There are a number of general considerations and legal obligations the parties need be aware of during the period of pregnancy, during the subsequent period of leave following the birth, and when returning to work. Adopting many of these behaviours is simply common courtesy and/or good business practice. Others have a legal bent, and are obligations embodied within the various national Employment Laws.
Parental Leave Entitlement - So when does the Employee meet the requirements for parental leave per the provisions of the National Employment Standards (NES)?
In short, an Employee is entitled to 12 months of UNPAID parental leave if they have completed at least 12 months of continuous service with the Employer immediately before the expected date of birth.
Note that this NES provision does not extend to a Casual Employee, where that individual does not have a reasonable expectation of continuing employment on a regular & systematic basis.
When faced with a pregnancy in the workplace, the following are some key subjects and behaviours we urge trainers to discuss, action and monitor between the parties:
- Prepare a meeting
As a first step, it is vitally important the Trainer organise a planning meeting as soon as possible after learning of the news, so that the parties can work through the logistics and forward needs.
- Recognise the need to change
Upon learning of the pregnancy, it is recommended the Trainer respond positively to the news, offer congratulations to the employee, and respect any request for confidentiality.Discuss the need to balance the individual’s health and welfare with the workplace requirements from the outset. Recognise and act on the need to change workflow, duties and/or work arrangements to better accommodate and safeguard a pregnant employee.The more open the parties are with each other, the more successful it will be to implement the necessary change for the benefit of all concerned.
- Encourage open dialogue
Encourage frequent dialogue between the pregnant employee and her doctor, and then from the pregnant employee to you. Adapt working arrangements as necessary to ensure a safe workplace not only for the expecting mother and unborn child, but also for all your employees.Keep in contact after the birth. This is particularly important to demonstrate an empathy for the employee through this major period of change. The Trainer can also ensure they are happy and healthy during this period, and coping with motherhood. It will also allow the Trainer to monitor & manage in real time, the return to work date.
- Gauge the effects of changes implemented
Regularly review that any changes implemented in the workplace designed to meet the changing needs of the pregnant employee are in fact, meeting expectations. This may lead to the employment of relief staff to fulfil duties no longer safe for the pregnant employee to be undertaking. This situation should evolve over time as the expected birth date draws closer, facilitated through the open dialogue process previously described.
There are a number of significant legal considerations during and post pregnancy.
All Employees (including Casual Employees and those permanent staff not having achieved the 12 months threshold) where pregnant, are nonetheless entitled to and must be engaged in a role in the workplace that does not place their health and safety, and that of their unborn child, at risk of personal injury.
An Employee who modifies and/or moves roles as a result is entitled to receive the same pay rate, hours of work and other entitlements as were applicable to the original role. She and her Employer can agree on different working hours, which she will stay until it is safe to go back to her normal job, or until she gives birth.
To support this arrangement, the Employee must furnish the Employer with evidence that she can work but not her usual duties, including why her normal role poses a risk and how long the altered role must apply. This statement is best supplied in the form of a medical certificate from the Employee’s doctor.
- Government Assistance
Employees may be eligible to receive payments from the Australian Government Paid Parental Leave scheme, which includes two payments - Parental Leave Pay and Dad and Partner Pay.The Employer and Employee need jointly register with Centrelink to access the Australian Government Paid Parental Leave scheme, which provides for 18 weeks paid leave. Where the application is successful, funds are paid to the Employer in the first instance, who must then deduct the appropriate tax and forward the payments onto the Employee.
The eligibility rules for these payments are different to the criteria for unpaid parental leave under the NES. This means that sometimes an Employee will receive payment under the Australian Government Paid Parental Leave scheme even if they are not eligible for unpaid parental leave under the NES.For more information on the Australian Government Paid Parental Leave scheme CLICK HERE
- Organise dates for commencement and return to the workforce
It is law that an individual’s pre-maternity role be maintained throughout their period of leave, so allowing them to resume their usual duties should they elect to do so. Any replacement Employee during this period must be aware that they are filling a role that is temporary.Employers can request that unpaid parental leave commence 6 weeks before the expected due date. To ensure a smooth transition, it is highly recommended an early conversation between the parties take place, to firstly agree the date for the unpaid parental leave to start, and secondly, the desire remains to return to work and if so, the anticipated return to work date.
For more information on maternity and parental leave, visit the Fair Work Ombudsman website by clicking www.fairwork.gov.au/leave/maternity-and-parental-leave
Remember to follow the six step “PREGGO” process, which stands for:
Prepare, Recognise, Encourage, Gauge, Government & Organise
If you have any queries or wish to discuss your particular situation in more detail, please contact the ATA’s Industrial Relations Manager, Wayne Lee on (03) 9372-1688.