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Maternity leave entitlements in Australia

Pregnant woman on a work laptop looking at maternity leave entitlements in AustraliaNot 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.

IMPORTANT: If you’re eligible for Parental Leave Pay from the Government – you’re not automatically entitled to maternity leave from your employer. These are separate issues – one is a payment only and one is time off work – and you’ll need to sort out both. Read more about Parental Leave Pay to see if you’re eligible.

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.

 

READ: See our Maternity Leave Checklist for points to consider and questions to ask.

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.
READ: Our easy-to-understand guide to government family benefit payments

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20 comments so far -

  1. Hello

    I started on a “Fixed-term contract” with my employer 27th October 2017 to April 2018.
    I Was offered a full-time (permanent) position February 22nd 2018 to commence on the 1st of March 2018. I have recently found out that I am pregnant and my due date is February 4th 2019.
    Am I eligible for Maternity leave and pay as I would have worked a total of 4 months on a fixed term contract and only 11 months on a full-time basis.

    • HI Tia. Thanks for reading and congrats on your pregnancy.

      I would say that you’d meet the work test for the government’s Parental Leave Pay. You don’t have to be in the same job to meet this criteria. You just have to have worked for 10months out of the 13 months before your due date. You can’t have more than an eight-week gap between two working days and you must have worked for at least 330 hours in those 10 months.

      In terms of maternity leave from your employer, I would hope that you’d be entitled to that because you have worked for them for at least 12 months (even if some was on contract) but I’m not sure about the terms of the contract position etc. The good thing is that employers DO have a bit of discretion with this. If they value your contribution but you haven’t worked there for the 12 months they are still able to offer you maternity leave if they want to, even if technically you’re not entitled.

      When you’re ready to chat to them about your pregnancy and your plans, you’ll have to discuss with them.

      Hope this helps somewhat. If you have further questions, feel free to ask. All the best x

      — follow us on Facebook https://www.facebook.com/bubhub to stay in touch with all things pregnancy and parenting —

  2. Hi,
    My partner started a new job in Jan 2017 and has now fallen pregnant with the baby due in Jan 2018.

    As she hasn’t been in her current role for 12 months I understand she won’t be able to apply for the employer paid parental leave.

    My question is, we will request the government paid parental leave to begin with for the first 10-12 weeks but then is it possible to move to the higher employer paid parental leave at the 1 year mark? Or is that not considered working for the entire year?

    Thanks

    • Hi Frankie! Thanks for reading and thanks for your question. Congrats on the pregnancy. Very exciting times ahead.

      This is something that your partner might have to chat to her employer about. I think really that she’s not entitled to leave because she wouldn’t have been there for the full 12 months. But it really is something that the employer can consider. It is within their power to offer it to her even if she hasn’t been there that long. I suppose it depends on the company (a bigger company might not be very flexible with the rules) but it does warrant having a conversation with HR (when she’s ready to tell them about the pregnancy). They might just value her enough to want to keep her on, and do what they can to ensure she returns. When I fell pregnant with my firstborn, the company I worked for at the time allowed my to take maternity leave even though I’d only been there for 8 months (however it was unpaid leave so not much affect on them either way).

      Hope it all works out for you. Please let me know if you have further questions. All the best!

      — follow us on Facebook https://www.facebook.com/bubhub to stay in touch with all things pregnancy and parenting —

  3. Hi
    I am currently on mat leave and am returning back to work on a part time basics 24 hours a week (3days a week)
    I have been on this current job for 4 years.
    My question is, how long do I need to return to work before I can go a mat leave again?
    Thanks

    • Hi! Congrats on your new baby. Thanks for your question.

      Usually to be entitled to the 12 months maternity leave you must have worked with your employer for 12 months. However, if you return to work and fall pregnant again you don’t have to work for another 12 months before you can take another period of parental leave with that same employer.

      If you started work with a new employer you will need to work with THAT employer for at least 12 months before you can take parental leave.

      I’m not sure if the fact that you’re returning to part-time work makes any difference to that fact or not. It might be worth checking with Fair Work Australia to see where you stand there. The number is 13 13 94 – open 8am – 5.30pm Monday to Friday.

      Also be mindful of the criteria for the Government’s Paid Parental Leave scheme if you’d like to apply for that next time. You don’t have to stay with the same employer to be eligible but you need to have worked for 10 out of the 13 months before the due date to be eligible (paid maternity leave and periods of Parental Leave Pay CAN count towards this if it falls within those 10 months).

      Hope this helps. Please come back if you have further questions. All the best x

      • Thank you for the reply, it helps.
        However if I take parental leave again am I entitled to paid parental leave for 18weeks?
        I have received mixed answers and am not really sure.
        Thank you

        • Hi – happy to help. You are able to receive the full 18 weeks of the Government’s Parental Leave Pay, for a second child — as long as you meet all the criteria ie. you’ll have to have worked for 10 months out of the 13 months before that baby’s due date etc.

          What have others told you? That you can’t receive it for a second child? Or that you can’t get as much?

          • Hi
            Thank you for replying.
            One person said the same thing, another said I am entitled to full amount as long as I’m in the same company and didn’t matter the amount of time I am working.
            The last one said I’m only entitled to a minimum amount.
            Thanks

          • Hi – sounds like they’re all confused, so it is no wonder you’re confused 🙂

            It is a bit confusing because Parental Leave Pay (as in the government payment) does have different rules from maternity leave (as in the time you can take off work, while they hold your job for you).

            So in terms of Parental Leave Pay you can claim again but you do have to meet the work test and everything again, just like the first time. You DON’T have to stay with the same employer – any work, anywhere will count (and periods of Parental Leave Pay also count as work).

            But in terms of maternity leave you DO have to be with the same employer BUT you don’t have to wait another 12 months before taking leave again. If you DID switch employers you would have to be there for 12 months before you’re entitled to maternity leave again.

            Does that help clear things up? Are you pregnant already or just trying to work out where you’d stand if you did fall pregnant again soon? And how long ago did you receive the last round of parental leave pay from the governement? Lol – that’s a bit personal isn’t it. You don’t have to answer 🙂 Only if you’d like more specific advice.

            Take care x

            — follow us on Facebook https://www.facebook.com/bubhub to stay in touch with all things pregnancy and parenting —

  4. Hi,

    I’m currently on maternity leave and my employer is keen to have me back at work a couple of days a week.

    My question is, I am employeed full time if I agree to go back to work a couple of days a week am I still entitled to my full time position up until my 52 weeks?

    • Hi unsure! Congrats on your new baby and thanks for your question.

      Unfortunately I’m also a bit unsure on this one. I would hope that your entitlement remains intact if you do return to work earlier but I really can’t find information on this situation one way or another.

      If I were you I would get in touch with Fair Work Australia to be sure – before heading back to work.

      You can send an inquiry online https://www.fairwork.gov.au/contact-us/online-enquiries

      Or just give them a call: Phone 13 13 94 from 8am – 5.30pm Monday to Friday (except for public holidays).

      Also, keep in mind that if you’re receiving Parental Leave Pay from the government you’re not able to return to work. And if you do so your parental leave pay will stop.

      Sorry I couldn’t be of more help with this! Hope you find your answer.

      Take care x

  5. I worked for a small business since 08 & it was taken over by a large company July 2016, my holiday entitlement was paid out by old boss. I had baby in March 2017, I received notification in Feb from payroll that I was on unpaid maternity leave until mid Feb 2018. I didn’t fill out a maternity leave form but I naively assumed verbal was enough. Every week since this, I received payslip saying I was on the unpaid maternity leave. I only worked one day a week at this job & someone new was hired in April.
    So in past week when I was offered a day at local childcare I contacted work to ask about returning. I was told the position is gone.
    Today I spoke to the head person interstate & they said it was a mistake with payroll & there is no position, someone else has been hired to replace me. Also because I’m only working for the new company less than 12months I have no entitlement to maternity leave. I am disappointed to say the least, especially having received a weekly payslip clearly saying I was on leave. What is your opinion?

    • Hi Perplexed. Wow. What a terrible situation. They ‘technically’ are right – maybe? – in that you were with the new company for less than 12 months but still… they’ve acted terribly and have left you in the lurch.

      If I were you I would definitely be contacting Fair Work Australia to get some advice on this one. To clear up the whole issue about whether or not you’re entitled to take maternity leave – you’ve been with them for long enough and they’ve offered you maternity leave – even if they’re now claiming that it was a mistake.

      It is all pretty disgusting.

      Here’s some info on how to contact Fair Work: https://www.fairwork.gov.au/contact-us/call-us

      All the best. Hope it works out for you! Take care x

  6. If the previous 13 months of employment was in the same position but half of that was in a fixed term contract and the other half as a permanent employee is the employee entitled to maternity leave entitlements?

    • Hi! Thanks for your question!

      I would think you would still be entitled to take maternity leave. The rule is if you’ve worked for them for 12 months or more that you’re entitled to take 12 months off (as unpaid leave) to care for your new baby and you’ve worked for them for longer than that (regardless of whether you were on contract or as permanent).

      You might also be eligible for the government’s Parental Leave Pay so if I were you I would investigate that as well to help fund your time off. More information in this article: https://www.bubhub.com.au/hubbub-blog/paid-parental-leave-pay-australia/

      All the best x

  7. this is inaccurate. you do not have to have been employed continuously by the same employer:

    To meet the work test for Parental Leave Pay you must have worked for at least:

    10 of the 13 months before the birth or adoption of your child, and
    330 hours in that 10 month period, which is just over 1 day a week, with no more than an 8 week gap between 2 consecutive working days

    • Hi CazW – thanks for reading and for your comment.

      For the Government’s Paid Parental Leave Scheme, that is correct – you do not need to work continuously to be eligible for the 18 weeks of pay.

      But this article is about a person’s entitlement to Maternity Leave – the actual time off work following the birth of a baby (not the leave pay provided by the government).

      And to be entitled to that 12 months maternity leave (often unpaid leave) you do have to be employed by the same employer for at least 12 months – although thankfully this can be negotiated with your employer.

      For information on the Paid Parental Leave Scheme check out this article: https://www.bubhub.com.au/hubbub-blog/paid-parental-leave-pay-australia/

      • dear sir, a woman residing and working in Australia from many years .she was on PR or TR .now she was pregnant ,whether she is entitle for maternity leave ? is it necessary that she is citizen ?

        • Hi! Thanks for reading and thanks for your comment.

          Visa holders are entitled to the same workplace rights as all other Australians. So if a person has worked full time for a employer for at least 12 months then they are entitled to take maternity leave. Maternity leave is 12 months leave – usually unpaid leave – and the right to come back to the same job and conditions as before.

          You should also check your eligibility for the government’s Parental Leave Pay to help fund this time off work. The Parental Leave Pay is available to permanent residents – so you don’t have to be a citizen. There are other criteria as well. There’s more information here: https://www.bubhub.com.au/hubbub-blog/paid-parental-leave-pay-australia/

          All the best x

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