Your rights as a new mother

Staring into the eyes of your newborn baby for the first time, thoughts of returning to work are probably the last thing on your mind. However, as time goes on, many new mums start to consider what their rights as a mother in the workplace will be.

How much time off can I have with my baby?

Australian employers must give part-time or full-time working mums of newborns the option to take 12 months’ unpaid leave if they’ve worked continually for the company for at least 12 months. This law also applies to casual employees if they’ve been regularly or systematically employed for the same period.

Employees taking parental leave can ask for another 12 months’ leave (up to 24 months) by putting their request in writing and presenting it to their employer for consideration at least four weeks before the original return date. Employers have 21 days to respond in writing and can refuse the request only on reasonable business grounds.

At the other end of the scale, some women are eager to get back to work. A number of awards have a ‘confinement period’ clause, which stipulates that the birth mother must have at least two to four weeks off.

What if my job is different when I return to work?

Some mums want to go straight back to full-time work, others request a part-time role and still others choose not to return.

As companies evolve, some jobs may no longer exist or may be unachievable on part-time hours. However, the law stipulates that if a job no longer exists then employers must offer new mothers suitable positions that carry a pay rate and status similar to their previous jobs.

If you decide you want to work part-time in order to continue caring for your child, your employer must consider flexible working arrangements and can decline only on reasonable business grounds. However, disappointingly, according to the Fair Work Act, an employee cannot sue their employer for damages if the employer unreasonably refuses the employee’s request.

Am I entitled to government-paid parental leave?

To receive the Australian Government Parental Leave Pay, employees must meet the government’s eligibility test. The Department of Human Services states that the person seeking paid leave must have worked for at least 10 of the 13 months before the birth or adoption of their child; worked at least 330 hours in that 10-month period, which is slightly more than one day per week; and had no more than an eight-week gap between any two consecutive working days.

Will my employer pay me during parental leave?

Most big companies have an additional parental-leave scheme of their own, but this varies from employer to employer. Take the NSW Government, for instance. As one of Australia’s largest employers, it has a parental-leave scheme available to around 400,000 employees.

If your company has this scheme in place, you’ll find its details in the relevant award, enterprise agreement, policy or in your contract of employment.

What about breastfeeding?

Australian laws protect breastfeeding mothers from discrimination, and refusing to make arrangements for women to breastfeed at work is generally against the law. Many companies now have breastfeeding facilities to make it easier for working mums to express milk for their babies so they can continue to breastfeed.

When a mother returns to work, her employer can do a number of things to help her continue to breastfeed, such as designate areas where she can express milk in private and provide fridges to store milk. Some employers even permit mothers to leave work to feed their babies, allowing them to make up the time later.

Awards, contracts, policies and private agreements differ among workplaces, so the best strategy is to talk with a manager or Human Resources to work out a plan that suits you both.

What if my role has changed or no longer exists?

I’ve come across people who have returned to work and found that their job is no longer available. Sometimes, an employee’s job has changed, and the employer offers them another job that management claims is of equal standing to the employee’s former role — but it isn’t. Legally, your employer must find you a suitable role that’s equal to the position you held when you left for maternity leave. If you feel that the role on offer carries less status or remuneration you should address this with your boss and if this fails, seek legal advice.

Some women feel pushed into resigning because they’re uninterested in pursuing a new role. However, you should never bow out of your job because of disappointment in your new position without first having a conversation with your boss.

If your new role is all they can offer, and it’s equal in pay and status to your pre-maternity leave position, you may be unable to pursue a case; however, you might want to consider speaking with a lawyer to see how they can help.

I’ve also seen women who’ve been on maternity leave return to work only to find that their employer has made them redundant. In these cases, there’s often a real question mark as to whether it’s happened because they have taken parental leave or because the company has undertaken a genuine restructure. In the case of the latter — a situation in which the employer has made several people redundant as part of a genuine reconfiguration of its operations, and you have no reason to believe that they’ve singled you out for redundancy— you may have no legal case, and redundancy could be your best option.

Money matters

Another problem I’ve encountered is that mothers who return to work can find that their co-workers have received pay rises while they’ve been away. This situation can make women feel that they’re 12 months behind and need to play catch-up, especially if their employers have promoted colleagues to levels above them. If you feel that you deserve a pay rise, too, talk to your manager. You may simply have to complete some training programs before you can secure the pay rise.

Part-time workers can also face problems on return to work. Having chosen to work fewer hours in order to spend more time at home with their babies, they can feel that their career has taken a hit and consequently find it much harder to climb the corporate ladder. In fact, this is arguably one of the biggest reasons for the gender pay gap’s existence and is certainly one reason that improving the management of mothers’ return to work is still such a live issue.

What you can do

If you think your employer has treated you unfairly on your return to work, your best bet is to check your entitlements and to talk to your manager about any concerns. If you feel that your role has significantly changed since your departure for maternity leave, and that your employer has failed to offer a reasonable replacement role, speak to a lawyer. They can look into whether you’ve been subject to any discrimination because of your carers responsibilities or as a result of taking parental leave.

TOPIC: Employment law
RELATED LEGAL SERVICES: Employment law

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Alexandra Grayson

Maurice Blackburn Sydney
Alexandra (Alex) Grayson is a Principal who manages the Employment and Industrial Relations Practice of Maurice Blackburn’s Sydney office. She has almost 20 years’ experience in industrial relations, including almost a decade as a labour lawyer. The prestigious Doyles Guide lists Alex as a recommended lawyer for employee and trade union representation in NSW in 2017 and her team as one of the top law firms for employee & trade union representation in NSW in 2017. Alex is a passionate and committed lawyer with a keen interest in social justice and industrial relations. Her clients have included many senior executives within the finance and banking sector, the legal fraternity and in the public sector. She helps people through their difficult times by negotiating with their employers and, if necessary, litigating on their behalf. Alex is particularly skilled in litigation, strategic negotiations, interpreting industrial instruments and contracts, advocacy and providing legal advice to executives. Areas of her practice include advice and representation on workplace bullying, sexual harassment, breach of contract, redundancy situations and restraint of trade issues. Alex is in a unique position. In addition to her extensive experience as a labour lawyer, she has a deep understanding of what it is to be an executive, as she also sits on the board of the superannuation fund, HostPlus, as a Director. “Knowing that people of all walks of life need my help and that my help can get them through one of the most difficult times, ie when they are in trouble at work or when they need help on landing a good employment contract or a smooth exit, is what drives me to fight for my clients,” says Alexandra. “My family has a long history of involvement in industrial relations. It’s a tradition I am proud to continue by working as a labour lawyer, helping people who need assistance in navigating the minefield that is workplace relations.” Alex has personally advocated cases in the Industrial Relations Commission of New South Wales, the Chief Industrial Magistrate’s Court, the Fair Work Commission and the former Australian Industrial Relations Commission. She also appears in the High Court of Australia, the Federal Court of Australia, the Supreme Court of NSW, the Court of Appeal (NSW), the Anti Discrimination Board of NSW, the New South Wales Civil and Administrative Tribunal and the NSW Industrial Court. Alex has many career highlights, including: preventing the Commonwealth Bank of Australia from forcing the entire workforce onto individual contracts, see: Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372  the making by a Full Bench of the Industrial Relations Commission of New South Wales of the first Safe Staffing Award for prisons in Australia, see: Crown Employees (Corrective Services NSW — Safe Staffing Levels) Award (369 1-.G. 1228) High Court proceedings involving a constitutional challenge to legislation, see: Public Service Association and Professional Officers Association Amalgamated Union of NSW v Director of Public Employment [2012] HCA 58, and persuading a Full Bench of the Fair Work Commission to provide a broad interpretation of the concept of the reasonableness of redeployment. see: Pykett v Technical and Further Education Commission [2014] FWCFB 714. Alex regularly presents at many industry functions and legal seminars and has previously worked at the Industrial Relations Commission of New South Wales and tutored in industrial relations at the University of Western Sydney. Associations & memberships NSW Law Society member HostPlus Board Director Listed in Doyles Guide 2017 ...

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