Contemporary society attempts to encourage more women to work full time whilst juggling a growing family. However, many mothers are often discriminated against for exercising their workplace right to take parental leave.
Employers need to show their support and understanding and not punish women for exercising their workplace rights, especially if they require flexible working arrangements.
In Australia there are certain laws that protect mothers from being discriminated against in the workplace. It is important that women are aware of these rights and know what they can do if they think they have been treated unfairly.
Your rights as a working mother
As a working mother you have the right to request flexible working arrangements such as a change of hours, requesting ‘split-shifts’ or even a change of work location.
The Fair Work Act 2009 (Cth) states that the employer must have reasonable grounds to refuse the request, such 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.
However, it is important to note that employees need to have completed at least 12 months’ of continuous service with their employer before they are entitled to make the request.
What to do if you are being discriminated against for taking maternity leave?
In the event that an employer takes adverse action against an employee by virtue of him or her exercising a workplace right, such as the right to take parental leave (paid or unpaid) or requesting a flexible working arrangement, a claim may be made under the Fair Work Act.
General Protections provisions under the Fair Work Act protect working mothers from being terminated, 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.
The reverse onus of proof will then be on the employer, to prove that the 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.
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.
What can you do if adverse action is taken against you after requesting a flexible working arrangement?
Adverse action can be demonstrated in a number of ways, some of which include: demotion, implementation of a performance improvement program, warnings or even termination of employment.
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.
If you are a working mother who has been discriminated against due to your request for flexible working hours, we recommend seeking legal advice.
