A WORKPLACE ENTITLEMENT
Maternity leave is a workplace entitlement covered by a larger set of entitlements referred to as “parental leave”. This and related entitlements are governed by Fair Work Act 2009 (Cth) between sections 67 and 85.
Employees are eligible for maternity leave if they satisfy the following:
- They have been employed at the same workplace for at least twelve (12) months before the expected date of birth, or when the leave starts; and
- They have, or will have, responsibility or care of a child.
Employees are entitled to twelve (12) months of unpaid parental leave, and can request an additional twelve (12) months.
Casual employees are also eligible for maternity leave if they have been working on a regular and systematic basis for at least twelve (12) months, and there is a reasonable expectation that they would continue to do so, had it not been for the birth of a child.
Where an employee has a second child, it is not necessary for the employee to work for a further twelve (12) months before being eligible for maternity leave with the same employer.
Maternity leave is not the only option for pregnant employees.
There are other options which may be considered by those who do not fit the above criteria.
- Sick leave – Pregnancy is not considered an illness or injury. But if an employee experiences a pregnancy-related illness or injury, sick leave can be taken.
- Special maternity leave – This can be taken if an employee has a pregnancy-related illness, or if the pregnancy ends after twelve (12) weeks because of a miscarriage, termination or stillbirth. In cases of pregnancy-related illness, leave ends either when the pregnancy ends, or when the illness ends, whichever is earlier. In cases of miscarriage, termination or stillbirth, leave continues until the employee is fit for work. The amount of unpaid parental leave an employee is entitled to is not reduced by taking special maternity leave.
- Safe jobs – All pregnant employees, even casuals and those not otherwise eligible for unpaid parental leave, are entitled to a “safe job”, if it is not safe for the employee to do her usual job. A safe job is an alternative, appropriate job which has the same pay rate, hours of work and entitlements as the employee’s previous job. Different working hours can be negotiated. The employee may stay in the safe job until it is safe to go back to her original job or until she gives birth.
An employer can direct an employee to take parental leave. Six (6) weeks before the employee is due, an employer can ask for a medical certificate addressing whether the employee can continue work and whether it is safe for the employee to do her normal job.
If the employee is fit for work but it is not safe for her to continue in her current job, the employee may be entitled to a safe job, or alternatively, “no safe job” leave.
If the employee provides no medical certificate, or if the certificate says the employee cannot continue work, then the employee can be directed to start unpaid parental leave.
Maternity leave can be undertaken on a paid basis in some cases.
First, eligible employees who are the primary carer of the child can get eighteen (18) weeks’ leave paid at the national minimum wage. This is usually paid to the employer first, then to the employee. The Employee has to be given a pay slip for each payment. These payments do not affect or replace unpaid parental leave.
Second, paid maternity leave may sometimes be provided for in registered agreements, employment contracts and workplace policies. The amount of payment and the associated entitlements depend on the registered agreement, contract or policy. If paid leave is employer-funded, this does not affect the employee’s eligibility for the government’s paid parental leave scheme. It is possible for an employee to get both.
Upon returning to work, an employee coming out of maternity leave is entitled to return to the same job. This is the case even if another person has been working in the meantime as a replacement. If the employee had been transferred to a safe job or had her hours reduced, she is similarly entitled to return to her original job and work her original hours.
Studies and surveys have shown that when undertaking a safe job or when returning to work after maternity leave, employees may be placed at risk of the following:
- An informal “penalty” as a result of career disruption;
- Pressure to return to work;
- Confronting negative gender stereotypes and assumptions (such as being regarded as being less professional, committed or serious about work after having children);
- Bias and exclusion from career-building activities; and
- Professional isolation during the leave or safe job period
How Our Lawyers Can Help You
Our team is equipped with the knowledge and skills to assist you with your matter. You can learn more about us by clicking here, or contact us today if your are concerned that your maternity leave entitlements are not being met.