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 start date.

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 wage amount.

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 Centrelink.

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 leave.

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 change sought.

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.