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Australia - Maternity protection - 2011


LAST UPDATE

7 March 2011

SOURCES


Name of Act

Fair Work Act 2009 Act No. 28 of 2009, incorporating amendments up to Act No. 51 of 2010
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Name of Act

Maternity Leave (Commonwealth Employees) Act 1973, incorporating amentments up to Act No. 54 of 2009

Name of Act

New Tax System (Family Assistance) (Administration) Act 1999, incorporating amendments up to Act No. 105 of 2010

Name of Act

Australian Human Rights Commission Act 1986, incorporating amendments up to Act No. 148 of 2010

Name of Act

Sex Discrimination Act 1984, incorporating amendments up to Act No. 70 of 2009

Name of Act

Social Security Act 1991, incorporating amendments up to Act No. 81 of 2009

Name of Act

Paid Parental Leave Act 2010, No. 104 of 2010
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Other source used

Australian Government Family Assistance Office
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MATERNITY LEAVE

There are three categories of leave to which new or expectant mothers may be entitled. The first is the primary entitlement to unpaid parental leave, which applies to employees with responsibility for the care of a child. Unless otherwise specified, the following entries refer to this primary entitlement.

The second is an entitlement to unpaid special maternity leave in the event an employee becomes unfit to work due to a pregnancy-related illness, still birth or miscarriage. Information about this category of leave is set out under ’Leave in case of illness or complications’.

The third is a right to paid no safe job leave, to which a pregnant employee is entitled if her employer is unable to provide her with safe employment during her pregnancy. See ’Health Protection - Dangerous or unhealthy work’.
Fair Work Act 2009 Division 5 of Part 2-2 of Chapter 2

Scope

The parental leave provisions of the Fair Work Act apply to all employees whose employment falls within the geographic application of the Act.
Fair Work Act 2009 For general scope of provisions, see Division 5 of Part 2-2 of Chapter 2
For extension to non-national system employees see Division 2 of Part 6-3 of Chapter 6
For geographical application of the Act, see Division 3 of Part 1-3 of Chapter 1

Qualifying conditions

In order to qualify for parental leave, an employee must:
(a) have worked for the employer for a continuous period of 12 months as at the date of commencement of the parental leave;
(b) if a casual employee, have worked on a regular and systematic basis over the course of that 12 month period and have a reasonable expectation of ongoing employment;
(c) have, or be going to have during the period of parental leave, a responsibility for the care of the child;
(d) provide at least 10 weeks’ written notice and, if required by the employer, evidence of the actual or expected date of birth of the child.
Fair Work Act 2009 §§67, 70, 74

Duration


Compulsory leave

Female employees may be required to take unpaid leave within 6 weeks prior to the expected birth of a child if she is certified as unfit for work or fails to provide a medical certificate when asked to do so by her employer.
Fair Work Act 2009 §73

General total duration

Employees who qualify for unpaid parental leave are entitled to 12 months’ leave, less any period of special maternity leave taken by the mother during the pregnancy. Where the employee is a member of an employee couple, the length of the employee’s entitlement will also be reduced by any extension period taken by the employee’s partner under s76 of the Fair Work Act.

A birth mother’s period of parental leave is to commence up to 6 weeks before the expected date of birth and no later than the actual date of birth of the child.

Parental leave is to be taken as a single continuous period of leave. The only exception to this rule is where a couple exercises the right to take up to 3 weeks of concurrent parental leave at the time of the birth. In such cases, one employee may take part of his or her unpaid parental leave entitlement within 3 weeks’ of the child’s birth and recommence his or her leave when his or her partner returns to work.
Fair Work Act 2009 §§70, 71, 72
Historical data (year indicates year of data collection)
  • 2004: Fifty-two weeks
  • 1998: Fifty-two weeks
  • 1994: Fifty-two weeks

Extension

Where an employee initially arranges to take less than the full 12 months of available parental leave entitlement following the birth of her child, she is entitled to extend her initial period of leave up to the end of the available 12 month period on 4 weeks’ written notice to her employer. The employee may only extend her unpaid parental leave in this way on one occassion without the consent of her employer.

An employee who takes all her available parental leave entitlements may request a further period of up to 12 months immediately following the end of the available parental leave period and within 24 months of the birth of the child. Special rules apply to employees whose partner also exercises a right to take unpaid parental leave. Such a request may be refused by an employer on reasonable business grounds.
Fair Work Act 2009 §§75, 76

Leave in case of illness or complications

Special unpaid maternity leave can be taken by a female employee for a pregnancy related illness, or to recover from a still birth or miscarriage that occurs up to 28 weeks before the expected date of birth.

The entitlement to special unpaid maternity leave exists for as long as the employee is not fit for work.

The employee must give her employer notice of the need to take special unpaid maternity leave as soon as practicable and must provide evidence of the illness, still birth or miscarriage if required.
Fair Work Act 2009 §80

RELATED TYPES OF LEAVE

Paternity and adoption leave entitlements are included in the parental leave entitlement under the Fair Work Act 2009.
Fair Work Act 2009 Division 5 of Part 2-2 of Chapter 2

Paternity leave

A male employee will be entitled to take up to 12 months’ unpaid parental leave upon the birth of his own child, or a child of his spouse or de facto partner, if he has or will have a responsibility for the care of the child. This entitlement is reduced by any period of extended leave taken by his spouse or de facto partner under s76.

The employee will also have the right to request an extended period of leave of up to 12 months, less any period of parental or special maternity leave taken by his spouse or de facto partner.

The only substantive difference between the leave entitements of male and female employees is the date on which the leave must commence. Specifically, a male emloyee’s period of leave must start on the date of birth of the child or immediately after the end of any leave taken by his spouse or de facto partner.
Fair Work Act 2009 §§70,71, 72, 74, 75, 76

Scope

The parental leave provisions of the Fair Work Act apply to all employees whose employment falls within the geographic application of the Act.
Fair Work Act 2009 For general scope of provisions, see Division 5 of Part 2-2 of Chapter 2
For extension to non-national system employees see Division 2 of Part 6-3 of Chapter 6
For geographical application of the Act, see Division 3 of Part 1-3 of Chapter 1

Qualifying conditions

In order to qualify for parental leave, an employee must:
(a) have worked for the employer for a continuous period of 12 months as at the date of commencement of the parental leave;
(b) if a casual employee, have worked on a regular and systematic basis over the course of that 12 month period and have a reasonable expectation of ongoing employment;
(c) have, or be going to have during the period of parental leave, a responsibility for the care of the child;
(d) provide at least 10 weeks’ written notice and evidence of the actual or expected date of birth of the child.
Fair Work Act 2009 §§67, 70, 74

Length

Employees who qualify for unpaid parental leave are entitled to 12 months’ leave, less any period of special maternity leave taken by the mother during the pregnancy. Where the employee is a member of an employee couple, the length of the employee’s entitlement will also be reduced by any extension period taken by the employee’s partner under s76 of the Fair Work Act.

A male employee’s period of parental leave must commence on the date of the birth of the child or immediately after the end of the period of leave taken by his spouse or de facto partner.

Parental leave is to be taken as a single continuous period of leave. The only exception to this rule is where a couple exercises the right to take up to 3 weeks of concurrent parental leave at the time of the birth. In such cases, one employee may take part of his or her unpaid parental leave entitlement within 3 weeks’ of the child’s birth and recommence his or her leave when his or her partner returns to work.

Male employees are entitled to the same entitlements to extend a period of unpaid parental leave as female employees (see above ’Maternity Leave - Extension’)
Fair Work Act 2009 §§70, 71, 72, 75, 76

Adoption leave

There are two categories of statutory leave entitlements that arise in relation to the adoption of a child. The first is the primary entitlement to unpaid parental leave. This is to be taken in association with the placement of a child for adoption and mirrors the entitlement to unpaid parental leave set out under Maternity Leave and Paternity Leave above.

The second is unpaid pre-adoption leave, taken for the purposes of attending interviews or examinations required in order to obtain approval for the employee’s adoption of a child.
Fair Work Act 2009 §§70, 85

Scope

The parental leave provisions of the Fair Work Act apply to all employees whose employment falls within the geographic application of the Act.
Fair Work Act 2009 For general scope of provisions, see Division 5 of Part 2-2 of Chapter 2
For extension to non-national system employees see Division 2 of Part 6-3 of Chapter 6
For geographical application of the Act, see Division 3 of Part 1-3 of Chapter 1

Qualifying conditions

In order to qualify for unpaid parental leave, an employee must:
(a) have worked for the employer for a continuous period of 12 months as at the date of commencement of the parental leave;
(b) if a casual employee, have worked on a regular and systematic basis over the course of that 12 month period and have a reasonable expectation of ongoing employment;
(c) have, or be going to have during the period of parental leave, a responsibility for the care of the child;
(d) provide at least 10 weeks’ written notice and, if required by the employer, evidence of the actual or expected date of placement and the age of the child.

To qualify for unpaid pre-adoption leave, an employee must:
(a) provide notice as soon as practicable to the employer and, if required by the employer, provide evidence that the leave is required to attend an interview or examination relating to the adoption of a child;
(b) not have an entitlement to, and be directed to take, some other form of leave.

Further, with respct to both unpaid parental leave and unpaid pre-adoption leave, the child that is, or is to be, placed with the employee for adoption must:
(a) be under 16 as at the day of placement, or the expected day of placement, of the child; and
(b) have not lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement, of the child; and
(c) not be (otherwise than because of the adoption) a child of the employee or the employee’s spouse or de facto partner.
Fair Work Act 2009 §§67, 68, 70, 74, 85

Length

The entitlement to unpaid parental leave for adoptive parents is equivalent to the entitlement for birth parents. That is, parents of adopted children are entitled to up to 12 months’ unpaid parental leave, with a right to request a further period unpaid leave of up to 12 months, subject to various timing requiements.

The entitlement to unpaid pre-adoption leave is for a period of up to 2 days. It can be taken as a single continuous period or in separate periods as agreed by the employee and employer.
Fair Work Act 2009 §§67, 70-72, 74-76, 85
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RIGHT TO PART-TIME WORK

Parents with carer responsibilities have the right to request flexible working arrangements.
Fair Work Act 2009 §65

General provisions

There is no express statutory entitlement to convert to part-time work following the birth or adoption of a child. However, an employee who is a parent, or has responsibility for the care, of a child may request the employer for a change in working arrangements to assist the employee to care for the child if the child is under school age or is under 18 and has a disability. Changes to an employee’s hours or pattern of work are expressly noted as examples of changes in working arrangements.

A request may only be refused by an employer on reasonable business grounds.
Fair Work Act 2009 §65
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CASH BENEFITS

The primary statutory entitlement to cash benefits during parental leave arises under the Paid Parental Leave Act 2010. Other sources include social security laws, collective bargaining agreements and private contracts.

A list of the social security benefits available to parents are set out under the Medical Benefits below.
Paid Parental Leave Act 2010

Maternity leave benefits

Entitlements to cash benefits during maternity leave arise under the Parental Leave Act 2010 (details under ’Parental leave benefits’, below). Additional entitlements apply to federal government employees under the Maternity Leave Act. Additional cash benefit entitlements for private sector employees are to be set at an industry, enterprise or individual level.
Paid Parental Leave Act 2010
Maternity Leave Act §6

Alternative provisions

In addition to the statutory entitlements provided by the Paid Parental Leave Act 2010, most female employees of the federal government and prescribed government agencies have a further statutory entitlement to 12 weeks of paid maternity leave.
Maternity Leave Act §6
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Parental leave benefits

Minimum parental leave cash benefits are provided for in the Paid Parental Leave Act 2010.
Paid Parental Leave Act 2010

Scope

The Paid Parental Leave Act applies broadly to Australian residents who take a leave of absence from regular paid work to assume primary responsibility for the care of a child.
Paid Parental Leave Act 2010 §§3A, 31

Qualifying conditions

The entitlement to parental leave pay arises upon determination by the Secretary of the administering government department. For a determination to be made in respect of a person, he or she must be eligible and have made an effective claim for parental leave pay.

To be eligible for parental leave pay under the Paid Parental Leave Act, a person must, at the time that they become the child’s primary carer:
(a) have performed at least 330 hours of paid work during at least 10 of the preceding 13 months, whether as an employee, contractor or self-employed person;
(b) have earned less than $150,000 in the year preceding the birth;
(b) be an Australian resident;
(c) be the primary carer of the child (or, in the event that the child is stillborn or has died, have intended to be the primary carer of the child);
(d) not be performing paid work during the period for which parental leave pay is claimed; and
(e) not be entitled to the baby bonus.
Paid Parental Leave Act 2010 §§ 8, 9, 10
For entitlement determinations - see Division 2 of Part 2-2 of Chapter 2
For eligibility requirements - see Part 2-3 of Chapter 2
For rules about claims - see Part 2-4 of Chapter 2

Duration

The parental leave pay is available to new parents within 12 months of the birth of a child or, in the case of adoption, the placement of the child with the parents. A claim must be made in the period from 97 days before the expected date of birth to the day before the child’s first birthday.
Paid Parental Leave Act 2010 §§11, 60

Amount

The parental leave pay entitlement is up to 18 weeks’ pay at the federal minimum wage, as set in accordance with s287 of the Fair Work Act 2009. The amount payable is to be calculated at a rate of 7.6 hours for each day to which the employee is entitled parental leave pay.

An entitlement arising under the Paid Parental Leave Act 2010 does not affect a person’s entitlement to other parental leave-related cash benefits under statute, an industrial instrument or contract.
Paid Parental Leave Act 2010 §§65, 99A
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Financing of benefits

Although parental leave payments may be made by the employer, the cash benefit entitlements arising under the Paid Parental Leave Act 2010 are ultimately financed by the federal government, administered by the Family Assistance Office.
Paid Parental Leave Act 2010 §75
Australian Government Family Assistance Office

MEDICAL BENEFITS


Pre-natal, childbirth and post-natal care

Various State-funded social security benefits are available to parents under the New Tax System Act 2000. These are generally income-tested and include:
(a) Family tax benefit A, which is paid by way of fortnightly instalments or an annual lump sum to parents who care of dependent children at least 35% of the time (at least 128 nights a year). The children must be under the age of 16 or under the age of 24 and studying full time;
(b) Family tax benefit B, which is designed to provide further assistance to sole parents or single income families;
(c) a baby bonus, paid in 13 fortnightly instalments over the first 26 weeks of a child’s life to the primary carer of the child. A person cannot claim both the baby bonus (under the New Tax System Act) and parental leave pay (under the Paid Parental Leave Act 2010) and is entitled to choose between the two;
(d) a child care benefit for parents, foster parents or grandparents with care of a child who is attending child care services approved by, or registered with, the Government;
(e) a child care rebate which covers 50 per cent of out-of-pocket child care expenses for approved child care up to the annual cap; and
(f) a maternity immunisation allowance, paid in 2 instalments upon immunisation of a child between the ages of 18-24 months and 4-5 years.

A person may also be entitled to carer or parenting payments under the Social Security Act 1991.
New Tax System (Family Assistance) (Administration) Act 1999 For family tax benefits - see Division 1 of Part 3
For baby bonus and maternity immunisation allowance - see Division 3 of Part 3
For child care benefit - see Division 4 of Part 3
For child care rebate - see Division 4A of Part 3
Australian Government Family Assistance Office http://www.familyassist.gov.au/payments/payment-rates.php
Social Security Act 1991 Parts 2.5 and 2.10

Financing of benefits

Social assistance system financed by the State.

HEALTH PROTECTION


Dangerous or unhealthy work

A pregnant employee is entitled to be transferred to a safe job or, if no safe job is available, to take paid no safe job leave where she provides evidence that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of illness, or risks, arising out of her pregnancy or hazards connected with that position.

The entitlement to paid no safe job leave ends when the pregnancy ends or in the event that the employee, within 6 weeks of the expected date of birth, fails to provide a medical certificate on request or is certified as unfit for work.

The pregnant employee must be entitled to and have fulfilled the notice and evidentiary requirements of unpaid parental leave to have access to these protections.
Fair Work Act 2009 §§81, 82

NON-DISCRIMINATION AND EMPLOYMENT SECURITY


Anti-discrimination measures

Discrimination on the grounds of sex, pregnancy, or potential pregnancy, family responsibilities is generally prohibited by the Sex Discrimination Act 1984. The process for making a complaint of sex-based discrimination is set out in the Australian Human Rights Commission Act 1986. The protections under these Acts apply to all workers, i.e. including part-time and temporary employees and contractors.

The Fair Work Act also prohibits certain employers from taking specified adverse action against a person who is an employee, or prospective employee, of the employer on a discriminatory ground, including the person’s sex, marital status, family or carer’s responsibilities or pregnancy.
Sex Discrimination Act 1984 §§4 (definition of employment), 14
Australian Human Rights Commission Act 1986 Part IIB
Fair Work Act 2009 §§338, 339, 342, 351

Protection from discriminatory dismissal

Protection from discriminatory dismissal is covered by the broader prohibition on discriminatory treatment under the Sex Discrimination Act 1984 and on adverse action under the Fair Work Act 2009. The relevent provisions are referenced above.

Guaranteed right to return to work

On ending unpaid parental leave, an employee is entitled to return to:
(a) the employee’s pre-parental leave position; or
(b) if that position no longer exists - an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
Fair Work Act 2009 § 84

Results generated on: 22nd December 2014 at 00:57:53.
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