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Get the Facts - Fact Sheet 8

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Get the Facts - Know your rights

Get the Facts kit


Indigenous Women and Pregnancy Discrimination

FACT SHEET 8: Maternity and Parental Leave

Parental leave allows mothers and fathers to be able to
take time off work to care for their new baby. This
includes adopted babies. Parental leave includes
maternity leave (for mothers), paternity leave (for
fathers) and adoption leave (for either parent).

Unpaid parental leave is available to all full time and
part time workers who have worked for at least 12
months for the same employer. Many regular casuals
are also able to take parental leave. It is available to you
whether you are married, single, living in a defacto
relationship, and no matter how old you are. 1

It is important to check your industrial award or
agreement to determine the amount of unpaid parental
leave you can take and to see if you are able to take any
paid maternity leave. Your State or Territory may also
have laws about maternity leave.

Awards and agreements are legally binding documents
which set out the entitlements and conditions of your
employment such as how much you are paid, what
hours you work and what holidays and other leave you
are allowed to take. Workplaces are required to make
a copy of your award or agreement available to all
employees.

If you are not sure about whether you are covered by an
award or agreement in your workplace you can ask
your employer, contact your union or the Australian
Government Department of Employment and
Workplace Relations' WageLine information line on 1300 363 264.

Recent changes to workplace relations laws mean that
more people are likely to be employed under an
Australian Workplace Agreement (AWA). An AWA is
an individual written agreement between an employee
and employer and must contain a provision about
unlawful employment discrimination. For advice and
information about AWAs contact the Office of the
Employment Advocate on 1300 366 632.

The arrangements for CDEP schemes are currently
being changed. For advice about your entitlements as a
CDEP participant you should contact

  • the Department of Employment and Workplace
    Relations CDEP Customer Service Line on 1800 805 260 or
  • your closest Indigenous Coordination Centre. To be
    connected to your nearest ICC call 1800 079 098,
    except in the Nhulunbuy area (call 1800 089 148),
    the Kalgoorlie area (call 1800 193 357), or the
    Kununurra area (call 1800 193 348).

At the very least, mothers in Australia who have worked
for the same employer for at least one year and have an
expectation of on-going employment are entitled to 12
months unpaid parental leave. This can be shared with
your husband or partner if you have one. Generally you
can take a week off together when the baby is first born,
but after that it is likely you will only be able to take
leave at different times. Some awards allow parents to
take eight weeks off at the same time.

Some workers are also able to request to take more
than 12 months of unpaid parental leave and/or to
return to work part time following parental leave. You
should check your award or agreement to see if you are
eligible. In many cases, your employer will have a
duty not to unreasonably refuse such a request.

One of the most important things about unpaid parental
or maternity leave is that it allows you to return to your
job after the leave.

If you are a teacher, work in a hospital or
work for a government department or
council you are likely to be entitled to paid
maternity leave. Some community
organisations also offer paid maternity
leave.

If you are entitled to parental or maternity leave it is
against the law for your employer to sack you because
you are planning to take that leave, you are on that
leave or you have returned from that leave. It is your
right to return to the job that you held before you went
on leave and if that no longer exists, to a job that is as
near as possible to the same in pay and status.

Often, Indigenous women need to return to their home
for the birth of their children, which can take some time
if you come from a rural or remote community. This can
be especially important for women with strong ties to
traditional culture. A mother can usually start maternity
leave at any time she needs before the birth of her baby,
provided she gives her employer notice that she intends
to take maternity leave. If your employer refuses to
allow you to take reasonable leave to fulfil your cultural
obligations to travel home to have your baby it may
amount to discrimination on the basis
of race.

Applying for maternity leave
Normally you should give your employer at least 10
weeks notice that you intend to take maternity leave.
Four weeks before you plan to start your leave (or your
baby is due) you should apply in writing for leave,
giving notice of when you would like to start and end
your leave and providing your employer with any
documents he or she requires. This might include a
medical certificate from your doctor or midwife saying
when your baby is due or a statutory declaration stating
how much leave your partner is planning to take. If your
baby arrives early it doesn't matter because you have
told your employer when he or she was due.

If you are entitled to annual leave or long service leave,
you can also take it, instead of, or as well as, unpaid
maternity leave, but, all the leave together must not add
up to more than 52 weeks. In many jobs you cannot
take, for example, a combination of 52 weeks maternity
leave plus four weeks annual leave - you can only take
48 weeks maternity leave plus four weeks annual leave.
But again, check your award or agreement to make sure
there are not better arrangements in your workplace.

You can extend the amount of leave you plan to take
only once. You do this by giving your employer at least
14 days written notice of how much more leave you are
planning to take. If your employer agrees you may be
able to extend the time again. You can also shorten the
time of your maternity leave and come back sooner
than you planned by writing to your employer giving
them 14 days notice of when you are planning to
return.

What happens if I have a miscarriage or my baby dies

If you have a miscarriage or your baby dies before youhad started maternity leave, your maternity leave will
usually be cancelled. If you have paid sick leave you
are able to take that. If you have a miscarriage within 28
weeks of the expected date of birth you can take
special maternity leave. This leave is unpaid and you
will need to provide a medical certificate stating how
long you will be unfit for work.

If you have already started maternity leave and your
baby dies or is stillborn, you can normally stay on
maternity leave until your leave would have finished or
you feel well enough to return to work. You are also
able to write to your employer and tell them that you
would like to return to work sooner. In that case your
employer must tell you a date within the next month
when you can start back at work.


[1] If you are in a same-sex relationship and you are the non-biological parent of a child, you are not guaranteed access to parental leave. You may have access to parental leave under your workplace award or agreement. If you are in a same-sex couple you should check your award or agreement or seek clarification from your employer or union.
Same Sex: Same Entitlements, see http://www.humanrights.gov.au/samesex/
Note: The above footnote is not in the PDF version.