In April last year, approximately a week after I commenced employment with Clarke Hemmerling Lawyers, I found out I was pregnant. To say I was freaking out was an understatement. So many thoughts were running through my head. How was I going to break the news to my new boss? Was I going to lose my job? If I lost my job, who would hire a pregnant woman? How was I going to pay my bills for the next 9+ months?
Lucky for me, my boss understood exactly what I was going through. She understood because she is also a working a mum, who, at one point in her career, had to have the same conversation with her boss. As such, I am very grateful to say that the team at Clarke Hemmerling Lawyers were nothing but supportive of me throughout my pregnancy and return to work journey.
Unfortunately, not every ‘mum to be’ will have a great experience when reporting their baby news to their employer. Therefore, it is important that if you are expecting, that you know what your rights are.
What are my rights if I cannot do my job while I am pregnant?
Section 81 of the Fair Work Act 2009 (FWA) provides employees with an entitlement to be moved to a safe job if they cannot carry out their usual job because of their pregnancy. If the employee has been moved to a safe job, then she must be paid at the same rate and receive the same entitlements as if she were carrying out her usual job.
If no appropriate safe job can be provided to the employee, then she may be able to apply for No Safe Job Leave under section 81A of the FWA. To be eligible for No Safe Job Leave, an employee (inclusive of a long-term casual employee), must have provided its employer with at least 12 months continuous service prior to taking the leave.
If the employee cannot work at all because of a pregnancy related illness or loses the baby within 28 weeks of its expected birth date, then she may be entitled to Unpaid Special Maternity Leave under section 80 of the FWA.
In all of the above circumstances, the employer is permitted to seek that the employee provide evidence of her incapacity and the employer can refuse to grant permission to move the employee to a safe job and / or to take leave until such time as satisfactory evidence has been provided.
What are your rights to Parental Leave?
An employee may seek a period of unpaid parental leave in the following circumstances:
- they or their spouse / de facto partner are expecting to give birth to a child; or
- a child is being placed with the employee for adoption; and
- they are the primary carer of that child.
Pursuant to Sections 67 and 70 of the FWA, if an employee has provided their employer with a minimum of 12 months continuous service, then he or she is entitled to 12 months of unpaid parental leave.
What are your rights when you return to work after Parental Leave?
In accordance with Section 84 of the FWA, an employee who has been on parental leave is entitled to return to the same position which they held with their employer directly prior to:
- the commencement of their parental leave period; or
- the employee being transferred to a safe job because of their pregnancy.
If the position which the employee held no longer exists, then he or she is to be provided with an available position which is nearest to the status and pay to the job which the employee had before he or she commenced the leave. Any job presented to the employee must be within their qualification.
In addition to the above, Section 65 of the FWA, allows an employee to request flexible working arrangements in their return to work. The employer may only refuse such a request on reasonable business grounds. In determining what is a ‘reasonable’ in relation to a flexible working request, the following may be considered:
- the duration and terms of the proposed agreement;
- the cost to the employer;
- the detriment to the employee (if refused);
- the employee’s job description and whether it can be fulfilled under a flexible arrangement.
Finally, it is unlawful under the Equal Opportunity Act 1984, for an employer to discriminate against an employee due to pregnancy and / or for their responsibilities in caring for a dependent child.
Should you be expecting and / or are a parent returning to work, and you have concerns about how you are being treated by your employer, please do not hesitate to contact us on (08) 8333 2130.
Clarke Hemmerling Lawyers pride themselves on being a family friendly firm and will do the best we can to help ensure your employer respects your legal rights as a parent so that you can enjoy a family friendly work environment too.
This blog post does not constitute legal advice and should not be relied upon as such. It is a general commentary on matters that may be of interest to you. Formal legal or other professional advice should be sought before acting or relying on any matter arising from this communication.
This blog was prepared by Michelle Moore. She can be contacted on:
Ph: (08) 8333 2130