If one of your employees has announced their pregnancy, parental leave is an inevitable consideration. However, managing leave entitlements and the employee’s eventual return to work, all while avoiding potentially discriminatory behaviour, can be difficult for employers to master. Therefore, this article outlines your four main legal obligations in the event of an employee’s pregnancy.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
1. Avoid Pregnancy Discrimination
Australian anti-discrimination makes it very clear that discrimination based on pregnancy is unlawful. Pregnancy discrimination is unlawful during:
- the hiring process; and
- the worker’s treatment in the workplace both during and after their announcement.
There are also general protections provisions in the Fair Work Act (‘FWA’), which protect pregnant employees from adverse action. For example, if you demote an employee after they announce their pregnancy, the law can consider this adverse action.
If you are found guilty of discrimination or contravened the general protection provisions, you might be liable to make compensation payments in the tens of thousands of dollars. The general protections provisions are civil remedy provisions, meaning that any knowingly or recklessly involved individuals within the company may also have personal financial penalties imposed upon them. Therefore, it is vital that you understand your obligations as an employer and do not breach any discrimination laws or the FWA.
2. Parental Leave
Recent amendments to the FWA have removed the concept of maternity and paternity leave. Instead, the FWA now grants both parents rights to parental leave in the same capacity.
To be eligible for parental leave, the employee must have worked continuously for your business for at least 12 months in full-time, part-time or, in some cases, casual employment. Employees can then:
- take 52 weeks of unpaid parental leave; and
- begin unpaid parental leave up to 6 weeks before their due date or earlier if the employer agrees.
Employers may implement paid parental leave policies in addition to the statutory entitlement to unpaid leave. Additionally, employers can dictate this entitlement’s eligibility criteria and the amount they are willing to pay. However, this is not a requirement by law.
Employee Couples
Nevertheless, there are several rules around when two employees who are a couple can take their leave. Couples who are expecting a child and are both national systems employees are entitled to each take 12 months of unpaid leave.
The maximum period that this leave can be concurrently taken is eight weeks. Otherwise, each employee must take unpaid parental leave for one continuous period. Once one parent returns the work, the other can begin their leave period. Each employee can decide the length of their period of unpaid leave and is not required to use their full entitlement.
Continue reading this article below the form3. Safe Jobs and Paid Safe Job Leave
As an employer, you should provide your pregnant employees with a safe job where necessary. Where your pregnant employee provides evidence that they are fit for work but their current position is not safe in their current condition, you should transfer their employment to another safe position. They can take ‘no safe job leave’ when no safe job is available. You should pay this leave at the employee’s base pay rate for the risk period.
4. Flexible Work Arrangements Post-Pregnancy
Lastly, your employee may request flexible working arrangements on their return. A flexible work arrangement can help employees balance their competing work obligations and parenthood. This entitlement also extends to casual employees if they have a reasonable expectation of continuing employment with the employer regularly and systematically.
Nevertheless, the employee must put the request in writing. It should outline the changes sought and the reasons for the request. You must then respond within 21 days after receiving the request. If you choose to refuse the request, you must rely on “reasonable business grounds”, including:
- cost;
- low capacity;
- impracticability;
- loss in efficiency or productivity; or
- negative impact on customer service.
Under the FWA, there is a specific provision that employees returning to work after taking leave for the birth or adoption of a child may request to work part-time to care for the child. Therefore, employers should be cautious when refusing these kinds of requests.
Key Takeaways
If an employee has announced their pregnancy, you should remain proactive and consider your legal obligations as an employer. Notably, you should:
- avoid discrimination based on an employee’s pregnancy;
- provide the employee their parental leave entitlements;
- consider the safety requirements of the job upon their return; and
- not unreasonably refuse a request for a flexible work arrangement.
If you have any questions about your employees taking parental leave, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
We appreciate your feedback – your submission has been successfully received.
