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Frequently asked questions about maternity leave

By Charles Power on March 6th, 2013

Workplace Bulletin

Our Workplace Helpdesk has been extremely busy answering our subscribers’ questions. One topic that keeps coming up is maternity leave.

Below are two of those questions and the answers provided by our Helpdesk lawyers…

Q: A recently hired employee is pregnant. This employee will only have worked with us for a few months before requiring maternity leave. What are our obligations to this employee?

A: An employee is not entitled to parental leave and the related rights contained in Division 5 of the Fair Work Act (including the right to her pre-leave job back) until they have 12 months of continuous service with you.

However, the employee is protected by State and Federal discrimination laws that operate to prohibit employers from discriminating against an employee because of pregnancy. This means that you have a responsibility to try to accommodate the employee’s needs arising from pregnancy and eventual parenthood.

In this situation, you may wish to negotiate with the employee to organise a suitable alternative to parental leave that might include her taking annual leave or a period of unpaid leave by agreement.

Q: Our company is restructuring and many roles will be made redundant. Can we make employees on maternity leave redundant?

A: You can lawfully effect a redundancy during a period of parental leave provided that the fact of the employee being on parental leave has no influence on the decision to make them redundant.

Further, there are specific obligations in relation to employees who are on parental leave. An employer is required to discuss changes with the employees that are likely to have a significant impact on the employee’s position. An employer is also required to give the employee information about proposed changes – this includes providing reasons for the decision. This is essentially because employees who are on parental leave during this period are at a natural disadvantage in respect of the consultation process.

It is good practice to give the employee who is to be made redundant the option of taking the redundancy package during their leave or to wait until the leave is over to see whether there are any other opportunities in the business at that time.

On Friday, we’ll answer two of your questions about performance management.

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