Maternity And Paternity Leave In WA: Employer Obligations

If you employ staff in Western Australia, chances are you’ll deal with a parental leave request at some point - whether that’s maternity leave in WA, paternity/partner leave, or adoption-related leave.

For many small businesses, the tricky part isn’t wanting to “do the right thing” - it’s figuring out what the law actually requires, what applies to your business (and which system you’re in), and how to manage the operational impacts without accidentally breaching workplace laws.

We’ll walk you through the key rules and practical steps for handling maternity and paternity leave in WA from an employer perspective, including eligibility basics, notice and evidence, managing handovers, return to work protections, and updating your contracts and policies so you’re set up for the next request.

Which Laws Apply To Maternity Leave In WA?

Before you can confidently deal with maternity leave in WA questions, you need to know which workplace relations system applies to you, because that affects what minimum entitlements you must provide.

Most WA Small Businesses Are In The National Workplace Relations System

Most private sector employers in WA are covered by the national system (generally governed by the Fair Work Act 2009 (Cth)). This is especially common if you:

• operate through a company (Pty Ltd), or
• are otherwise a constitutional corporation (typically a trading or financial corporation).

For national system employers, the key minimum entitlement is the National Employment Standards (NES), which include unpaid parental leave and related protections (including return to work rights).

Some WA Employers Are In The WA State System

Some employers in WA are covered by the WA state industrial relations system (generally under the Industrial Relations Act 1979 (WA)). This can include some unincorporated businesses (for example, certain sole traders and partnerships) that are not constitutional corporations.

If you’re unsure where you sit, it’s worth checking early - minimum rules can differ depending on WA awards, state system provisions and the specific employment arrangement. In WA, information sources like Wageline can also be relevant for state system businesses.

As a practical matter, many small businesses choose to implement parental leave processes that meet (or exceed) NES-style standards, because it creates consistency and helps reduce risk and confusion across your workplace.

Don’t Forget Paid Parental Leave Is Often A Government Scheme

When employees ask about “paid” maternity or paternity leave, they may be thinking of the Australian Government’s Paid Parental Leave scheme (which is separate to your minimum obligations under employment law).

Some employers also provide paid parental leave on top of the minimums (for example, as a benefit under an employment contract, workplace policy, or enterprise agreement). If you do, you’ll want to ensure your documents are clear about eligibility and how it interacts with unpaid parental leave entitlements.

What Are Your Minimum Employer Obligations For Maternity Leave WA?

From a small business owner’s perspective, the key questions usually are:

• Who is eligible?
• How much leave do we have to provide?
• What notice and paperwork can we request?
• What job protections apply while the employee is away?

While the details can vary depending on whether an award, enterprise agreement, or contract provides additional benefits, the baseline for many WA employers (particularly national system employers) includes the following.

1) Eligibility Often Depends On Length Of Service

Under the NES, unpaid parental leave is generally available to employees who have completed at least 12 months of service with you immediately before the date (or expected date) of birth or adoption.

For casual employees, eligibility can still exist if they’ve been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment.

This is one reason it’s important your documentation reflects the true working arrangement - including a properly drafted Employment Contract (Casual) for casual staff and a clear Employment Contract for permanent team members.

2) Unpaid Parental Leave Is Commonly Up To 12 Months (With Extension Options)

Eligible employees can generally access up to 12 months of unpaid parental leave.

They can also request an extension of unpaid parental leave for up to a further 12 months. Under the NES, an employee must generally request this extension at least 4 weeks before the end of their initial 12 months’ leave, and the employer must respond in writing within 21 days. You can only refuse an extension request on reasonable business grounds (and you should ensure your reasons are properly documented).

From a business planning perspective, it’s helpful to treat parental leave as a longer-term staffing event - similar to a long absence - and plan your resourcing early.

3) Notice And Evidence Requirements Matter

As an employer, you can generally require the employee to provide notice of their intention to take parental leave, and you can also request evidence.

For national system employers under the NES, an employee is generally required to give at least 10 weeks’ written notice before starting parental leave (or, if that isn’t possible, as soon as practicable). The employee must also generally confirm their leave start and end dates (or any changes) at least 4 weeks before the leave starts.

Evidence can include (for example) a medical certificate confirming pregnancy and expected due date, or documentation relating to adoption. In practice, this is where many small businesses get caught out: they don’t have a consistent process, they respond informally, and then a disagreement later turns into a dispute about what was requested, what was approved, and when.

A clear policy and consistent internal paperwork (even if your business is small) can make a big difference.

4) Job Protection And Return To Work Obligations Apply

One of the biggest risk areas with maternity leave in WA is assuming you can “replace” the employee permanently while they are away.

Even if you hire a replacement, you typically need to manage it as a temporary arrangement. Under the NES, an employee is generally entitled to return to their pre-parental leave position. If that position no longer exists, they may need to be placed in an available position for which they are qualified and suited that is nearest in status and pay to their former position.

It’s also important to be cautious about any adverse action or discrimination risks connected with pregnancy or family responsibilities. Even well-intentioned comments or “operational decisions” can create risk if the employee believes they’re being treated differently because they took leave.

Paternity Leave WA And Partner Leave: What Should You Provide?

“Paternity leave” is often used as a catch-all term for leave taken by the non-birthing parent, or a partner of the person giving birth.

In many workplaces, the more accurate label is parental leave (including partner leave). The rules can be similar, but the key is to focus on:

• the employee’s eligibility (including length of service),
• the timing and length of the requested leave, and
• how you’ll manage the absence operationally.

Common Scenarios For Paternity Leave In WA

In small businesses, partner leave often comes up in a few practical ways:

• Short leave around the birth: the employee wants a few days or a couple of weeks off when the baby arrives.
• Staggered parental leave: both parents share parental leave, either consecutively or with overlap.
• Flexible work requests: the employee returns and asks for part-time hours, changed shifts, or remote work arrangements.

For your business, the best approach is to treat these as structured processes rather than informal favours. That doesn’t mean being inflexible - it means documenting what’s agreed so you can roster and budget confidently and treat staff consistently.

Awards And Agreements Can Add Extra Rules

Your employee might also be covered by a modern award or enterprise agreement that sets additional obligations around notice, consultation, or types of leave.

This is why Award Compliance is so important before you respond to a request - especially if you’re juggling multiple employees and varied roles.

Managing Maternity Leave WA In Practice: Steps For Small Businesses

Once you understand the legal baseline, the next challenge is managing the operational side without creating legal exposure.

Here’s a practical workflow many small businesses use when handling parental leave requests in WA (including maternity and partner leave).

Step 1: Ask For The Request In Writing (And Confirm Key Dates)

Even if the initial conversation happens in person, you should ask the employee to confirm their proposed leave dates in writing. You’ll typically want clarity on:

• the expected start date of leave,
• the expected due date (or adoption placement date),
• the intended return-to-work date, and
• whether they are requesting any additional leave or flexibility (now or later).

Then respond in writing confirming what’s been approved and any next steps. For national system employers, keep in mind the NES timing rules (including the usual 10 weeks’ notice requirement and confirmation of dates at least 4 weeks before leave starts).

Step 2: Request Evidence Early (But Keep It Reasonable)

It’s usually reasonable to request supporting evidence, such as a medical certificate. The key is to be consistent and respectful - you’re confirming eligibility and dates, not “testing” the employee.

Be careful about asking for unnecessary medical details. If you need information for safety or return-to-work reasons, focus on fitness for duties rather than personal medical history.

For example, if the employee is returning to a physically demanding role, you may be able to ask for medical clearance at the point of return - and having a process aligned with medical clearance to return to work principles can help you handle that consistently.

Step 3: Plan Coverage (And Document Replacement Arrangements)

You have a few common options to cover parental leave absences:

• temporary internal reallocation of duties,
• hiring a fixed-term replacement,
• engaging a contractor (with the right contractor agreement), or
• reducing capacity or adjusting service offerings for a defined period.

Whatever you choose, document it clearly and make sure the replacement understands the arrangement is temporary and linked to parental leave cover. If you use a fixed-term employee, ensure the contract is properly drafted so the role ends at the relevant time (and doesn’t accidentally create ongoing employment expectations).

Step 4: Keep In Touch (Without Applying Pressure)

Many businesses benefit from agreeing on a “keep in touch” approach. For example:

• who the employee should contact if they want updates,
• whether they want to be copied into major team announcements, and
• any training or system updates they may want before returning.

For national system employers, the NES also allows an employee on unpaid parental leave to perform up to 10 “keeping in touch” days (by agreement) without ending their parental leave. These days are optional, must be genuinely agreed, and are commonly used for training, important meetings or brief handover activities.

Be careful not to pressure the employee to “work while on leave”. The goal is respectful communication and a smooth return - not an expectation that they remain “on call”.

Step 5: Prepare For Return To Work (Role, Rosters, And Flexibility)

When the employee is coming back, think ahead about:

• confirming their return date in writing,
• any training or re-onboarding they may need,
• any safety considerations, and
• any flexible work request they may make.

If your operational needs have changed during the leave period (for example, you’ve restructured a team or changed operating hours), get advice before making changes that could affect the returning employee’s role. Return-to-work and role change issues during or after parental leave can be high risk if mishandled.

What Contracts And Policies Should You Update For Parental Leave?

Even if you’ve handled parental leave informally in the past, it’s usually worth tightening your documentation once your business starts growing.

The aim is to reduce uncertainty and ensure your team members are treated consistently - which is not only good culture, but also good risk management.

Employment Contracts

Your contracts should clearly set out the employee’s type (full-time, part-time or casual), pay arrangements, and relevant workplace terms. This can affect eligibility and how leave interacts with their role.

• A tailored Employment Contract helps set expectations for permanent staff.
• A properly drafted Employment Contract (Casual) is especially important if a casual employee later seeks parental leave entitlements and you need to assess whether they were regular and systematic.

Parental Leave Policy

A parental leave policy is one of the simplest ways to make sure your maternity and paternity/partner leave processes in WA are consistent.

A good policy can cover:

• how to request parental leave (including timelines such as the usual 10 weeks’ notice and 4-week confirmation requirement for national system employees),
• what evidence you may require,
• how extensions are handled (including response timeframes and the reasonable business grounds test),
• how the business will manage handovers and communication (including “keeping in touch” days, if relevant),
• how return-to-work planning will work, and
• how any employer-provided paid parental leave (if offered) operates.

Having a clear Parental Leave Policy can prevent misunderstandings, particularly when multiple employees take leave across different times of year.

Staff Handbook And Workplace Policies

If you have a team (even a small one), your broader handbook and policies should align with how you handle parental leave, flexible work requests, and discrimination and harassment risk.

The most important part is consistency: if you approve flexibility for one employee returning from parental leave, be prepared to justify why a similar request is handled differently for another employee in similar circumstances.

Exit Scenarios: Handle Carefully

Sometimes, parental leave overlaps with resignations, restructures, or performance issues.

If an employee resigns before, during, or immediately after parental leave, final pay needs to be calculated correctly, including any outstanding entitlements. A structured process for calculating final pay can help you avoid underpayments and disputes.

Where you’re considering redundancy, role changes, or termination during pregnancy or parental leave, it’s particularly important to get advice early - these are high-risk scenarios for claims if mishandled.

Key Takeaways

• Maternity leave and paternity/partner leave in WA often sit under national workplace laws for most private sector employers, but some businesses may fall under the WA state system - knowing which applies is the first step.
• Minimum parental leave entitlements often depend on eligibility, including length of service (and special rules can apply for long-term casuals).
• For national system employers, key NES rules include giving (and tracking) notice - usually 10 weeks’ written notice, confirmation of dates at least 4 weeks before leave starts, and specific timing and response obligations for extensions.
• Be cautious about replacement arrangements - parental leave includes return-to-work protections, so plan coverage as temporary and document it clearly.
• Strong documentation (including an Employment Contract and a Parental Leave Policy) helps you treat staff consistently and reduces the risk of disputes.
• If parental leave overlaps with resignations, restructures, or terminations, get advice early - these situations can carry extra legal risk.

General information only: This article is general information and does not constitute legal advice. Parental leave obligations can vary depending on whether you’re in the national or WA state system, and whether an award, enterprise agreement or contract applies. Consider getting advice for your specific situation.

If you’d like help setting up your parental leave documents or managing a maternity leave or paternity/partner leave request in WA, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.