Your rights when returning to work after children

Your rights when returning to work after children

By Catherine Hartigan

For some, the idea of returning to work after having a baby can be an intimidating process. Just as the fog of sleep deprivation starts to slowly lift your return to the workplace may be looming around the next corner.

If you haven’t already had discussions with your employer, now is the time to do so, although it’s recommended open communication with your employer about your return to work should occur both before and during parental leave.

Some of the questions you might be asking yourself are: Can I extend my parental leave beyond the amount offered by my employer? Does my employer have to return me to my ‘old job’? And can I ask for flexible working hours?


Can I extend my parental leave beyond the amount offered by my employer? 

A number of workplaces in Australia, particularly those with a large workforce, have their own policies with regard to paid parental leave. There are also some awards and enterprise agreements that provide for a period of paid parental leave. 

Make sure you look at all relevant awards and enterprise agreements, as well as your employer’s policies and your own contract of employment to work out if you are entitled to a period of paid parental leave.

In addition to this, the Australian Government offers a paid parental leave scheme which provides up to 18 weeks of paid parental leave to eligible employees.

The National Employment Standards (NES) provides that an employer must give part-time and full-time employees the option of taking 12 months unpaid parental leave.  In order to be eligible for this you must have worked continually for the same employer for 12 months prior to taking the leave.

An employee must give their employer notice in writing which sets out when they intend to take the leave.  The written notice must be given at least 10 weeks before starting leave.

Employees who have taken up to 12 months parental leave may also ask for an additional 12 months of absence (so up to 24 months in total). This request must be put in writing and provided to your employer at least four weeks before the original agreed return to work date.  Under the NES, an employer has 21 days to respond and, relevantly, can only refuse the request on the basis of reasonable business grounds.


Does my employer have to return me to my ‘old job’?

As an employee returning to work after parental leave you are entitled to come back to the job you had before taking leave. This is the case even if there is someone working in the job as a replacement.

If your employer advises you that your job has changed or doesn’t exist anymore then you must be offered a suitable job that is equal to the position you held prior to taking time off.

 In some circumstances, if the job doesn’t exist anymore, this may mean a redundancy has taken place.  You should seek advice about your rights and entitlements if this occurs.


Can I ask for flexible working hours?

Parents returning from parental leave are entitled to request flexible working arrangements.  This might mean that instead of working full-time you request to work part-time or job share. You can also ask to change your start and finish times or even request to work from home.

Any request for flexible working arrangements must be put to your employer in writing. You must explain the change you would like and the reason for it.  Under the NES, an employer has 21 days to respond to the request and may only refuse the request on reasonable business grounds.

So as you prepare to return to work remember to communicate with your employer well in advance of your start date, and if you have any concerns about your rights or entitlements seek legal advice.

This article provides a general overview of some of the matters that may arise on a return to work. For more information contact:

  • Centrelink
  • Fair Work Commission
  • Fair Work Ombudsman

Liability is limited by a scheme approved under professional standards legislation.


Catherine Hartigan

Catherine Hartigan is a Queensland Barrister specialising in industrial and employment matters. Her areas of practice also extend to the administrative field, civil rights, human rights and discrimination, commercial areas, contract work, and inquests, commissions of inquiry and statutory tribunals.

She is located at Murray Gleeson Chambers, Brisbane.

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