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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 take maternity 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.

Also see our Maternity Leave Checklist for points to consider and questions to ask.

IMPORTANT: Even though you may be eligible to receive the Paid Parental Leave payment from the Federal Government – that doesn’t mean you’re entitled to maternity leave from your employer. These are separate issues – one is time off and the other is a payment only – and you’ll need to sort out both. You can read more about Parental Leave Pay to see if you’re eligible.

Are you eligible for 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.

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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8 comments so far -

  1. 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

  2. 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

  3. 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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