The Fair Work notice rule is tied to your parental leave. To take unpaid parental leave you need to give your employer at least 10 weeks' written notice before the leave starts. Whenever you tell them, your employer can't fire you, demote you or treat you differently because you are pregnant.
What notice do you have to give?
Under the National Employment Standards, an employee taking unpaid parental leave must give at least 10 weeks' notice before the leave starts. The notice must:
- be in writing
- say how much leave you want to take
- include the start and finish dates, if you are taking continuous leave.
At least 4 weeks before the leave starts, you confirm the dates, or tell your employer about any changes. If you can't give 10 weeks' notice, for example because the baby arrives early, you give notice as soon as possible and you are still entitled to the leave.
Your employer can ask for evidence of the expected date of birth, such as a medical certificate. If you don't provide evidence they ask for, you won't be entitled to the leave.
Who is eligible for unpaid parental leave?
You need to have worked for your employer for at least 12 months before the expected date of birth. Casual employees also need to have been working on a regular and systematic basis for 12 months, with a reasonable expectation of that continuing. Your workplace policy may set its own notice steps for paid parental leave, so read it alongside these rules.
What are you protected from once your employer knows?
Pregnancy is a protected attribute under the Fair Work Act, as are sex, marital status and family or carer's responsibilities. An employer can't take adverse action against you because of it. Adverse action includes firing you, changing your job to your disadvantage, treating you differently from others, or refusing to hire you. The protection covers job applicants and new employees who haven't started yet.
The Fair Work Ombudsman's own example is an account manager who tells her manager she is pregnant and is then pulled from a training course the rest of her team can attend. That is discrimination.
What other rights do you have while pregnant?
- A safe job. Every pregnant employee, including casuals and people with less than 12 months' service, can be moved to a safe job if their current role isn't safe for a period because of the pregnancy. If no safe job is available, you can take no safe job leave, which is paid if you are eligible for unpaid parental leave and have given the notice and evidence.
- Unpaid special parental leave. If you are eligible for unpaid parental leave, you can take it while unfit for work because of a pregnancy-related illness, or after a pregnancy loss after 12 weeks. It doesn't reduce your parental leave.
- Sick and compassionate leave. You can use sick leave for a pregnancy-related illness. Compassionate leave covers a miscarriage.
- Flexible working requests. Pregnant employees can request changes to hours, patterns or location of work in certain circumstances.
Can you be made redundant while pregnant or on leave?
A genuine redundancy can still happen. If your job is made redundant while you are on parental leave, your employer must give you the correct notice and pay your entitlements, including redundancy pay. If they decide on a significant change that affects the status, pay or location of your job while you are on unpaid parental leave, they must take reasonable steps to tell you and give you a chance to discuss it at the time the decision is made.
An employer can't dismiss you because you are pregnant, on parental leave or have caring responsibilities. If you think that is why you lost your job, you have 21 days from the day after the dismissal to apply to the Fair Work Commission under the general protections. Our guide to redundancy pay covers what you are owed if the redundancy is genuine.
What did TAC readers tell us?
We asked our community how they protect themselves before announcing a pregnancy.
Most said to hold off telling work until a set point, such as 12 weeks, when the bump shows or the 10 week notice deadline. Many described being treated differently, managed out or made redundant after they told.
Do not announce/inform until 10 weeks before commencing maternity leave. Start diarising everything relevant that happens from the moment you inform them. Keep receipts basically!! In case anything dodgy happens
Make sure to have done your performance reviews first if possible and have written record of it (I delayed announcing it until I had done my performance review with positive feedback). ... I got treated differently after announcing it so would’ve delayed it even longer.
Also, just to add, I got made redundant at 34 weeks pregnant so even then, there's no safety
Wait as long as possible to share/don't share until you absolutely have to!
A reader who told her manager at 7 or 8 weeks, because she was unwell:
I ended up miscarrying around 9 weeks, and was glad to have already told her about the pregnancy as she was fully prepared to support me through the loss and did everything she could to do so, including communicating with HR on my behalf (which I fully trusted her to do).
This is general information, not legal advice. Your award, agreement or workplace policy may give you more.
Sources
- Fair Work Ombudsman, Applying for parental leave (eligibility, 10 weeks' written notice, 4 week confirmation, evidence)
- Fair Work Ombudsman, Entitlements while pregnant (safe job, no safe job leave, unpaid special parental leave, sick and compassionate leave, flexible work, discrimination)
- Fair Work Ombudsman, Protection from discrimination at work (protected attributes, adverse action, the training course example)
- Fair Work Ombudsman, Ending employment during parental leave (redundancy, consultation, dismissal)
- Fair Work Ombudsman, Protections at work (21 days for general protections dismissal applications)
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