Returning to Work After Parental Leave: Your Complete Rights

Under section 84 of the Fair Work Act 2009, an employee who takes parental leave has a right to return to the position they held before going on leave. This isn't a request or a preference — it is a legal entitlement. The 'position' includes the same role, duties, status, pay, hours, and location.

If you were a Marketing Manager on $95,000 working from the Sydney CBD office before parental leave, you are entitled to return as a Marketing Manager on at least $95,000 (plus any pay rises that occurred during your leave under your award or agreement) at the same location, doing the same duties. If it isn't practicable for the employer to return you to your pre-leave position — for example, if the position has been genuinely made redundant as part of a restructure — the employer must offer you an available position that's nearest in status and pay to your pre-leave position and for which you are qualified and suited.

This is a high bar. The employer can't simply say the role no longer exists without demonstrating that a genuine redundancy or restructure occurred, that the decision was not connected to your parental leave, and that there's no available comparable position. If neither the original position nor a comparable position is available, your employment may be terminated — but this would need to be a genuine redundancy, and you would be entitled to notice and redundancy pay under the NES. Keep records.

Parents returning from parental leave are specifically identified as an eligible category for flexible work requests under section 65 of the Fair Work Act. As a parent of a child of school age or younger, you can request changes to your hours, pattern, or location of work. Common requests include returning part-time (for example, 3 or 4 days per week instead of 5), compressed hours (working full-time hours over 4 longer days), later start or earlier finish times to accommodate childcare drop-off and pick-up, working from home on certain days, or job sharing with another employee.

You do not need to have completed 12 months of continuous service to make this request if you were already employed for 12 months before going on parental leave — your period of parental leave counts as continuous service. Your employer must respond within 21 days, discuss the request with you genuinely, and can only refuse on reasonable business grounds with a written explanation.

This one catches a lot of people out. since the 2024 amendments, if your request is refused, you can take the dispute to the Fair Work Commission for binding arbitration. Many parents find it effective to signal their intended flexible arrangement before returning — for example, writing to their employer 4 to 6 weeks before their return date saying 'I intend to return on [date] and would like to discuss a request to return on a part-time basis of 3 days per week.' This gives the employer time to plan.

Australian law protects your right to breastfeed, including at work. Under the Sex Discrimination Act 1984 (Cth), breastfeeding is a protected attribute — it's unlawful to discriminate against you because you're breastfeeding. This includes refusing to employ you, dismissing you, or treating you less favourably.

Under work health and safety laws, employers have a duty to provide a safe working environment, which includes accommodating breastfeeding employees. While there is no specific federal legislation requiring employers to provide breastfeeding breaks or facilities, the Australian Breastfeeding Association and Safe Work Australia recommend that employers provide paid breastfeeding breaks (many enterprise agreements include these), a clean, private, lockable room (not a bathroom) for expressing milk, access to a refrigerator for storing expressed milk, and flexibility to adjust start and finish times or take additional breaks as needed. Worth checking.

Several state and territory laws go further. In Queensland, the Anti-Discrimination Act 1991 specifically protects breastfeeding. In the ACT, the Discrimination Act 1991 includes breastfeeding as a protected attribute. If your employer refuses to accommodate breastfeeding, or you're subjected to negative comments or treatment because of breastfeeding, this may constitute sex discrimination.

Lodge a complaint with the Australian Human Rights Commission (humanrights.gov.au) or the relevant state or territory anti-discrimination body.

Discrimination against employees because of pregnancy, potential pregnancy, or family responsibilities is unlawful under both federal and state law. The Sex Discrimination Act 1984 prohibits discrimination on the grounds of pregnancy, potential pregnancy (meaning you might become pregnant in the future), breastfeeding, and family responsibilities. The Fair Work Act provides additional protections under the general protections provisions — section 351 prohibits adverse action because of pregnancy, and section 340 prohibits adverse action because you exercised a workplace right such as taking parental leave.

In practice, pregnancy and parental leave discrimination is disturbingly common. The Australian Human Rights Commission's 2014 national review found that 49% of mothers experienced discrimination during pregnancy, parental leave, or on return to work. Keep records.

This one catches a lot of people out. common forms include being made redundant while on parental leave or shortly after returning, having your role changed, downgraded, or duties reduced, missing out on promotions, training, or pay rises, being treated as less committed or capable because you've children, and being pressured not to return or to return on reduced terms. If you experience any of these, document everything and seek legal advice.

You can lodge a complaint with the Australian Human Rights Commission (for Sex Discrimination Act breaches) or the Fair Work Commission (for Fair Work Act breaches).

Time limits apply: 6 months for an AHRC complaint after the discriminatory act, and 21 days for an FWC general protections application after dismissal.

If you return from parental leave and discover your role has been changed — different title, reduced duties, lower status, new reporting line, or relocation — this may be a breach of section 84 of the Fair Work Act. Don't simply accept the change. Take these steps immediately.

• write to your employer: 'I am returning from parental leave and I understand my previous role as [title] is no longer available / has been changed. Under section 84 of the Fair Work Act, I am entitled to return to the position I held before taking leave, or a comparable available position
• request a written explanation of why the original role is no longer available. The employer must demonstrate a genuine reason unconnected to your parental leave. If the timing is suspicious — for example, the 'restructure' happened while you were on leave and affected only your role — this is strong circumstantial evidence of discrimination
• do not resign

I would like to understand why my role has changed and what position is being offered.'

This bit matters. if you resign, you lose your ability to claim unfair dismissal and it may weaken a general protections claim. Instead, you may have grounds for a constructive dismissal claim if the change is so significant that it amounts to a repudiation of your employment contract. No exceptions.

Fourth, seek advice. Contact the Fair Work Ombudsman on 13 13 94 for general information, or consult an employment lawyer. Many offer free initial consultations for parental leave discrimination matters.

Your union (if applicable) can also provide representation.

Returning part-time after parental leave is one of the most common flexible work requests — and one of the most impactful. Under section 65, you've the legal right to request part-time work as a parent of a child of school age or younger. If your request is refused without reasonable business grounds, you can take it to the FWC.

When negotiating a part-time return, consider the following. Propose specific days and hours rather than leaving it open-ended.

Three days per week (Monday, Tuesday, Thursday) is easier for an employer to plan around than 'about 3 days depending on the week'. Address how your workload will be managed — will some duties be redistributed? Will a job-share partner be recruited? Be clear about whether this is a permanent change or a temporary arrangement with a review date. Discuss how your performance will be assessed — ensure KPIs and expectations are adjusted to reflect your reduced hours. Confirm the impact on your pay, leave accrual, and superannuation.

Part-time employees accrue annual leave and personal leave on a pro-rata basis. If you move from 5 days to 3 days, your annual leave accrual drops from 20 days to 12 days per year.

Your super remains at 12% of your actual ordinary time earnings. Confirm your classification and pay rate haven't been downgraded — moving to part-time should not mean a lower hourly rate or a reduced classification. You're doing the same role at the same level, just for fewer hours (we get asked about this a lot).

Get the agreed arrangement in writing, signed by both parties, before it takes effect. It matters.