Many mothers can be unsure of their rights when returning to work after giving birth, fearing potential discrimination for their parental responsibilities. McDonald Murholme lawyer Bianca Mazzarella discusses the rights of mothers in the workplace.
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Mum’s Workplace Rights – The Baby Vine
In this day and age, more women are being encouraged to return to work after giving birth, with employers becoming increasingly more adaptable to the requirements of working mothers. However, some employers can be resistant to this change, with working mothers sometimes being discriminated against for exercising their workplace rights, such as those to take parental leave or change their working arrangements.
Flexible working arrangements have been found to be beneficial in many workplaces, with working mums being able to be more focussed and efficient with their work. An employer’s willingness to adapt to changes can see an increase in staff retention and job satisfaction, with an employee more willing to work in an environment where an employer understands the balancing act of being a working mum.
It is important that working mothers and their employers are aware of their rights and know what they can do if they think they have been treated unfairly.
Need to change from the typical 9-5?
Working mothers have the right to request flexible working arrangements, such as a change of hours to work around school drop-off and pick up times, change in patterns of work such as ‘split-shifts’, or a change of location to be moved closer to home.
To be entitled to make this arrangement, employees must have completed at least 12 months of continuous service with their employer immediately before making the request.
The Fair Work Act 2009 (Cth) states that if an employer were to refuse the request, they must have reasonable grounds to do so.
These ‘reasonable grounds’ are characterised as:
- the new working arrangements requested by the employee would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity; and
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Attitude changed upon return?
In the event that a working mother has successfully negotiated their return work, they may find that there is a change in attitude towards them.
An employer may begin to wrongfully treat their employee by way of changing their duties, excluding them from meetings or making it difficult to perform their role, or in extreme cases unwarranted performance management, disingenuous redundancy or unlawful termination.
The General Protections provisions of the Fair Work Act 2009 (cth) protect working mothers from any adverse action being taken against them, extending also to having their duties significantly altered or removed due to the exercise of a workplace right concerning parental leave or a request for a flexible working arrangement.
In the event that an employer takes adverse action against an employee by virtue of him or her exercising a workplace right, a claim may be made under the Fair Work Act.
The responsibility will then be with the employer to prove that the request of their workplace right was not a reason for the adverse action.
This is generally quite a difficult point for an employer to satisfy as the workplace right need not be the only reason for the adverse action, but one of the reasons in the employer’s mind when the adverse action was taken.
Discriminated against due to your parental responsibilities?
If you believe adverse action has been taken against you by reason of you requesting flexible working hours or taking parental leave to attend to your child, you may be able to lodge a General Protections application with the Fair Work Commission.
Working mothers may also make a complaint to the Victorian Equal Opportunity and Human Rights Commission under the Equal Opportunity Act 2010 if they have been discriminated against for pregnancy or breastfeeding.
If you are a working mother who has been discriminated against due to your exercising of your workplace rights, we highly recommend seeking legal advice.
Reference: Mum’s workplace rights, The Baby Vine, 23rd February 2017.