Western Australian Consolidated Acts Western Australian Consolidated Acts (1) On finishing
parental leave, an employee is entitled to the position he or she held
immediately before starting parental leave.
(2) If the position
referred to in subsection (1) is not available, the employee is entitled
to an available position —
(a) for
which the employee is qualified; and
(b) that
the employee is capable of performing,
most comparable in
status and pay to that of his or her former position.
(3) Where, immediately
before starting parental leave, an employee was acting in, or performing on a
temporary basis the duties of, the position referred to in
subsection (1), that subsection applies only in respect of the
position held by the employee immediately before taking the acting or
temporary position.
(4) An employee may
request the employer to permit the employee, on finishing parental leave, to
work on a modified basis in a position to which the employee is entitled under
subsection (1) or (2).
(5) If, on finishing
parental leave, an employee has been permitted by the employer to work on a
modified basis in a position to which the employee is entitled under
subsection (1) or (2), the employee may subsequently request the
employer to permit the employee to resume working on the same basis as the
employee worked immediately before starting parental leave.
(6) If, on finishing
parental leave, an employee has been permitted by the employer to work on a
modified basis in a position to which the employee is entitled under
subsection (1) or (2), the employer may subsequently, if entitled to
do so under subsection (7)(a) or (b), require the employee to resume
working on the same basis as the employee worked immediately before starting
parental leave.
(7) A requirement can
be made under subsection (6) if, and only if —
(a) the
requirement is made on grounds relating to the adverse effect that the
employee continuing to work on a modified basis would have on the conduct of
the operations or business of the employer and those grounds would satisfy a
reasonable person; or
(b) the
employee no longer has a child who has not reached the compulsory education
period as defined in section 6 of the School Education Act 1999 .
(8) In
subsections (4) to (7) —
modified basis means a basis that involves the
employee working —
(a) on
different days or at different times, or both; or
(b) on
fewer days or for fewer hours, or both,
than the employee worked immediately before
starting parental leave.
(9) If —
(a)
before the employee started parental leave a change took place in the days on
which, times at which or hours for which the employee worked; and
(b) the
change was a direct result of the employee’s pregnancy,
a reference in
subsection (5), (6) or (8) or section 38A(5) or (7) to how the
employee worked immediately before starting parental leave is a reference to
the employee’s work immediately before the change took place.
[Section 38 amended by No. 36 of 2006
s. 38.]