Returning to work after parental leave in Australia: your rights

The return is written into the Act

Australia is unusually explicit about what happens at the end of parental leave, because the entitlement sits in the National Employment Standards rather than in guidance. Section 84 of the Fair Work Act sets out a return to work guarantee, sections 79A and 79B govern keeping in touch days, and section 65 covers requests for flexible working arrangements. This page works through each one.

The return to work guarantee

Section 84 states that on ending a period of unpaid parental leave, an employee is entitled to return to their pre-parental leave position, or if that position no longer exists, to an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.

Read the second limb carefully. It is not a promise of any job going. It is a promise of the nearest available position in status and pay, and both words matter. A return at reduced pay, or into a role of materially lower status, is not compliant simply because the old role was restructured away while you were off.

Section 83 also requires the employer to consult with an employee on unpaid parental leave about decisions that will have a significant effect on the status, pay or location of their pre-parental leave position. You are entitled to be told about a restructure while it is happening, not on your first day back.

Section 84A requires an employer, before engaging someone to cover your work, to notify that replacement employee that the engagement is temporary. That protects you from an employer later claiming the replacement had become permanent.

Keeping in touch days

Section 79A allows you to work for your employer on keeping in touch days during unpaid parental leave without breaking the continuity of the leave. There are conditions, and they are precise.

The purpose of the work must be to enable you to keep in touch with your employment in order to facilitate your return. Both you and your employer must consent, so neither side can require it. And there are blackout periods at the start: if you suggested or requested the day, it cannot fall within 14 days after the date of birth or placement; otherwise it cannot fall within 42 days after the birth or placement.

The cap is ten keeping in touch days across the period of leave. Section 79B confirms that taking keeping in touch days does not extend the period of unpaid parental leave, and neither does taking paid leave alongside it, so using them does not buy you extra time.

Keeping in touch days can also be used during an extended period of parental leave taken under section 76.

Requesting flexible working

Section 65 lets an employee request a change in working arrangements where certain circumstances apply. The list includes being pregnant, being the parent or having responsibility for the care of a child of school age or younger, and being a carer. Examples of changes given in the Act are changes in hours of work, patterns of work and location of work.

Subsection 65(1B) is the one that matters here. It puts beyond doubt that an employee who is a parent, or has responsibility for the care of a child, and who is returning to work after taking leave in relation to the birth or adoption of the child, falls within the provision. You do not have to argue that a return from parental leave counts; the Act names it.

Requests carry a service requirement and a defined response process, and the Fair Work Commission can deal with disputes about flexible working arrangements, including through its dispute forms. If a request is refused and you think it was not properly handled, that pathway exists.

State and territory law is not excluded

Section 66 preserves state and territory laws that provide entitlements about flexible working arrangements to the extent they are more beneficial than the federal Division. Check whether your state offers more before assuming the federal position is the ceiling. Awards and enterprise agreements can also improve on the National Employment Standards, and never reduce them.

The flexible days are a return tool

People think of the 100 days of flexible unpaid parental leave under section 72A as something used early, but they are frequently more valuable at the other end. Because they can be taken in separate periods at any point in the 24 months from the birth, they can fund a genuine phased return: four days a week for several months, or a standing day off. They come out of your 12-month entitlement rather than adding to it, and you must have notified the number of flexible days to your employer.

Expressing milk and breaks

Breaks for expressing milk are not set out as a discrete National Employment Standard entitlement. In practice they are handled through the flexible working provisions, through anti-discrimination law, and through workplace policy, and many awards and agreements address them directly. Raise it in writing before your return date, ask for a private space that is not a toilet, and check your award or agreement, since that is often where a concrete entitlement lives.

What to do, and in what order

Confirm your return date and your pre-parental leave position in writing. If you want a phased return, decide whether you are using flexible unpaid parental leave days or a section 65 request, and lodge the request early. Agree keeping in touch days in advance, remembering the 14 and 42 day blackout periods. Ask about expressing facilities before your first day. And read your award or enterprise agreement, because it may give you more than the Act.