New Zealand Prime Minister Jacinta Arden’s pregnancy announcement last week made headlines across the globe with Arden set to be the second Prime Minister to give birth whilst in office after Pakistan late Prime Minister Benazir Bhutto.
The Prime Minister set a clear plan of how she would take 6 weeks off and upon return to work her partner will be the full-time caregiver of their child. This news given us a thought to discuss the legal position of parental leaves in Australia and what does the National Employment Standard says about the right and obligations of both employers and employees
Return to work guarantee
When an employee notifies the employer of intention to take parental leave, as an employer, number of questions need answers.
What happens to their role?
How do the employer plan to replace them?
What happens when they want to come back?
One of the most fundamental obligations for an employer is the employee return to work guarantee. National Employment Standards (NES) states that an employee returning from unpaid parental leave has the right to return to work in the same position he/she held immediately prior to commencing the leave.
If the position no longer exists the return to work guarantee provides the employee is entitled to return to an available position for which he or she is qualified and suited nearest in status and pay to the pre-parental leave position. The return to work guarantee only exists where the employee is eligible for unpaid parental leave under the NES.
Hiring the Replacement employees
An employer also has obligations when it comes to replacement employees who cover the employee taking unpaid parental leave? Before an employer engages a replacement employee section 84A of the Fair Work Act 2009 provides the employer must notify the prospective replacement the engagement is temporary and of the rights of the employee on leave and the employer, including the right of the employee on parental leave to return to the position at the end of their leave.
Employee’s request to return to work early
Under the NES an employee on unpaid parental leave can shorten their leave and return to the workplace before their planned return date only if the employer agrees. An employer has the right to refuse an early return. In such case the employee must return to work on the planned date.
Returning as part-time Employee
An employee returning from a period of parental leave has the right to make a request for a flexible working arrangement, such as requesting to return part time or a change to their start and finish times.
It’s important to keep in mind that whilst an employee with child care responsibilities has a right request flexible working arrangements, an employer may refuse the request on reasonable business grounds.
Reasonable business grounds are set out in section 65(5A) of the Fair Work Act 2009 and may include the working arrangements requested being:
• too costly for the employer;
• likely to result in a significant loss in efficiency or productivity; and
• likely to have a significant negative impact on customer service.