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Maternity leave: your rights when returning to work

by A dose of Danielle (follow)
A dose of Danielle
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Recently the Australian Human Rights Commission (AHRC) conducted a national survey National Survey to measure the prevalence of discrimination in the workplace related to pregnancy, parental leave and return to work following parental leave. Shockingly, but unsurprisingly, the results the results are that one in two (49%)of mothers reported experiencing discrimination in the workplace at some point during their pregnancy, parental leave or return to work. More than a third (34%) of that figure reported experiencing discrimination when returning to work as a result of family responsibilities.



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Going on maternity leave is a special time with your child. However everyone wants a feeling of job security. Something they know they can return to. Anecdotally, I know of many stories of women not being offered any flexibility when returning to work and as a result choosing to quit their jobs.

This article will set out what rights you have when returning to work after maternity leave, in terms of the ability to ask for flexible arrangements. I will also discuss what steps you can take to try to set up a more flexible working arrangement.

Before I do, I think it’s important to know something about the author of articles, like this one, because you need to know how reliable and accurate the information may be. I am a lawyer and I know a little something about this legal area and to this extent I set out your basic rights and also provide some links to some useful resources.

Ultimately, if you are having a serious employment issue, I suggest speaking with an employment lawyer. You can be provided with a wealth of information relevant to your situation.

So what rights do you have when you return to work? First up, consider on what basis you have been hired. Are you a casual worker? Are you employed under a temporary contract? Are you under a permanent contract? Are you a government employee and therefore subject to government employment entitlements?

Permanent employee

If you are a permanent employee, your contract should have a paragraph regarding your maternity leave rights and your rights when returning to work. Take a look at this contract. If you do not have a copy, get one from your employer. You are perfectly entitled to it.
A typical clause in such contracts is that your position as you left it is guaranteed on your return. So if you were working full time, your employer must ensure that that job is available to you, on a full-time basis. There, in essence, lies the problem. Most women do not wish to return to work full-time. There are many difficulties associated with it, aside from the desire to care for your child, such as day care availability or even having the ability to pay for day care or nanny arrangements.

You have the right to make a request for flexible working arrangements flexible working arrangments on your return to work. This means a request can be made to your employer in writing seeking a change of hours, a change of days or even a change of place of work. Your employer has 21 days to approve or refuse that request and can only refuse a request on reasonable business grounds. This includes if it is too expensive for the employer to implement, it would result in significant loss of efficiency or productivity, or if there isn’t any capacity to change the working arrangements.

If the refusal in not on reasonable business grounds you then have the ability to make a complaint to the Fair Work Ombudsman. Fair Work Ombudsman You can simply let your employer know you would like an independent review of the matter and you will be writing to the Fair Work Ombudsman. This notice alone may change your employer’s attitude. It is a rather confrontational approach but you do have the right to do it. It doesn’t have to be confronting, you can tone it down to sound procedural.

Nonetheless, let’s be real about the issue: most employers can find a reasonable business ground to refuse your flexible working arrangement request. This leaves you back at the original position of being told how to work or quit.

Photo: Deathtothestockphoto


Another practical approach may be to discuss your working arrangements before you go on maternity leave. You never know how useful it may be to sit down and discuss with your employer any expectations of your return. Would he or she be agreeable to having you back on a temporary or casual basis again? Discuss with them the expected date of your return? Perhaps indicate your willingness to commit yourself to your employer in return for them taking you on again. Or perhaps you can find someone to job share with and go to your employer with a plan in place.

Whatever you discuss, be sure to ask your employer if you can write it down so that there is a confirmed understanding. Then write the agreement down either at the time or immediately after the meeting. It does not have to be in great detail, just a few points as to what was discussed or agreed. This can at least give you something to go back and discuss with your employer when you are looking to return to work.

Casual worker or temporary contract employee

If you are a casual worker or a temporary contract worker you do not really have any contractual rights to assert to your employer to determine your future conditions of employment. For temporary workers the contract tends to expire after maternity leave. For casual workers, casual means you are largely at the discretion of your employer. However, casual workers and temporary contract workers who have been regularly and systematically employed for over 12 months can try to ask for flexible working arrangements, as discussed above.

Ultimately, this current situation of women choosing to return to work and employers not providing any flexibility either because they simply cannot afford to as a small business or because they do not want to, creates a conundrum for many working families who want to find the right balance between parenting their child and keeping up with their career.

I think society needs to have a major shift in attitude before there is any change. However, knowing these following tactics you can at least try to advocate for yourself.

• Review your employment contract – what does it state about your rights when you return to work.
• Make a formal request for a flexible working arrangement and review the refusal: is it refused on reasonable business grounds.
• Sit down and discuss your return before you go on maternity leave.
• Set out a job share plan and present it to your employer.

Are you a working parent? Have you had positive or negative experiences returning to work after having children?

#maternity leave
#return to work
#legalrightsonmaternityleave
#paternityleave
#Working Mum
#Working Dad
#Part time
#Work Life Balance
#Working parent
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