Taking parental leave? Know your rights

By Alan J. McDonald

For a working mother, bringing a bundle of joy into the world is nothing short of exciting. It is important to let your workplace know you’re expecting and organise relevant leave. McDonald Murholme Senior Associate Bianca Mazzarella highlights an employee’s eligibility and entitlements when taking parental leave.

See the below article for more information.

Taking parental leave? Know your rights – This Woman Can

When a working mother finds out she is pregnant, she will be filled with many emotions such as happiness, amazement, shock and gratitude. 

During such an exciting time also comes the planning of letting your workplace know you’re expecting a child and organising maternity or parental leave.

Parental leave is available to both parents in a relationship, including de facto and same sex couples. Both parents are eligible to take leave but usually not at the same time – except for a maximum of three weeks after the birth or placement of an adopted child.

Maternity and parental leave can be taken when an employee, employee’s spouse or a de facto partner gives birth or adopts a child under the age of 16.

Who is eligible for parental leave?

Unpaid:

In Australia, all employees are entitled to parental leave. Parental leave is available to those who have been an employee with a company for at least 12 months before the date or expected date of the birth, or before the date of adoption. 

For casual employees to be eligible for unpaid parental leave, they need to have been working for their employer on a regular basis for 12 months and had it not been for the birth/adoption, had an expectation of continuing employment.

A working couple is where two employees are in a spousal or de facto relationship. If employees are in a de facto relationship, but living with the employee on a domestic basis, de facto partners are also entitled to unpaid parental leave. The Fair Work Act 2009 (cth) ensures that same sex de facto relationships are also recognised for unpaid parental leave entitlements as well.

Paid:

Employees will need to have an individual adjusted taxable income of $150,000 or less in the previous year to be eligible for paid parental leave.

Parental leave pay must be fully paid within 52 weeks from the date of birth or adoption. The employee will need to submit a claim and choose a parental leave period start date that is within 34 weeks of the child’s birth or adoption. Parental leave pay is paid from your start date and for up to 18 weeks. Paid leave is only reduced if the employee returns to work, is no longer the primary carer or no longer meets residency requirements.

What are my entitlements?

The paid parental leave scheme that has been in place since 1 July 2013, gives the main carer of the baby $622.10 per week before tax. Paid parental leave is given for 18 weeks and is paid at the national minimum wage and can be shared between both parents.    

An employee is paid parental leave either through the employer on the regular pay schedule or directly through Department of Human Services on a fortnightly basis.

If one member of the working couple wishes to take an additional 12 months’ unpaid parental leave, they are able to request this from their employer. This can only be requested if the other employee of the working couple has not taken 12 months leave.

When do I tell my employer I’m pregnant and when will my leave start?

An employee has no legal requirement to inform an employer about her pregnancy by a certain time. The best time to tell an employer about your pregnancy depends on your own situation and based on medical advice.

If it is required by your employer, an employee is to provide at least 10 weeks notice. Depending on where the employee works, it is also best to check your employment agreement in case the contract states that a longer notice period is required.

An employee can begin their leave up to six weeks before the expected due date, meaning 34 weeks into your pregnancy. An employee may have the option to cease working earlier if it is agreed upon by the employer. If you are adopting, you can start leave the day of adoption.

Do all states in Australia follow the same regulations?

Although State governments must oblige with Federal regulations, they may also have their own requirements. This would mean documentation required and the application process may vary across each state.

In the event an employer takes adverse action against an employee, such as dismissing the employee due to pregnancy, a claim may be available under the Fair Work Act 2009 (cth). An employee has 21 days to lodge an application to the Fair Work Commission and can apply for Unfair Dismissal, Unlawful Termination or a General Protections dismissal.

If you are a working mother who has been discriminated against due to pregnancy, we recommend seeking legal advice.

Reference: ‘Taking parental leave? Know your rights’, This Woman Can, 3rd July 2017