As women represent nearly half of the Australian workforce and most Australian women will have and raise at least one child, returning to work from maternity leave is a situation which most Australian women will confront. Unfortunately, for many women, this experience can be a difficult one both in terms of returning to their former positions and/or negotiating work arrangements which are suitable in terms of their parental responsibilities.

There are a number of different yet intersecting areas of law which regulate the return to work from maternity leave so it can be difficult to know ‘where you stand’. In addition to specific workplace arrangements, which may take the form of workplace agreements (collective or individual), an employment contract and/or relevant policies, the main legal rights are as follows:

• the right to return to one’s former position after maternity leave or, if that position is no longer available, the position nearest in status and remuneration (arising under the Workplace Relations Act 1996 (Cth))
• the right not to be dismissed for reasons which include sex, family responsibilities, pregnancy or absence from work during maternity leave (arising under the Workplace Relations Act 1996 (Cth))
• the right not to be discriminated against on the basis of sex, pregnancy or carer responsibilities either (arising under State and Federal anti-discrimination law):
• directly, that is, being treated less favourably
• indirectly, that is, an employer imposing a requirement, such as the requirement to work full time, which has the affect of disadvantaging people on the basis of sex, pregnancy or carer responsibilities and which is not reasonable in all the circumstances
• an employer must not, in relation to work arrangements, unreasonably refuse to accommodate the responsibilities that a person has as a parent or carer (arising under the Equal Opportunity Act 1995 (Vic))

An important point to remember is that it is possible to apply to a court or tribunal to seek a short term remedy to stop any anticipated unlawful behaviour before the matter can be fully heard. This means that if a person becomes aware that something is about the happen which maybe unlawful, such as the pre-maternity leave position is about to be permanently filled by someone else or a ‘sham’ restructure is about to abolish the position, it may be possible to obtain a temporary order from the court preventing this from happening before the matter can be fully determined.

Returning to work from maternity leave can be difficult enough without having to worry about your job. Therefore, it may be a good idea to sort out, as much as is possible, before taking maternity leave what the employee’s and the employer’s expectations are of each side and to try to come to an arrangement which accommodates each side’s interests. Loosing a good job or an experienced employee is a significant loss for either party so it is important to try to get it right.

For more information on this area of law, please contact:

Fiona Knowles, Senior AssociateAccredited Specialist - Workplace Relations Holding Redlich 350 William Street, Melbourne T: 03 9321 9881 E: This e-mail address is being protected from spambots. You need JavaScript enabled to view it