AIRC rules on part-time choice post pregnancy

EMPLOYERS who fail to make part-time work positions available to employees returning from maternity leave could leave themselves open for discrimination litigation.

The Australian Industrial Relations Commission recently required an employer to allow an employee returning from maternity leave to work part-time hours for a trial period of three months.

The commission heard that, when Angela Angelis returned to work for her employer of 14 years, CSL, she was not allowed to finish at 3pm even if she began work at 7.30am.

The commission disagreed with CSL’s assertion that the requirements of the job meant that Ms Angelis had to be performing the requirements of her position after 3pm.

It said comments from Ms Angelis’ manager that tasks could be broken up between individual employees was not a valid argument.

“It became apparent that this absolute statement that tasks ‘cannot’ be broken up really meant that Ms Mokdessi, as manager of the team, preferred as a matter of balance not to break up the tasks,” the commissioner found.

“I am not satisfied, for the reasons that I state above, that Ms Mokdessi or CSL have properly investigated options which would allow Ms Angelis to perform mail distribution duties before 3.00pm. Furthermore, other reasons which have been given appear to be post hoc rationalisations for imposing a finishing time after 3.00pm rather than factors considered in balance with Ms Angelis’ other duties, which are performed earlier in the day.”

Jackson McDonald workplace relations team partner Greg Smith said that, employers needed to make sure they were dealing with their employees “fairly”, as well as ensuring they complied with the strict requirements of any relevant legislation.

“For example, an employer needs to genuinely look at whether or not a position can be made part-time. You can’t discount it and say it just cannot be done,” he said.

“You have to look at all the options. Job sharing, for example, may come into the equation.”

Employers also needed to act fairly and reasonably when dealing with employees who were applying for maternity or other parental leave, including paternity and adoption leave, Mr Smith said.

“Usually an employee is required to have 12 months’ continuous service with an employer before they will have an entitlement for parental leave,” he said. “However, if, an employee has been employed for a shorter period, nine months for example, it could be found to be unfair not to allow the employee to take some paternity leave.”

Under the Minimum Conditions of Employment Act, for example, employees are required to give their employer 10 weeks’ notice of the intended date of maternity leave, which generally must commence not later than six weeks before the expected date of birth.

“For any period closer to that an employee needs to present a medical certificate that states they are medically fit to perform their job,” Mr Smith said.

Although occupational safety and health was a relevant consideration in managing pregnant employees, both before and after the birth of a child, employers must not hide behind health and safety and must examine employment options within the company having regard to the business’s operational requirements and objective medical advice, he said.

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