss must, if practicable, tell your employer at any changes that need to be made so least 10 weeks before the intended start date that your workplace is safe for you of the leave that you plan to take this leave. while you are pregnant. See section 3 which deals with requesting and going on unpaid parental leave under the  You have a duty to take reasonable Fair Work Act. care for your own health and safety and to comply, so far as you are reasonably able to, with any 2.3. Can my employer ask me reasonable instructions relating to if I am pregnant? health and safety in the workplace. Your employer should only ask you if you are pregnant in certain circumstances. If, for Top Tip example, your employer suspects that you Discuss with your employer any changes are pregnant and there are genuine work that need to be made so you can work health and safety concerns if you continue in safely during your pregnancy. your usual role, your employer may ask you in order to make reasonably practicable Common ways to accommodate pregnant adjustments to your current role. They should employees include more breaks, different provide information about the risks they think start and finish times, provision of a car may need to be addressed. space, ensuring employees can have toilet breaks as needed and a chair to sit on if It may be inappropriate if your employer asks the job usually involves standing up for if you are pregnant and there are no genuine long periods of time. work health and safety concerns.

2.2. When do I need to tell my If your workplace poses special risks to pregnant workers, your employer should employer I am pregnant? provide information about those risks to the workforce. This should help you work out While employees do not generally have to when to notify your pregnancy to your notify their employer that they are pregnant, employer for work health and safety reasons. there may be health and safety reasons to do so. 2.4. How should I handle a

All people in the workforce have a duty to negative response from my take reasonable care of their own health and manager about my safety and to comply, so far as they are pregnancy? reasonably able to, with any reasonable instruction given by their employer to allow their employer to comply with their work Most employers will be happy that you are health and safety obligations. pregnant but they may also feel under pressure and wonder what your pregnancy 8 means for the organisation and the work that your work, you may require some changes to needs to be done. your job or work environment.

The best way to handle a negative response You should have a conversation with your is to set aside time to discuss any changes employer about the changes that can be that might need to be made to your work made so that you can keep doing your job. activities and any leave you wish to take. It Most of the time you and your manager will may help to refer to workplace policies. You be able to find a solution and you will be able could also consider giving your manager a to continue safely doing your job with a few few days to get used to the idea before you changes. have a detailed conversation. Make sure you are clear about how you want the You should consult with your general announcement of your pregnancy to be made practitioner/specialist and obtain a medical to the rest of the organisation. certificate if you believe that your work is impacting on your health or pregnancy and Remember that even if your manager or you need adjustments made to your job or another staff member has a negative work environment. Your employer must take response, there might be other people in the into account any medical advice from your organisation who will be able to discuss your general practitioner/specialist about your needs with you. Perhaps another employee health and adjust your working conditions you trust, someone in Human Resources or a accordingly. union representative. Under work health and safety laws, 2.5. What if my manager or businesses must do what is reasonably practicable to ensure the health and safety of colleague keeps making all their workers - including those who are negative comments or jokes pregnant. Employers must be prepared to about my pregnancy? consult on possible options to find appropriate solutions. You have the right to cease or refuse to carry out work, if you have This could amount to discrimination. You may a reasonable concern that carrying out the want to deal with the situation yourself by work would expose you to a serious risk to raising it directly with your manager or your your health or safety due to an immediate or manager’s supervisor. If this does not resolve imminent exposure to a hazard. the situation, or you do not feel comfortable doing this, you can make a complaint. Under anti-discrimination laws, employers should consider all reasonable options for See ‘Assistance and making a complaint’ accommodating the needs of pregnant which sets out the various avenues for employees and be prepared to discuss these making a complaint. options with you to find individual solutions. Common ways to accommodate pregnant See also, the Australian Human Rights employees include more breaks, different Commission’s Good Practice Good Business start and finish times, provision of a car guide Workplace discrimination, harassment space, ensuring employees can have toilet and bullying breaks when needed and a chair to sit on if the job usually involves standing up for long 2.6. What should I do if I am periods of time. If your employer does not provide reasonable accommodations, this worried about my health or may be discrimination. safety at work while pregnant? Under the Fair Work Act, all pregnant employees, including casuals, are entitled to move to a safe job if it is not safe for them to You may experience a variety of physical do their usual job because of their pregnancy. effects such as tiredness and nausea during This includes employees that are not eligible certain stages of your pregnancy. While this for unpaid parental leave. is unlikely to prevent you from performing 9 An employee who moves to a safe job will still amount of unpaid parental leave under the get the same pay rate, hours of work and other Fair Work Act that you can take. entitlements that she got in her usual job. She and her employer can however agree on 2.8. What leave is available different working hours. for prenatal medical If there is no safe job available, the Fair Work appointments? Act provides that an employee can take ‘no safe job’ leave. This leave is: As being pregnant in and of itself, is not technically an illness under the Fair Work Act,  Paid (at the base rate of pay) if the use of personal/carer’s leave depends on employee is entitled to unpaid parental individual circumstances. leave under the Fair Work Act and Some awards, agreements or workplace  Unpaid if the employee is not entitled policies specifically allow personal leave to be to unpaid parental leave under the Fair used to attend prenatal medical appointments. Work Act. If your employer allows access to paid or unpaid leave for other purposes, to meet their obligations under anti-discrimination laws, they 2.7. What leave is available should afford pregnant employees the same for pregnancy related illness? flexibility in regard to attending prenatal medical appointments.

Under the Fair Work Act, you may take 2.9. I’m undergoing fertility personal/carer’s leave if the leave is taken because you are not fit for work, because of treatment. What are my personal illness or injury. (You may also take rights? personal/carer’s leave to provide care or support to a member of your immediate If you are undergoing fertility treatments, such family or household who, due to personal as IVF or assisted reproductive technology, illness, injury or an unexpected emergency, you are covered by the Sex Discrimination Act. requires care or support.) This means you cannot be disadvantaged or treated less favourably than other employees. You may access personal/carer’s leave because of a pregnancy-related illness e.g. Where fertility treatment impacts on your or gestational diabetes, pre-eclampsia, back your partner’s health (e.g. side effects from pain resulting from pregnancy. hormone therapy or other medication) you may be entitled to access personal/carer’s leave In addition to personal/carer’s leave, the Fair under the Fair Work Act on the basis of your Work Act provides for unpaid special personal illness or your need to care for or maternity leave for pregnant employees who support your ill partner. are eligible for unpaid parental leave under the Fair Work Act and have a pregnancy- 2.10. What should I do if my related illness. manager is treating me

You must give your employer notice of the differently now that they know taking of unpaid special maternity leave as that I am pregnant? soon as practicable (which may be a time after the leave has started) and must advise If your pregnancy is one of the reasons why your employer of the period, or expected your supervisor is treating you unfavourably, period, of the leave. for example, refusing to let you go on training or not considering you for a promotion, this Your employer can ask for evidence such as may be discrimination under, for example, a medical certificate showing that the leave is the Sex Discrimination Act. taken for the prescribed reason. The use of special maternity leave does not reduce the You should approach your employer informally and try to solve the problems 10 directly. A good way to do this is to discuss Timing Rights with your employer your concerns or write weeks after your employer gives you their written notice. your employer an email or letter. If this does not resolve the issue or you feel uncomfortable raising the issues directly with your employer, you can bring a complaint to 2.12. Case study the Australian Human Rights Commission. You may also have rights under other Australian Human Rights Commission legislation, e.g. adverse action under the Fair case study - complaint under the Sex Work Act and state or territory anti- Discrimination Act discrimination laws. The complainant was employed in a medical related position. She alleged that 2.11. What rights do I have her employer offered her a promotion under the Fair Work Act if my which was conditional on the outcome of a pregnancy ends? medical assessment. The complainant claimed her employer revoked the offer when she disclosed she was pregnant. On Timing Rights being advised of the complaint her employer reinstated the offer of promotion. If you miscarry You are entitled to take The complaint was resolved on this basis. within the first 12 personal/carer’s leave. If you Please note that the complainant could weeks of have used all of your pregnancy personal/carer’s leave, you have chosen to bring her complaint to should request unpaid leave. another organisation rather than to the Australian Human Rights Commission. Please see ‘Assistance and making a If your pregnancy Provided that you have ends within 28 completed at least 12 months complaint’ for information on the weeks of the of continuous service with your various organisations. expected date of employer immediately before birth the expected date of birth of your child, you are entitled to a period of unpaid special maternity leave. You may also access other forms of accrued 2.13. More information paid leave such as annual  Australian Human Rights leave or long service leave. If you have accrued paid Commission: personal/carer’s leave, you o Good Practice Good can take this instead of unpaid Business factsheets special maternity leave.  Fair Work Ombudsman: If the period of You or your employer may o Information for parents unpaid parental give written notice cancelling and families leave under the the leave. Fair Work Act has o Pregnant employee not commenced entitlements and the pregnancy  Fair Work Commission ends other than in the birth of a live o General protections child If the period of You can give your employer unpaid parental written notice that you wish to leave has return to work and your commenced and employer must give you the pregnancy written notice requiring you to ends due to still return to work on a specified birth, or the child day which must be within 4 dies weeks after your employer receives your written notice.

Also, your employer may, where appropriate, give you written notice requiring you to return to work on a specified day which must be at least 6 11 employee and the spouse or partner of the 3. Employees and leave pregnant woman. Casual employees who have been employed 3.1. Key points for 12 months immediately before the date of birth or the expected date of birth of the child and but for the birth or expected birth of the  Many different forms of leave can be used child the employee would have a reasonable to support parents in the lead-up to birth and expectation of continuing employment by the caring for their baby. employer on a regular and systematic basis are also entitled to take 12 months of unpaid

 Under the Fair Work Act, if you have parental leave if they will have a responsibility completed at least 12 months of continuous for the care of the child. service with your employer immediately before the birth or expected birth of your Annual leave or long service leave can be child, you are entitled to take up to 12 months used at the same time as unpaid parental of unpaid parental leave if you will have a leave under the Fair Work Act, but do not responsibility for the care of the child. This extend any available parental leave period. An applies to both the pregnant employee and employee is not entitled to take paid the spouse or partner of the pregnant personal/carer’s leave, compassionate leave or employee. community service leave while he or she is taking unpaid parental leave.  Where an employee is not entitled to unpaid parental leave under the Fair Work Anti-discrimination laws apply both to Act, anti-discrimination laws still apply. This employees who are and who are not entitled to means that an employer must ensure that the unpaid parental leave under the Fair Work Act. employee’s sex, pregnancy or family This means that an employer must ensure that responsibilities does not unfairly influence a the employee’s sex, pregnancy or family decision to reject the employee’s leave responsibilities does not unfairly influence a application. decision to reject the employee’s leave application. For example, it may be  The Australian Government Paid Parental discrimination if an employer provides long Leave scheme provides two payments – periods of unpaid leave to employees for a Parental Leave Pay and Dad and Partner variety of reasons but refuses an application Pay. for leave by a pregnant employee.

Top Tip 3.3. What is the Australian There are some requirements about when Government Paid Parental you need to tell your employer that you Leave Scheme? want to take leave. Section 3.6 below sets out in table form the requirements. The Australian Government Paid Parental Leave scheme includes two payments — Parental Leave Pay and Dad and Partner Pay. 3.2. How much unpaid The eligibility rules for these payments are different to the criteria for unpaid parental parental leave am I entitled leave under the Fair Work Act. This means that to? sometimes an employee will receive payment under the Australian Government Paid Parental Leave scheme even if they are not Under the Fair Work Act, if you have worked eligible for unpaid parental leave under the Fair for your employer continuously for at least 12 Work Act. months immediately before the birth or expected birth of your child, you are entitled to Parental Leave Pay take up to 12 months of unpaid parental leave if you will have a responsibility for the care of Parental Leave Pay helps eligible working the child. This applies to both the pregnant parents with costs following the birth or recent 12 adoption of a child. If eligible, you will be able to receive Parental Leave Pay at the national Jessica had been working as a filing clerk minimum wage for up to 18 weeks. at a Sydney firm for 4 years. She notified Additionally, you must be on leave from your her employer that she was pregnant and workplace and not be working for any other asked about the Australian Government employer. It can be claimed by either parent as Paid Parental Leave scheme. long as they are the primary caregiver. For Parental Leave Pay, her employer To be eligible for Parental Leave Pay, you directed her to the Australian Government must: Department of Human Services website.  be the primary carer of the child  have an individual adjusted Jessica completed her claim online before taxable income of $150,000 or less the birth of her child. Her claim was in the financial year either before assessed and she received notification the date of birth or adoption, or the from the Department of Human Services date you claim, whichever is that she was eligible for payment. Her earlier, and employer was also notified.  have worked for at least 10 of the 13 months before the birth or When Jessica’s daughter was born she adoption of your child and 330 provided proof of birth to the Department of hours in that 10 month period, Human Services online. This finalised her even if all of that work was not with claim. Payment to her employer the same employer, and commenced from her nominated start date.  meet Australian residency requirements. Jessica had some annual leave accrued Casual workers, contractors and self- that she also wanted to use. Jessica left employed people are also eligible to receive work 6 weeks before her baby was due the payment. and commenced unpaid parental leave under the Fair Work Act. She took the first Parental Leave Pay can be claimed through 3 weeks as annual leave and then had 3 the Australian Government Department of weeks unpaid leave. When her baby was Human Services. born, she received the 18 weeks of Parental Leave Pay at the national If you are entitled to Parental Leave Pay, minimum wage. After these 18 weeks she your employer will provide the payment to took 6 weeks of unpaid parental leave. Her you if you: total time off was (6+18+6 = 30 weeks),  have worked for the employer for Paid = 21 and Unpaid = 9. at least 12 months  will remain employed by the Dad and Partner Pay employer during the parental leave period This payment helps eligible working fathers or  are based in Australia, and partners (including adopting parents and  expect to receive at least 8 weeks same-sex couples) when they take unpaid time of Parental Leave Pay. off work to care for their new baby or recently adopted child. If eligible, you will be able to In other circumstances, the Australian receive up to two weeks Dad and Partner Pay Government Department of Human Services at the national minimum wage. will pay you directly. To be eligible, employees must be on unpaid For more information, visit leave, such as unpaid parental leave and not humanservices.gov.au/parentalleavepay. working through their two week Dad and Partner Pay period, and must: Example: Assisting a pregnant employee  have an individual adjusted to understand and use the Australian taxable income of $150,000 or less Government Paid Parental Leave scheme in the financial year either before

13 the start date of the Dad and 3.5. Can I extend my unpaid Partner Pay period, or the date you claim, whichever is earlier, parental leave under the Fair and Work Act?  have worked for at least 10 of the 13 months before the start date of Under the Fair Work Act, you have the right to the Dad and Partner Pay period extend your unpaid parental leave once and 330 hours in that 10 month (provided you have not used all of the 12 period, even if all of that work was month unpaid leave period) by giving written not with the same employer, and notice to your employer at least 4 weeks  meet Australian residency before the end date of the original leave requirements. period. This is a right under the Fair Work Act and provided you give the required notice, The Australian Government Department of cannot be refused by your employer. The Human Services will pay you directly. original leave period can only be shortened by agreement with you. Your employer should not prevent you from taking unpaid leave for this purpose, even if You can request in writing an extension of you have accrued paid leave entitlements. unpaid parental leave for a further 12 months immediately following the end of the available For more information, visit 12 month parental leave period. The request humanservices.gov.au/dadandpartnerpay must be given to your employer at least 4 weeks before the end of the initial 12 month 3.4. When must I stop parental leave period. Your employer must grant or refuse the request no later than 21 working and go on parental days after you make the request. Your leave? employer may refuse the request only on reasonable business grounds and must include The Fair Work Act provides for pregnant details of the reason for the refusal in their employees to start unpaid parental leave 6 response. weeks before the expected birth date. If you The term ‘reasonable business grounds’ is not want to keep working in the 6 weeks before defined in the Fair Work Act and what is the expected birth date, your employer may reasonable depends largely on the request that you provide medical evidence to circumstances of your workplace. For example, show that you are fit to work and whether it is it may be unreasonable if a large organisation inadvisable to keep working in your present with many employees (such as a supermarket position. If you do not provide your employer chain) refused to allow a manager, who has with a medical certificate within 7 days of the same skills as many other managers, an their request, your employer can require you extension to their parental leave. The company to start your unpaid parental leave under the could easily organise work among existing staff Fair Work Act. and if required, the company could recruit a Unpaid parental leave under the Fair Work replacement employee. Act must not start later than the date of birth An employer must ensure that the employee’s of the child. sex, pregnancy or family responsibilities does If you are not eligible for unpaid parental not unfairly influence a decision to reject an leave under the Fair Work Act, you must stop extension. Otherwise, a refusal may be working at a suitable time so that your discriminatory. employer can fulfill their obligations to For situations where both parents are taking provide a safe workplace. You also have an unpaid parental leave under the Fair Work Act, obligation to take reasonable care for your (as part of an employee couple), the parents own health and safety at work. are entitled to no more than 24 months of leave between them.

Example –Taking and extending leave 14 Action Notice period your unpaid parental unpaid parental May had worked for three years for her leave or advising leave unless this employer and was therefore entitled to your employer of any is not practicable unpaid parental leave under the Fair Work changes (e.g. the child is Act. She was pregnant and notified her born employer that she intended to take 8 prematurely). months of unpaid parental leave. When This must be in she was on leave, she realised that she writing. wasn’t ready to go back to work, so she notified her employer (4 weeks before her initial leave period ended) that she was When can you stop The leave may extending her leave for the additional 4 working and start start up to 6 months. She did not need to get her your unpaid parental weeks before employer to agree to this as she had the leave? the expected right to extend and had provided sufficient birth of the child notice (i.e. a minimum of 4 weeks). but can start earlier if you and Later she requested in writing an extension your employee of 3 months past the initial 12 months as agree. If you she could not get a childcare place until continue working her baby was 14 months old. When she during the 6 set out why she needed the extra time, her week period employer considered its business needs before the birth of and then agreed to May’s request. the child your employer may request that you 3.6. When do I have to tell my provide certain employer that I want to take, medical evidence shorten or extend my unpaid that states you are fit to work parental leave under the Fair and may require Work Act? you to take unpaid parental leave if you The below table sets out when you need to cannot provide notify your employer of your intention to take, that evidence. shorten and extend unpaid parental leave Shortening your The original under the Fair Work Act: original period of leave period can Action Notice period unpaid leave (e.g. generally only be from 12 months to 9 shortened by Telling your At least 10 months) agreement with employer of your weeks before your employer. intention to take you wish to Telling your At least 4 weeks unpaid parental commence employer that you before your leave under the Fair unpaid parental are extending your expected date of Work Act leave (or as soon initial period of return. This must as practicable). unpaid parental be in writing. This This must be in leave (e.g. from 9 is a right under writing and you months to 12 the Fair Work Act must specify the months) and cannot be intended start refused by your and end dates. employer.

Confirming the start At least 4 weeks Requesting an At least 4 weeks and end dates of before you start extension to unpaid before the end of 15 Action Notice period  for the carer who is to take a period parental leave the initial 12 of unpaid parental leave after the beyond the initial 12 month unpaid period of unpaid parental leave of the months (e.g. 12 parental leave other member of the employee months to 18 period. This couple, the date that the employee’s months) request must be period of leave is to start. in writing. Your employer As a general rule, employee couples cannot must respond to take parental leave at the same time except for this request 8 weeks in total. This concurrent leave can be within 21 days. taken in separate periods (for e.g. some at the birth and some later) but each block of 3.7. My partner is not concurrent leave must not be less than 2 weeks. working. Am I still entitled to unpaid parental leave? The total leave taken between the employee couple cannot exceed 24 months and if one employee requests an extension of unpaid Under the Fair Work Act, even though your parental leave, their employer is entitled to ask partner is not working, you can still apply for how much parental leave the other member of 12 months of unpaid parental leave provided the employee couple has taken in order to you will have a responsibility for the care of work out the employee’s entitlement. the child while on leave and have completed 12 months of continuous service with your employer immediately before the period of Example: Employee couple both taking leave is to start. unpaid leave – Anthony/Maria

If rather than start the unpaid parental leave When Maria was pregnant with her first at the birth or expected date of birth of the child, due in April, she worked out with her child you wish to start the leave later, this is husband Anthony how they could both take allowed provided that the period of unpaid parental leave to best work for them. parental leave starts within 12 months after Maria worked as a teacher and it made the date of the birth of your baby. While you sense for her to go back to work at the can request an extension to the initial 12 start of the school year, but they wanted to months of unpaid leave, the period of leave have one of them home with the baby for a may not be extended beyond 24 months after bit longer. Maria stopped work at the end the date of birth of your baby. of Term 1, 3 weeks before the birth. When the baby was born, Anthony also took 3 3.8. My partner and I are both weeks concurrent parental leave and had 3 weeks annual leave, and then went back to working. Can we both take work. When school started for the new unpaid parental leave under year Maria went back to work. Anthony then took 6 months unpaid parental leave, the Fair Work Act? returning to work when their baby was 15 months old. Under the Fair Work Act, you and your partner are described as an employee couple. Both of you can take unpaid parental 3.9. Does my employer have leave under the Fair Work Act provided that you have completed at least 12 months of to tell me if my position continuous service with your employer: changes while I am on parental leave?  for the carer who is to take the initial unpaid parental leave, before the Yes, your employer must consult with you birth or expected birth of your child while you are on parental leave if there is and going to be a significant change to your pre-

16 parental leave position. This could include, It is best to have a discussion with your for example: employer prior to the taking of parental leave  a change in status, pay or location about, for example, your intended return date or and whether you think you will want to work part time on return so that both parties’  a business restructure involving preferences and wishes are understood. Keep redundancies, and possibly in mind that this may also change once your including your role. baby is born.

The Fair Work Act provides that you can work Under anti-discrimination laws, an employee up to 10 days during unpaid parental leave on parental leave must not be disadvantaged under the Fair Work Act. The days are paid at or treated less favourably than other your usual rate of pay and are designed to employees, for example, in the provision of a assist you to keep in touch with your employer redundancy or offers of new employment. while you are on leave to facilitate your return to work after the leave. Keeping in touch days Australian Human Rights Commission could include attending an annual planning case study - complaint under the Sex day, important training sessions or regular Discrimination Act informal catchups.

The rules around keeping in touch days are in The complainant was employed as a the Fair Work Act, and provide that it is a manager with the respondent marketing keeping in touch day if: company. After over one year of working at the company, she went on 12 months of  The purpose of performing the work is to unpaid parental leave. She said that when enable the employee to keep in touch she contacted her employer a month with his or her employment in order to before she was to return to work, she was facilitate a return to that employment at told that her position had been made the end of leave; and redundant because of the acquisition of another company some months before.  Both the employee and the employer The complainant said that while on leave, consent to the employee performing work she was not advised of the changes for the employer on that day; and occurring in the company and was not given the opportunity to apply for another  The day is not within 14 days after the position. The complainant also alleged that birth of the child (if the employee her former position still existed, but had a requests the day) or 42 days (if the new title. The complaint was resolved with employer requests the day); and an agreement that the company pay the complainant compensation. Please note  The number of keeping in touch days has that the complainant could have chosen not been more than 10 in the period of to bring her complaint to another unpaid parental leave. organisation rather than to the Australian Human Rights Commission. As the Fair Work Act requires unpaid Please see ‘Assistance and making a parental leave to be taken as a continuous complaint’ for information on the period, an employee who does not comply various organisations. with the purpose of the keeping in touch days or works for more than 10 days, may lose their entitlement to continue their period of unpaid parental leave and/or return to their 3.10. What communication former position. should I have with my Employees who have extended their unpaid employer prior to and when I parental leave beyond the initial available 12 month period are entitled to a further 10 am on leave? keeping in touch days.

17 There can be no negative consequences to choosing not to attend any keeping in touch days.

3.11. More information?

 Fair Work Ombudsman o Parents and families page o Best Practice Guide Parental Leave o Employer and employee checklists for parental leave o Parental leave information o Templates: . parental leave request . application to vary parental leave – first 12 months . application to extend parental leave – beyond 12 months

18 . 4. Returning to work from leave 4.2. What role am I entitled to when I return to work? 4.1. Key points During leave you should have been in contact with your employer and you should have a  If you are entitled to unpaid parental leave specific discussion with your manager as your under the Fair Work Act, you have the right at return date becomes closer. the end of that leave to return to your pre- parental leave position. This is known as the It is helpful in this discussion to remember that return to work guarantee. If you have taken a if you were entitled to unpaid parental leave negotiated period of leave over the birth of your child, outside of the Fair Work Act under the Fair Work Act, you are entitled to entitlements, it may be discriminatory if your your pre-leave job back and if that job no employer refuses to allow you to return to longer exists, you are entitled to an available your pre-leave position or to allow flexible position for which you are qualified and suited working arrangements. nearest in pay and status to your pre-leave job.

 If your job no longer exists, you have a right If you are pregnant and are employed on a to an available position for which you are fixed term contract and your contract will end qualified and suited, nearest in pay and while you are on leave, you are not entitled to status to your pre-parental leave position. return to the same job at the end of the  Under the Fair Work Act, an employee who negotiated leave (unless your contract or has responsibility for the care of a child who other documentation states otherwise). If is of school age or younger may request a however, the contract ends after you return flexible working arrangement if they have from the leave, you are entitled to the same completed at least 12 months of continuous job to complete your work under the fixed service with their employer immediately term contract. before making the request.

 While an employer can refuse a request for 4.3. I would like to work more flexible work under the Fair Work Act, flexibly when I return from employers should also be mindful of obligations under the Sex Discrimination Act parental leave. What are my and other state or territory anti-discrimination options? laws. Under the Fair Work Act, an employee who  Under the Fair Work Act, you may take has completed at least 12 months of personal/carer’s leave if the leave is taken because you are not fit for work, because of continuous service with their employer personal illness or injury. You may also take immediately before making the request and personal/carer’s leave to provide care or who has responsibility for the care of a child support to a member of your immediate who is of school age or younger may request family (e.g. your child) or household who, due a flexible working arrangement. to personal illness, injury or an unexpected emergency, requires care or support. Casual employees are entitled to make a request in circumstances where they are a long term casual employee of the employer Top Tip (i.e. they have been employed on a regular Flexible work can take many forms – it is and systematic basis for a sequence of not just working part-time. It can involve periods of employment during a period of at job-share, compressed working weeks or 9 least 12 months) and have a reasonable day fortnights, reduced hours, working expectation of continuing employment with from home, changed start and finish times, the employer on a regular and systematic different places of work, extended leave or basis. a combination of all these.

19 Under the Fair Work Act, employees who Mary works in Victoria. When she returned have responsibility for the care of a child and from parental leave, she requested to work are returning to work after taking leave in 3 days a week. This was approved by her relation to the birth of the child may request manager. However, soon after approval to work part-time to assist the employee to she was moved to a different department care for the child. with less client contact and fewer responsibilities. You must make your request for flexibility in Her employer had potentially breached the writing and your employer must respond to law by this unfair treatment. the request in writing within 21 days. A Mary could seek help from the Fair Work request can be refused by your employer on Ombudsman, lodge a claim with the Fair ‘reasonable business grounds’ which may Work Commission, make a complaint of include (but is not limited to) considerations discrimination to the Australian Human such as that: Rights Commission or make a complaint to  The proposed arrangements would be the Victorian Equal Opportunity and too costly Human Rights Commission. Please see  There is no capacity to change the ‘Assistance and making a complaint’ working arrangements of other for information on the various employees to accommodate the organisations. proposed arrangements  It would be impractical to change the working arrangements of other employees or recruit new employees 4.4. Do I have any rights if I to accommodate the proposed breastfeed/express in the arrangements  The proposed arrangements would be workplace? likely to result in a significant loss in efficiency or productivity Yes, breastfeeding is a protected ground of  The proposed arrangements would be discrimination. You should request a private likely to have a significant negative room with a comfortable chair, a fridge where impact on customer service. you can store breast milk and somewhere to store your breast pump. ‘Reasonable business grounds’ will vary from business to business and take into account the Work health and safety laws also require size of the organisation. businesses to ensure, so far as is reasonably practicable, the provision of adequate While an employer can refuse a request for facilities for workers’ welfare while at work. flexible work under the Fair Work Act, employers should also be mindful of Failure to provide adequate facilities may obligations under the Sex Discrimination Act or constitute discrimination and a breach of other state or territory anti-discrimination laws. work health and safety laws. This means that an employer must ensure that the employee’s sex or family responsibilities do See ‘Assistance and making a complaint’ not unfairly influence a decision to reject the which sets out where to access legal employee’s request. assistance and the various avenues for making a complaint. Employees are protected from being treated unfairly because they have requested flexible work. See fairwork.gov.au for information on 4.5. What are replacement general protections. If you think your employer employees? has unfairly refused your request for flexible working arrangements you can seek legal Under the Fair Work Act, a replacement assistance - see ‘Assistance and making a employee is an employee that performs the complaint’. work of an employee who is on parental leave.

Example

20 During the hiring process, replacement employees must be notified by the employer Cynthia decided to seek legal advice on that: her rights. Her employer had potentially (a) the role is temporary; breached the law such as:

(b) the employee on leave has a right to  failing to consult with her about the their pre-parental leave job back when significant change to her pre- they return to work; and parental leave position while she was on leave (under the Fair Work (c) the employee and the employer may Act) have a right to cancel or end the leave  failing to return her to her pre- early in certain circumstances (e.g. leave position (under the Fair Work stillbirth or infant death). Act)  taking adverse action (in changing This means that replacement employees her reporting line and duties) understand that they may not have continuing against her because she had taken employment with the employer. parental leave (under the Fair Sometimes an employer will not hire a specific Work Act) replacement employee, but instead just hire  discriminating against her by someone generally who has taken over some changing her role to one of lesser of the parental leave employee’s tasks. In this status and with fewer case, the employee that returns from parental responsibilities on the basis of her leave is still entitled to their job back and the pregnancy and sex, giving rise to a employer will have to consider what role the claim under the Sex Discrimination additional employee can do or consider ending Act or state and territory anti- their employment according to usual workplace discrimination legislation or an laws. action under the Fair Work Act.

Please see ‘Assistance and making Example – unsuccessful return to work a complaint’ for information on the Cynthia was employed as the Marketing various organisations. Manager looking after four business units. She took 8 months unpaid parental leave provided for under the Fair Work Act and a replacement employee was hired as Assistant Marketing Manager while Cynthia was on parental leave. Cynthia had no contact with her employer while she was on leave, but heard from some work colleagues that the replacement employee was now called the Marketing Manager and the boss really liked her. Cynthia tried to arrange a time to meet her manager to discuss her return to work, but he was too busy.

Finally he said he could meet her the day before she was due to return. In the meeting he told her there had been a restructure while she was away, and her role had changed. She would still be called the Marketing Manager but would report to the replacement employee, not him, and look after one area of the business only, not the four she had previous responsibility for.

21 4.6. More Information

 Fair Work Ombudsman: o Parents and families page o Parental leave Best Practice Guide o Work and Family Best Practice Guide

o The Right to Request Flexible work Arrangements Best Practice Guide

o Returning to work from parental leave

o Workplace discrimination fact sheet

o Request for flexible working arrangements template

o Request for flexible working arrangements – example letters template

 Fair Work Commission: o General Protections Guide 1 - Overview of general protections laws

o General Protections Guide 2 - Making a general protections application

o General Protections Guide 3 - Responding to a general protections application

o Guide - Unfair dismissal

 Australian Breastfeeding Association breastfeeding friendly workplaces

22 This means that an organisation cannot refuse to hire you because you are of 5. Commencing and ending childbearing age - that would be discrimination. Similarly, an organisation employment cannot refuse to hire you because you are pregnant or have children - this would also be 5.1. Key points discrimination. The same rules apply for recruiters and labour hire companies.

 When you apply for or start a new job, an There may be some instances where the employer must not refuse to employ you and requirements of the job may make it must not treat you less favourably than impractical to hire a pregnant person and that another job applicant because of, for example, your sex, pregnancy, potential would not be discrimination. For example, pregnancy, marital/relationship status, family where there are reasonable concerns about responsibilities or breastfeeding status. work health and safety issues e.g. in the lead industry.

5.3. How can I find out about  While employers can decide to terminate your employment, or make your position my rights in my new redundant while you are pregnant, on parental leave, or after returning to work from workplace? parental leave, they must be very careful to ensure that your pregnancy, parental leave or Under the Fair Work Act, your employer must family responsibilities is not one of the give you a Fair Work Information Statement. reasons for that decision. This is prepared by the Fair Work Ombudsman and sets out various information including about:  the National Employment Standards  Usual rules and processes around ending  modern awards employment apply.  termination of employment.

In addition to the Fair Work Information Statement, your employer may give you:  Do not delay taking action if you think you might have a claim as there can be short time  an employment contract frames for lodging certain actions, e.g. 21  a letter which states the Award which days. See ‘Assistance and making a applies to your employment. complaint’ for further details.  an enterprise agreement that applies to your workplace  workplace policies that cover various issues such as leave, discrimination 5.2. How do I answer a and pregnancy. question about family in an You should be familiar with all documents to interview? see if your employer provides any additional rights to what you already have under the Employers should not ask about your plans law. to have children or whether you have children. You do not have to tell an employer 5.4. Case study of your plans to have children or even if you currently have any children. Australian Human Rights Commission Remember that under the law, pregnancy, case study - complaint under the Sex potential pregnancy, marital/relationship Discrimination Act status, family responsibilities or breastfeeding The complainant found out she was is irrelevant when considering a person’s pregnant and informed the recruitment suitability for the job. agency and her prospective employer. The complainant alleged that the company then

23 You should raise your concerns with your withdrew the offer of employment and the manager or someone in Human Resources. recruitment agency did not contact her Your employer may have an internal about other employment opportunities. She grievance procedure which can be claimed that she was discriminated against implemented. It is in both your and the because of her pregnancy. The company employer’s best interest for your concern to said that it was a small organisation and be dealt with promptly and fairly. the decision to withdraw the employment In the event, you are unable to resolve the offer was based on business reasons. The issue internally you may wish to pursue your complaint was resolved through complaint externally. Just be aware that there conciliation with the company and agency can be short time frames for bringing some paying money to the woman. The company actions, so do not delay taking action if you also provided a written apology and think you might have a claim. developed an Equal Employment Opportunity policy for the workplace. Actions to end employment can be the subject of various claims under:  the Fair Work Act (claims of adverse Please note that the complainant could action, unfair dismissal, breach of an have chosen to bring her complaint to award or enterprise agreement) another organisation rather than to the  the Sex Discrimination Act, Australian Human Rights Commission.  state or territory anti-discrimination Please see ‘Assistance and making a legislation complaint’ for information on the  a breach of your employment various organisations. contract. The decision of where to bring a complaint is a complex one and legal advice should be sought. It can depend on a number of factors like the time it will take for a complaint to be 5.5. Can I be terminated or dealt with, time limits on lodging the complaint and the range of remedies or relief that are made redundant while I am on available if the matter has to go to court. Please see ‘Assistance and making a parental leave? complaint’ for information on where you can access assistance and the various avenues for Yes, employees on parental leave are not making a complaint. immune to genuine redundancy. If your employer is making a number of positions 5.7. More information redundant, they need to fairly consider you and any other employees who are on  Australian Human Rights Commission parental leave. It is wrong to either o Good Practice Good Business automatically include or exclude employees factsheets on leave from the process - they should be considered in the same way as everyone  Fair Work Ombudsman else. o Fact sheets: Under the Fair Work Act, your employer must . Minimum workplace consult with you and discuss any proposed entitlements changes to the organisation or your role in accordance with any obligations under an . Information for award or enterprise agreement that may parents and families apply. Your employer must also comply with the Fair Work Act obligation to discuss . Ending employment: changes in roles in respect of employees on parental leave. Failure to treat employees in the same way as others can also amount to . Ending employment discrimination under the Sex Discrimination while on parental Act and other anti-discrimination legislation. leave

5.6. What can I do if I feel I . Protections at work have been treated unfairly?

24 . Workplace discrimination

 Fair Work Commission: o Guides: . General Protections . Unfair Dismissal

25 Assistance and making a complaint

The decision of where to bring a complaint is a complex one and legal advice should be sought. It can depend on a number of factors like the time it will take for a complaint to be dealt with, time limits on lodging the complaint and the range of remedies or relief that are available if the matter has to go to court.

The following organisations may be able to provide assistance and advice:

 National Legal Aid: http://www.nationallegalaid.org/  National Association of CLC’s: http://www.naclc.org.au/need_legal_help.php  Australian Council of Trade Unions: http://www.actu.org.au  Women’s Legal Service: http://www.wlsa.org.au/members

The below chart provides general information on the main organisations, claims and remedies. It is not a substitute for legal advice and it is recommended that advice is sought before any particular action is taken:

Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint)

The Australian The Commission’s The Sex Discrimination Act Complaints should generally be Generally, when a complaint is There is no cost in making a Human Rights National Information makes it against the law to lodged within 12 months of the received, the Commission will tell the complaint to the Commission. Commission Service provides treat an employee less alleged act of discrimination employer about the complaint and https://www.hu employers and favourably or disadvantage the give the employer a copy of the The Commission is not an advocate manrights.gov.a employees with employee because of their: complaint. Where appropriate, the for the complainant or the employer. u/ information about  sex Commission will invite the parties to their obligations and  pregnancy or potential participate in conciliation. A complainant under the Sex rights under the Sex pregnancy Discrimination Act cannot go straight Discrimination Act.  family responsibilities Conciliation is an informal process to court – a complaint must be lodged  breastfeeding or that allows those involved in the with the Commission first. A key role of the  marital or relationship complaint to talk about the issues in Commission is to status. the complaint and try to find a way to At Court, a complainant must be investigate and resolve the matter. There is a wide able to show less favourable conciliate Examples of acts which may range of outcomes that can be treatment against a comparison complaints of be discriminatory include: agreed, such as training on anti- employee (direct discrimination) or discrimination,  not hiring someone discrimination, apology and financial that a condition has been imposed including under the because they are compensation. which is unreasonable in all the Sex Discrimination pregnant or have family circumstances, and which Act. responsibilities If the complaint cannot be resolved or disadvantages the employee

26 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint)  not returning an is terminated for some other reason, because of their The Commission is employee who has taken such as that the complaint is lacking sex/pregnancy/family responsibilities not a court and parental leave to a in substance or has already been (indirect discrimination). The onus of cannot decide if position with the same adequately dealt with, the proof is on the complainant to prove discrimination has status, tasks and complainant has the option of making the case. The employer bears the happened. The responsibilities an application to the Federal Circuit onus of proving that a condition is Commission’s role  unreasonably refusing to Court of Australia or the Federal reasonable. is to get both sides accommodate a request Court of Australia. The Court can of the story and to work part-time determine if discrimination has help those involved  making negative remarks happened. If a complainant succeeds at Court try to resolve the about an employee’s they generally would have any legal complaint. need to breastfeed The Court has a wide range of costs paid. If they are unsuccessful powers to made orders if it finds they may have to pay the legal costs Almost all employees, there has been unlawful of the employer. including casuals and contract discrimination. workers, are covered under There is no cap on the damages that the Sex Discrimination Act. This can include: can be awarded, and both economic  orders to employ or re- loss (lost wages, out of pocket employ the applicant expenses) and non-economic loss  orders to pay damages (damages for hurt and suffering) can  orders to vary the be claimed. termination of a contract.

Fair Work The Fair Work An individual can make a Can take action with respect to Once a request for assistance is Once a request for assistance is Ombudsman Ombudsman (FWO) request for assistance to the breaches that happened up to 6 made, the focus of the FWO is on made, the process is largely http://www.fairw help employers and FWO if they believe the Fair years ago early intervention and resolution of determined by the FWO. ork.gov.au/ employees Work Act has not been workplace issues through the understand their complied with. provision of advice and support. You cannot compel the FWO to rights and In responding to a request for investigate or to bring a prosecution. responsibilities at The FWO can help the parties assistance, the FWO may offer a It has a compliance and enforcement work. FWO works to resolve the issue or choose mediation service, issue a policy and a litigation policy, and it with employees, to investigate. compliance notice, or seek does not investigate or prosecute employers and the enforceable undertakings or a every case. It must consider whether community to The FWO can also seek compliance partnership from the it is in the public interest to do so. educate and information from employers, employer. Enforceable undertakings encourage either voluntarily or by issuing and partnerships can include a wider If proceedings are commenced, you compliance with notices, and can enter into range of remedies than a court could will be a witness, not a party to those

27 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) Australia’s enforceable undertakings to order, and could include proceedings, so they are largely out workplace laws. rectify breaches. commitments to changing policies of your control. and practices, as well as paying The FWO can If the FWO thinks proceedings back-pay and contrition payments You may not receive any direct investigate should be commenced against financial compensation as a result of suspected breaches an employer, it can seek In cases of serious non-compliance, requesting assistance from the FWO. of workplace laws. orders that include the the FWO may choose to conduct an imposition of a penalty. It investigation or inquiry. If the FWO There is no cost to you in making a must start those proceedings decides to prosecute, it can seek the request for assistance. in the Federal Circuit Court or imposition of a penalty. The Court Federal Court. can also impose any orders it considers appropriate including orders granting an injunction to stop conduct, award compensation for loss, or make orders for reinstatement.

Fair Work Role includes: Unfair dismissal An application for unfair dismissal, The primary remedy in an unfair Not every employee is eligible to Commission  determining unlawful termination or a general dismissal claim is reinstatement, or bring an unfair dismissal claim – you https://www.fwc. unfair Unlawful termination – a protections/ adverse action compensation if reinstatement is not should check eligibility with the Fair gov.au/ dismissal limited claim for employees not involving termination must be practicable Work Commission. In an unfair applications covered by the General lodged within 21 calendar days after dismissal claim there is a cap on  the first step Protections provisions – the dismissal took place. In a general protections/adverse damages of 6 months remuneration, in resolving mainly State public servants. action matter involving dismissal or and no compensation for hurt feelings unlawful There is no time limit for claims not unlawful termination, if the FWC or distress. termination General Protections/adverse involving dismissal, but the general hears the matter by arbitration it can claims, action claims that involve time limit for matters involving an make orders that include The applicant in an unfair dismissal general either dismissal, or actions allegation of breach of the Fair Work reinstatement, compensation, lost claim must prove that the action as protection/adv other than dismissal Act is 6 years. remuneration and maintaining harsh, unjust and unreasonable. erse action continuity of service. If the matter is claims (such Anti-bullying applications heard by a court, the orders are wide, With a General Protections/ Adverse as but along similar lines. Action claim involving dismissal, the discrimination) FWC must convene a private – including Both of these types of applications conference with the parties to see if termination cannot vary the terms of a job (ie the matter can be resolved. If it and make a full-time role part-time or vary cannot, the parties can agree to have complaints duties) unless the parties reach it arbitrated by the FWC, or the about conduct agreement on that matter privately. applicant can elect to go the Federal during Circuit Court or Federal Court to have employment, In an anti-bullying application the it heard.

28 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) can determine FWC may make any order (other general than the payment of money) to If the application does not involve protection/adv prevent the employee from being dismissal, the FWC can hold a erse action bullied. conference, but only if both parties claims agree. The applicant can then involving choose to proceed with Court action. dismissal by arbitration The onus of proof is on the (subject to respondent to show that the action consent) complained of was not taken for the  making orders alleged particular reason or with that to stop intent. This can assist applicants bullying at particularly in discrimination matters. work. Often when matters get to the Court stage there is an additional mediation step to try and assist parties to resolve the issues by agreement.

As with any agreement, the parties can always reach terms that are wider than what the FWC or Court can impose.

Parties usually pay their own legal costs in any FWC proceeding and related Court proceedings even if they are successful. There are some exceptions if parties have acted unreasonably.

This can leave parties out of pocket if the damages awarded do not exceed the costs incurred, or if a respondent defends a matter successfully.

As a general rule, conferences occur usually within 4 – 6 weeks of lodging an application. Once finished at the FWC, Court proceedings need to be

29 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) initiated within set time frames, and the time it takes to conclude any litigation can vary significantly.

You must still be employed to bring an application to stop bullying. You cannot bring this after you have been terminated, and the FWC cannot order compensation.

ACT Human Deals with Discrimination and/or Complaints must generally be lodged The ACT Human Rights Commission If a complaint is not able to be Rights complaints under harassment under the within two years of the events generally aims to assist parties to conciliated or is otherwise closed by Commission the Discrimination Discrimination Act 1991 (ACT) complained about (with some resolve the complaint through the Commission, the complainant has Act 1991 (ACT) exceptions) conciliation. Common outcomes the right to have the matter referred http://hrc.act. from successful conciliations include to the ACT Civil and Administrative gov.au/ reinstatement or compensation, Tribunal for determination. apologies, change in policy or arrangements. NSW: Anti- Roles include: Discrimination and harassment The President of the Anti- If after an investigation the complaint If a complaint cannot be conciliated, Discrimination based on sex which includes Discrimination board of NSW may appears to involve a breach of anti- and in certain other cases, it will be Board of New  promoting anti- pregnancy and breastfeeding decline a complaint if the whole or discrimination law, and it has not yet referred to the New South Wales Civil South Wales discrimination in the area of employment, part of the conduct complained of been resolved, the board helps to and Administrative Tribunal (NCAT) and equal provision of goods and occurred more than 12 months conciliate the complaint. The Board which reviews administrative http://www.anti employment services, state education, the before making the making of the assists the parties to come to an decisions made by NSW Government discrimination. opportunity) provisions of accommodation complaint. agreement or settlement that will agencies and resolves discrimination justice.nsw.go principles and and registered clubs. resolve it. matters. Remedies available at NCAT v.au/adb/adb1_ policies include: ordering compensation index.html throughout Also it is unlawful to victimise a Many complaints are resolved (currently $100,000), NSW person because they have through conciliation, but this can only Prohibiting discriminatory conduct in  preventing complained about occur if both parties agree on a the future, ordering the publication of discrimination discrimination or helped settlement. The board is impartial an apology, and ordering the from occurring someone with a discrimination and does not have the power to development of programs or policies  Informing complaint. A victimisation impose a settlement if the parties do aimed at eliminating discrimination people about complaint may be up held not agree. If the parties do reach and declaring that discriminatory their rights and even if the original agreement, they often sign a written contracts are unenforceable. responsibilities discrimination complaint is not. agreement, which is a legally under anti- enforceable document. discrimination law, and Examples of settlements include:

30 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) explaining how An apology, reinstatement of the they can complainant, the complainant being prevent and provided with benefits, facilities or address services that were denied. discrimination Training for staff in the respondent organisation about discrimination, and/or developing or improving existing policies.

The respondent paying compensation to the complainant or some other form of compensation such as a donation to charity.

NT: Northern Deals with Complaints about 12 months A confidential settlement following a The Commission is based in Darwin. Territory Anti- complaints under discrimination and harassment conciliation conference. Outcomes It aims to get matters listed for Discrimination the Anti- based on an attribute; and may include compensation, apology, conciliation within 6 weeks of Commission Discrimination Act complaints, about failure to workplace policy, discrimination receiving a complaint. 1996 (NT) reasonably accommodate a training. http://www.a special need based on an The Commission has the ability to dc.nt.gov.au/ attribute. Relevant attributes prioritise matters where a party has are: lost their job or the allegations raise  pregnancy other issues of urgency.  breastfeeding  marital status The Commission is happy to speak to  parenthood parties prior to lodging a complaint so  association with they can get more information about someone who has an the process. attribute (e.g. parent of a child with a Interpreters (including Auslan disability) interpreters) can be made available. There is no cost to use the service. QLD: Anti- The process involves at least 1 Discrimination The Anti- A complaint must be in writing Complaints must generally be lodged The Commission will try to resolve conciliation step at the ADCQ, and Commission Discrimination and set out details of a within 12 months of the events the complaint through conciliation. If usually a second opportunity to Queensland Commission possible breach of the Anti- complained about (with some any agreement is reached the mediate if the matter goes to the Queensland Discrimination Act 1991such exceptions) Commission will write it up and have Queensland Civil and Administrative (ADCQ) tries to as discrimination on the basis the parties sign and it is then Tribunal.

31 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) http://www.a resolve complaints of one of the 16 attributes enforceable as a court order. An dcq.qld.gov.a of discrimination, (including sex, pregnancy, agreement can an include any Parties are usually given a date for u / sexual harassment, family responsibilities, outcome the parties agree on conciliation within 6 weeks of the vilification, breastfeeding, relationship including an apology, a work ADCQ accepting the complaint. victimisation and status, impairment, race, reference, financial compensation, Parties are encouraged to reach unnecessary religion, sexuality) and in the changes to work policy and training agreement to resolve the complaint requests for areas of public life covered for staff. and if so, this finalises the complaint. information in they (including in work, goods and come within the services, State laws and Parties do not need a lawyer in Anti-Discrimination programs, accommodation conciliation and any representative Act 1991. The and education); sexual must seek the ADCQ’s permission to ADCQ uses harassment; vilification; attend. conciliation to try to victimisation; and being asked resolve complaints unnecessary question on A complainant must be able to show and will write up any which discrimination may be less favourable treatment against a agreement reached based. comparison employee (direct so that it can be discrimination) or that a condition has signed by all parties been imposed which is unreasonable and filed in the in all the circumstances, and which is QCAT. If the harder to comply with because of complaint cannot be sex/pregnancy/family responsibilities resolved, the (indirect) . The onus of proof is on the complaint can complainant to prove the case choose to refer the complaint to QCAT for a public hearing. There are no costs orders at the ADCQ nor usually in QCAT.

There is no cap on the compensation that can be awarded, and both economic loss (lost wages, out of pocket expenses) and non-economic loss (compensation for hurt and suffering) can be claimed

South Deals with Discrimination under the Equal 12 months from when the act of Conciliation conference resulting in a The Commission can prioritise Australian complaints under Opportunity Act 1984 (SA). discrimination happened. In certain confidential agreement. Often this complaints with ongoing employment Equal the Equal circumstances, late complaints may includes an apology, financial and also to accommodate the birth of Opportunity Opportunity Act Discrimination on the basis of: also be accepted. compensation (injury to feeling, job a child.

32 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) Commission 1984 (SA) prospects), change in policy and  Pregnancy training. http://www.e  Caring Responsibilities oc.sa.gov.au/  Association with a child Unresolved complaints are referred  Sex to the South Australian Equal Opportunity Tribunal.  Disability (cases where women are not able to work unless they are 100% fit with regard to issues such as morning sickness have been registered as disability complaints. TAS: Deals with Discrimination on the basis of: 12 months after the alleged The Commissioner is to attempt to The Commissioner has 42 days from Tasmanian complaints under  Pregnancy discrimination or prohibited conduct resolve complaints by conciliation at the date the complaint is lodged to Office of the the Anti-  Breastfeeding took place. an early stage. Conciliation may be decide whether the complaint Anti- Discrimination Act  Parental status undertaken either before, during or discloses possible breaches of the Discrimination 1998 (Tas)  Family responsibilities Commissioner may accept a after the investigation of the Act and should be accepted. Commissioner  Gender complaint after the time limit has complaint. If the complaint is not Decisions are reviewable.  Disability expired if it is reasonable to do so. resolved, further investigation may be http://www.anti undertaken and parties may be discrimination. directed to take part in a further tas.gov.au/ho conciliation. Conciliation Agreements me are binding and confidential and may include an apology, financial compensation, training, change of policy or procedures, re-instatement of employment or any other condition considered appropriate.

Unresolved complaints may be referred to the Anti-Discrimination Tribunal. VIC: Victorian Independent Allegations of discrimination The Commission may decline to The Commission’s dispute resolution In Victoria, under the Equal Equal statutory body with (direct and indirect) in an area provide dispute resolution if it has service is free, flexible, timely and Opportunity Act an employer must Opportunity & responsibilities of public life due to one of 17 been over 12 months since the fair. Settlement Agreements are not refuse flexible arrangements for Human Rights under, for example, personal characteristics alleged contravention took place. binding and confidential and may an employee with parental or carer Commission the Equal (attributes) protected by the include an apology, financial responsibilities unless it is reasonable Opportunity Act Equal Opportunity Act 2010. compensation, training, changing of to do so in the circumstances.

33 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) http://www.hu 2010 This includes: sex, parental policy / procedure, reinstatement of manrightscom Complaints to the and carer status, pregnancy, employment or any other condition A person can make a direct mission.vic.go Commission under breastfeeding, marital status that may be appropriate. Unresolved application to VCAT in relation to a v.au/ the Equal and disability. complaints may still be brought to the complaint of discrimination, sexual Opportunity Act Victorian Civil and Administrative harassment and/or victimisation. 2010 are resolved Allegations that an employer Tribunal (VCAT). through a has unreasonably refused to Employers also have a duty to take confidential dispute accommodate the reasonable and proportionate resolution process, responsibilities that an measures to eliminate discrimination, which encourages employee has as a parent or sexual harassment and victimisation workers and carer. (There is also a right to as far as possible. employers to reach request flexible working a mutually arrangements under the Fair satisfactory Work Act). outcome. Allegations of sexual harassment and/or victimisation. WA: Western Roles include; Allegations, in writing, of The incident or incidents must have Conciliation conference resulting in a To be accepted, a complaint must Australian discrimination on the grounds occurred with the 12 months previous confidential agreement, which can include a ground and relevant area of Equal  promoting and relevant areas set out in to the date of lodgement of the include any elements the parties the Act. Not all areas are applicable Opportunity equality of the Equal Opportunity Act complaint. In some circumstances, agree on: such as apology, in every ground. Commission opportunity 1984. The relevant grounds the Commissioner may rule there is reinstatement, monetary through are: breastfeeding, family good cause to include incidents that compensation, provision of goods or The onus of proof is on the http://www.eoc community responsibility, family status, occurred more than 12 months services, access to facilities, equal complainant. .wa.gov.au/ information and marital status, pregnancy, and before the complaint form is lodged. opportunity training and policy education sex . changes.  investigating The complaint may also be and attempting dismissed, withdrawn or lapsed, and to conciliate in some circumstances referred to allegations of the State Administrative Tribunal. discrimination on the grounds and areas of the Equal Opportunity Act 1984.

34 Organisation Role Claims that can be brought Time limits for lodging an Possible outcomes (these will Factors to consider application depend largely on the individual circumstances of each complaint) In relation to work Not applicable - concerns Not applicable.  Providing advice and Not applicable. State and health and safety about work health and safety information. Territory work -education, issues (including alleged  Monitoring and enforcing The relevant Authorities and health and assistance, discrimination for raising safety compliance with work health Departments of Public Prosecution safety compliance, issues at the workplace) may and safety laws. are responsible for prosecuting Authorities. investigations, be raised with the relevant  Fostering co-operative, alleged offences under work health enforcement and Authority. consultative relationships and safety laws. prosecutions. between duty holders and the persons to whom they owe Further information duties and their about each representatives. Authority and their  Sharing information with other contact details is regulators. available on the  Conducting and defending Safe Work Australia proceedings under work website: health and safety laws. http://www.safework australia.gov.au/site s/swa/about/who- we-work- with/regulators/page s/whs-regulators

35 Glossary

Adoption and surrogacy are not specifically dealt with in this guide. Employers have substantially the same obligations to employees who are adopting a child, including through a surrogacy arrangement, as they do to employees giving birth to a child.

Additional state and territory laws Employers should be aware that there may be other laws in their state or territory which provide additional rights and obligations. This guide identifies where state or territory laws provide greater rights or responsibilities than the Commonwealth law.

Term Definition

Adverse The Fair Work Act (section 342) sets out the circumstances in which one person will be regarded as having taken adverse action against another person. action It covers employers and employees, as well as prospective employees, and, in some circumstances, contractors and industrial associations.

An employer must not take any ‘adverse action’ against an employee or prospective employee, because that person has a workplace right, has exercised a workplace right or proposes to exercise that workplace right, such as the right to take parental leave.

It is also adverse action to discriminate on grounds that include sex, pregnancy and family or carer’s responsibilities.

Adverse action can include refusing employment, dismissal, or modifying an employee’s position in a way that disadvantages them.

See the Fair Work Ombudsman website for further information.

Appropriate safe This phrase is defined in section 81 of the Fair Work Act. If an employee provides evidence (e.g. a medical certificate) that it is inadvisable for her to continue in her current position but if job she is otherwise fit for work, then she is entitled to be transferred to an available job that has the same ordinary hours of work as the employee’s present position, or a different number of hours agreed to by the employee.

If there is no such position, and the employee is entitled to unpaid parental leave, the employee is entitled to take paid ‘no safe job’ leave. Subject to certain conditions, employees who are not entitled to unpaid parental leave may be entitled to unpaid ‘no safe job’ leave.

Dad and Partner This is an Australian Government payment for eligible dads and partners after the birth or adoption of a child. Pay

Discrimination Discrimination is less favourable treatment. It is unlawful if the reason for that treatment is because of a protected ground, such as pregnancy or sex. Discrimination on the basis of (direct and indirect grounds including sex, pregnancy and family responsibilities is unlawful under the Fair Work Act, the Sex Discrimination Act and state and territory anti-discrimination legislation. discrimination) Discrimination can be direct or indirect.

36 Term Definition

Direct discrimination occurs when a person is treated less favourably than another person because of their sex, pregnancy or potential pregnancy, breastfeeding or family responsibilities. Indirect discrimination occurs when there is a rule, policy, requirement or practice, which appears neutral on its face but actually disadvantages people who have a particular attribute, and it is not reasonable in all of the circumstances.

Employer/ ‘Employer’ and ‘employee’ are used in this guide to cover a range of working arrangements that may not strictly meet the legal definitions of employee and employer. Work health and Employee safety laws in most state and territories for instance, protect all workers – not just direct employees. For example, in addition to employees, employers have obligations to contractors and prospective employees.

Employee couple Defined under the Fair Work Act as two employees where each of the employees is the spouse or de facto partner of the ‘other.’

Family Responsibilities to care for or support a dependent child or immediate family member. responsibilities

General This refers to provisions in the Fair Work Act (sections 335 – 378) which, among other things, prohibit adverse action being taken against an employee for certain reasons, including protections pregnancy and sex, or because of the employee’s workplace rights.

See the Fair Work Ombudsman website for further information.

Keeping in touch This refers to provisions in the Fair Work Act (sections 79A and 79B) which enable an employee to perform work for the employer during the period of unpaid parental leave if: days  the purpose of performing the work is to enable the employee to keep in touch with his or her employment in order to facilitate a return to that employment at the end of leave;

 both the employee and the employer consent to the employee working for the employer on that day;

 the day is not within 14 days after the birth of the child (if the employee requests the day) or 42 days (if the employer requests the day) and

 the number of keeping in touch days has not been more than 10.

National The National Employment Standards are statutory minimum employment rights for employees set out in the Fair Work Act. The National Employment Standards (sections 59 – 131) Employment provide certain specific rights for pregnant employees and new parents, including: Standards  twelve months unpaid parental leave for employees with 12 months service, including some casuals;  unpaid special maternity leave for eligible employees who cannot work because of pregnancy related illness or if the pregnancy ends within 28 weeks of the expected due date;  keeping in touch provisions;

37 Term Definition  transfer to a safe job, or ‘no safe job’ leave;  consultation rights while on parental leave;  return to work guarantee and  right to request flexible work arrangements The National Employment Standards cannot be excluded by a modern award, enterprise agreement or contract of employment.

No safe job leave Provided that a pregnant employee (including casual) gives their employer evidence (e.g. a medical certificate) that they can work but can no longer do their usual job, under the Fair Work Act (section 81), the employer must move the employee to a safe job. The employee will be paid at the same rate, work the same hours and accrue the same entitlements that she received in her usual job. If there is no safe job available she can take ‘no safe job’ leave. This leave is: • paid (at the base rate of pay) if the employee is entitled to unpaid parental leave (section 81A); or • unpaid if the employee is not entitled to unpaid parental leave (section 82A).

Pre-parental leave This phrase is defined in section 83(2) of the Fair Work Act as the position the employee held before starting unpaid parental leave or if, before starting the unpaid parental leave, the position employee was transferred to a safe job because of her pregnancy or reduced her working hours due to her pregnancy; the position the employee held immediately before that transfer or reduction.

Parental Leave This is an Australian Government payment for eligible primary carers after the birth or adoption of a child. Pay

Replacement Section 84A of the Fair Work Act sets out specific requirements for an employer to notify an employee who is engaged to perform the work of another employee planning to take, or employee taking unpaid parental leave. The employer must notify the replacement employee that the engagement to perform the work is temporary, of the return to work guarantee and of the rights of both the employee and employer that may result in the parental leave ending earlier than anticipated.

Return to work This phrase refers to the right that an employee has under section 84 of the Fair Work Act to return to the position they held prior to commencing unpaid parental leave or if that position guarantee 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.

Right to request This refers to the right under the Fair Work Act for eligible employees to request: (i) An extension of unpaid parental leave for a further period up to 12 months (section 76); and (ii) A flexible work arrangement (section 65); and (iii) To work part time when returning to work after parental leave (section 65(1B)).

Unfair dismissal Under the Fair Work Act, an employee may be able to bring an unfair dismissal claim if the dismissal was harsh, unjust or unreasonable (sections 379 – 405).

Unpaid parental This is an entitlement which certain employees may be entitled to under the Fair Work Act (section 70) and/or pursuant to contracts of employment, policies, an agreement or award. Leave Under the Fair Work Act, certain employees are entitled to unpaid parental leave if the leave is associated with:

38 Term Definition (i) the birth of a child of the employee or the employee’s de facto spouse or partner; or

(ii) the placement of a child for adoption; and

the employee has or will have a responsibility for the care of the child.

Unpaid special This is a particular Fair Work Act entitlement (section 80) for female employees if they are not fit for work because: maternity leave (i) they have a pregnancy-related illness; or (ii) they have been pregnant, and the pregnancy ends within 28 weeks of the expected date of the birth of the child otherwise than by the birth of a living child. An employee is only entitled to this leave if they are also eligible for unpaid parental leave under the Fair Work Act.

Unlawful These Fair Work Act provisions are available to employees to whom the general protections do not apply. They prohibit employers from dismissing employees for certain reasons, including termination pregnancy and sex. Worker Work health and safety laws in most state and territories impose duties of care on persons conducting a business or undertakings to workers.

The term worker is broadly defined to include employees, contractors, sub-contractors, volunteers or any other person carrying out ‘work’.