What am I entitled too??

[crazyaboutbubs]

If I have worked for my employer less then 12 months before my due date is my employer supposed to keep my job for me when I get back?? Or are they within their right to terminate my employment once I leave to have bub?

[missie_mack]

Ahh this is one of these interesting catches in law- under workplace laws they are only required to give you leave if you have been there 12 months when you go on leave. However, if they terminate your employment because of the baby they are discriminating against you based on sex. Most of the time in my experience something inbetween is negotiated to suit everyones needs :)


Moreover, pregnant employees who do not qualify for maternity leave are still protected by the federal Sex Discrimination Act. Employers and employees can negotiate a fair and reasonable period of leave for those who do not qualify for maternity leave. For example the employer could provide access to other forms of leave (annual leave or unpaid leave).

Source Human Rights Commission- Pregnancy Guidelines

[kw123]

No they don't have to keep your job for you. As you are the one going on leave, you would be resigning as opposed to them terminating you.

Some employers will keep them for you though if you are just short so it's worth asking. But they def don't have to.

[insanity]

They only have to keep your job if your there for12 months before going on maternity leave

[kw123]

Ahh this is one of these interesting catches in law- under workplace laws they are only required to give you leave if you have been there 12 months when you go on leave. However, if they terminate your employment because of the baby they are discriminating against you based on sex. Most of the time in my experience something inbetween is negotiated to suit everyones needs :)



Source Human Rights Commission- Pregnancy Guidelines

This is actually an interesting point! They would look at the actual employer though as well. I don't think they would expect a small business owner, for example, to offer unpaid leave but they might expect a large firm to.

Where I work has refused leave to someone with less than 12 months service before, but has also given it to someone who was a high performer so it's not one size fits all.

I'd have an initial discussion and take it from there.

[crazyaboutbubs]

Thanks for all your replies. Baby is due Jan 16th and my 12 months is Feb 20th. Guess I wont hold my breathe. :)

[missie_mack]

This is actually an interesting point! They would look at the actual employer though as well. I don't think they would expect a small business owner, for example, to offer unpaid leave but they might expect a large firm to.

Where I work has refused leave to someone with less than 12 months service before, but has also given it to someone who was a high performer so it's not one size fits all.

I'd have an initial discussion and take it from there.

Seriously? Wow is all I can say. If we had done that in my workplace I know the IRC would've come down on us quite hard (based on past experience)


[What happens when an employee is not entitled to maternity leave?Where an employee is not entitled to maternity leave, for example an employee with less than 12 months service or some casuals, an employer remains bound by the federal Sex Discrimination Act and must ensure that a pregnant employee is not discriminated against. Dismissal in these circumstances is likely to be unlawful under the federal Sex Discrimination Act.
Therefore while some pregnant employees may not qualify for maternity leave, employers at a minimum must not discriminate unlawfully and may consider:

providing access to other forms of leave (such as annual leave or leave without pay);
discussing a reasonable period of absence having regard to the needs of both the employer and the employee; and
if leave is refused, providing the employee with reasons why the employer is unable to grant leave without pay or why other options are impracticable.
Link
(http://www.hreoc.gov.au/sex_discrimination/publication/pregnancy/guidelines/index.html)
I personally wouldn't resign from any position unless it suited my purpose. If an employer wanted to end my employment they would have to be the one to do it ;)

[missie_mack]

Thanks for all your replies. Baby is due Jan 16th and my 12 months is Feb 20th. Guess I wont hold my breathe. :)

But you are entitled to 4 weeks annual leave every year, with some awards allowing you to use your leave at partial pay (say 50% payment and getting 8 weeks leave a year) . If you could hold your annual leave and negotiate working as far as you can you might be able to get across the line, remembering most first babies are born after their EDD :fingerscrossed:

[crazyaboutbubs]

Thanks missie, they also offer 6 weeks paid leave on top of the 18 weeks government but I'm guessing they'll do everything in their power to not have to pay that too.

[crazyaboutbubs]

My contract states:

"PAID PARENTAL LEAVE
Under the ****** Policy the Employee is entitled to one six weeks paid parental leave per child after completing a qualifying period of 1 year’s service, this is in addition to the Federal Governments paid maternity leave scheme commencing 1st January 2011."

Guessing they will fight me on what a qualifying period actually is tho? Definitely not expecting much.. but it is a male dominated workplace so wouldn't have many employees even
using this.

[kw123]

I hear what you are saying about resigning, but if you have to leave work for several months, I am pretty sure that would be seen as a resignation.

The 12 months is based on the EDD in the medical certificate so it doesn't actually matter if bubs is late.

In terms of refusing leave, it might seem unfair, but it is pretty straightforward for employers to provide sound reasons as to why it is unpractical or unreasonable for them to grant leave, the same as with requests for flexible working arrangements.

It is frustrating when employees just miss out but I don't think it's fair for employers to have to hold jobs open for people with less than 12 months service. Having been on the other end as the employer, it's hugely costly and time consuming and sometimes impossible to fill roles on a temp basis (this is specific to my industry and I know won't apply to tons of employers where it is easy to replace people).

OP - good luck anyway. You never know what they might agree to, perhaps even the paid leave! Let us know how you go.

[missie_mack]

I hear what you are saying about resigning, but if you have to leave work for several months, I am pretty sure that would be seen as a resignation.

The 12 months is based on the EDD in the medical certificate so it doesn't actually matter if bubs is late.

In terms of refusing leave, it might seem unfair, but it is pretty straightforward for employers to provide sound reasons as to why it is unpractical or unreasonable for them to grant leave, the same as with requests for flexible working arrangements.

It is frustrating when employees just miss out but I don't think it's fair for employers to have to hold jobs open for people with less than 12 months service. Having been on the other end as the employer, it's hugely costly and time consuming and sometimes impossible to fill roles on a temp basis (this is specific to my industry and I know won't apply to tons of employers where it is easy to replace people).


Interesting that is the way it works in your workplace because it definately isn't the way it works in mine. I have heard this type of discussion (re service) on termination pay outs and the like. It has always fallen in favour of the employee. So it would be interesting to see how your position would stand up if it was challenged.

[crazyaboutbubs]

Thanks. Im honestly not expecting anything! But hoping if i work my *** off they'll want to keep me and try to keep me happy.. Im only four weeks so will update further along with how I go!

[kw123]

Interesting that is the way it works in your workplace because it definately isn't the way it works in mine. I have heard this type of discussion (re service) on termination pay outs and the like. It has always fallen in favour of the employee. So it would be interesting to see how your position would stand up if it was challenged.

Are you talking about my first para on resignation via termination?

[missie_mack]

Thanks. Im honestly not expecting anything! But hoping if i work my *** off they'll want to keep me and try to keep me happy.. Im only four weeks so will update further along with how I go!

If your only 4 weeks along I would be keeping it quite for the time being :yes:


kw- re service periods

[kw123]

I would also keep it quiet for now till you can prove yourself :)