Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Planning for parental leave is one of the most important things you can do to support your people and keep your business running smoothly.
In Australia, “maternity leave” is generally covered by the broader parental leave framework under the Fair Work Act 2009 (Cth). The rules can feel complex at first glance - eligibility, notice requirements, government payments, and your own workplace policy all interact.
In this guide, we’ll walk through what the law requires, what a practical policy should include, and how to manage leave in real life (from the first conversation to a successful return to work). Our aim is to help you build a compliant, supportive approach that fits your workforce and minimises disruption.
What Is Maternity Leave In Australia?
While people often use the term “maternity leave,” Australian law talks about “parental leave.” This is the entitlement for eligible employees (including birth parents, partners and adoptive parents) to take time away from work for the birth or adoption of a child.
There are two key parts to understand:
- Unpaid parental leave under the National Employment Standards (NES): This is your baseline legal obligation as an employer. It sets minimum rights around how much time employees can take off, eligibility, notice and return-to-work protections.
- Government Paid Parental Leave (PPL): This is a separate benefit administered by Services Australia. Payments go to eligible individuals (not from you, unless you’re the paymaster for Services Australia). The scheme has been expanding in stages towards 26 weeks by July 2026. Always check the current entitlement year by year.
On top of those, some employers choose to offer an employer-funded paid parental leave benefit. This is not mandatory, but it’s increasingly common in competitive industries and can form a powerful retention tool.
Who Is Eligible And How Much Leave Can You Take?
The NES provides a clear baseline. If your employee meets the eligibility rules, they can take unpaid parental leave, and you must protect their position and related rights.
Eligibility At A Glance
- Permanent employees: Must have at least 12 months of continuous service with you before the expected date of birth (or adoption placement).
- Casual employees: Must have been employed on a regular and systematic basis for at least 12 months with a reasonable expectation of continuing employment on a regular and systematic basis.
Flexible or part-time work still counts toward that continuous service threshold.
How Much Unpaid Leave?
- Up to 12 months of unpaid parental leave for an eligible employee.
- Request for a further 12 months: An employee can request an additional 12 months (total 24). You must genuinely consider this request and can only refuse on reasonable business grounds.
- Flexible unpaid parental leave: A portion can be taken flexibly in days or weeks within a set window around the birth or placement. This helps parents transition in and out of work.
- Concurrent leave for partners: Partners can usually take a period at the same time as the primary carer (often capped in weeks), with flexibility to spread this out. Always check the current NES settings and any award or enterprise agreement overlays.
Government Paid Parental Leave (PPL)
The Commonwealth PPL scheme is separate from the NES. Eligibility and the number of weeks available have been expanding in stages towards 26 weeks by July 2026. The exact number of weeks available depends on the year, income thresholds, and individual eligibility rules.
Key points to remember:
- PPL is funded by the government. In some cases, you may facilitate payments via your payroll as the paymaster.
- PPL does not reduce the employee’s NES unpaid parental leave entitlement - they are parallel systems that can interact.
- Always confirm the current PPL settings with Services Australia at the time of the leave.
Do Employers Have To Pay For Maternity Leave?
You are not legally required to pay employees during parental leave unless a modern award, enterprise agreement, or contract says otherwise. Many employers offer paid leave to attract and retain talent, but it remains a business choice unless an industrial instrument compels it.
If you do offer a paid benefit, make sure the rules are clear: eligibility, how much, how payments interact with government PPL, and any service or return-to-work expectations. Capturing these in a clear, accessible Parental Leave Policy is the easiest way to stay consistent and fair.
What Should Your Maternity Leave Policy Include?
A strong policy turns complex rules into a clear, step-by-step experience for your team and managers. It also helps you prove compliance if issues arise.
Essential Policy Elements
- Eligibility and Definitions: Who can access parental leave, how “continuous service” is calculated, and how casual eligibility works.
- Types of Leave: Unpaid parental leave, flexible unpaid parental leave, any employer-funded paid leave, special maternity leave (e.g. pregnancy-related illness), and safe job arrangements.
- Government PPL: A short explanation of how government payments work and how your business will administer them (if you are the paymaster).
- Notice and Evidence: What notice is required (typically 10 weeks’ notice of intention and 4 weeks to confirm), what information to provide (estimated due date, proposed leave dates), and when medical or adoption documentation is needed.
- Keeping In Touch: How keeping-in-touch days will be managed, how many are available, and the types of activities that are appropriate.
- Return-To-Work Guarantee: Confirmation of the employee’s right to return to their pre-leave position (or a comparable one if that role no longer exists).
- Flexible Work Requests: How employees can request flexible work on return, timelines for response, and the approach to genuine consideration.
- Breastfeeding and Facilities: Support for breastfeeding or expressing at work, including reasonable breaks and access to appropriate facilities.
- Alignment With Awards/Agreements: A statement that the policy is read together with any applicable modern award or enterprise agreement.
It’s also sensible to link the policy to related procedures (HR forms, payroll processes, handovers, and handback plans) so the experience is easy to follow for everyone involved.
Related Policies That Help
- Flexible Work Policy: A clear process for requests and responses.
- Work Health & Safety (WHS) Procedures: Assessing risks and adjustments for pregnant employees and new parents.
- Equal Employment Opportunity: Anti-discrimination commitments, including pregnancy and family responsibilities.
- Leave Policies: How parental leave interacts with annual leave, personal/carer’s leave, and unpaid leave.
If you don’t yet have one, consider creating or updating your Staff Handbook so all leave and HR policies sit together in one place.
Managing Leave In Practice: Notice, Evidence And Return-To-Work
Even with a solid policy, the practical steps matter. Here’s a simple workflow that helps managers and employees stay on track.
1) Early Conversations And Risk Management
Encourage employees to let you know about a pregnancy or adoption as early as they’re comfortable. This allows you to assess any health and safety adjustments and plan resourcing for the coming months.
If a role is unsafe during pregnancy (for example, heavy lifting or exposure to certain substances), consult your WHS risk assessment process. Consider transferring the employee to a safe job at the same pay if needed. If a safe job isn’t available, the NES provides specific entitlements depending on the circumstances (e.g. special maternity leave or no safe job leave under certain conditions).
2) Notice And Evidence
Under the NES, employees usually need to give at least 10 weeks’ notice of their intention to take unpaid parental leave and at least 4 weeks’ notice to confirm the start and end dates. You can require reasonable evidence such as a medical certificate with the expected date of birth.
Keep the admin simple. Provide a standard form or checklist and make it clear who to send it to. The fewer back-and-forth emails, the smoother the experience will be for everyone.
3) Planning The Hand‑Over
Work together to create a realistic handover and coverage plan. Consider temporary backfill, contractor support, or redistributing key tasks. Document access and clear role notes help reduce risk, especially if the leave start date changes suddenly.
4) Pay, Super And Accruals
During periods of unpaid parental leave, annual leave and personal/carer’s leave generally don’t accrue, and superannuation isn’t ordinarily payable (unless your industrial instrument or policy says otherwise). Employer-funded paid parental leave may attract super depending on how it’s structured and any applicable award or agreement terms. Get tailored advice if you plan to offer a paid benefit.
5) Keeping-In-Touch Days
Keeping-in-touch days allow an employee on parental leave to perform paid work to stay connected (for example, attending training or a team planning day). They are optional for both sides and capped at a small number of days across the leave period. They don’t end the period of parental leave.
6) The Return-To-Work Guarantee
Employees have a legal right to return to their pre-leave position, or if that position no longer exists, to an available position that is nearest in status and pay. Before the return date, check in to discuss transition arrangements, flexible work options, and any necessary refresher training.
Where fitness to work is relevant to the role, you may be able to request medical clearance in line with your WHS duties and privacy obligations.
7) Probation And Performance
Employees can access parental leave even if they are during probation (if they meet the service eligibility). Be careful about decisions that could be perceived as adverse action or discrimination related to pregnancy, family responsibilities, or taking parental leave. Keep performance management separate, well-documented, and fair.
Legal Compliance Checklist For Employers
Here is a practical checklist of the legal touchpoints to keep in mind as you design and implement your approach.
National Employment Standards (NES)
- Eligibility, notice, evidence and leave duration (including flexible unpaid parental leave and concurrent partner leave).
- Return-to-work guarantee and protection from adverse action.
- Interaction with other leave types and continuity of service rules.
Modern Awards And Enterprise Agreements
- Check any industry-specific provisions that supplement or vary the NES for your staff.
- Some agreements include employer-funded parental leave or additional flexibilities you must honour.
- If you’re unsure, get guidance from an employment lawyer before finalising your policy.
Anti-Discrimination And General Protections
- It’s unlawful to discriminate because of pregnancy, potential pregnancy, breastfeeding, or family/carer responsibilities.
- Adverse action connected to taking parental leave can result in serious penalties - ensure decisions are fair, consistent and well-evidenced.
Work Health & Safety (WHS)
- Undertake risk assessments for pregnant employees and new parents (e.g. safe lifting, chemical exposure, fatigue).
- Document safe job arrangements and review them regularly if the role changes.
Privacy And Payroll Administration
- If you’re facilitating PPL as the paymaster, double-check payroll set-up and record-keeping.
- Handle medical information sensitively and store it securely with limited access.
What Documents Should You Have In Place?
The right documents make parental leave smooth, consistent and compliant. At a minimum, consider:
- Parental Leave Policy: Sets out eligibility, notice, evidence, keeping-in-touch, return-to-work and how government PPL is administered.
- Employment Contract: Clarifies core terms and incorporates references to applicable policies and any award/agreement.
- Staff Handbook: Central home for your leave, flexibility, WHS and EEO policies to ensure consistent application.
- Workplace Policy: A supporting framework for procedures (notice forms, handover templates, payroll instructions and manager guidance).
- Flexible Work Guidelines: A simple process for requests, timeframes to respond, and factors you will consider.
If you operate under modern awards, it’s also worth documenting how the policy aligns with those instruments so managers can apply the correct rules confidently.
Common Questions From Employers
Can Employees Work While On Parental Leave?
Yes - but only in limited ways. Keeping-in-touch days are designed for this purpose and are capped. Day-to-day work outside of those rules can break the period of parental leave, so stick to the keeping-in-touch framework.
Do Employees Accrue Annual Leave Or Personal Leave While On Unpaid Parental Leave?
Generally no, not during unpaid parental leave. If you offer employer-funded paid parental leave, accrual and super settings will depend on how that benefit is structured and any award or agreement that applies.
What If The Employee Doesn’t Meet The 12-Month Service Requirement?
They may still be eligible for the government PPL scheme. You can also consider discretionary paid or unpaid leave outside the NES, consistent with your policies and resourcing needs (and any discrimination risks).
Can An Employee Change Their Return Date?
The NES sets notice requirements for changes. Be flexible where you can, and manage changes through a simple, documented process so rostering and handovers are updated in time.
Key Takeaways
- Parental leave in Australia combines NES entitlements (unpaid leave and workplace protections) with a government Paid Parental Leave scheme that’s expanding in stages.
- Employers aren’t required to fund paid maternity leave, but many do - if you offer it, document the rules clearly in a Parental Leave Policy.
- A practical policy should cover eligibility, notice and evidence, keeping-in-touch days, return-to-work rights, and flexible work requests.
- Plan early with a risk assessment, clear handover, payroll settings, and respectful communications to reduce disruption.
- Check applicable awards or agreements and keep decisions consistent with anti-discrimination and general protections laws.
- Put the right documents in place - a Parental Leave Policy, robust Employment Contract, and a current Staff Handbook - so managers and staff can follow a clear process.
If you’d like a consultation on maternity leave policies for your workplace, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
