Parents’ flexible work rights: the workplace’s best-kept secret?

Parents of school-age or younger children have powerful rights when requesting a flexible working arrangement. But almost no one is talking about them.

When a parent is trying to manage “the juggle”, flexible working conditions can be life-changing.

In my experience as an employment lawyer, very few people know that they have the right to request a flexible working arrangement. Even fewer know something more important: what to do if their employer refuses the flexible work request. 

The hidden rights of new parents

Time and time again, I hear clients say that before they went on parental leave, they were told that if they wanted to work part-time, they wouldn’t be able to keep their pre-parental leave position. Sometimes a weak rationale was provided; often, there was none at all.

I often hear accounts of parents proposing to come into the office early and leave early (so that they can do the school pick-up), only to be told that they have to work standard business hours. Meanwhile, the same parents are often required to work after hours to meet deadlines and manage their workloads.

Most clients with difficult employers are astonished to learn they have powerful statutory rights. This can be a game-changer if you find yourself in this situation.

Here are 5 things that new parents need to know when they’re returning to work after taking a period of parental leave.

Are you eligible to request flexible working arrangements?

Provided you are responsible for the care of your child (school-aged or younger) and have been employed for a year or more, you have the right to request a flexible working arrangement. This arrangement can include changes to your hours, work pattern, and location, for example, a part-time schedule, compressed hours, or hybrid remote work.

Your boss can’t just say no

If your employer refuses your flexible work request, they must provide their reasons in writing within 21 days of receiving the request.

What are "reasonable business grounds" to refuse a flexible work request?

Under the Fair Work Act, employers can only rely on reasonable business grounds to refuse a request. The Act sets out examples, including that:

• the arrangement would be too costly for the employer
• there is no capacity to change other employees' working arrangements to accommodate the request, or it would be impractical to do so
• the arrangement would result in a significant loss of efficiency or productivity, or
• the arrangement would have a significant negative impact on customer service.

Whether grounds are reasonable depends on the size and nature of your employer's business; what is too costly for a small business may be entirely manageable for a large one.

Importantly, employers cannot reject a request simply because they would prefer you didn't work flexibly, or because they have a workplace policy that doesn't allow for flexibility.

You can appeal a refusal of a flexible work arrangement

If you think the grounds relied on by your employer are not reasonable, you may be able to file an application with the Fair Work Commission. The Commission might decide to grant your request.

The Commission will interrogate the reasons provided by your employer. They’ll decide if those reasons constitute “reasonable business grounds”. If the Fair Work Commission finds that “reasonable business grounds” don’t exist, your employer’s refusal might be overturned.

Do you have the right to return to your old job after parental leave?

Yes, if you are returning from a period of parental leave (whether paid or unpaid), you have the right to return to your pre-parental leave position.

If that position no longer exists, you have the right to return to the job that is nearest in status and pay to your pre-parental leave position. 

What this means for new parents returning to work

Taken together, those rights mean that:

1. Employers can’t simply refuse to allow you to work flexibly because they’d prefer you didn’t: they need to have reasonable business grounds;
2. If you would like to work part-time, you don’t have to accept a demotion or a reduction in seniority. You have the right to return to your pre-parental leave position.

If you’re in a situation like this, or if you’re facing other kinds of discrimination or unfair treatment because of pregnancy or parenthood, contact us and arrange a consultation with our award-winning employment law team. We’d love to help.