Court ruling clarifies paternal leave issue

A RECENT Federal Court ruling has highlighted to employers the importance of understanding current parental leave provisions.

Chemical engineer Cynthia Thompson recently won a discrimination suit against her employer, Orica Australia Pty Ltd. While damages are yet to be awarded, Ms Thompson is seeking $223,600 compensation, an apology and a commitment from Orica middle management to attend an anti-discrimination course.

The judge said that, even though Orica afforded Ms Thompson the same job title, wage and salary she held before the birth of her child, she essentially was demoted and ruled she had been discriminated against on the grounds of pregnancy.

Phillips Fox partner Ian Curlewis said employers needed to be just as careful at a State level.

“This serves as a salutary re-minder to employers of their obligations regarding family leave,” Mr Curlewis said.

“A section of the WA’s Minimum Conditions of Employment Act mirrors the Federal system.”

The section Mr Curlewis refers to is that covering ‘return to work after parental leave’, which states: “On finishing parental leave, an employee is entitled to the position he or she held immediately before starting parental leave.”

The person returning to work is therefore entitled to the same job they left, and while Orica gave Ms Thompson the same salary and job title, Mr Curlewis said the court decided the job activities and duties performed were not consistent with her previous role.

“You cannot hide behind the veneer of a title. The status and pay must be comparable to the position the person left,” Mr Curlewis said.

Where the position is no longer available, through a genuine restructure or similar, the legislation requires the employer to find a comparable job.

“If the position is not available, the employee is entitled to an available position for which the employee is qualified, and that the employee is capable of performing, most comparable in status and pay to that of his or her former position,” the legislation says.

Blake Dawson Waldron special counsel Marie-Claire Foley said employers had greater flexibility if the job descriptions were general.

“The pay might be the same but it may be a sidelined job away from the main section,” she said.

“You need to work out what the person’s job is. Is it managing contracts or dealing with specific clients?”

Ms Foley said unless dealing with specific clients was written into the contract, or was implied in the job description, an employee was not guaranteed to work with those same clients upon their [the employee’s] return to work.

“For example the job description ‘secretary’ offers more flexibility than ‘Mr Jones’s secretary’,” Ms Foley said.

“If the job descriptions are really specific it does reduce the flexibility for the employer.”

Mr Curlewis said employers also should be mindful of workers’ compensation laws, which afford similar job status provisions contained in the parental leave legislation.

“This case [Orica] is one of the very few that has determined these aspects of law and has ramifications for workers’ compensation interpretation,” Mr Curlewis said.

“Under workers’ compensation the job must be open for 12 months and on return the employee is entitled to the same job or a comparable job in status and in pay.

“That has never been tested in the State system.”

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