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Maternity and parental leave is for an employee or their spouse or partner, who gives birth or adopts a child under 16. They must have responsibility for the child’s care.
Employees, other than casual employees, are entitled to this type of leave once they have completed at least 12 months of continuous service with the employer immediately prior to the expected date of birth of the child, or in the case of adoption, the expected date of placement of the child.
Casual employees are entitled to the leave if they will have served at least 12 months of continuous service on a regular and systematic basis with the employer immediately prior to the expected date of birth of the child, or in the case of adoption, the expected date of placement of the child, and except for the birth of the child would have had an expectation of continuing employment on a regular and systematic basis.
Most employees are entitled to 12 months of unpaid maternity or parental leave, and can request a further 12 months of unpaid leave. An employee couple, whether spouses or de facto, does not have to be employed by the same employer and both are entitled to 12 months each. Parents who are married or in a de facto relationship can take up to eight weeks unpaid parental leave at the same time – this is called ‘concurrent leave.’ Both parents can take a separate period of up to 12 months unpaid parental leave however, the combined leave cannot be more than 24 months.
As the employer, you need to receive written notice of intention to take this type of leave at least 10 weeks in advance. The written notice must inform you of the intended start and finish date and confirm this at least four weeks before. You may ask the employee for a medical certificate to support the leave.
While on this type of leave, an employee can take other kinds of leave such as annual leave or long service leave concurrently, however it does not make the period of maternity or parental leave longer. However, the employee cannot take paid personal, carer’s, compassionate or community service leave during the maternity or parental leave.
At least four weeks before the end of the first 12 months, an employee may ask for a further 12 months in writing. You need to respond in writing within 21 days and can only refuse on reasonable business grounds.
Pregnant employees now have more rights under the Fair Work Act 2009. For example, as the employer, you need to provide a safe job to a pregnant employee if she cannot complete her usual tasks; otherwise she is entitled to paid safe job leave during the risk period.
Special maternity leave is available for pregnant employees with a pregnancy related illness or whose pregnancy ends without a child and does not reduce the amount of leave the employee is entitled to take.
Make sure your employee freely agrees to any changes made to their hours of work and pay. If not, you risk unfair dismissal, discrimination or adverse action claims.
At least four weeks before the end of the first 12 months, an employee may ask to extend the leave for a further 12 months, which again must be in writing. You need to respond in writing within 21 days and can only refuse on reasonable business grounds.
After taking the maternity or parental leave, the employee is entitled to return to the role they had before the leave or, if not available, a role similar in status and pay. You need to consult with the employee about any possible changes to working conditions that could affect them.
Further, under the National Employment Standards (NES), an employee who looks after a child under school age can ask for flexible working arrangements, such as working from home.
For peace of mind, please call our 24-hour Advice Line now on 1300 651 415