The Fair Work Act 2009 provides that an employee will be entitled to take a period of unpaid parental leave if they have worked for their employer for at least 12 months:
- before the date or expected date of birth if the employee is pregnant
- before the date of the adoption, or
- when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
and have, or will have, responsibility for the care of a child.
This entitlement to unpaid parental leave also applies for casual employees who have:
- been working for their employer on a regular and systematic basis for at least 12 months
- a reasonable expectation of continuing work with the employer on a regular and systematic basis, had it not been for the birth or adoption of a child.
- What happens where a pregnant employee will not satisfy the requirement to have completed 12 months service at the time of the expected due date or adoption date?
- Are there any statutory entitlements or protections that will apply to the employee in such circumstances?
While an employee who does not satisfy the eligibility criteria will not have an entitlement to access unpaid parental leave under the National Employment Standards, they will continue to have access to several leave entitlements and protections under the both the Fair Work Act 2009 and the equal opportunity legislation that applies in their jurisdiction during their pregnancy.
Transfer to a safe job and ‘no safe job leave’
A pregnant employee may have an entitlement to transfer to a safe job during their pregnancy.
This entitlement will apply even if the employee would not be eligible for the period of unpaid parental leave.
The Fair Work Act 2009 and the Fair Work Amendment Act 2013 provide that a pregnant employee, who provides satisfactory evidence that she is fit for work but that it is inadvisable for her to continue in her present position during a stated period because of:
- illness or risks arising out of her pregnancy, or
- hazards connected with that position
will be entitled to an appropriate safe job if such job is available.
Where there is no appropriate safe job available that the employee can perform, an employee will be entitled to take a period of unpaid “no safe job leave” for the period during the certified ‘risk’.
In circumstances where an employee will not have a statutory entitlement to take unpaid parental leave, the period of “no safe job leave” will be unpaid.
An employee will be entitled to take a period of accrued paid personal leave if during their pregnancy they become unfit for work because of a personal illness, or personal injury, affecting the employee.
A period of paid carer’s leave may also be accessed by the employee should they be required to provide care or support to a member of their immediate family (such as a child), or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member.
The employee may request to take a period of accrued paid annual leave either during their pregnancy or immediately following the birth of their child. Such a request cannot be unreasonably refused by the employer.
Leave without pay
While there is no statutory entitlement to leave without pay, a period of unpaid leave may be approved at the discretion of the employer either during the pregnancy or following the birth of the child.
In addition to available accrued leave entitlements, there are several statutory provisions contained under discrimination legislation which operate to protect an employee from being treated less favourably by their employer based on discriminatory grounds, such as:
- Plans for pregnancy, or
- The potential for pregnancy.
As such, all employers are required to reasonably accommodate and support their pregnant employees irrespective of their length of service.
While an employer will not be obliged to provide an employee with less than 12 months service with an extended period of leave after the birth of their child, it is recommended that discussions be held with the employee to explore potential alternatives that may be available. This may include providing a set period of unpaid parental leave to enable the employee to return to work following an agreed period.
If you require assistance with interpreting or applying leave entitlements, or if you require HR Advice on any matter, please contact the team at HR Advice Online at [email protected] or on 1300 720 004.
Information in HR Advice Online guides and blog posts is meant purely for educational discussion of human resources issues. It contains only general information about human resources matters and due to factors, such as government legislation changes, may not be up-to-date at the time of reading. It is not legal advice and should not be treated as such.