Relocation after maternity leave not discriminatory

Cases

Relocation after maternity leave not discriminatory

The relocation of an employee following her return to work after maternity leave was in conformity with the relevant award and the employer was consequently held not to have breached the federal Sex Discrimination Act 1984.

WantToReadMore

Get unlimited access to all of our content.

The relocation of an employee following her return to work after maternity leave was in conformity with the relevant award and the employer was consequently held not to have breached the federal Sex Discrimination Act 1984.

In an earlier proceeding before the Australian Industrial Relations Commission, the employee had alleged that the manner in which she was relocated after returning to work from maternity leave contravened the relevant award. The award required the employer to ensure that:

"An officer returning from maternity leave shall so far as possible be returned to her former duties. If this is not practicable, she shall be placed on appropriate duties of comparable status."

The Commission held that the employer had not breached the award. The Commission was satisfied that the employer’s restructure had left it with no option but to relocate the employee.

Furthermore, the Commission held that the placement provided was a reasonable one in the circumstances, in that it was an appropriate duty of comparable status. Although the employee lost a number of benefits owing to the relocation (transfer from a specialist area back to general retail banking, loss of the flexibility of hours which had assisted her with her family responsibilities and loss of access to shift allowances), the Commission was satisfied that the employer had met the relevant award requirements.

Eight months after the Commission’s determination, the employee lodged a complaint of sex discrimination with the Human Rights and Equal Opportunity Commission (HREOC) pursuant to the Sex Discrimination Act 1984(Cth) (SDA).

The employer argued that HREOC was barred from dealing with the complaint by virtue of s40(1) of the SDA. Section 40(1) provides an exception from the operation of the SDA in respect of anything done by a person in direct compliance with "an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment".

HREOC held that the relevant award clause was of a sufficiently specific nature to attract the benefits of s40. The award clause was held to have been reasonably specific as to the course of action it required the employer to follow, it imposed a duty to relocate and then expressed a criterion against which the performance of that duty was to be measured.

HREOC concluded that, in light of the Commission’s earlier determination, the employer had acted "in direct compliance" with the relevant award and was therefore entitled to the benefit of the exception provided by s40of the Act. (Gibbs v Commonwealth Bank, 3 Dec. 1996.)

 
Post details