Back-to-back maternity leave: Employer obligations

by HCA14 May 2012

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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COMMENTS

  • by Dale Wiese, Behaviours at Work 14/05/2012 7:00:32 PM

    This issue requires further clarification, and for the purpose of this comment I will seek to distinguish between what are in effect two Parental (Maternity) Leave entitlements, one being subsequent to the other.

    The first period of Parental leave is an entitlement to an actual period of leave of up to a maximum 12 months, where there is an obligation on the employee to notify their employer of their leave intentions, but the employer cannot deny the employee taking their Parental Leave entitlement.

    The second entitlement available to the employee is to request an additional period of Parental Leave of up to a further 12 months. Thus, an employee is entitled to make a request for an additional period of Parental Leave, but they do not have an actual entitlement to that additional period of leave. As set out in the article, an employer is not obligated to agree to the request if they can demonstrate there are reasonable business grounds which would preclude them from agreeing to it.

    Both entitlements, as set out in the article, are equally dependent on the employee having completed a 12 month qualifying period of service with the employer, and one is clearly subsequent to the other.

    As I understand the entitlement that an employee has under the NES to request an additional period of Parental (Maternity) Leave is an entitlement that follows in relation to the entitled Parental leave that has been taken. Thus, it appears to stand that the intent is for both the entitled Parental Leave and the entitlement to request an additional period of Parental leave to relate to the same pregnancy/child birth.

    Based on the scenario portrayed in the article, if an employee were to become pregnant again during either the period of her entitled Parental Leave period for the first pregnancy/childbirth or during any additional period requested and agreed to by the employer, my understanding is that the employee will accrue a second entitlement to a period of Parental Leave of up to 12 months for the second pregnancy/child birth and will again be entitled to request an additional period of Parental leave in relation to the second pregnancy.

    Thus, depending on timings and the wishes of the employee, it is feasible that an employee could move from one entitled period of Parental Leave straight into another entitled period of Parental Leave, thus making any entitlement to request an additional period of Parental Leave in relation to the first pregnancy/child birth a moot point. An entitlement to request an additional period of Parental leave would continue to exist in relation to the second pregnancy/child birth.

    Again depending on timings and the employee's wishes it is equally feasible that an employee could take an entitled period of Parental Leave, then exercise their entitlement to make a request for an additional period of Parental Leave. this could then be followed by the employee taking their second entitled period of Parental leave for the second pregnancy/child birth (which could come about earlier than originally planned by the employee if a request for an additional period of Parental leave in relation to the first pregnancy/childbirth is denied by the employer) and again exercising their entitlement to make a request for an additional period of Parental Leave.

    I apologise if my description of the circumstances/feasible circumstances appears as clear as mud, but the scenario portrayed in the article may not be as clear cut as it appears, and whilst such a circumstance may not be common it would require further clarification.

  • by Robin Pollock 4/07/2012 2:31:30 PM

    And following on from Dale Wiese's comments which I totally agree with, the whole thing could be perpetuated for several back to back pregnancies. I was as good as told that when about 18 months ago when I contacted FWA for clarification on the issue of the 2nd pregnacy whilst still on P/L for the 1st. Their response was there was no restriction to the number of parental leave applications which could be made. Mind you, I surmised that the FWA staffer who took my call, hadn't a clue and I was a first to ask this question but even after checking with a superior, she remained a bit vague. Like a lot of employment law, someone comes up with an idea but fails to think the detail thru in all its implications. So let's have it.

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