As a business owner it’s highly likely that at some point, one or more of your employees will need to take time off when they, or their spouse or partner, are expecting a baby or adopting a child.
Understanding your maternity / parental leave obligations
Unpaid maternity leave (technically referred to as parental leave), is an entitlement to employees under the National Employment Standards of the Fair Work Act 2009 (Cth). It enables eligible employees to take up to 12 months of unpaid parental leave or up to 24 months if agreed to by their employer. Unpaid parental leave is also available for adoptive parents.
Under the NES, to be eligible for unpaid parental leave, your employee must have worked at your business for at least 12 months prior and have, or will have, the primary responsibility of care for the child.
Some employers may elect to implement an internal paid parental leave/maternity leave policy for their eligible employees. Employer funded paid parental leave (PPL) is not a minimum entitlement available to all employees but is instead provided in recognition of the benefits that an employer funded PPL program can add to staff retention and engagement.
Unpaid special maternity leave
Under the NES and related entitlements, there are some circumstances in which special maternity leave can also take place. For instance, if an employee has a pregnancy-related illness or in certain circumstances they experience a miscarriage, termination of pregnancy or still birth.
Keeping in touch days
Keeping in touch days are a great way for employees to stay connected with your workplace. Whether it’s to catch up with co-workers and managers, be briefed on company developments, attend training sessions to learn new systems or keep their skills up to date.
Your employee can access up to 10 keeping in touch days during each 12-month period of unpaid parental leave without losing their entitlement
Return to work guarantee
Sometimes employees are reluctant to take leave for fear of not being able to return to the same position once their leave comes to an end.
After taking maternity / parental leave, employees are entitled to return to the role they had before the leave. If that role is not available, they must be offered a role similar in status and pay.
It’s important to discuss with your employee any changes to working conditions that could affect their return to ensure the transition is as smooth as possible. Once your employee does return to work, they may be eligible to ask for flexible working arrangements. This is applicable to employees who are caring for a child of school age or younger in accordance with the National Employment Standards (NES).
The NES provides a right to return to work from a period of unpaid parental leave, known as the return-to-work guarantee. An employee who has been on unpaid parental leave under the NES is entitled to return to their pre-parental leave position or, if that position no longer exists, the nearest available suitable position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. This is the case even where a replacement employee has been working in the employee's position during the parental leave.
Following parental leave, eligible employees may request a change to their working arrangements, such as changes in their hours of work or working patterns. Requests for flexible working arrangements must be in writing and set out the change sought and the reasons for it. Employers must respond in writing within 21 days of receipt of the request. Before refusing a request, an employer must first discuss and genuinely try to reach agreement with the employee, and any refusal must be based on reasonable business grounds.
Government parental leave pay
The Australian Government provides Parental Leave Pay (PLP) to eligible employees as part of the Australian Government’s Paid Parental Leave Scheme.
The pay rate for maternity / parental leave is based on the current national minimum wage rate. For a child born on or after 1 July 2026, eligible employees are entitled to receive this payment for up to 26 weeks (130 days). In addition, the Government pays 12% superannuation on top of PLP.
As an employer, the Government will provide PLP to an eligible employee who meets certain rules prescribed by Services Australia, including meeting the income test, work test and the residency rules.
PLP can be shared between parents depending on the employee and their family’s circumstances.
Who is entitled to the Government’s paid maternity / parental leave?
As above, employees who meet the eligibility requirements are entitled to access the PLP Scheme.
They must be one of the following:
- The birth mother of a newborn child.
- The partner of the birth mother.
- The child’s biological father.
- The partner of the biological father.
- An adoptive parent of the child.
- The partner of an adoptive parent.
- Gaining parents in a surrogacy arrangement
- The partner of a gaining parent in a surrogacy arrangement
- Another person caring for a child under exceptional circumstances.
Based on relevant information provided by your employee, Services Australia will determine if they are eligible to claim PLP.
If your employee is eligible, Services Australia will transfer the payable amounts to your business to forward on to your employee as part of your regular pay cycle.
Discrimination and adverse action protections
Employees taking parental leave are protected by multiple layers of legal protections against adverse treatment. The Fair Work Act 2009 (Cth) prohibits adverse action against employees for exercising workplace rights, including parental leave entitlements and due to protected attributes such as pregnancy and status as a parent or carer.
For example, if a pregnant employee requires changes to their work schedule, you must ensure they agree to any variation that could affect their work hours or pay. If you don’t, you run the risk of an unfair dismissal, discrimination, or adverse action claim, which can negatively impact your business.
For more information on your maternity / parental leave obligations for your employees, contact our 24/7 advice line and speak with one of our experts.
This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.