(Pictured: Hanina Rind)

Individual industrial relations matters normally go unnoticed in the superannuation industry, except for the occasional harassment allegation at an investment bank. But the case of Hanina Rind lingers on after its settlement for two reasons: the employer was AIST and the case is gathering momentum in legal circles as a test for the treatment of women on maternity leave.

Rind won a judgement for “constructive dismissal” against AIST in June. An IT specialist at AIST for about five years, she was on maternity leave with her second child when she asked to come back to work part-time, for three days a week. AIST said ‘no’; she could come back full-time, as per her previous position, working four days in the office and one day from home, or not at all.

The Fair Work Commission ruled in Rind’s favour and a settlement with AIST was reached. The fact that AIST had continued to employ only a part-time person to fill in during Rind’s absence since January this year did not work in the organization’s favour, according to the Commission.

While many employers may sympathize with AIST for following what had previously been regarded as the letter of the law, Ian Robertson, the long-standing secretary of DEPA (Development and Environmental Professionals’ Association) has challenged the organization to lift its game in the treatment of its staff, particularly women.

Robertson, a trustee of NSW’s Local Government Super Scheme and a former chair of AIST, wrote to Catherine Wood, AIST chair, in June, after the decision was published, asking for an explanation and expressing his concern about the woman’s treatment. Wood replied, saying his comments would be tabled at the next board meeting. She said: “AIST operates under an enterprise agreement which comprehends a range of progressive entitlements for staff. Workplace flexibility is the norm for all staff and has included part-time work for women returning from parental leave. It is therefore most unfortunate and distressing to have the organization the subject of the Fair Work Commission decision which provoked your email.”

Robertson responded: “There must be a gap between something that ‘comprehends a range of progressive entitlements for staff’ and actually providing something that keeps from getting nailed at the Fair Work Commission. Regardless, this can only be a catastrophic failure by someone.

“You’re probably lucky that there isn’t much in the way of rigorous examination of what happens in the industry by trustees but there will obviously be many members who feel uncomfortable about this sort of publicity. And, in an intense competitive environment where funds do have to weigh up the membership fees for both AIST and ASFA, who needs this? Certainly not funds which respect and embrace the principles of ESG, for example.

“I don’t really care whether my comments are tabled at the board meeting or not. All I, and other members of AIST who have contacted me feeling a bit uncomfortable about their membership because of this, would like is some response…”

Last week, employment law specialist Brooke Pendlebury focused on the case in her latest client newsletter, prompting Robertson to seek wider discussion of the issue. Other law firms are also known to have studied the judgement as a possible shift in the Commission’s thinking about women returning to work after maternity leave.

Pendlebury outlined the case and said the decision highlighted the growing influence of parental rights in the workplace on the interpretation of applicable workplace instruments.

“Indeed, in reaching his decision, Commissioner Lewin construed the relevant clause in the enterprise agreement such that employees returning from parental leave are presumed to be entitled to return to work part-time:

‘There is a presumptive element to the provisions of …the Agreement such that an employee returning from unpaid parental leave will be able to work part time until the child in respect of which the leave is available reaches school age, unless there are reasonable grounds upon which that part time employment can be refused.’

She said: “When interpreting the Agreement in this way, the Commissioner made a number of important comments regarding an employee’s right to return to part-time work following a period of parental leave. In the judgement he said: “Ms Rind’s parental circumstances fundamentally affected her capacity to work for AIST. The practical necessity of her right not to have her request to work part time until her second child reached school age unreasonably refused was essential for her continued employment to be viable.”

The terms of the settlement involved non-disclosure agreements and an AIST spokesperson said last week that the organization was not able to comment on the matter. Tom Garcia, AIST’s CEO, released this statement in June:

“Unfortunately, for legal reasons, we cannot comment directly on this FWA decision. AIST is very supportive of working parents – as well as staff with other personal needs. The company has a family-friendly workplace that accommodates a variety of flexible working arrangements, where possible within the business. We have in place parental leave policies that assist employees to manage their transition out of and back into work and achieve genuine work life balance.

“We currently have a number of female staff working part-time after returning from parental leave as well as several other employees with flexible working arrangements for reasons such as further study or caring for sick family members.”

Ian Robertson said last week that AIST should have assured its members that this case was not reflective of the organization’s treatment of women.

“There is a whole range of enabling provisions in the workplace agreement which should allow flexibility for staff, especially women,” he said.

A potential mitigating circumstance which was not mentioned in the judgement is that Rind was, and continues to be, involved in operating a small business on the side. She was co-founder, in 2010, of Alterego Consulting and Design and remains its technical director, although she is still looking for an in-house role.

Robertson said that whether or not Rind was running a business on the side was a separate issue which should have been addressed upfront if it was a concern for AIST.