Advice (legal) on job requirements after maternity leave

[Aine]

I have a friend who is looking for legal advice on what job her company is required to offer her when she goes back to work after maternity leave. Our understanding is that her company must offer her old job back as it was before she went on maternity leave but they say otherwise – does anyone know a lawyer who specialises in maternity leave or a web site she could look on? She has already spoken to legal aid who are not specialised enough to help her. Thanks for any help given.

[Odessa]

The answer may differ slightly depending on which state your friend resides in, but under NSW industrial laws, employees are entitled to return to work from maternity leave to the position they held prior to commencing leave. Failure to comply with these laws may result in prosecution for breach of industrial laws or claims under discrimination laws.

If the employee’s position no longer exists because it has been made redundant, the employer is required to offer the employee another available position which the employee is qualified for and capable of performing.

http://www.australianbusiness.com.au...entalleave.xml

[rynosmum]

My understanding is that same as Darkstar's plus: If your job isn't available, the job they offer you must be at the same pay level as your previous one.

Generally you need to be with your employer for 12 months before you qualify.

[iamLisa]

Hi

You should contact "Australian Industrial Relations" in your state

http://www.airc.gov.au

The website has info and phone numbers. If you call they can advise on what to do. They even may contact the employer for you.

Hope this helps
Good luck

[Aine]

Thanks very much for your help my friend is in NSW.

[kyeaj]

Hi there!

You should advise your friend to check her contract (if she has one) or her EBA (same sort of thing but for the whole company). As far as I am aware, her position needs to be left open for her to go straight back into however some places may try to negotiate this, but her pay should stay the same even though her duties may change.

I had a friend that was paid for 6 weeks of her maternity leave and was then told that if she did not go back after the 12 months that she would need to pay it back. You have to be really careful to check this out before you leave and make sure you get copies of all signed documentation or agreements.

Hope all works out for her

[Odessa]

The company I work for pays 8 weeks maternity leave, and only two months ago dropped the "clawback clause" in our EPA...this means if you go on maternity leave, you are entitled to the 8 weeks at full pay (or 16 weeks at half pay) and you are under no obligation to return after 12 months, and they will not try to claw back the 8 weeks they paid you.

[ThomasMum]

As far as I know, like others have said, after a year’s absence (AML) your employer must give you the same job back, unless this is not reasonably practical (for example, if your job has changed due to organisational restructuring).
In this case, you are entitled to return to a job that is suitable and appropriate for you and not substantially less favourable. If there is no alternative job available and you are genuinely redundant, you may be entitled to redundancy pay.

Hope this helps

TsMum

[Callumsmum]

There are a number of publications that are useful in relation to your rights....

Working your way through pregnancy
http://www.workplace.gov.au/NR/rdonl...hPregnancy.pdf

Parents and Carers at Work
http://www.equalopportunitycommissio...nc=8586&id=213

Balancing breastfeeding and work
http://www.health.gov.au/internet/wc...ooklet-cnt.htm

The Equal Opportunity Commission in your state will also be able to provide advice and may have some resources. In NSW they can be found at http://www.lawlink.nsw.gov.au/adb


There is a lot of case law about maternity leave and return to work so a good lawyer will be up on this. I'm happy to send some stuff through if you're interested.

Hope this is helpful...

Katrina

[mandy1]

As well as a being a mum to be, I work as an Industrial Officer/Organiser at a Union, and deal with these issues everyday. Can i suggest that you and your friend find out which union covers your work or indutsry and join (you can call the ACTU if you arent sure who covers your workplace www.actu.asn.au 1300 362 223). Hopefully if you have contacted a lawyer already, an honest one should have suggested you go off and do this anyway.

This kind of query, and assisting members not just with advice, but supporting them through the process (and if necessary, assisting via enforcing your rights), is something most unions and organisers do everyday, especially around maternity leave issues. Your Union and organiser or delegate will know the specific details of not just which laws apply in your state, but which Awards, collective Agreements (EBAs) or nasty individual contracts(AWAs Australian Workplace Agreements) apply to your INDIVIDUAL workplace, they wont just be looking them up, if they are collective Agreements the union will most likely have NEGOTIATED them and will know them in great detail. They will be able to help you not just by advising, but by helping you to understand them and use them yourself (more empowering, then you can help your colleagues in your workplace too).

The laws and industrial conditions that other posts have discussed above come from working people bargaining together to improve conditions, and you will probably find a group of people, women, and maybe some men too, in your union who are working on improving those conditions further, and protecting what we already have - right now. You can be involved in that too, ask your union how you can get involved.

You will probably be really surprised about all the other kind of information about family friendly arrangements, rights, entitlements, support networks etc that your union, and colleagues in the union, can tell you about

And you wont have to pay any additional fees for advice, assistance, support and maybe empowerment - this is all part of the deal of being a union member, and you can contribute to the shaping of conditions to come by working with your union. Most unions will have a reduced fee structure when you are earning less or are on leave without pay on maternity leave - for example my union is only $5.75 per quarter on leave without pay (or $23 per annum), ask about this when you call your union. It's all tax deductable anyway.

Lawyers can be great, but they dont generally have the same specialised on the ground knowledge about your particular workplace or industry, they will cost a lot more money, and they wont be able to help enforce your rights on the ground in the same way as someone can in your workplace.

But if you are faced with something urgent like termination of your employment, and you arent a member of your union, you could be in trouble, as your union may not be able to help you with a 'pre-existing issue' if you are not already a member (in the same way you wouldnt expect an insurance company to fix a prang you had in your car, if you tried to take out a policy AFTER an accident - unions are not insurance companies, but they have to manage their members interests too, their only funding comes from members, thats why they can act independently and in your best interests). In that case you might have to take the expensive option of using a lawyer.

Good luck with whatever you decide to do,