Are Casual Employees Entitled To Maternity Leave In Australia? Employer’s Guide

Hiring casual employees gives many small businesses the flexibility they need to run smoothly. But when a team member is expecting a baby or adopting a child, the rules around leave can feel confusing-especially for casuals.

If you’re asking “Are casuals entitled to maternity leave?” or “Do casuals get paid maternity leave?”, you’re not alone. The answer is “sometimes”-and the details matter.

This employer-friendly guide explains what counts as maternity (parental) leave under Australian law, when casuals qualify, how the government’s Paid Parental Leave works, and how to manage requests in a compliant, supportive way.

What Counts As Maternity (Parental) Leave Under The NES?

Under the National Employment Standards (NES), the legal term is parental leave. It covers time off connected to the birth or adoption of a child. Key NES entitlements include:

• Up to 12 months of unpaid parental leave for eligible employees, with a possible request for a further 12 months (total up to 24 months).
• A return to work guarantee at the end of leave.
• Access to up to 10 “keeping in touch” days while on leave (optional, and without ending the period of leave).

Important: The NES covers birth and adoption. Standard foster care is not covered in the same way as adoption. If you’re unsure about a particular care arrangement, it’s wise to get specific advice before making a decision.

There’s also the government’s Paid Parental Leave scheme (separate from the NES) which we cover below under “Do Casuals Get Paid Maternity Leave?”.

Can Casual Employees Take Unpaid Parental Leave?

Yes-some casual employees can access unpaid parental leave if they meet strict criteria. The eligibility test for casuals is different from permanent staff.

Eligibility For Casuals: The Two-Part Test

A casual employee is eligible for unpaid parental leave if they:

• Have been employed on a regular and systematic basis for at least 12 months immediately before the expected date of birth (or placement of an adopted child), and
• Have a reasonable expectation of ongoing employment on a regular and systematic basis.

If a casual has been working consistent shifts (for example, every Friday and Saturday, or on a rolling roster) over 12 months and both of you expected that pattern to continue, they’re likely to qualify for up to 12 months of unpaid parental leave under the NES.

What Does “Regular And Systematic” Mean?

There’s no strict minimum number of hours. Instead, decision-makers look at the pattern and understanding of the arrangement. Common indicators include:

• Predictable rosters or advance scheduling over time.
• An established pattern of shifts (weekly/fortnightly) rather than ad hoc engagements.
• A history of the employee accepting work when offered.
• An expectation-by both sides-that the work pattern would continue.

If the pattern has been irregular or occasional, the eligibility threshold may not be met.

Notice, Evidence And Timing

Employees must provide written notice of their intention to take unpaid parental leave at least 10 weeks before the intended start date, including the proposed start and end dates.

They also need to confirm those dates at least 4 weeks before the leave starts, or advise of any changes as soon as possible. You can ask for evidence that would satisfy a reasonable person (for example, a medical certificate or adoption paperwork) to support the request.

If an employee later requests an extension of unpaid parental leave (up to a further 12 months), the employer must respond in writing within 21 days. The 21-day rule relates specifically to extension requests.

Return To Work And Keeping In Touch

Employees on unpaid parental leave have a right to return to their pre-leave position. If that position no longer exists, they should be offered an available position nearest in status and pay for which they’re qualified.

They can also choose to work up to 10 “keeping in touch” days while on leave without ending their leave period. These days are optional and can help employees transition back to work smoothly.

Do Casuals Get Paid Maternity Leave?

Paid Parental Leave (PPL) in Australia is a government program (not an NES entitlement). It’s separate from unpaid parental leave, and it’s funded by the Commonwealth-employers may be asked to administer payments as the paymaster, but the money itself is government-funded.

Government-Funded Paid Parental Leave: Key Points For Casuals

As at 1 July 2024, eligible parents can access up to 22 weeks of Paid Parental Leave at the national minimum wage. This is gradually increasing toward 26 weeks over time under reforms passed by the government.

Casuals can qualify for PPL if they meet the government’s criteria, including the work test. In general, the work test requires that the claimant has:

• Worked for at least 10 of the 13 months before the birth or adoption, and
• Worked at least 330 hours in that period (averaging around one day per week).

There are also income, residency and other eligibility rules set by Services Australia. These criteria apply whether the person is casual, part-time or full-time-the key is whether they meet the work test and other government rules.

Employers can choose to offer additional paid leave through their own policies or enterprise agreements, but you don’t have to pay “maternity leave” yourself unless your workplace arrangements promise it.

Managing Parental Leave Requests From Casuals: A Practical Process

A clear, consistent process helps you look after your people and stay compliant. Here’s a simple, step-by-step approach you can build into your workplace practice.

1) Confirm Employment History And Pattern

Review rosters and timesheets to assess whether the employee has worked on a regular and systematic basis for at least 12 months, and whether ongoing work was reasonably expected. Keep copies of any documents you rely on for your decision.

2) Request Notice And Evidence

Ask for written notice at least 10 weeks before the leave starts, with proposed dates, and request confirmation four weeks out. You can request reasonable evidence (for example, a medical certificate).

If the employee later asks to extend unpaid leave beyond 12 months, respond in writing within 21 days with your decision and reasons.

3) Check Awards, Agreements And Policies

Some workplaces offer more generous conditions than the NES through modern awards, enterprise agreements or your own policies. Make sure you check the applicable instrument. If your business is covered by a modern award, ensure your approach aligns with your Modern Awards obligations.

4) Map Out Rostering And Communication

Once leave is confirmed, plan coverage and update scheduling. Good communication helps the team understand any changes and keeps things running smoothly.

5) Document The Arrangement

Provide a written confirmation of leave, including start and end dates, the return to work guarantee and contact points during leave (particularly for any keeping in touch days). Having this set out clearly helps avoid misunderstandings later.

6) Support The Return

Before the employee’s return, touch base about rosters and any reasonable adjustments. Consider offering refresher training or a re-induction so they’re set up for success.

Helpful Documents And Policies To Put In Place

• Parental Leave Policy: Explains eligibility, notice requirements, evidence, keeping in touch days, and your approach to return to work.
• Employment Contract (Casual): Sets out core terms and conditions, and points to NES entitlements and any applicable award or agreement.
• Staff Handbook: Houses your broader workplace policies in one accessible place and helps managers apply them consistently.
• Unpaid Leave: Clarifies how unpaid leave interacts with other entitlements, which can be useful for payroll and rostering.

If you decide to update your templates, it can help to review your documents as a set so that your contracts, policies and practices are aligned. When you’re making changes to terms, keep best practice in mind around changing employment contracts and consult where needed.

Awards, Agreements And Workplace Policies: How They Interact

The Fair Work Act 2009 and the NES set the minimum standards. You cannot contract out of these minimums.

However, employees may have additional or more generous entitlements under modern awards, enterprise agreements or your own workplace policies. For example, an enterprise agreement might provide extra paid leave or more flexible return to work arrangements. If you offer a benefit in a policy or agreement, make sure you apply it consistently-and keep your documents up to date when laws change.

If a request is complex or sits at the edge of eligibility (for instance, uncertainty about “regular and systematic” work), it’s a good time to engage an employment lawyer so you can make a confident decision and document it properly.

Common Mistakes To Avoid

Most issues arise from timing, documentation and misunderstanding the rules for casuals. Here are pitfalls to watch for:

• Misjudging “regular and systematic” work: Don’t focus only on hours-look at the pattern, the roster and the expectation of ongoing work.
• Missing notice and evidence steps: Be clear about the 10-week notice and 4-week confirmation, and keep records of any evidence provided.
• Confusing NES leave with government PPL: Unpaid parental leave (NES) and Paid Parental Leave (government-funded) are separate. Casuals might qualify for one, the other, or both.
• Overlooking the 21-day rule for extensions: The requirement to respond within 21 days applies to requests for an extra 12 months of unpaid leave.
• Not offering a proper return to work: Employees have a right to return to their job or a comparable role. Plan ahead for redeployment if needed and maintain clear communication.
• Inconsistent treatment: Apply the same process to all eligible casuals to reduce the risk of disputes or claims about fairness. Where termination is contemplated for other reasons in proximity to a leave request, carefully assess risks under the general protections and unfair dismissal framework, noting how decision-makers consider fairness under section 387 of the Fair Work Act.

Good systems, clear policies and consistent decision-making go a long way toward keeping you compliant and your team supported.

Key Takeaways

• Certain casual employees are entitled to unpaid parental leave if they’ve worked on a regular and systematic basis for at least 12 months and had a reasonable expectation of ongoing work.
• Paid Parental Leave is a government scheme (22 weeks at the national minimum wage as at 1 July 2024) and casuals can qualify if they meet the work test and other criteria.
• Follow the NES process: written notice at least 10 weeks before leave, confirmation four weeks out, and a written response within 21 days if an extension to 24 months is requested.
• Check the interaction of the NES with any modern award, enterprise agreement or your own policies-these can offer more generous entitlements.
• Put the right documents in place: a clear Parental Leave Policy, solid employment contracts for casuals and an up-to-date staff handbook help managers apply the rules consistently.
• Handle edge cases with care-seek advice early from an employment lawyer to reduce risk and keep things fair for everyone.

If you’d like a consultation on managing maternity and parental leave for your casual staff, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.