Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters Alison and Jillian Barrett from Maurice Blackburn help a worried mum who has kept her pregnancy secret from her boss.
QUESTION: I have worked for my employer for almost two years but I’ve been on a series of short-term contracts. Initially it was for 12 months and then it was extended for another 12 months. I love my job and would love to have a permanent contract. My current stint expires in early December and my boss has said they’re likely to give me another 12-month contract. The thing is, I’m six months pregnant and would need to go on maternity leave in February. I’ve kept it a secret from my boss (thank God for Zoom meetings!) as I’m worried they won’t give me a contract if they know. When do I legally have to tell them by? Also, what rights do I have when it comes to paid maternity leave? I’m worried I’m going to be left broke with a newborn. I’ve been loyal to this company and feel like I deserve maternity pay but I know they won’t give it to me unless they legally have to. – Mary, NSW
ANSWER: Congratulations on your pregnancy! Planning for a new baby can be such an exciting time, but we understand it can also be challenging – especially if there are concerns around your work and finances.
In Australia there is no entitlement to paid parental leave, but some companies – usually larger ones – do provide it.
If your employer provides paid parental leave, you’ll likely find the details in your employment contract, enterprise agreement, or your employer’s parental leave policy.
You should review these documents and see what your entitlements are, noting that internal policies are generally not legally enforceable in the same way as an employment contract or enterprise agreement.
If you don’t have access to paid parental leave, then you can ask to use your annual leave and your employer may agree to pay a portion of this for a longer period (ie half of your normal wage for double the time).
You are not entitled to use any accrued personal (sick) leave for your pregnancy unless you have a pregnancy-related illness.
It sounds like you have met the work test to be eligible for government-paid parental leave. You should check the Services Australia site for more information about this scheme, including whether you meet the income test.
If your employer doesn’t provide paid parental leave, all employees in Australia are eligible for 12 months unpaid parental leave if they have completed at least 12 months of continuous service with their employer.
This law also applies to casual employees if they’ve been regularly or systematically employed for the same period. Given your circumstances, you are likely to be eligible for this unpaid parental leave.
There is no legal requirement to tell your employer that you are pregnant. However, if you wish to access unpaid parental leave, then you must provide them with written notice at least 10 weeks before you intend to start the leave.
If you don’t provide the required written notice, then you won’t be able to access unpaid parental leave and the protections it gives to employees, such as the entitlement to return to your pre-parental leave position, or an equivalent position, upon your return from parental leave.
Your employer may ask for confirmation of your pregnancy, such as a medical certificate. Practically, this does not happen often. However, as you have been working from home and have not disclosed your pregnancy, they may ask for it.
If you tell your employer you are pregnant and they terminate your employment, then you may be able to make a claim for pregnancy discrimination. Strict time limits of between six and twelve months apply for making discrimination complaints, so you should get legal advice as soon as possible if you think you have experienced discrimination due to your pregnancy.
Your employer cannot terminate a short-term contract before its end date unless this is specifically allowed by your contract. If your contract is not renewed, you may be able to claim for unfair dismissal if you can demonstrate your employment came to the end at your employer’s initiative. Evidence such as that the intention to renew the contract was communicated to you, the contract had been renewed previously and the work you are doing is likely to continue, may be useful with such a claim.
You may also have a general protections claim against your employer if you notify them of your intention to take unpaid parental leave and then your contract is not renewed or other adverse action is taken against you.
We have also considered whether you may have a right to convert from a fixed temporary contract to a permanent contract.
Unfortunately, there are no national laws requiring this. A number of state government employers do provide for this, as do a number of private companies in their employment contracts or enterprise agreements. You should review those documents to check your rights.
For more specific advice about your situation, you should contact an employment lawyer or the Fair Work Ombudsman.
This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor.
If you have a legal question you would like Alison and Jillian to answer, please email email@example.com
Get more from Alison and Jillian on their Facebook page