Think twice, and then again, if making staff on maternity leave redundant or changing conditions

A growing number of matters being dealt with by the Fair Work Commission (FWC) and other tribunals demonstrate that many employers are exposing themselves to great risk of unwanted employee claims by changing the work or contract conditions of employees on or returning from maternity leave. With many of these claims arising from the ‘general protections’ or ‘adverse action’ provisions of the Fair Work Act, employers are risking very substantial penalties and compensation payments, on top of considerable legal expenses. Read more for our top tips of avoiding these problems.

Top Tip 1 – Recognise that employees on or returning from maternity leave have very extensive protections under the Fair Work Act and other Federal + State statutes.

Thinking that the best time to take action with an employee who may not have been the most effective or efficient is when she is away from the workplace on maternity leave or about to return is from a legal perspective, extremely dangerous. In the same way as stunts on TV are subject to the warning of ‘DO NOT ATTEMPT THIS AT HOME!’, the same type of warning could be acted upon in your workplace with any ad hoc ideas of adversely impacting on the conditions of employment of employees on or returning from maternity leave.

If you really need to make changes impacting on these employees, the best approach is to carefully consider the genuine need for such changes and if still convinced of the necessity to go ahead with them, only do so after seeking legal or specialist advice.

Top Tip 2 – Dealing with redundancy situations

Often when staff are on maternity leave, their duties are distributed to others in the workplace on an interim basis. However, sometimes these temporary arrangements work out so well they result in the original position becoming no longer required to be performed by anybody, the key requirement of making a position redundant.

While technically making the position occupied by a staff on maternity leave redundant – if their position is genuinely no long required to be performed by anybody – is the same as for any other position, Top Tip 1 above provides a warning to proceed with care. This will involve having documentation demonstrating the business case for abolishing the position and ensuring the decision maker has not used the maternity leave status of the position occupant to form any part of their decision.

Top Tip 3 – Always consult with your employee

Many employers fall into trouble by failing to consult with their staff member on or returning from maternity leave prior to taking action which may impact on them. Section 83 of the Fair Work Act requires employers to consult with any employee on maternity leave about any decision which will have a significant impact on the employee’s pay, status or location of work. The Act also requires employers under these circumstances to provide details of the intended changes to the employee and to give them the opportunity to discuss the changes.

Employers need to keep in mind that the requirements of section 83 of the Act are in addition to any consultation clause applicable to staff covered by Modern Awards or Enterprise Agreements.

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Graham Evans is the Managing Partner of O'Connell The Employment Law Specialists, a Sydney-based employment law firm. He has over 20 years' experience in assisting employers in dealing with complex issues within their workplace.

EMAIL: graham@oconnellgroup.com.au

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