Part-time work: Federal and State approaches diverge

There are a growing number of cases where employers, refusing to allow female employees returning from maternity leave to work part-time, have been found to have discriminated against those employees on the basis of their sex or family responsibilities or both.

The trend in these cases is for the courts and tribunals to recognise a ‘right’ to return to work after maternity leave on a part-time basis.

A decision of the Federal Magistrates Court in Kelly v TPG Internet Pty Ltd has gone against this trend.

In Kelly’s case, the applicant had acted in a managerial position on a full-time basis before commencing maternity leave.

Her substantive position as a supervisor was offered to here when she sought to return to work after maternity leave. This was a full-time position and the applicant asked to return to work on a part-time basis.

It was the evidence of the employer that there was no part-time supervisory or managerial positions available.

The applicant was given the choice of taking her substantive position on a full-time basis or reverting to a non-supervisory part-time position that would be paid at the same rate as her substantive position. She refused these offers and commenced discrimination proceedings under the Federal Sex Discrimination Act.

While it was found the applicant had been discriminated against on the basis of pregnancy (she was only offered the managerial position on an acting basis because she was pregnant), there was no discrimination on the basis of her family responsibilities.

Under the SD Act a claim of ‘family responsibilities discrimination’ only arises when an employer dismisses an employee from employment.

Here, the applicant’s contract of employment was for full-time work and it was held that in refusing the applicant’s request for part-time work, the employer did not constructively dismiss her.

Raphael FM held that the employer was not obliged under the SD Act to provide the applicant with the ‘benefit’ of agreeing to vary her contract to enable her to work part-time.

Most discrimination claims in WA are brought under the Equal Opportunity Act. The EO Act contains much wider provisions with respect to ‘family responsibilities discrimination’ than the SD Act.

Under the EO Act it is unlawful for an employer to discriminate against an employee on the grounds of family responsibility:

p In the terms or conditions of employment afforded the employee;

p By denying or limiting access to any of the benefits associated with employment;

p By dismissing the employee; and

p By subjecting the employee to any other detriment.

If Kelly’s case is not overturned on appeal it is likely to have little application in WA given the different statutory framework.

The decision of the Equal Opportunity Tribunal in Bogle v Metropolitan Health Services Board continues to be the leading case on this issue in WA.

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