Not sure whether or not you’re entitled to maternity leave or parental leave?
Maternity leave entitlements in Australia are determined primarily by Federal Government regulations.
State Government laws and individual employer policies are also applicable and can vary widely, which means this information is more of a starting point – so make sure you confirm the details for your individual situation with your employer.
Are you entitled to maternity leave?
The following is a summary of the main maternity leave eligibility requirements and conditions, as set by the Federal Government.
- You must have worked continuously for one employer for 12 months in full-time, part-time or in some cases casual employment.
- You can begin leave up to 6 weeks before you are expected to give birth (i.e. in week 34 of your pregnancy) – or earlier if agreed upon by your employer. If adopting or or your partner is having a baby, you can start leave the day of the birth/adoption.
- You can take 52 weeks of unpaid parental leave – this applies to either parent, if both are working and are eligible (although only 8 weeks can be take at the same time). If your partner has not taken their share of unpaid parental leave, you can apply for a further 52 weeks straight after the first lot.
- You must advise your employer in writing as soon as you can when you expect to take leave, and no later than 4 weeks before the start of your leave.
- If required by your employer, you must provide a medical certificate confirming your pregnancy no later than 10 weeks before the due date, and also provide a statutory declaration stating you will be the primary care giver and that you will not do anything inconsistent with their employment contract while on leave.
- When returning to work, or requesting a further 52 weeks of leave, you must give 4 weeks written notice (for leave longer than 4 weeks). For requests for further leave, your employer must respond within 21 days saying yes or no, and providing valid reasons if no.
- You can generally return to the same position you held before you went on maternity leave, or if that position doesn’t exist anymore, you are entitled to another position similar in status and pay.
- The Fair Work Act 2009 ensures that same sex de facto relationships are recognised for unpaid parental leave entitlements.
While State governments must comply with Federal regulations, they also have their own specific information and requirements – meaning the documents required and the application process may vary across different states. Some states have sites and information sheets dedicated to maternity leave and parental leave, while others refer back to federal law.
Employers must stick to federal and state government regulations, but some may have their own policies in regard to maternity and parental leave. These can vary widely, with some employers being much more generous than others.
- Check your company policy and employment contract and discuss your personal situation with your employer.
- Leave is generally unpaid unless your award, contract, or company policy states otherwise.
- If you do not comply with some of the above regulations, such as being employed for 12 months first, you can still negotiate with your employer to potentially take maternity leave – though your employer has the right to say no.
- You may be able to combine paid annual leave with unpaid maternity leave.