A Federal police officer who claimed she was discriminated against for taking 32 weeks maternity leave has had her case thrown out, with the judge finding her workplace agreement did not include an entitlement for the time to count towards her service.
In the Federal Court, Justice Robert Bromwich found the workplace agreement only provided a means and timing of maternity leave payment, and 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.
Federal agent Claire O’Neill gave birth to a son in June 2015 and then chose to take her entitlement of 16 weeks of paid maternity leave at half pay over 32 weeks.
She says she missed out on a promotion and an increase in salary, because the 32 weeks was not counted as part of her service.
‘Female officers should not be penalised for starting a family’
The Australia Federal Police Association lodged a discrimination claim in the Federal Court on behalf of Ms O’Neill, arguing that female officers should not be penalised for starting a family.
Ms O’Neill wanted the court to rule that the full 32 weeks of maternity leave on half pay should be counted towards her period of service, and that the workplace agreement was invalid.
The AFP opposed the claim, arguing the period of maternity leave was 16 weeks, and it was irrelevant whether it was taken at full-pay, or taken over 32 weeks at half pay.
Not the intention of the law
Justice Bromwich said it was 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 said.
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.
What the union says
AFPA president Angela Smith said the union strongly believed federal police employees should not face financial or career disadvantage for starting a family.
“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.
“In 2019, a woman should not be penalised for taking maternity leave at half-pay.
“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.”
Union responsible for the agreement
Miles Heffernan, Director of Litigation at Discrimination Claims, said the AFPA is ultimately responsible for the enterprise agreement that disadvantaged Ms O”Neill.
“It was the union that negotiated the enterprise agreement on behalf of their members in the first place – so if there is a problem with the terms of the agreement – then the responsibility lies with the union,” he said.
“Instead of moaning to the employer, the union should be working on a better agreement for its members during the next round of negotiations – an agreement that would allow people like Ms O’Neill to take her maternity leave over 32 weeks and not be penalised.”
If you have experienced discrimination, including on the basis of your pregnancy status or family responsibilities, you may be entitled to compensation.
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