Maternity, adoption or parental leave – request to return to work part-time

12-Oct-2018

When you return to work after parental leave (including maternity and adoption leave) you have the right to return to the same job you had before you went on leave. It is against the law for your employer to refuse to let you return to your job. It is also against the law for your employer to force you to reduce your hours when you return to work.

But you have a right to request flexible working arrangements, like working part-time instead of full-time. Any reduction in hours must be something that you decide.

The key ASMOF Awards allow employees returning from maternity, adoption or parental leave, to request to return to work on a part-time basis until their child reaches school age to assist them to reconcile work and parental responsibilities. If you decide to work part-time this is done by way of leave without pay (LWOP) so you do not forfeit your full-time position.

The relevant provisions are found in the following Award clauses:

  • Clause 17D of the Public Hospital Medical Officers (State) Award
  • Clause 21D of the Public Hospital Career Medical Officers (State) Award
  • Clause 22D of the Staff Specialists (State) Award

Under these awards, your employer has a duty not to unreasonably refuse such a request. That means the employer must genuinely consider all requests to work part time and factor in the employee’s circumstances parental responsibilities. These will be balanced against the operational requirements such as the effect on the workplace. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

The request should be made as early as possible and should be in writing. The onus on NSW Health to demonstrate on reasonable business grounds it cannot accommodate your request. And a rejection must also be in writing.

NSW Health is the States’ largest employer, making up 34% of the NSW Public Sector. And as such we believe it would be difficult for them to reasonable refuse a request to work part time.

Any member who has had a request to work part time rejected should contact the union.

Unfortunately, if are employed on a fixed term contract, like medical Officers, and this contract is due to expire, you will need to apply for a new position otherwise you will lose your status as an employee. Medical Officers in this situation should be advised that they are entitled to apply for a full-time position in the following year in the normal way and should do so to retain eligibility to any entitlements under the Award. No adverse inference is to be drawn against a Medical Officer’s application in these circumstances. If an offer of employment is withdrawn or altered because a Medical Officer seeks to access their Award entitlement (i.e. access to the maternity leave provisions), you may have a victimisation claim under section 210(e) of the Industrial Relations Act 2009 (NSW).

Please contact the ASMOF office with any specific questions so we can help you through any difficulties you may experience.