It’s a dilemma not uncommonly encountered in workplaces – an employee is on maternity leave and becomes pregnant again, and requests a second period of maternity leave. While from an operational perspective, it may require extending or replacing a contractor – legally, employers are bound to accommodate subsequent requests for maternity leave unless there are reasonable business grounds for not granting the request.
Employment law experts at Holding Redlich told WorkplaceInfo that an employee who wishes to take a second period of parental leave immediately after another because they are pregnant again is entitled to do so. “The Fair Work Act does not deal directly with second and subsequent pregnancies. The only specification is that the employee must have been employed with you for at least 12 months prior to taking unpaid maternity leave (i.e. before the first instance),” Holding Redlich said.
Notably, the former Australian Industrial Relations Commission [functions transferred to Fair Work Australia] held that an employee does not need to work for another 12 months in order to be eligible for a second period of maternity leave.
Extending leave beyond the initial 12 months
Under the National Employment Standards (NES), an employee can request to extend the initial 12 month period of parental leave by up to an additional 12 months. These requests must be made to the employer in writing, at least four weeks before the end of the available parental leave period.
The employer is required to give their employee a written response as soon as practicable and no later than 21 days after the request is made.
In a nutshell, if an employee wishes to extend their second period of unpaid parental leave (to 24 months), organisations must grant the request unless there are reasonable business grounds for not granting the request. According to the Fair Work Ombudsman (FWO) this could include:
The effect on the workplace and the business of approving the request, including the financial impact and the impact on efficiency, productivity and customer service
The inability to organise work among existing staff
The inability to recruit a replacement employee
Changing leave within the initial 12 months
After the period of parental leave has started, a request to extend a period of parental leave must be provided to an employer, in writing, at least four weeks before the end date for the parental leave.
If an employee has not requested a full 12 months parental leave, they can extend their leave, without approval from their employer, one time only.
When making this extension an employee must:
inform their employer four weeks before the end date for the parental leave with a written notification; and
include in the notification the new end date for the leave
Not exceed a total period of 12 months.
Any further requests to extend the leave up to a total period of 12 months from the time the leave began, must be agreed between the employer and the employee.
Requests to reduce a period of leave must also be agreed between an employer and an employee.
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