Maternity leave and your rights as a new mother

Staring into the eyes of your newborn baby for the first time, thoughts of returning to work are probably the last thing on your mind. However, as time goes on, many new mums start to consider what their rights as a mother in the workplace will be after returning from maternity leave.

How much time off can I have with my baby?

Australian employers must give part-time or full-time working mums of newborns the option to take 12 months’ unpaid leave if they’ve worked continually for the company for at least 12 months. This law also applies to casual employees if they’ve been regularly or systematically employed for the same period.

Employees taking parental leave can ask for another 12 months’ leave (up to 24 months) by putting their request in writing and presenting it to their employer for consideration at least four weeks before the original return date. Employers have 21 days to respond in writing and can refuse the request only on reasonable business grounds.

At the other end of the scale, some women are eager to get back to work. A number of awards have a ‘confinement period’ clause, which stipulates that the birth mother must have at least two to four weeks off.

What if my job is different when I return to work after maternity leave?

Some mums want to go straight back to full-time work, others request a part-time role and still others choose not to return.

As companies evolve, some jobs may no longer exist or may be unachievable on part-time hours. However, the law stipulates that if a job no longer exists then employers must offer new mothers suitable positions that carry a pay rate and status similar to their previous jobs.

Can I return to work part-time after maternity leave?

If you decide you want to work part-time in order to continue caring for your child, your employer must consider flexible working arrangements and can decline only on reasonable business grounds. However, disappointingly, according to the Fair Work Act, an employee cannot sue their employer for damages if the employer unreasonably refuses the employee’s request.

Am I entitled to government-paid parental leave?

To receive the Australian Government Parental Leave Pay, employees must meet the government’s eligibility test. The Department of Human Services states that the person seeking government paid parental leave must have worked for at least 10 of the 13 months before the birth or adoption of their child; worked at least 330 hours in that 10-month period, which is slightly more than one day per week; and had no more than an eight-week gap between any two consecutive working days.

Will my employer give me paid parental leave?

Most big companies have an additional parental-leave scheme of their own, but this varies from employer to employer. Take the NSW Government, for instance. As one of Australia’s largest employers, it has a parental-leave scheme available to around 400,000 employees.

If your company has this scheme in place, you’ll find its details in the relevant award, enterprise agreement, policy or in your contract of employment.

What about breastfeeding when you return to work after maternity leave?

Australian laws protect breastfeeding mothers from discrimination, and refusing to make arrangements for women to breastfeed at work is generally against the law. Many companies now have breastfeeding facilities to make it easier for working mums to express milk for their babies so they can continue to breastfeed.

When a mother returns to work, her employer can do a number of things to help her continue to breastfeed, such as designate areas where she can express milk in private and provide fridges to store milk. Some employers even permit mothers to leave work to feed their babies, allowing them to make up the time later.

Awards, contracts, policies and private agreements differ among workplaces, so the best strategy is to talk with a manager or Human Resources to work out a plan that suits you both before you return to work from maternity leave.

What if my role has changed or no longer exists?

I’ve come across people who have returned to work after maternity leave and found that their job is no longer available. Sometimes, an employee’s job has changed, and the employer offers them another job that management claims is of equal standing to the employee’s former role — but it isn’t. Legally, your employer must find you a suitable role that’s equal to the position you held when you left for maternity leave. If you feel that the role on offer carries less status or remuneration you should address this with your boss and if this fails, seek legal advice.

Some women feel pushed into resigning because they’re uninterested in pursuing a new role. However, you should never bow out of your job because of disappointment in your new position without first having a conversation with your boss.

If your new role is all they can offer, and it’s equal in pay and status to your pre-maternity leave position, you may be unable to pursue a case; however, you might want to consider speaking with a lawyer to see how they can help.

I’ve also seen women who’ve been on maternity leave return to work only to find that their employer has made them redundant. In these cases, there’s often a real question mark as to whether it’s happened because they have taken parental leave or because the company has undertaken a genuine restructure. In the case of the latter — a situation in which the employer has made several people redundant as part of a genuine reconfiguration of its operations, and you have no reason to believe that they’ve singled you out for redundancy— you may have no legal case, and redundancy could be your best option.

What if my colleagues received pay rises while I'm on maternity leave?

Another problem I’ve encountered is that mothers who return to work can find that their co-workers have received pay rises while they’ve been away. This situation can make women feel that they’re 12 months behind and need to play catch-up, especially if their employers have promoted colleagues to levels above them. If you feel that you deserve a pay rise, too, talk to your manager. You may simply have to complete some training programs before you can secure the pay rise.

Part-time workers can also face problems on return to work after maternity leave. Having chosen to work fewer hours in order to spend more time at home with their babies, they can feel that their career has taken a hit and consequently find it much harder to climb the corporate ladder. In fact, this is arguably one of the biggest reasons for the gender pay gap’s existence and is certainly one reason that improving the management of mothers’ return to work is still such a live issue.

What can you do if you find your role has changed while you've been on maternity leave?

If you think your employer has treated you unfairly on your return to work, your best bet is to check your entitlements and to talk to your manager about any concerns. If you feel that your role has significantly changed since your departure for maternity leave, and that your employer has failed to offer a reasonable replacement role, speak to an experienced employment lawyer. They can look into whether you’ve been subject to any discrimination because of your responsibilities as a carer or as a result of taking parental leave.