Parental Leave

Under s70 of the Fair Work Act a parent is entitled to 12 months of unpaid parental leave.

Section 84 of the Fair Work Act provides those parents with the right to return to work at the conclusion of the parental leave. At the election of the employee they may either return to the pre-parental leave position or , 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 of that employee.

This obligation on employee is strictly enforced. In Kristina Lanello v Motor Solutions Australia Pty Ltd [2010] FWA 3125 (16 April 2010) the employee was employed as a recruitment agent and took four month maternity leave. During the leave period the Employer amalgamated the Employee's position with another employee's position. The Employee agreed to defer her return because of a down-turn in the employer's business.. Towards the end of the employee's unpaid parental the employer refused to re-employ the employee on a full time basis.

The employee lodged an unfair dismissal application with Fair Work Australia (FWA). Fair Work Australia ruled that, as the returning employee was more senior and had better qualifications for the role, she should have been redeployed and the other employee be made redundant.

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