ALDI Parental Leave – Language Has Modernised, Attitudes Have Not
In the 21st century, companies adopt more “modern” and inclusive terms, while maintaining the same out-dated attitudes on important social questions. There is often little resistance from employers to modernise language in the workplace – unless of course, this impacts profits.
A recent example before the Fair Work Commission (FWC) is that of Michael Mason vs Aldi Foods Pty Ltd where the purchasing director was denied parental leave on the assumed basis of him not being a primary carer. The employee mentions in his defence that ALDI took some steps to “rebrand” the maternity leave policy to parental leave in which it did not specify that the primary carer needed to be female. ALDI's actions are, therefore, discriminatory.
Michael Mason went onto explain to management that he would be the primary carer as his wife had fallen ill after giving birth. Management responded by saying that he was not eligible for this entitlement, and that it was given to female employees who had given birth. The FWC, however, describes parental leave in the following way:
“What is parental leave?
Parental leave is leave that can be taken after:
an employee gives birth
an employee’s spouse or de facto partner gives birth
an employee adopts a child under 16 years of age [1].
Employees are entitled to up to 12 months of unpaid parental leave. They can also request up to an additional 12 months of leave.”
There are multiple concerns people should have about ALDI’s conduct; one being why change the policy name from maternity leave to parental leave if they weren’t going to implement the meaning of what this means materially? If they had kept the original phrasing of the policy, it would not negate the FWC definition of what is a part of the National Employment Standards, and would not be subject to interpretation from employers.
Despite all of this, Michael’s next steps were to establish that he actually was the primary carer to his wife and child because of his wife’s illness. He thought this would clarify why he needs to be considered the primary carer. Instead, payroll is alleged to have said that Michael was ineligible for primary carer's leave under ALDI's parental leave policy as it was "designed to provide for 12 weeks' paid leave for female employees who are giving birth, which is why it is designed to be taken before or by the date of birth" [2].
Michael Mason complained to ALDI that it "did not seem to be reasonable or legal insofar as male employees were not entitled to access paid parental leave as primary carers" [3]. To make matters worse, ALDI moved forward the date of an organisational change which made Michael redundant, and instead of this expected package of 42 weeks of pay he was instead given 16 weeks. He was told by management that operations would be "centralised as soon as possible, in the context of a discussion about the [purchasing director's leave]" and that it was a "consideration in bringing forward" aspects of its planned organisational change.
ALDI then gave Michael 3 month’s notice of his redundancy, a month into his carers leave, and said it would pay out the balance of his 6 month’s notice entitlement, which would then leave Michael with a 16 week redundancy payment instead of the 42 that he was entitled to.
The purchasing director rightly concluded that ALDI was engaging in unlawful adverse action by carrying out the redundancy while he was on carers leave and did not give him an opportunity to return to work. This action on behalf of ALDI essentially denied him his advanced redundancy payout. It's important to note that under annual leave or carer's leave, employees continue to accrue leave and are still considered employed until the day of termination, not the day that was last worked.
While Michael’s case at the FWC is relatively strong, workers must still remain vigilant when employers update their terms but fail to uphold the new responsibilities attached to the term. This case before the FWC shows how easy employers found changing the name of parental leave, but how viciously they fought to deny Michael his entitlements when it affected the profits of ALDI materially.
References:
[1] https://www.fairwork.gov.au/leave/maternity-and-parental-leave
[2] https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&stream=1&selkey=61398&hlc=2&hlw=aldi&s_keyword=aldi&s_searchfrom_date=631112400&s_searchto_date=1659492829&s_pagesize=20&s_word_match=2&s_articles=1
[3] https://www.workplaceexpress.com.au/nl06_news_selected.php?act=2&stream=1&selkey=61398&hlc=2&hlw=aldi&s_keyword=aldi&s_searchfrom_date=631112400&s_searchto_date=1659492829&s_pagesize=20&s_word_match=2&s_articles=1