UNDER the Fair Work Act (the Act), parents have a right to request a change in working arrangements to care for a child under school age, or under 18 if the child has a disability.

Section 65(5) of the Act specifies that an employer may refuse such a request only on reasonable business grounds.

According to section 739(2), an employee has no right to appeal such a refusal unless a determination under the Public Services Act 1999 or a written agreement allows for the matter to be referred to the Fair Work Commission (FWC).

In the recent case Ms Hanina Rind v Australian Institute of Superannuation Trustees, Ms Rind requested a return to her role as a database/IT systems administrator on a part-time basis following the birth of her second child.

Her employment was government by an enterprise agreement which included the right to make this request and outlined that when a dispute could not be resolved at the workplace level, it would be referred to the FWC for arbitration.

In an October 2012 letter, the Australian Institute of Superannuation Trustees (AIST) refused Ms Rind’s request, stating ‘the position was advertised and filled as a full-time position, and this requirement has not changed’.

The letter explained that during the period the employee’s leave, AIST had outsourced a provider to fulfil its data/IT requirements and had come to a conclusion that it was vital to have someone on site full-time to administer operations and troubleshoot issues as they arise.

AIST reminded Ms Rind that under clause 21.6.1 in the enterprise agreement, she could apply for an additional eight week unpaid parental leave to assist in the transition to return to work full-time.

Ms Rind took the position that she was unable to return to work full-time and did not do so. Instead, she referred a dispute to the FWC, claiming the refusal of a part-time position amounted to a constructive dismissal.

In a key determining factor in this case, AIST did not fill her role with a full-time employee, but persisted with its outsourcing arrangements, whereby only 12 hours per week were devoted to Ms Rind’s former role.

In the decision handed down on 31 May 2013, Commissioner Lewin said AIST has shown no intention of filling Ms Rind’s position full-time:

“There was no evidence of an attempt to recruit a full-time Database/IT Systems Administrator to fill Ms Rind’s role since the employment came to an end, no such advertisement of the position has occurred, no recruitment service provider has been engaged to fill the position and no internal promotion has occurred,” Commissioner Lewin said.

“Nor has the Company increased the level of service provided by the external contractor to the equivalent of what would be provided by a full-time employee.”

The Commissioner went on to find that Ms Rind had indeed been constructively dismissed. However, as it was a jurisdictional hearing he did not make any order but instead decided the matter would be listed for a conference before the Commission. In light of the tenor of this decision, however, reinstatement on a part-time basis would appear to be inevitable.

Implications for employers

This case highlights the importance of considering, in full and extensive detail, what is included in enterprise agreements. Consistency in workplace relations should never be overlooked, as saying one thing and doing another will rarely produce a positive outcome for your organisation.

For more information or advice, contact AREEA principal legal services consultant Andrew Cameron via [email protected].