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.
Contents
Navigating maternity (parental) leave as an employer can feel daunting the first time it comes up. You want to support your team member, stay compliant with Australian employment law, and keep your business running smoothly.
The good news: with the right process, clear policies and a bit of forward planning, you can manage maternity leave confidently and protect your business at the same time.
In this guide, we’ll break down what maternity (parental) leave looks like in Australia from an employer’s perspective, what you must provide, the steps to follow when a request lands on your desk, and the key policies and contracts to put in place before anyone asks.
What Counts As Maternity (Parental) Leave In Australia?
In Australia, maternity leave sits within the broader concept of “parental leave.” Under the National Employment Standards (NES), eligible employees can take up to 12 months of unpaid parental leave, with a right to request a further 12 months (up to 24 months total). This applies to birth parents, adoptive parents and certain other primary carers.
Eligibility generally requires at least 12 months of continuous service before the expected date of birth or adoption. Some casual employees may also qualify if they’ve worked on a regular and systematic basis with a reasonable expectation of ongoing work. Awards, enterprise agreements or contracts can provide additional benefits.
Separately to unpaid leave, the Australian Government funds a Parental Leave Pay scheme. Depending on your circumstances, Services Australia may direct you (as the employer) to administer those payments to your employee. This is not the same as employer-funded paid maternity leave-unless you choose to offer paid leave as a benefit, there’s no automatic requirement to pay for parental leave beyond any award, contract or policy promise you’ve made.
Do Employers Have To Pay For Maternity Leave?
In most cases, no. The NES entitlement is unpaid parental leave. Some employers choose to offer paid maternity leave as part of their benefits program or under an enterprise agreement, but that’s optional unless it’s promised in a contract or policy.
Government-funded Parental Leave Pay is separate. If Services Australia directs you to act as the paymaster, you’ll pass through those funds to the employee via payroll. Your obligations there are administrative-timely payments, correct withholding and record-keeping-not paying from your own pocket (unless you offer a top-up benefit).
Other entitlements can intersect with parental leave. For example, your employee may take paid personal/carer’s leave (sick leave) if unwell during pregnancy, or annual leave before or after parental leave by agreement. If your employee isn’t entitled to paid leave and needs time off before the birth, they may take Unpaid Leave in certain circumstances-always check the NES, relevant award and your own contracts and policies first.
Step-By-Step: How To Manage A Maternity Leave Request
Here’s a simple process you can follow from first notice through to safe return to work. These steps help you meet your legal obligations and keep operations on track.
1) Confirm Eligibility And Timing
Ask for the request in writing. Under the NES, employees must usually give at least 10 weeks’ notice, with confirmation at least 4 weeks prior to the intended start date. You can ask for reasonable evidence (for example, a medical certificate confirming the expected date of birth).
Check tenure and service to confirm eligibility (including for casuals with regular and systematic work). Note any relevant award or enterprise agreement provisions.
2) Clarify The Entitlement And Return Date
Confirm the start date, the intended return date and whether your employee plans to take the full 12 months or seek an extension later. If they intend to request an additional 12 months (up to 24 months), note the timeline and your obligation to respond in writing within the required timeframe.
3) Put It In Writing
Send a written acknowledgement confirming the approved leave dates, payment arrangements (if any), how you’ll handle superannuation and payroll, and the position to which they’ll return. If you offer any paid leave or top-up, set that out clearly so expectations are aligned.
4) Plan The Handover
Work with your team member to map key tasks, deadlines, logins, files and stakeholder contact points. Nominate an acting contact for their projects and arrange appropriate training or documentation so their replacement (or team) can step in smoothly.
5) Maintain Communication (Appropriately)
Set communication preferences with your employee before leave begins. Under the NES, “keeping in touch” days (up to 10 days) allow an employee to attend work or training to stay connected without breaking the leave. Use these days thoughtfully-e.g. for key meetings or training related to a new system.
6) Process Any Flexible Work Requests
Eligible employees returning from parental leave have a right to request flexible working arrangements (for example, part-time hours, different start/finish times or some remote work). You must consider these requests and respond in writing within the required timeframe. You can refuse on reasonable business grounds, but your reasons must be genuine and clearly explained.
7) Support A Safe Return
Confirm an exact return date, any agreed flexible arrangements and any refresher training required. Make sure the returning employee has the right equipment, access and support. If breastfeeding breaks or other adjustments are required, plan them ahead of time.
What Policies, Contracts And Documents Should You Have?
Good paperwork removes guesswork. The right documents set expectations for your team, reduce disputes and demonstrate compliance if something is questioned later. We recommend the following core documents for employers in Australia:
- Parental Leave Policy: Sets out eligibility, notice requirements, keeping-in-touch days, paid vs unpaid entitlements, extensions and return-to-work processes in plain English.
- Employment Contract: Clear terms for permanent staff (and a separate agreement for casuals) covering classification, hours, pay, leave, duties, confidentiality and post-employment obligations.
- Staff Handbook: A central, easy-to-read guide pulling together your key workplace policies (leave, conduct, health and safety, grievance process) so your team knows what to expect.
- Workplace Policy: A tailored policy suite (or standalone policies) to cover topics like flexible work, discrimination and harassment, WHS and remote work expectations.
- Employee Privacy Handbook: Explains how you collect, store and use employee personal information (medical certificates, emergency contacts, etc.), supporting compliance with privacy obligations.
- Employment Lawyer: Complex scenarios-like overlapping awards, enterprise agreements, redundancies during leave or disputes-are best handled with targeted legal advice before you act.
Not every business will need every document on day one, but most employers benefit from a clear Parental Leave Policy, robust Employment Contracts and a simple internal handbook covering conduct, leave and safety from the outset.
Key Compliance Issues To Watch
Parental leave touches many legal obligations. Here are the hotspots where employers most often need to proceed carefully.
Job Protection And Return-To-Work
Employees on parental leave are entitled to return to their pre-parental leave position. If that position no longer exists, you must offer a genuinely comparable role (same pay and status). Keep good records of any restructure decisions while they’re away to show legitimate, non-discriminatory reasons for changes.
Discrimination And Adverse Action
It’s unlawful to take adverse action against an employee because they’re pregnant, on parental leave or have carer responsibilities. This includes reducing hours, overlooking them for promotion or terminating employment for a prohibited reason. Make sure managers understand their obligations and the process for approving flexibility requests fairly.
Redundancy During Parental Leave
If a genuine redundancy arises, you must consult and follow the correct process. The reason must be unrelated to the employee’s pregnancy or leave. If you’re unsure, get Redundancy Advice early-missteps here can lead to costly claims.
Flexible Work Requests
Eligible employees can request flexible working arrangements, and employers need to carefully consider these. If refusing, document the reasonable business grounds (for example, inability to reorganise work among staff, significant negative impact on customer service or cost). Offer alternatives where possible-partial flexibility can often achieve a good outcome for both sides.
Keeping-In-Touch Days
Employees can work up to 10 keeping-in-touch days during unpaid parental leave without ending their leave period. These days must genuinely help them stay connected to the workplace and should be paid at their usual rate. Keep a simple record of the dates and activities.
Awards, Agreements And Paid Leave Top-Ups
Some awards or enterprise agreements include additional entitlements (like paid parental leave or extra flexibility rules). If you voluntarily offer a paid leave “top up,” ensure your policy sets out eligibility, timing, and any conditions (for example, a minimum service requirement or a repayment clause if the employee resigns within a set period after return).
Health, Safety And Wellbeing
Pregnancy, birth and the return-to-work period can raise specific health and safety considerations. Reasonable adjustments and support (for example, safe duties or breastfeeding breaks) are part of meeting your WHS obligations. You may also want to review your approach to mental health support and training-see our guide to Fair Work obligations regarding employee mental health for practical tips.
Privacy And Records
Handle medical certificates and other personal information in line with your internal privacy protocols. Limit access to those who need to know, store records securely, and be transparent about how you’ll use the information. A simple Employee Privacy Handbook helps keep everyone on the same page.
How To Support A Safe And Productive Return To Work
Planning the return is as important as planning the leave. A thoughtful process reduces risk and boosts retention.
- Confirm the return date well ahead of time and schedule a check-in meeting in week one to re-assign duties, set clear expectations and book any refresher training.
- Consider a phased return (for example, part-time initially) where possible. This can smooth the transition and reduce the risk of burnout.
- Address practical needs-equipment, workspace, passwords, system access-so the employee can be productive from day one.
- Agree on how performance goals will be measured and when you’ll regroup to adjust hours or duties if needed.
- Make sure managers know how to handle flexibility requests and breastfeeding or expressing breaks, consistent with your Workplace Policy and WHS obligations.
If disputes arise or you’re navigating overlapping rules under an award or enterprise agreement, speak with an Employment Lawyer before making a final decision. Getting advice early usually prevents bigger problems later.
Common Questions From Employers
Can we refuse parental leave?
If an employee meets the NES eligibility criteria and has provided appropriate notice and evidence, you can’t refuse unpaid parental leave. You can, however, discuss timing and reasonable arrangements around handover and return to work.
Do we have to hold their job?
Yes, you must keep their pre-parental leave position available. If it no longer exists due to a legitimate restructure, you must offer a comparable role at the same pay and status.
Can we require an employee to start leave early?
There are limited circumstances (for example, where it’s unsafe for a pregnant employee to perform their usual duties) where safe job transfers or paid “no safe job” leave may apply. These obligations depend on the award/enterprise agreement and the NES-seek advice if you’re unsure.
What if the employee wants to extend their leave?
Employees can request up to a further 12 months of unpaid parental leave (24 months total). You must respond in writing. If refusing, you’ll need valid business grounds and a well-documented decision-making process.
Key Takeaways
- Maternity leave is part of the NES parental leave framework-eligible employees can take up to 12 months of unpaid leave, with a right to request a further 12 months.
- Employers are not required to pay for maternity leave unless an award, agreement, contract or policy says otherwise; government Parental Leave Pay is separate and may be administered through payroll.
- A clear process-eligibility check, written confirmation, handover, keeping-in-touch, and a structured return-keeps you compliant and reduces disruption.
- Put core documents in place early: a Parental Leave Policy, strong Employment Contracts, a Staff Handbook and a practical Workplace Policy.
- Watch the hotspots: job protection, discrimination risks, genuine redundancy, flexible work requests, and privacy/wellbeing obligations.
- When in doubt-particularly around awards, agreements or redundancies-get tailored advice from an Employment Lawyer before you act.
If you’d like a consultation on managing maternity leave as an employer, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
