Your employee has recently told you she is expecting a child.
What are your rights and obligations as an employer?
A pregnant employee is entitled to:
unpaid parental leave
paid parental leave upon application
a return to work guarantee
Unpaid parental leave
The Fair Work Act 2009 (Cth) sets out the National
Employment Standards (NES) that apply to all contracts of
employment. Under this Act, employees who have completed at least
12 months of continuous service with their employer are entitled to
12 months of unpaid parental leave. The employee can also request,
in writing, an extension of the initial period of 12 months.
The leave must be taken in one continuous period. It may start
any time up to six weeks before the birth of the child (or earlier
if the employer and employee agree). If the employee wants to
continue working during this six week period, proof of fitness for
work may need to be provided.
The employee must give the employer notice of the start and end
dates of the period of parental leave, at least 10 weeks before the
Paid parental leave
An employee who is the primary carer of a newborn or recently
adopted child may be entitled to up to 18 weeks of Parental Leave
Pay under the Australian Government's Paid Parental Leave
scheme. Parental Leave Pay is calculated at the national minimum
To access the Scheme, the employee needs to apply to Centrelink
directly. If approved, Centrelink will pay the required amount to
the employer, which then pays it to the employee. The employer is
not required to pay the employee until it receives the funds from
The period of paid parental leave must be taken in a single
block and can be taken at the same time as any unpaid leave.
Return to work guarantee
An employer must guarantee to the employee that at the end of
the parental leave period the employee is entitled to continue in
her pre-leave position on the same terms and conditions as before
the parental leave period. An employer is also required to take all
reasonable steps to keep the employee informed of decisions the
employer makes while the employee is on leave which have a
significant effect on the pay, location or status of the
employee's pre-leave position.
There are provisions in the Fair Work Act which govern
the termination of employment while an employee is on parental
Request for flexible working arrangements
An employee may request a change to their working hours or
conditions after a period of parental leave, to assist the employee
with the care of their child. An employee can only make this
request if they have worked for the employer for at least 12
months. The request must be in writing and set out details of the
The employer must either accept or reject the employee's
request within 21 days of receiving it. The employer can refuse the
request if there are "reasonable business grounds" for
the refusal – for example, that the requested working
arrangements would be too costly for the employer or too likely to
result in a significant loss of efficiency or productivity. When
making this decision, an employer must be careful to avoid
allegations of indirect discrimination.
Employers may, of course, offer more generous arrangements than
those set out above. If you have concerns with your parental leave
policies, then we are happy to assist.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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