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:
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.
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: