Work & Family

e-print e-mail

Frequently Asked Questions

Following is a list of frequently asked questions and answers relating to the work and family provisions of the Industrial Relations Act 1996 (NSW) and the Anti-Discrimination Act 1977 (NSW). These Acts contain provisions prescribing the minimum rights and entitlements of persons employed under NSW industrial instruments.

1. Am I entitled to parental leave?
2. How long is parental leave?
3. Is parental leave paid leave?
4. Do I have to take maternity leave?
5. Who is a spouse for the purposes of parental leave?
6. How much notice should I give my employer of my intention to take parental leave?
7. Do I need to provide any other documents regarding my intention to take parental leave?
8. What if I have not given my employer the correct amount of notice?
9. Can I work while I am on parental leave?
10. Can I use my annual leave instead of parental leave?
11. Can I use maternity leave or paid sick leave to attend pre-birth medical appointments?
12. What if I become ill or cannot perform my usual duties?
13. Can I be dismissed or demoted (because I am pregnant or might become pregnant)?
14. Can I refuse to work overtime or undertake extra duties at work if it clashes with my childcare arrangements?

15. Who do I contact if I am being discriminated against or harassed at work?

1.  Am I entitled to parental leave?

To be eligible for parental leave, you must be:

• a full-time or part-time employee with at least 12 months continuous service with your employer; or
• a casual employee who has had a regular working pattern with your employer for 12 months continuously, which is expected to continue.

This is the minimum entitlement in NSW. Some people employed under workplace agreements may be entitled to parental leave before providing 12 months continuous service. If you are unsure, ask your employer.

top

2.  How long is parental leave?

• The maximum amount of parental leave - maternity, paternity or adoption leave - an employee is entitled to under NSW industrial relations legislation is 52 weeks.
• A male employee is entitled to take short paternity leave for a maximum of one week in relation to the birth of his child or his spouse's child.
• A male employee is entitled to extended paternity leave up to a maximum of 52 weeks (including any short paternity leave taken) to be the primary care giver of the child.
• An employee is entitled to three weeks' short adoption leave at the time of placement of their child.
• An employee is entitled to extended adoption leave up to a maximum of 52 weeks (including any short adoption leave taken) to be the primary care giver of a child up to the age of five years.
• Parents may not be on parental leave at the same time except in relation to short paternity and short adoption leave.

3.  Is parental leave paid leave?

Parental leave is unpaid leave unless your workplace agreement or contract of employment stipulates otherwise.

top

4.  Do I have to take maternity leave?

You cannot be forced to take maternity leave under NSW legislation. Some people employed under commonwealth legislation and certain federal workplace agreements are subject to mandatory periods of maternity leave.

top

5.  Who is a spouse for the purposes of parental leave?

For the purposes of parental leave under the NSW Industrial Relations Act, spouse means husband or wife, or defacto partner of the opposite sex. Spouse may only include a same sex partner where the particular workplace agreement or contract of employment provides.

top

6.  How much notice should I give my employer of my intention to take parental leave?

Maternity and Extended Paternity Leave

• For maternity leave and extended paternity leave, you should give your employer at least ten weeks' notice in writing of your intention to take the leave; then
• at least 4 weeks' before taking the leave, you should give your employer written notice of the dates on which you propose to start and end the period of leave.

Extended Adoption Leave

• In the case of extended adoption leave, you should give written notice of any approval or other decision to adopt a child at least 10 weeks' before the expected date of placement; then
• written notice of the dates on which you propose to start and end the period of leave, as soon as practicable after you are notified of the expected date of placement of the child but at least 14 days before proceeding on leave.

7.  Do I need to provide any other documents regarding my intention to take parental leave?

Maternity Leave
For maternity leave, you must, before the start of leave, provide:

• a doctor's certificate confirming that you are pregnant and the expected date of birth; and
• a statutory declaration stating, if applicable, the period of any paternity leave sought or taken by your spouse.

Paternity Leave
For paternity leave, you must, before the start of leave, provide a certificate from a medical practitioner confirming that your spouse is pregnant and the expected date of birth.

Extended Paternity Leave
For extended paternity leave, you must, before the start of leave, provide a statutory declaration stating, if applicable, the period of any maternity leave sought or taken by your spouse. You must also indicate that you are seeking that period of extended paternity leave to become the primary care-giver of a child.

Adoption Leave
You must, before the start of leave, provide a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes.

Extended Adoption Leave
In the case of extended adoption leave, you must, before the start of leave, provide a statutory declaration by the employee stating, if applicable, the period of any adoption leave sought or taken by your spouse. You must also indicate that you are seeking that period of extended adoption leave to become the primary care-giver of a child.

top

8.  What if I have not given my employer the correct amount of notice?

Your employer is obliged, on becoming aware that you or your spouse is pregnant or adopting a child, to inform you of your parental leave entitlements and of your obligations to give notice and provide documents as required by the Industrial Relations Act. Your employer cannot rely on your failure to do these things to withhold your entitlements unless he or she establishes that he or she has in fact informed you of your rights and obligations under the legislation.

top

9.  Can I work while I am on parental leave?

You may work while on parental leave but you must take certain things into consideration.

Working Part-Time for Your Current Employer
If your employer asks you to return to work temporarily during your period of parental leave, you may do this if you wish and then return to your parental leave, but you must still complete your leave within one year of its commencement unless your employer agrees to an extension. It is advisable to have the agreed details of the interruption to your parental leave in writing, including the number of hours and weeks to be worked, rate of pay and your right to return to parental leave, to avoid confusion.

Working for Another Employer
You may work for another employer while on unpaid parental leave as long as you don't compromise your current employment relationship. This means, for example, that you probably cannot work for your employer's competitor. If you are unsure, you should consult your employer before commencing temporary employment with another employer.

The employer from whom you are taking leave is entitled to require that you provide a statutory declaration or enter into an agreement that you will not do anything inconsistent with your employment contract while you are on parental leave.

top

10.  Can I use my annual leave instead of parental leave?

You may combine your unpaid parental leave with any period of annual holiday leave or long service leave that you are entitled to. The combined types of leave must not, however, exceed the maximum period of 52 weeks unless your employer agrees.

top

11.  Can I use maternity leave or paid sick leave to attend pre-birth medical appointments?

The Industrial Relations Act does not entitle you to use paid sick leave for pre-natal medical appointments when you are not sick. Some workplaces have policies which allow the use of sick leave for ordinary pre-natal check ups and similar arrangements may be provided for in some workplace agreements and employment contracts. Other employers may require you to negotiate other arrangements.

top

12.  What if I become ill or cannot perform my usual duties?

If you become ill
If you become ill and unable to work due to your pregnancy, and are entitled to paid sick leave, you may take as much of this leave as is certified necessary by a medical practitioner.

If you are not entitled to paid sick leave, you may take special maternity leave. Special maternity leave is unpaid leave, it is separate from maternity leave, and you may take as much special maternity leave as is certified necessary by a medical practitioner. At no time should you feel that your job security is threatened because you have become ill due to your pregnancy.

If you are unable to perform your usual duties
If you are unable to perform your usual duties because the tasks or the workplace pose a risk to you or your unborn child or to your newborn child, your employer must endeavour to make temporary alternative arrangements for you at the workplace to avoid the risk.

If the making of alternative arrangements is not possible or practicable, your employer must grant you unpaid maternity leave for as long as is necessary (as certified by a medical practitioner) to avoid the risk. At no time should you feel that your job is in jeopardy because of a hazardous situation at the workplace.

top

13.  Can I be dismissed or demoted (because I am pregnant or might become pregnant)?

It is illegal in NSW to dismiss or otherwise treat unfavourably any employee solely on the ground that she is pregnant or thought likely to become pregnant. If you feel you are being discriminated against in this way, you should contact the Office of Industrial Relations or the NSW Anti-Discrimination Board.

top

14.  Can I refuse to work overtime or undertake extra duties at work if it clashes with my childcare arrangements?

The NSW Anti-Discrimination Act makes it against the law to treat an employee with family responsibilities less favourably than an employee without such responsibilities. If you are unable to undertake overtime or extra duties because of your family responsibilities, your employer should not treat you any worse than a person who is free to do this extra work because of it - by offering them promotional or training opportunities that are not offered to you, for example. To do so may amount to unlawful discrimination. If you feel you are being discriminated against in this way, you should contact the Anti-Discrimination Board of NSW.

top

15.  Who do I contact if I am being discriminated against or harassed at work?

You should contact the Anti-Discrimination Board of NSW on (02) 9268 5544.