When an employee leaves for maternity leave, you owe duties to them as their employer. First, you must provide eligible employees with the proper maternity leave. Second, you must ensure that your employee is not disadvantaged by taking maternity leave. Thirdly, you must be flexible in accommodating requests to return to work. This article explains these obligations in detail.
Maternity Leave
Your employees may be entitled to 12 months of unpaid parental leave, with the ability to request an additional 12 months in specific circumstances.
However, not all employees will be eligible for maternity leave. Employees must have worked for at least 12 months with their employer immediately before the child’s expected date of birth or, in the case of adoption, the child’s expected placement date.
Requests for Additional Leave
An employee can make a request for an additional 12 months by:
- putting the request in writing; and
- giving the request to their employer at least 4 weeks before the end of their original 12 months of unpaid leave.
Employers then have 21 days to respond to their request. As an employer, you can refuse an employee’s request for an additional 12 months of unpaid leave on reasonable business grounds, provided that you give the employee a chance to discuss the request.
Paid Parental Leave Scheme
Separate to an employee’s entitlement to unpaid parental leave, an employee may also be entitled to paid parental leave through the Government’s paid parental leave scheme. The government funds this scheme and provides eligible employees with up to 18 weeks of pay at the national minimum wage. Nevertheless, Services Australia determines the employee’s entitlement to the government’s paid parental leave.
Pregnancy Discrimination
You must ensure no workplace discrimination against your pregnant employee as an employer. In the context of maternity leave, workplace discrimination can arise when an employer takes ‘adverse action’ against an employee or prospective employee because of their pregnancy, sex or family responsibilities.
Adverse action covers a range of activities in the workplace that, if taken for a discriminatory reason, can be unlawful. For example, you can unlawfully discriminate against a current or prospective employee if you:
- treat them less favourably than other employees because of their pregnancy, sex or family responsibilities; or
- require them to comply with specific rules or conditions that may be unreasonable due to their pregnancy, sex or family responsibilities.
Previous Position Following Maternity Leave
When it comes to pregnant employees, it might be necessary to reconsider how their work responsibilities might change after their pregnancy. For example, if your workplace typically involves lifting heavy things, reviewing your worker’s obligations might be best. However, altering your employee’s work arrangements could be discriminatory.
Ultimately, your employee who returns from maternity leave is entitled to return to their previous position. If the job no longer exists when they return, you should offer a position of similar:
- status;
- pay; and
- responsibility.
You should speak to an experienced employment lawyer to clarify your workplace arrangement.
Continue reading this article below the formFlexible Work Arrangements
A pregnant employee returning from maternity leave may be entitled to request a flexible work arrangement. Flexible work arrangements can take many forms. Generally, they include:
- job sharing;
- part-time hours;
- varied start and finish times;
- half days; and
- work-from-home arrangements.
Ultimately, the arrangement aims to reach an agreement that suits your business and your employee.
Responding to a Request
If you receive a written flexible working request, you must respond within 21 days. The response should state whether you have granted or refused the request. Nevertheless, you should remain open to the request since accepting a request can foster a happy work environment.
If you refuse the request, you must do so on reasonable business grounds. Some reasonable business grounds may include:
- the proposed change is too costly to put in place;
- you cannot grant the proposed change, as it may require changing the work arrangements for other employees;
- the proposed change would significantly reduce efficiency or productivity or both; or
- the proposed change would have negative impacts on customer service.
If you refuse the request on any of these reasonable business grounds, you must state your reasons clearly to your employee.
Tips for Responding to a Request for Flexible Work Arrangements
As an employer managing requests for flexible work arrangements, you should:
- integrate a workplace policy into your employee handbook that explains the procedure to be followed when making requests for flexible work arrangements, as well as a system for managing such requests;
- ensure you give proper consideration to every request that your employees submit;
- make sure that your business has procedures for accepting, assessing and implementing (where necessary) requests for alternate work arrangements; and
- consult an experienced employment lawyer if you are ever in doubt.
Key Takeaways
If your employee decides to take maternity leave, you must ensure your employee is not discriminated against in the workplace because of their pregnancy status. Discrimination on this basis is unlawful. You should also ensure you give your employee back their previous position when they return. Where not possible, you must give them something of a similar status. You should also be open to accepting your employees’ requests for a flexible work arrangement.
If you have questions about your obligations regarding maternity 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.
Frequently Asked Questions
Adverse action includes a range of activities in the workplace that, if taken for a discriminatory reason, can be unlawful. For example, treating an employee less favourably than others based on their sex or pregnancy status is a possible adverse action.
A flexible work arrangement can take many forms. Generally, it is an arrangement that can include job sharing, part-time hours, varied start and finish times, half days and work-from-home capabilities.
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