100% guaranteed – the return to work guarantee under the Fair Work Act 2009 (Cth)

Last month, all eyes were on tennis champion Serena Williams as she returned to her first Grand Slam tennis tournament following the recent birth of her daughter.

At the time she left the tennis tour, Williams was the first placed seed, however by the time of her return to participate in the French Open, Williams’ ranking had plummeted to number 453 in the world.

Under the Women’s Tennis Association (WTA) special ranking rule, players who have been out of the game due to long-term injury and return within two years, can enter tournaments with a “protected ranking”, allowing them to keep the ranking they had when they last played.

However, the “protected ranking” rule does not determine a player’s seeding and as a further obstacle to her return to the tour, Williams was not given a seeded place in the French Open by the organisers. Williams had to compete against more highly ranked and seeded players than she otherwise would have.  

Williams’ circumstances prompted discussion in the media about professional female athletes and their return to sport following the birth of a child and if more support should be provided to facilitate their return to competition.

Whilst Williams is not an employee, in the Australian employment law context, the situation is more favourable for employees taking parental leave and returning from parental leave.

The National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act) entitle employees with 12 months or more of continuous service to up to 12 months of unpaid parental leave. The employee can also request to take a further 12 months parental leave in some circumstances.

Importantly, the FW Act provides a safeguard for employees returning to work after a period of parental leave. Under section 84 of the FW Act, an employee returning from a period of unpaid parental leave is entitled to return to their pre-parental leave position, this is known as the “return to work guarantee”. This safeguard provides that an employee is entitled to return to:

  • their pre-parental leave position; or
    if that position no longer exists--an available position for which the employee is qualified and that is suited nearest in status and pay to the pre-parental leave position.

The Australian Human Rights Commission’s Supporting Parents: Pregnancy and Return to Work National Review Report 2014 noted that 49% of mothers experienced discrimination during their pregnancy, whilst on parental leave or on their return to work. The return to work guarantee promotes workforce participation and acknowledges that it is often difficult for women to return to the workforce after a period of parental leave if required to find a new job with a new employer.

As the return to work guarantee is one of the NES, it cannot be displaced by employers and penalties apply for breaches of the return to work guarantee.

Unlike Williams’, Australian employees returning from a period of parental leave can return to their original job, and do not have to “start from the bottom” again.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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