By Errol Price, Director – Legal.
It has often been remarked that the law lags behind Social and Economic changes. We see this once again with the Law’s rather slow adaptation to significant social shifts regarding the rights of mothers returning to work after having children.
Between 1991 and 2011 (according to census data) the proportion of mothers with children under 18 years who were employed rose from 55% to 65%.
A recent report issued by the Australian Institute of Family Studies (Author Jennifer Baxter) ‘Parents Working Out Work’ has tracked the changes in maternal employment over the past 30 years.
In general mothers in Australia are returning to work sooner and in greater numbers after bearing children. Mostly they prefer to work part-time.
While many employers have become attuned to the requirements of accommodating mothers returning from parental leave, it has to be said that often returning mothers experience difficulties when requesting part-time work.
Until recently, an aggrieved employee, refused part-time work after returning from parental leave and seeking legal redress, would have brought a discrimination claim based on family or carer responsibilities under State laws or the Federal Sex Discrimination Act. Pursuing these claims is usually time-consuming and onerous and therefore not frequently undertaken. Many mothers who are refused part-time work by their previous employers prefer not to engage in a dispute and so take up work below their capabilities or choose not to work altogether.
The recent decision of Hanina Rind v Australian Institute of Superannuation Trustees (2013) has opened up a new and probably simpler legal avenue.
Ms Rind’s employment was governed by an Enterprise Agreement which provided that a request to return to work on a part-time basis could be refused by the employer only on reasonable grounds related to the employer’s business. However, after the birth of Ms Rind’s second child her employer, the Institute, insisted that she could only return to her job as an IT systems administrator on a full-time basis. Ms Rind refused to return to work on this basis.
The employer contended that Ms Rind had thus abandoned her work, while she argued, on the other hand, that she had been constructively dismissed. The Fair Work Commission hearing the dispute noted that some 4 months after Ms Rind was due to return, the employer had not yet filled the position with a full time employee. Therefore the Commission concluded that the refusal to allow her to work part-time was unreasonable and she had been constructively dismissed.
Interestingly, the Commissioner noted that while in earlier times part-time work on returning from parental leave might have been considered a privilege, this is no longer the case.
In other words a switch from full-time to part-time work should be considered a basic right and a natural consequence of returning to work after bearing children. Under the National Employment Standards which are part of the Fair Work Act, employees who have been working continuously for 12 months and have responsibilities to care for a child under school-going age or under 18 years with a disability may request in writing a change in working arrangements.
Although the Act does not provide a specific remedy if the employer unreasonably refuses this request, it would seem that this recent case does in fact provide a generic remedy of which employers need to be aware.
