Discrimination law takes over where industrial law stops

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Discrimination law takes over where industrial law stops

While the Federal Government debates whether it should fund paid parental leave, employers have been given a timely reminder that accommodating an employee's preferred return to work after such leave requires serious consideration if legal implications are to be avoided.

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While the Federal Government debates whether it should fund paid parental leave, employers have been given a timely reminder that accommodating an employee's preferred return to work after such leave requires serious consideration if legal implications are to be avoided.

Speaking last week at a Sydney briefing held jointly with ACIRRT, Cutler Hughes & Harris solicitor Leah Charlson told delegates return to work was much more than a straightforward industrial issue, whereby employers had to return workers to their former positions - or a position similar in status and responsibility.

More pervasive than industrial law, she said, was the discrimination law aspect, which came into play when managing flexible return to work for employees who had been on parental leave.

She cited the example of Thomson v Orica (see 20/2002), where a woman successfully sued her former employer for constructive dismissal on the grounds of sex and pregnancy for effectively demoting her after her return from maternity leave.

Charlson said the whole experience had not started well, with her manager telling the woman upon hearing of her pregnancy: 'I've already got three women on maternity leave - I'm never employing a woman again'.

But when she did return to work, she was offered what the hearing judge called a 'significantly inferior' job because of her maternity leave.

Similarly, in the case of Escobar v Rainbow Printing (see 25/2002), discrimination law came into play when an employee was not allowed to return to work part-time after maternity leave, and was then denied her former full-time position as well.

The Magistrate found that the reason the manager acted the way he did was because he was unwilling to countenance at that time the possibility of the employee working part-time as he had filled her full-time position, rendering that position also unavailable. The dismissal was due to her family responsibilities, the magistrate found, and alternatively was also indirect discrimination on the grounds of sex, as women were more likely to want part-time work to help address their carers' responsibilities.

This case, Charlson said, emphasised that an employer must either try or seriously consider any requests put by employees returning to work for flexible work practices.

'Discrimination laws are slightly less obvious [than industrial laws] but more pervasive,' she said.

Other legal developments

In a wrap-up of the state of play of other recent legal developments, Charlson said the continuing decisions on whether union bargaining fee clauses were acceptable in enterprise agreements meant a conflict position applied, particularly as the Australian Industrial Relations Commission and Federal Court disagreed.

The full Federal Court has ruled that a certified agreement can contain provisions not relating to the employment relationship if the overall agreement does relate to that relationship. Federal Court Justice Merkel, however, has said the inclusion of bargaining fees in agreements may offend freedom of association provisions.

On the other hand, the AIRC said the inclusion of a bargaining fee does not offend freedom of association provisions, but the bargaining fee is possibly unlawful in application.

As things stood, she said, it thus appeared that protected action over such clauses was allowable, but agreements containing the clauses were unlikely to be certified.

Another developing issue in case law was the entitlements debate, and corporate restructuring. A judge recently strongly criticised a company which had transferred workers without their knowledge from one employer to another company with minimal assets, so it could argue it had no liability to pay employee entitlements on redundancy.

'I think it's often forgotten that the basic underpinning of employment law is a contract,' Charlson said, adding that it was clear law that employees could not be transferred from one employer to another without their consent, 'and certainly not without their knowledge'.

The judge was very strong in his criticism of the company for treating the employees, many of them non-English speaking women, as 'serfs', and suggested there may be a basis in law for holding the controllers of the company responsible for the legal costs involved in clarifying the ineffective transfers.

 

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