Your Guide to Returning to Work After Unpaid Parental Leave: Eligibility Requirements, Laws and More
We here at Younsel have previously covered the eligibility requirements in regards to unpaid parental leave entitlements, so it obviously makes sense that we should also detail the laws in relation to a person who is returning to work at the conclusion of their leave. Under s 84(a) of the Fair Work Act (the FWA) an employee is entitled to return to work and to their “pre-parental leave position” after their leave has been exhausted. However, although an employee is able to return to their place of employment and to their former role after finishing their leave – other questions may arise such as; ‘are there any requirements that need to be fulfilled when returning to work?’ Or ‘what happens if my position no longer exists?’ May be just some of the additional questions that may come up after a person returns from unpaid parental leave.
The return to work guarantee
As mentioned in the introduction under the provisions of s 84(a) of the FWA, an employee is able to return to their place of employment and to their “pre-parental leave position”. Additionally, under s 84(b), if the role no longer exists then “an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position” is to be provided if applicable.
What does “pre-parental leave position” mean?
When reference is made to “pre-parental leave position” in the FWA, essentially means that an employee is able to return to the same role they held before undertaking leave.
However, “pre-parental leave position” may also refer to instances where an employee is transferred to a safe job, or had their hours reduced due to pregnancy , then in such instances, under s 83(2) of the FWA, “pre-parental leave position” will then refer to an employee returning to the role they held before the transfer or reduction of duties.
What are the requirements that a person needs to fulfil when returning to work from unpaid parental leave?
Under s 74(3) of the FWA, an employee must inform their employer both the intended start and end date of their unpaid parental leave period, however, an employee is able to request an extension (s 76) or to shorten their leave (s 77), if they so choose.
Alternatively, there may be instances where a person decides not to return to work at all, and in such a situation, the employee must still adhere to the notice requirements as stipulated in their contract of employment, or relevant award or enterprise agreement.
What happens if the role no longer exists?
Things can change during the period of unpaid parental leave which may have a direct effect on the employee’s role.
If the role of the employee no longer exists, then an employer still has a positive obligation to consult with the employee in regards to the change that must fulfil the requirements of an award or enterprise agreement, as well as the s 83(1)(b) provisions of the FWA which states that if:
(b) the employee's employer makes a decision that will have a significant effect on the status, pay or location of the employee's pre-parental leave position;
the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.
It’s also worth remembering that under the provisions of s 84(b), an available position of which the employee is qualified, suited and nearest in status and in pay to the pre-parental leave position, must also be a consideration as well.
A further example of another change that may occur during the period of leave, is that there may be a change in the ownership of the business, and in such occurrences the new management must still comply with the ss 83 and 84 requirements of the FWA.
If you have any concerns or questions relating to leave and your employment, please seek the assistance of a lawyer who will be able to provide you with the help that you require.
