Can I make a claim against my employer if my previous position is no longer available when I return from unpaid parental leave?

Yes, The Fair Work Act 2009 (Cth) provides a specific guarantee to employees returning from unpaid parental leave. An employee, with the assistance of legal representations, can bring a claim for a breach of the Act in several ways.

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) and eligible State or Territory Court;

What are my entitlements?

The Act ensures that the employee will be entitled to return to their pre-parental leave position or an available position that is equal to or comparable with the pre-parental leave position.

Section 84 of the Act states that on ending unpaid parental leave, an employee is entitled to return to:

(a) the employee’s pre parental leave position; or (b) if that position no longer exists – an available position for which the employee is qualified and suited nearest in status and pay to the pre parental leave position.

This section ensures that employees can take unpaid parental leave without fearing for the potential loss of their employment. This section is part of the National Employment Standards (NES) under Parental Leave. Section 44(1) of the Act states that an employer must not ignore a provision of the NES and that section 44(1) is a civil remedy provision. Employers therefore face serious financial penalties for any contravention.

Furthermore, Section 539 of the Act outlines the details for application for orders in relation to contraventions of all civil remedy provisions including section 84. Section 359 it states that an employee or employee organisation can apply to either:

(a) the Federal Court;

(b) the Federal Magistrates Court;

(c) eligible State or Territory Court;

for an order in relation to a contravention of section 44(1).