Women are sometimes surprised to learn that they play a very important role in driving the economy and increasing workforce participation when they return to work after a period of parental leave.

However, despite the fact that it is now the “norm” for a woman to return to work after the birth of a child, Australia's female participation rate still tracks lower than that in other similar countries such as New Zealand and Canada and women continue to face challenges when balancing work and family commitments.

So what rights do new mothers have when returning to the workforce after childbirth?

Returning to Work

The National Employment Standards (NES) in the Fair Work Act provide the statutory framework for the majority of women returning to work after childbirth.

Generally, a new mother will be returning to work after having taken a period of parental leave under the NES of up to 12 months (or up to 24 months if an extension was granted).

During that time, the employee may have maintained contact with her workplace via “keeping in touch days” and visits to introduce the new baby.

Importantly, a new mother returning to work has a statutory right to return to her pre-parental leave position or, if that position no longer exists, to an available position for which the employee is qualified and that is nearest in status and pay to the previous position.

Flexible Work Arrangements

Amongst other things, the NES provide employees who are parents of, or who have responsibility for the care of, a child who is of school age or younger, with a right to request a change in working arrangements.

The changes can include a request to work part time, a request to change the patterns of work and a request to change to the work location (e.g. to perform some work from home).

While this statutory right exists for employees, employers also have the right to refuse a request for flexible working arrangements when there are reasonable business grounds for doing so.

Nonetheless, the employer must genuinely consider the request and respond in writing.

What are the formal requirements to make a request?

To make a request for flexible working arrangements, an employee must have at least 12 months of continuous service. If an employee is a casual then they must be a long term casual with a reasonable expectation of continuing employment on a regular and systematic basis.

The request for flexible working arrangements must be made in writing, and set out the details of the change sought and reasons for the change.

Once a written request has been received, the employer must provide a written response within 21 days, which states whether the request is approved or refused. Employers can only refuse a request on “reasonable business grounds” and must provide their reasons for the refusal in writing.

Next Article

In our next article we will examine in more detail the issue of flexible work arrangements.

Questions/Assistance

If you have any questions or would like any assistance, please feel free to speak with or email a member of our Matthews Folbigg Workplace Solutions team on (02) 9635 7966 or info@matthewsfolbigg.com.au

DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.