Back to Work After Maternity Leave – Tips for Employers

The return to work of an employee following maternity leave poses a challenge for employers- many of them seem unsure about their obligations and run the risk of falling foul of the Fair Work Act or anti-discrimination legislation.


What are employees entitled to?

The fundamental entitlement of an employee returning to work after maternity leave is that they can return to the position they held prior to taking leave. If the position no longer exists then the employer must provide a position similar in qualifications and salary. This can even extend to a situation where another position has been extended to incorporate the duties of the person on maternity leave- in a case last year FWA ruled that, as the returning employee was more senior and had better qualifications for the role, she should have been redeployed and the other employee be made redundant. Kristina Ianello v Motor Solutions Australia Pty Ltd [2010] FWA 3125 (16 April 2010)

Another entitlement on returning to work arising from the Fair Work Act 2009 is the right to request flexible working arrangements if you have responsibility for or care of a child. This may include changes to hours of work or location of work if the employee is able to work from home. The eligibility criteria for requesting flexible working arrangements are the same as that for parental leave- that is, you have been employed for at least 12 months and have care of your child. An employer must respond to a request for flexible working arrangements within 21 days and can only refuse on reasonable business grounds. The flexible working arrangements can extend to a request for part time work and there are a number of cases where an employer’s refusal to allow part time work has amounted to discrimination under anti-discrimination legislation.

On 25 May 2011 amendments to the Sex Discrimination Act were passed through parliament . These amendments extend protection from discrimination on family grounds to both men and women, and establish breastfeeding as a separate ground of discrimination. The upshot of the recent increase in claims from unhappy employees and the legislative changes is that employees need to be aware of their obligations and diligent in ensuring they treat employees with family responsibilities fairly.


What should employers do?



  • Ensure they are aware of employees rights who are on maternity leave- for example if they are wanting to fill the absent employee’s position ensure it is advertised as a temporary position and is made available to the employee on their return to work


  • Provide the same position to an employee returning from maternity leave, or if this position no longer exists then provide a comparable position regarding salary and responsibilities. If no such position exists then the employee may be entitled to a redundancy.


  • Be open to requests for flexible working arrangements and how they might incorporate these into the business
  • Be aware that the right to breastfeed is now incorporated in the legislation and that the employer cannot discriminate against these employees
  • Consider how business practices could be modified to allow employees to work from home or vary start and finish times


  • Implement a policy for pregnant employees and employees on/returning from maternity leave which addresses procedures and work practices the employer has in place to accommodate these situations. This is perhaps the best way an employer can demonstrate that they are aware of their obligations and making efforts to abide by them, and provides the employee with clear guidelines and confidence that their workplace rights are protected.

For further details about employees returning from maternity leave or any other workplace issue please contact us.

Article written by Christine Broad, Solicitor

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