Women are sometimes surprised to learn that they play a very important role in driving the economy and increasing workforce participation when they return to work after a period of parental leave.[1]

However, despite the fact that it is now the “norm” for a woman to return to work after the birth of a child, Australia’s female participation rate still tracks lower than that in other similar countries such as New Zealand and Canada and women continue to face challenges when balancing work and family commitments.

So what workplace law rights do new mothers have when returning to the workforce after childbirth?

Returning to Work

The National Employment Standards (“NES”) for workplace law in the Fair Work Act 2009 (“Fair Work Act“) provide the statutory framework for the majority of women returning to work after childbirth.

Generally, a new mother will be returning to work after having taken a period of parental leave under the NES of up to 12 months (or up to 24 months if an extension was granted).

During that time, the employee may have maintained contact with her workplace via “keeping in touch days” and visits to introduce the new baby.

Importantly, a new mother returning to work has an employment law statutory right to return to her pre-parental leave position, or if that position no longer exists, to an available position for which the employee is qualified and that is nearest in status and pay to the previous position.

Flexible Work Arrangements

The NES provide employees who are parents, or who have responsibility for the care of, a child who is of school age or younger, with an employment law right to request a change in working arrangements.

The changes can include a request to work part time, a request to change the patterns of work and a request to change to the work location (e.g. to perform some work from home).

While this employment law statutory right exists for employees, employers also have the right to refuse a request for flexible working arrangements when there are reasonable business grounds for doing so.

Nonetheless, the employer must genuinely consider the request and respond in writing.

What are the formal requirements to make a request?

To make a request for flexible working arrangements, an employee must have at least 12 months of continuous service. If an employee is a casual then they must be a long term casual with a reasonable expectation of continuing employment on a regular and systematic basis.

The request for flexible working arrangements must be made in writing, and set out the details of the change sought and reasons for the change.

Once a written request has been received, the employer must provide a written response within 21 days, which states whether the request is approved or refused. Employers can only refuse a request on “reasonable business grounds” and must provide their reasons for the refusal in writing.

Can I challenge my employer’s refusal of a request?

The Fair Work Act provides no mechanism by which employees can challenge the employer’s refusal and no remedy is available where the refusal is not based on reasonable business grounds.

However, there are very limited circumstances in which employees can seek to challenge a refusal by making an application to the Fair Work Commission to deal with that dispute.

Circumstances may be different if an employee is employed pursuant to an enterprise agreement or enterprise award or has relevant rights under their employment contract or a company policy.

Do I have other options?

Employees may also be able to seek remedies under other federal or state anti-discrimination legislation which prohibits unlawful discrimination on the ground of family or carer’s responsibilities.

For example, the Anti-Discrimination Act 1977 (NSW) (“AD Act”) prohibits discrimination in employment on the ground of an employee’s carer responsibilities.

An employer’s refusal of a request for flexible working arrangement in New South Wales may be considered unlawful discrimination under the AD Act where there are no reasonable operational reasons for the refusal and accommodating the request would not cause the employer unjustifiable hardship.

If an employee does seek a remedy under this or other legislation, an employment lawyer will be able to assist in exploring the available options.

Is there anything else I should know?

In our experience, communication with your employer is key. If you have a good working relationship with open and honest communication, then any issues around flexible working relationships can generally be worked through so that a mutually agreeable outcome is reached.


[1] You may be interested to read the work of Dr Sheree Gregory, Lecturer in Human Resources and Management in the School of Business at Western Sydney University. http://www.uws.edu.au/staff_profiles/uws_profiles/doctor_sheree_gregory(link is external) | http://www.shereekgregory.wordpress.com(link is external) | Twitter: @DrShereeGregory