How Maternity Leave Works In Australia

Planning for a new baby is exciting - and if you’re an employer or an employee in Australia, it’s important to understand how maternity and parental leave actually works in practice.

In Australia, “maternity leave” is generally referred to as parental leave. There are two parts to consider: unpaid parental leave under the National Employment Standards (NES) and the Australian Government’s Paid Parental Leave scheme administered by Services Australia.

Below, we’ll break down eligibility, how much leave you can take, notice and evidence rules, how pay works, and your rights and obligations during and after leave. We’ll also cover the key policies and documents employers should have in place to stay compliant and support their team.

What Is Maternity (Parental) Leave Under Australian Law?

Under the Fair Work Act’s National Employment Standards (NES), eligible employees can take unpaid parental leave when they give birth, their partner gives birth, or they adopt a child.

This entitlement applies to both parents (birth and non‑birth/partner) and includes several flexible options - for example, taking blocks of leave or a mix of continuous and flexible days within a set timeframe after the birth or adoption.

Separately to the NES, the Australian Government offers Parental Leave Pay (PLP), which is a government payment that eligible parents can claim through Services Australia. PLP is not a payment employers must fund (unless you have your own internal paid leave policy or are directed by Services Australia to act as the paymaster in certain circumstances).

Who Is Eligible For Unpaid Parental Leave?

To qualify for unpaid parental leave under the NES, an employee generally needs to have completed at least 12 months of continuous service with their employer before the expected date of birth or adoption.

• Full-time and part-time employees: Eligible if they meet the 12‑month service requirement.
• Casual employees: Eligible if they’ve been employed on a regular and systematic basis for at least 12 months and had a reasonable expectation of ongoing work before the leave is due to start.

Eligible employees can take up to 12 months of unpaid parental leave, and they can request an additional 12 months (up to 24 months total). The request for an additional period can only be refused on reasonable business grounds, and the employer must respond in writing.

Employees can also access flexible unpaid parental leave (limited to a set number of days within a defined period after the birth or adoption) to ease the transition back to work. This sits alongside the option of taking a single continuous block.

If you’re navigating unique circumstances - for example, a new hire still within probation - the same NES rules apply to eligibility and notice. It’s worth understanding how taking leave during probation works so you can plan timelines and expectations clearly. You can read more about taking leave during probation.

How Much Leave And Pay Can You Get?

Unpaid Parental Leave (NES)

Under the NES, eligible employees can take up to 12 months of unpaid parental leave and may request up to an additional 12 months. Parents can take some of this leave at the same time, and there are rules allowing flexible days of unpaid leave within a specific window after the birth or adoption.

Government Paid Parental Leave (PLP)

Government PLP sits on top of (and does not reduce) an employee’s NES entitlement to unpaid parental leave.

• PLP is a government-funded payment (not an employer-funded entitlement, unless you offer paid leave in your own policy).
• The payment weeks are increasing in stages (with the aim of reaching 26 weeks by 2026). Check the latest Services Australia settings for the exact number of weeks available in the current financial year.
• Eligibility is assessed by Services Australia using income, work test and other criteria. Either or both parents can share the entitlement, and it can usually be taken flexibly.

Employers are generally not required to pay superannuation on PLP unless your own policy says otherwise. If you offer a top-up or employer-funded paid leave, consider whether super will apply under your usual payroll and policy settings.

Do Other Leave Types Accrue During Parental Leave?

• Unpaid parental leave: Annual leave and personal/carer’s leave generally do not accrue during periods of unpaid parental leave.
• Paid leave (if offered by your policy): Accrual rules depend on how your policy is structured and what is considered service. Get tailored advice and reflect your approach in your Parental Leave Policy.

Special Maternity Leave And Safe Job Provisions

The NES includes specific protections for pregnant employees:

• Special maternity leave: If a pregnancy ends after 12 weeks (other than due to the birth of a living child), or if the employee has a pregnancy-related illness, they may take unpaid special maternity leave. Evidence requirements apply.
• Safe job: If a pregnant employee cannot perform their normal job safely, they may be transferred to a safe job on the same pay or, if none is available, may be entitled to paid or unpaid “no safe job” leave depending on award/agreement and timing.

What Notice And Evidence Do Employees Need To Provide?

There are clear timing and evidence rules under the NES. These help both sides plan effectively.

• Notice to take unpaid parental leave: At least 10 weeks’ written notice before the intended start date, stating the intended start and end dates. A written confirmation (or any changes) should be provided at least 4 weeks before the start date.
• Evidence: Employers may ask for evidence that would satisfy a reasonable person (for example, a medical certificate or evidence of expected adoption placement).
• Flexible days: If an employee plans to take flexible unpaid parental leave days, they should follow the prescribed notification process and timeframe.

For government PLP, Services Australia manages the application and evidence process directly with the parent(s). Employers should avoid requesting unnecessary medical information and handle any personal information in line with privacy and anti‑discrimination laws, as well as your internal Workplace Policy settings around confidentiality and data handling.

What Happens During Parental Leave?

Keeping In Touch Days

Employees on unpaid parental leave can perform a limited amount of paid work (often called “keeping in touch” days) without ending their leave. These days help employees stay connected, attend training or meetings, and ease the transition back to work. Limits apply to how many days/hours can be worked and when they can be used - make sure any arrangement is voluntary and documented.

Communication While On Leave

Maintaining respectful, occasional contact is encouraged. Typical touchpoints include payroll queries, major organisational updates, role changes, or invitations to planning sessions. Your Parental Leave Policy can set expectations about check‑ins so there are no surprises on either side.

Public Holidays And Shut Downs

• If an employee is on unpaid parental leave during a public holiday, there’s usually no separate entitlement because the day isn’t a working day.
• If your business has a shutdown (e.g. over Christmas), consider how this interacts with flexible unpaid days, KIT days and any award/agreement rules. Communicate early to avoid confusion.

Workplace Changes While Someone Is Away

Major changes (for example, restructures or redundancy proposals) still need to follow the usual consultation obligations under awards/agreements and the NES. Pregnancy and parental status are protected attributes - adverse action or discrimination because someone is pregnant or on leave is unlawful. If issues arise, it’s wise to get advice, especially where there could be allegations of discrimination claims.

Returning To Work: Rights, Requests And Practical Steps

Return To Work Guarantee

Employees have a right to return to their pre‑leave position. If that position no longer exists, they must be offered an available position nearest in status and pay to their pre‑leave role.

Flexible Work Requests

Parents of young children (and certain other employees) can request flexible working arrangements, such as changes to hours or patterns of work. Employers must follow the formal request-and-response process, consider the request genuinely, and can only refuse on reasonable business grounds with written reasons. Embedding clear procedures in your Workplace Policy and aligning your Employment Contract terms makes this smoother in practice.

Breastfeeding And Workplace Adjustments

Providing reasonable facilities and breaks for breastfeeding or expressing supports a safe, inclusive workplace. This sits alongside your general work health and safety obligations and anti‑discrimination laws.

Phased Return And Annual Leave

Some employees choose a gradual return (for example, part‑time at first) or to use annual leave to supplement income for a period. Others may access unpaid leave options for additional flexibility. Having the conversation early helps you plan rosters, client coverage and handovers.

Policies, Contracts And Documents To Put In Place

Whether you’re an established employer or hiring your first team member, the right documents make parental leave easier and legally compliant.

• Parental Leave Policy: Sets out eligibility, notice, evidence, flexible days, keeping in touch arrangements, and how your business handles employer-funded paid leave (if any). Start with a clear, accessible Parental Leave Policy and make sure managers know how to apply it consistently.
• Employment Contract: Confirm core terms such as role, hours, location, and any award coverage. Ensure it aligns with your leave policy and the NES. Use a robust, plain‑English Employment Contract for full‑time and part‑time roles, and use an appropriate agreement for casuals.
• Workplace Policies: A broader suite - for example, discrimination and harassment, flexible work, WHS and privacy - helps set expectations and shows you’re serious about compliance. Keep these together in a single, easy-to-find Workplace Policy framework or staff handbook.
• Payroll And HR Procedures: Internal checklists for notice handling, evidence collection, PLP communications, keeping-in-touch days and return-to-work steps. These aren’t legal documents but are essential for consistent administration.
• Partner And Dad Leave Information: Many families share leave. If you have resources for partners, consider linking to guidance on paternity leave so employees understand the options.

If you already have policies, it’s a good idea to review them annually so they reflect the staged changes to government PLP and the current award/enterprise agreement settings in your industry.

Common Scenarios And How To Handle Them

1) Can Employees Work During Parental Leave?

Yes, within limits. Keeping-in-touch days are designed for staying connected. They should be voluntary, clearly recorded, and not amount to simply returning to regular duties. If you need more coverage, consider temporary backfill rather than ad hoc work that risks blurring the rules.

2) What If An Employee Doesn’t Meet The 12‑Month Service Requirement?

They may not qualify for NES unpaid parental leave but could still request other options (for example, annual leave, long service leave where applicable, or other unpaid leave by agreement). They may still be eligible for government PLP if they meet Services Australia criteria. Handle these cases sensitively and document any agreed arrangements.

3) What If Business Needs Change While Someone Is Away?

You must consult about major changes that may affect an employee’s position (for example, restructuring). The return‑to‑work guarantee still applies. If changes lead to a proposed redundancy, follow all consultation and redundancy obligations carefully and avoid any action that could be perceived as discriminatory.

4) How Do Probation And Parental Leave Interact?

Parental leave can occur during probation if the eligibility and notice rules are met. Use the probation period for performance and fit, not to penalise someone for taking a lawful entitlement. Again, it’s worth revisiting the guidance on taking leave during probation and ensuring your contracts and policies are consistent.

5) Do You Need A Written Agreement To Vary Hours On Return?

Yes - if hours, patterns or location change, document it. This might be a simple variation letter or a new contract for part‑time arrangements. Consistency between the Employment Contract and your policy documents will reduce misunderstandings.

Key Compliance Tips For Employers

• Be proactive: Discuss plans early, set expectations, and provide your Parental Leave Policy to employees as soon as they advise they’re expecting.
• Train managers: The rules around flexible days, KIT days, and return‑to‑work guarantees can be nuanced - training helps avoid accidental non‑compliance.
• Document decisions: Keep a clear paper trail of notices, approvals, flexible work requests, and responses (with reasons where required).
• Apply policies consistently: Inconsistent treatment is a common trigger for disputes and discrimination claims.
• Review annually: Law and government PLP settings change - build in a yearly policy review cycle.

Key Takeaways

• “Maternity leave” in Australia sits within broader parental leave rules: unpaid parental leave under the NES plus government Paid Parental Leave via Services Australia.
• Eligible employees can take up to 12 months of unpaid parental leave and may request up to a further 12 months; flexible days and keeping‑in‑touch provisions support a staged return.
• Government PLP is separate from NES entitlements and generally funded by the government (not the employer), with weeks increasing in stages through 2026.
• Clear notice, evidence and communication processes make leave smoother for everyone and reduce compliance risk.
• Employers should align a practical Parental Leave Policy, a compliant Employment Contract, and broader Workplace Policy settings to handle requests, KIT days and return‑to‑work guarantees.
• Treat pregnancy and parental status as protected - consistent, fair processes help you support staff and avoid discrimination issues.

If you’d like a consultation on setting up or reviewing your parental leave policies, contracts and processes, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.