In Australia, employees that have parental responsibilities (regardless of whether they are male or female) have certain rights. It is important for employers to understand what rights are available to employees with parental responsibilities.
Employers must manage any issues associated with parental responsibilities in a careful and considered way. It is always important to engage with an employment law firm if advice is needed.
When is an employee considered to have parental responsibilities?
Under the Sex Discrimination Act 1984 (Cth) parental and family responsibilities are the responsibilities of a person to care for or support:
- a dependent child of the person, or
- any other immediate family member who is in need of care and support, including because they are sick or injured or because of family or domestic violence
The Fair Work Act 2009 (Cth) mirrors this definition of parental responsibilities. Section 65 of the Fair Work Act gives a right for an employee to request flexible working arrangements because of parental responsibilities.
In order to be legally entitled to request flexible working arrangements, the following conditions must be met:
- the employee must be a parent of a child that is school age or young or takes care of an immediate family member who is in need of care and support, including because they are sick or injured or because of family or domestic violence; and
- if the employee is not a casual employee: the employee must have worked for the employer for at least 12 months; or
- if the employee is a casual employee: the employee must have been employed on a regular casual basis during the previous 12 months and has a reasonable expectation that the regular and systematic casual employment will continue
Working parents should also ensure that they are not subjected to discrimination because of their gender, pregnancy, parental responsibilities, maternity leave, request for a flexible working arrangement, or any other protected right.
If you have any questions, it is important to speak with a lawyer at an employment law firm.
Is it unlawful to discriminate against an employee because of parental responsibilities?
Employers are prohibited by Federal, State and Territory anti-discrimination laws from discriminating against employees on a variety of grounds, including sex, pregnancy, potential pregnancy, breastfeeding, and family responsibilities.
This applies to the vast majority of employment relationships and to all stages of the employment relationship; from recruitment to termination.
An employment law firm will be well versed in these grounds for discrimination.
What rights do employees with parental responsibilities have?
Right to request flexible working arrangements
Changes in working hours, patterns of work, or location of work are all examples of flexible working arrangements. A parent, for example, may request a later start time or an earlier finish time in order to drop off or pick up children from school.
The process for an employee to request flexible working arrangements on the basis of parental responsibilities is:
- The employee submits a request in writing setting out the details of the change sought and the reasons for the change to the employer
- Within 21 days, the employer must respond to the request in writing advising the employee whether the request is approved or rejected
- If the employer seeks to refuse the request, it may only do so on “reasonable business grounds” and it must state the reasons for the refusal
Reasonable business grounds are described below. More detailed advice can be provided by an employment law firm.
- that the new working arrangements requested by the employee would be too costly for the employer
- that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
- that it would be impractical to change the working arrangements of other employees or recruit new employees, to accommodate the new working arrangements requested by the employee
- that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity
- that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service
Employees’ rights regarding parental leave
Unpaid parental leave is only available if the employee has completed, or will complete, at least 12 months of continuous service with the employer prior to the expected date of birth or placement of the adopted child.
If an employee intends to take unpaid parental leave, they must notify their employer at least 10 weeks before the start of their intended leave. If required by the employer, the employee must provide evidence of the expected date of birth or date of placement. This evidence may be in the form of a medical certificate.
What constitutes discrimination?
Examples of Australian case law where employers:
Have been found to have discriminated against an employee because of parental responsibilities
In Wilkie v National Storage Operations, Wilkie (the employee) had to leave work early to pick up her primary school-aged son, after providing 24 hours’ notice. As this unexpected emergency resulted from her responsibilities as a parent it was held to constitute family responsibilities.
As a result of this, the employer issued a final written warning, transferred the applicant against her wishes, and demoted her. This resulted ultimately led to the dismissal of Wilkie’s employment.
The Court found that adverse action was taken against Wilkie.
National Storage Operations was ordered by the Federal Court to pay $32,130.78 to Wilkie for the loss suffered by her as a result of the termination of her employment.
The employee was a heavy vehicle driver that took carer’s leave to take his daughter to a doctor’s appointment.
Atkins sacked the driver and threatened violence towards him, his family, and his union solicitor when he instituted legal proceedings and performed ‘burnouts’ outside the employee’s residence. Atkins admitted threatening the driver and the TWU solicitor who represented him but denied threatening the driver’s family. He apologised to both the driver and the solicitor.
The Court ordered Atkins to:
- undertake a course of treatment by a counselor or psychologist after he admitted to having anger management issues;
- pay the TWU $10,000 as a pecuniary penalty; and
- pay the affected employee $10,000 for non-economic loss.
Have been found not to have discriminated against an employee because of parental responsibilities
In this case, the Court found that parental responsibilities were not the reason for dismissal as the outcome was the result of a valid restructuring exercise.
In this case, the Court found that pregnancy, maternity leave, and family responsibilities were not the reasons for the termination of two employees. Instead, the Court found that their redundancies were due to operational reasons. However, both employees were awarded one week’s pay as the respondent had failed to appropriately consult regarding the restructure of the company and the redundancies.
What steps can employers take to avoid discriminating against employees with parental responsibilities?
It can be difficult for employers to manage the demands of the business and appropriately manage employees with parental responsibilities.
Here are some tips for employers to avoid discrimination against employees with parental responsibilities:
- handle any concerns or requests with genuine sensitivity and understanding
- genuinely consider how you can accommodate requests from an employee with parental responsibilities
- assess any impact on your business and whether that impact is commercially acceptable
- if the impact on your business is considered by you to be uncommercial, assess whether the impact may be a “reasonable business ground” sufficient to refuse any request by an employee
- weigh up the risk of an employee alleging discrimination or adverse action against the impact on your business
- make a business decision that would, objectively and legally, be considered reasonable
- seek legal advice from an experienced employment lawyer for employers
What risks do employers face if they discriminate against an employee?
If an employee believes they have been discriminated against because of their parental responsibilities, they should seek legal counsel. Under the Fair Work Act 2009 (Cth), there are safeguards in place to ensure that no adverse action is taken against an employee because of their parental responsibilities.
For example, a working mother may be able to file a claim if she is fired or made redundant as a result of her maternity leave, or if she is demoted as a result of her pregnancy or parental responsibilities.
Employees are protected from actual or threatened action. If an employee has been subjected to retaliatory treatment, the employee or the employee’s union may file a complaint with the QIRC. If the employee has been dismissed, the application must be filed within 21 days of the dismissal taking effect
In exceptional circumstances, additional time periods may apply. An application to the QIRC for adverse action other than dismissal must be made within 6 years of the action taking place.
Contributors: Farrah Motley (Director of Prosper Law) and Hadba Alzammam (Legal Intern)
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Farrah Motley | Director
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