To be eligible for unpaid parental leave under the National Employment Standards, a full-time, part-time or long-term casual employee must have completed at least 12 months’ continuous service at the date of birth, or expected date of birth, of the child.

But what happens if an employee doesn’t qualify?

Consider this scenario: a full-time employee who is pregnant will not have completed 12 months' service before the expected date of birth of her child. This means she won’t be entitled to apply for unpaid parental leave under the Fair Work Act. Management is looking at what options are available to the employee, such as unpaid leave before the birth of the child.

Does the employee have any statutory entitlements or protections in this circumstance?

Employee entitlements

An employee who is pregnant, but not entitled to unpaid parental leave under the National Employment Standards has several entitlements and protection under the Fair Work Act and the relevant Commonwealth, state and territory equal opportunity legislation.

There are several options available to the employer and employee in this situation: some can be arranged by agreement between the employer and employee, while other options are statutory entitlements.

Personal/carer’s leave

An employee may take paid personal leave if the leave is taken because the employee is not fit for work because of a personal illness or personal injury.

The employee could access paid carer’s leave after the birth of the child. This leave is available to provide care or support to a member of the employee’s immediate family (such as a child), or a member of the employee’s household, who requires care or support because of a personal illness, or personal injury, affecting the member; or an unexpected emergency affecting the member.

The National Employment Standards provide an employee, other than a casual employee, with an entitlement to 10 days’ paid personal/carer’s leave each year, or proportionately for part-time employees. 

Transfer to a safe job

The Fair Work Amendment Act 2013 varied the Fair Work Act to allow a pregnant employee to transfer to a safe job even if they are not eligible for unpaid parental leave.

The Fair Work Act (s81) provides that a pregnant employee, including a casual employee, who has given an employer satisfactory evidence that she is fit for work – but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of illness or risks arising out of her pregnancy, or hazards connected with that position – is entitled to an appropriate safe job if such job is available. 

An appropriate safe job is one that has the same ordinary hours of work as the employee’s present position, or a different number of hours as agreed to by the employee. 

No safe job leave

Where there is no appropriate safe job available, an employee is entitled to unpaid “no safe job leave” for the risk period, if she is not entitled to unpaid parental leave. The employee is entitled to paid no safe job leave if entitled to unpaid parental leave.

Therefore, all pregnant employees, including those employees not eligible for parental leave under the Standards, are entitled to be transferred to an appropriate safe job, provided they have met the evidentiary requirements and there is an appropriate safe job available. 

Unpaid leave

Leave without pay is usually granted at the discretion of an employer – an employee does not have a statutory entitlement to leave without pay.

In the above scenario, depending on the individual’s circumstance, it may not be necessary for the parties to negotiate a period of unpaid leave, but the employer should discuss with the employee any changes that need to be made so the employee can continue to work safely during her pregnancy. 

Annual leave

If the employee has exhausted their accrued personal/carer’s leave, the employee may request to take a period of accrued paid annual leave which cannot be unreasonably refused by the employer. 

Protection from discrimination

There are a number of statutory obligations which protect an employee from being treated less favourably by their employer based on discriminatory grounds, such as pregnancy.

Commonwealth, state and territory equal opportunity legislation protects an employee from unlawful action by their employer, such as treating a woman unfavourably because of pregnancy, if an employee plans to be pregnant, or the employee could become pregnant.

Discrimination law requires an employer to reasonably accommodate the employee in this situation. This could include more breaks, different starting and finishing times, provision of a car space, and a chair to sit if the job involves standing up for long periods.

The bottom line:  While an employee may not be entitled to unpaid maternity leave, there are several statutory leave entitlements under the Fair Work Act – the option of leave without pay, as well as statutory protection from discrimination under equal opportunity laws.