A new baby has arrived - sleepless nights, frustration, upheaval - and that's just the employer!

There is great uncertainty among employers about how to manage the return to work of employees on parental leave. Employers generally want to do the right thing by their employees and are keen to comply with their legal obligations. However, it is often a struggle, particularly for smaller employers, to balance their obligations to employees and the commercial reality of running their business.

Employers have two main obligations when dealing with an employee who is returning to work after parental leave:

1. To ensure the employee is not disadvantaged by having taken parental leave
To ensure that the employee is not disadvantaged by having taken parental leave, the Workplace Relations Act 1996 (the Act) gives the employee the right to return to the position they held before going on parental leave.

What if the previous position is not available?
It is conceivable that when the employee was on parental leave, the workplace was restructured and the position no longer exists. In this case, the employer must be returned to a position comparable to the previous position.

If an employer terminates an employee who is on or who is returning from parental leave, the employer may face penalties of up to $33,000 for unfair termination under the Act. Employees may also file a discrimination complaint in the Human Rights and Equal Opportunity Commission or equivalent State body.

2. To accommodate any 'reasonable' request of an employee for flexible work arrangements
An employer is obliged to consider requests for flexible work arrangements and decide on a case by case basis whether the request is 'reasonable'. If the request is 'reasonable', the employer must accommodate the request.

In deciding what is 'reasonable' in relation to a flexible work request, the following factors may be considered:

• the job performed by the employee
• the type of flexible arrangement requested and likely duration of the arrangement
• alternative ways of addressing the request
• the cost to the business
• the detriment to the employee if refused

Right to part time work?
Employees on return from parental leave do not yet have an established right to return to work part-time. Employers are however required to consider requests for part time work.

Employers must ensure they properly consider requests for part time work from employees returning from parental leave and employees with carer's responsibilities. National Employment StandardsThe National Employment Standards (NES), which will replace the Australian Fair Pay and Commission Standard on 1 January 2010, will strengthen the law by allowing an employee who is a parent or carer of a child under school-age, to request flexible working arrangements to care for the child after 12 months of employment. An employer may only refuse these requests on "reasonable business grounds" or risk a fine for breach of the Act.

Guide for Employers
The following is a brief guide for employers to use when managing the return to work of employees from parental leave.

Be prepared! Policies and procedures...
If you haven't already done so:

• Introduce a policy with a clear procedure for requests for flexible yyworking arrangements and guidelines for managers handling such requests.
• Ensure you have appropriate processes in place to receive, consider and (if appropriate) implement flexible work arrangements, such as: 
  - allowing an employee to work from home 
  - adapting or being flexible with employee start and finish
  times, roster arrangements or break times 
  - giving consideration to flexible work and part-time / job share
  - being flexible with the amount of unpaid or paid leave an
  employee can take and when they can take it.
• Remember to update your policies and procedures with the yyintroduction of the NES on 1 January 2010.

Before an employee goes on parental leave...
1. Inform the employee of the right to return to work to their pre-parental leave position.
2. If you are hiring a replacement for the position, tell the replacement the engagement to do the work is temporary and of the employee on parental leave's right to return to work.

On an employee's return from parental leave
1. Ensure the employee has the opportunity to return to work to the position he or she held immediately before going on parental leave or, if that position does not exist, to a comparable position.
2. Carefully consider each request for flexible work arrangements on its own merits and only refuse such a request if it cannot be "reasonably" accommodated.

Fay Calderone is an Associate wtih MatthewsFolbigg Lawyers. For more information call: (02) 9806 7412 or e-mail: fayc@matthewsfolbigg.com.au