13 May NES Series: Parental Leave
NES Series: Parental Leave
The Fair Work Act 2009 (Cth) sets out various obligations relating to the taking and return from unpaid parental leave.
This article is the second in a series of articles outlining the operation of various National Employment Standards under the Fair Work Act 2009 (Cth).
The Fair Work Act 2009 (Cth) (“Fair Work Act”) sets out various rights and obligations about hiring employees to replace those taking unpaid parental leave, and when an employee returns from unpaid parental leave. It is important that you understand your obligations as an employer in these situations.
The Fair Work Act requires employers to take various steps when recruiting for an employee to replace another employee taking unpaid parental leave. Specifically, before an employer engages a replacement employee, the replacement employee must be notified:
- That their engagement to perform the work is temporary; and
- Of various specific rights available to both the employer and the employee taking unpaid parental leave as set out in the Fair Work Act.
As an employer, it is important to protect yourself when engaging replacement employees, to ensure that both you and your employee taking unpaid parental leave are able to access and exercise the rights available under the Fair Work Act. This may include consideration of the type of employment contract offered to a replacement employee, and specific terms relating to early termination of any engagement. Such terms must be carefully considered to ensure that they comply with the Fair Work Act and other industrial instruments applicable to the replacement employee.
Return to work guarantee
The Fair Work Act provides employees taking unpaid parental leave with a return to work guarantee (“Guarantee”). This means that where an employee returns to work after taking unpaid parental leave, they are entitled to return to either the position they were in before going on leave, or if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to their pre-parental leave position.
The Federal Circuit Court (“Court”), in Turnbull v Symantec (Australia) Pty Ltd  FCCA 1771 (“Turnbull”), determined that when considering whether a position is “available” depends on whether the employer has the power to make such a position available. In Turnbull, an employee was made redundant shortly after returning from parental leave. The employee argued that there was “available” a position in Singapore (with a different legal entity), where her manager was based. The Court agreed, noting that non-Respondent employees had the ability to act jointly on behalf of both the Respondent and the Singapore entity which employed the relevant position, and this included being able to make the Singapore position available.
As to whether a position is one “for which the employee is qualified and suited nearest in status and pay”, in Turnbull the Court determined that the relevant question is whether “an employee having the qualifications and experience of the employee in question would seriously consider taking that position”. The following may be relevant in answering this question:
- Evidence from the employee about whether they would have accepted the available position; and
- Evidence comparing the pre-parental leave position with the available position, including in relation to comparative tasks, pay and status of the positions.
In Turnbull the employee did not bring any evidence to show she would have accepted the available position if she had been offered it, and taking into account the objective evidence about salary and the different tasks between the role, the Court found that this aspect of the Guarantee was not satisfied by the employee.
These are just two areas covered by the Fair Work Act. There are many other rights and obligations available to both employers and employees when unpaid parental leave is taken (both specific to unpaid parental leave and more generally), and it is important that you are aware of these rights and obligations when making business decisions.
If you are looking to hire a replacement employee, we can assist you by providing an employment contract that both complies with your obligations under the Fair Work Act and ensures you are protected. If you have an employee returning from a period of unpaid parental leave, we can assist you in ensuring that the return to work is compliant with the Guarantee and your other obligations under the Fair Work Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.