Australian Federal Police officer loses bid to have 32 weeks of maternity leave counted towards her service
An Australian Federal Police officer who missed out on a promotion after taking time off to have a child has lost a bid to have some of her maternity leave counted towards her service.
Federal agent Claire O’Neill gave birth to a son in June 2015 and opted to take her 16 weeks of paid maternity leave at half-pay over 32 weeks.
She then took other paid leave until June 30, 2016, and returned to work from July 1.
But the AFP enterprise agreement excluded the second 16 weeks of her maternity leave from counting towards her period of service.
As a result, when she returned to work, Ms O’Neill found she was not able to count that time towards the promotion in pay and rank she was expecting.
The Australia Federal Police Association (AFPA), on behalf of Ms O’Neill, filed a discrimination claim in the Federal Court, saying female officers should not be handicapped for starting a family.
Ms O’Neill asked the court to find that the full 32 weeks of maternity leave on half-pay counted towards her period of service and that the workplace agreement was invalid.
The AFP opposed the claim, arguing the period of service was 16 weeks, irrespective of whether her maternity leave was taken at full-pay or spread over 32 weeks at half-pay.
But Ms O’Neill’s lawyers argued workplace laws created a clear distinction between paid and unpaid leave, and the fact she had been paid for 32 weeks of maternity leave meant that it should count as service.
Not law’s intended purpose: judge
Justice Robert Bromwich threw out the case on Friday, finding the workplace agreement only provided a means and timing of maternity leave payment, not a separate entitlement for it to count towards service.
“In allowing the payment for that absence to be spread, [the law] does not … require that this longer period also form part of Ms O’Neill’s period of service,” he found.
Justice Bromwich said it seemed unlikely that the law was written to allow the period of service to change according to whether maternity leave was taken full-time or part-time.
“Two employees of the same rank, absent from duty on maternity leave for the same period of time and receiving the same amount of paid maternity leave, would be in a different position as to their period of service according to an entirely collateral arrangement that was foreign to the Maternity Leave Act,” Justice Bromwich wrote in his decision.
He said the law would need to be written differently if its intention was for half-pay maternity leave to count towards a period of service.
“That cannot be seen to be within the express or implied contemplation [of the laws],” he said.
Imagine being told ‘half your time doesn’t count’: union
AFPA president Angela Smith said she respected the court’s decision, but the union strongly believed federal police employees should not face financial or occupational disadvantage for simply starting a family.
“Unfortunately the decision didn’t go our way, but I want to ensure our members that we’ll continue to look at other avenues to address this inequity,” Ms Smith said.
“I’m imploring the AFP to do what is morally right for the women of the AFP who have been impacted by this industrial regime.
“The AFP must practice what it preaches regarding cultural change and stand by its own values of ‘respect’ and ‘fairness’.”
Ms Smith said about 150 members came to the union on the issue and that it had affected their careers, mental health and views of the organisation.
“Imagine being told that ‘half your time doesn’t count’ if you choose to have a child and action the half-pay option so you can spend more time with your newborn,” she said.
Ms Smith said the AFP frequently campaigned to recruit women, but industrial clauses continued to disadvantage women in the AFP.
“In 2019, a woman should not be penalised for taking maternity leave at half-pay,” she said.
“It’s matters like this that make a mockery of the AFP’s cultural change agenda.
“We believe that the entire maternity leave period, regardless of full or half-pay, should be attributed to the member as ‘time served’ and count towards increments and advancements.
“If it’s good enough for 16 weeks, it’s good enough for 32 weeks.”
‘Flexible work options’ offered to staff: AFP
A spokesperson for the AFP said they had followed workplace laws and would continue to support staff through flexible work arrangements.
“The AFP provision of maternity leave is in accordance with the Maternity Leave (Commonwealth Employees) Act 1973, the AFP’s Enterprise Agreement 2017-2020 and the AFP’s Executive Level Enterprise Agreement 2019-2021,” a statement read.
“In relation to this matter we refer to the decision by the Federal Court of Australia.
“The AFP will continue to support all of our employees through the provision of maternity leave, flexible work options and other provisions.”
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