If one of your employees tells you they’re pregnant (or their partner is pregnant), it’s often a genuinely happy moment for your team - and it can also trigger a long list of practical questions for you as a small business employer.
How much leave do you have to provide? When does it start? Do you have to keep the role open? What if you need to hire someone to cover the work? And how do you stay compliant without overcomplicating things?
This guide walks you through the key rules and best-practice steps around maternity leave from the employer perspective, so you can support your employee and protect your business at the same time.
What Does “Maternity Leave” Mean For Employers In Australia?
In Australia, “maternity leave” is usually discussed as part of parental leave. From a legal standpoint, the main entitlements come from the National Employment Standards (NES) in the Fair Work Act 2009 (Cth).
Even if people commonly say “maternity leave”, your obligations as an employer usually fall into a few buckets:
- Unpaid parental leave (NES): the baseline legal entitlement for eligible employees (typically up to 12 months, with a possible extension request).
- Paid parental leave (if applicable): this may come from an award, enterprise agreement, employment contract, or your internal policy - and it’s separate from any government scheme.
- Workplace protections: including anti-discrimination obligations, rules about keeping roles available, and managing return-to-work fairly.
- Process requirements: notice periods, evidence, responses to extension requests, record-keeping and payroll set-up (where relevant).
Because the rules can vary depending on the employee’s status, their award coverage, and what you’ve promised in writing, the best approach is to treat maternity leave as a compliance project: clarify what applies, document it properly, and communicate early.
Which Employees Are Eligible, And What Are The Minimum Leave Entitlements?
If you’re trying to rank what matters most, start here: your minimum obligations are set by the NES. You can always provide more generous entitlements, but you can’t provide less.
Unpaid Parental Leave (NES): The Basic Rule Employers Need To Know
Generally, an employee may be entitled to unpaid parental leave if they:
- have completed at least 12 months of continuous service with you immediately before the date the leave starts; and
- are (or will be) responsible for the care of a child (including birth, adoption, or in some cases stillbirth/infant death).
Eligible employees can usually access up to 12 months of unpaid parental leave. They may also request an extension of up to a further 12 months (so, up to 24 months total), but an extension request is not automatically granted - it must be assessed properly and can only be refused on reasonable business grounds.
What About Casual Employees?
Casual employees can be eligible too, but the threshold is different. In many cases, a casual employee needs to have been employed by you on a regular and systematic basis for at least 12 months, and have a reasonable expectation of continuing work on that basis.
If you’re unsure whether a casual’s roster pattern meets that test, it’s worth checking carefully (and not assuming “casual” means “no leave rights”).
Paid Parental Leave: When Do Employers Have To Pay?
The NES provides unpaid parental leave as the minimum standard. Whether you must provide paid maternity/parental leave will depend on:
- the applicable modern award or enterprise agreement;
- the employee’s Employment Contract (and any promises you’ve made in writing); and
- your internal parental leave benefits or company policy.
Separately, some employees may be eligible for the Federal Government’s Paid Parental Leave scheme (Parental Leave Pay). This is different from employer-funded paid parental leave. In practice, it may still affect how you manage leave dates and payroll processes - for example, because Services Australia will usually pay eligible employees directly, but there are situations where an employer may be asked to play a paymaster role depending on the set-up and timing.
How Should Employers Manage A Maternity Leave Request (Step By Step)?
A clear process protects everyone. It reduces misunderstandings, helps you plan coverage, and creates a paper trail if anything becomes disputed later.
1) Ask For Notice In Writing (And Keep Records)
Employees are generally required to give notice before taking parental leave. Under the NES, an employee must usually give you at least 10 weeks’ written notice of their intention to take parental leave (or, if that isn’t possible, as soon as practicable). They must also usually confirm their intended start and end dates at least 4 weeks before the leave starts.
In practice, you should ask the employee to:
- confirm the intended start date and expected return date in writing; and
- provide any required evidence (for example, a medical certificate showing the expected due date).
Even if your employee first tells you informally, it’s a good idea to follow up with a simple email confirming the key dates and next steps.
2) Confirm Their Entitlements And Any “Extra” Benefits
Before you respond, check what legally applies to them:
- are they full-time, part-time, or casual?
- have they hit 12 months’ service (or the “regular and systematic” test for casuals)?
- are they award-covered (and if so, what does the award say)?
- does their contract or your policy offer paid parental leave?
This is where many small businesses slip up - not because they’re trying to do the wrong thing, but because the entitlements can come from multiple sources. If you haven’t already done it, having a proper Award Compliance check can make this much easier.
3) Plan Coverage (Without Accidentally Creating Risk)
From a business planning perspective, you’ll often need to hire a replacement or redistribute duties. That’s completely normal.
The key legal point is that parental leave usually comes with a right to return to the same job (or, if that no longer exists, an available position that is nearest in status and pay).
So, when you hire a replacement, you’ll usually want to:
- use a fixed-term arrangement tied to the leave period; and
- make it clear in writing that the role is a parental leave cover position.
This reduces the risk of confusion later about who “owns” the role and what happens when your employee returns.
4) Stay In Touch (Appropriately)
It’s okay to keep communication open while someone is on leave - for example, to confirm return dates, discuss operational changes, or invite them to important workplace events.
There are also “keeping in touch” rules under the Fair Work framework that can allow an employee on parental leave to attend work for a limited number of days (commonly referred to as “keeping in touch days”). These days are optional, must be by agreement, and are generally paid. You’ll also want to ensure any contact stays appropriate and isn’t excessive.
What you want to avoid is any pressure that could be seen as discouraging them from taking leave, or treating them adversely because of pregnancy or leave.
5) Manage Extension Requests Properly (And Respond In Writing)
If an employee wants to extend unpaid parental leave beyond the initial 12 months, they generally need to request the extension at least 4 weeks before the end of the original leave period.
If you intend to refuse the extension, you must do so on reasonable business grounds and (in most cases) you’ll need to give a written response within 21 days of the request, setting out the reasons.
Because this is a common flashpoint for disputes, it’s a good idea to document:
- the request and the dates;
- any discussions you had with the employee;
- the business grounds you relied on; and
- any alternative arrangements you explored.
Common Employer Traps: Discrimination, Rosters, And Return-To-Work Obligations
The biggest legal risk with maternity leave often isn’t the leave itself - it’s how decisions are made around the employee while they’re pregnant, on leave, or coming back.
Pregnancy And Parental Leave Are Protected Attributes
In Australia, pregnancy and family responsibilities are heavily protected across multiple laws, including workplace laws and anti-discrimination laws.
That means you need to be especially careful about decisions that could be interpreted as adverse action or discrimination, such as:
- reducing shifts or duties because someone is pregnant (without a lawful reason and proper process);
- excluding them from training, promotions, or key meetings because they’ll “be leaving anyway”;
- making negative comments about their pregnancy or parental leave; or
- treating their job as “gone” once they’re on leave.
If you need to manage genuine performance issues, operational changes, or workplace misconduct, it’s still possible - but timing and documentation matter a lot. You’ll want to ensure your decisions are based on legitimate business reasons and handled consistently.
Return To Work: You Usually Need To Keep The Job Available
At the end of parental leave, eligible employees generally have the right to return to:
- the same job they had before going on leave; or
- if that job no longer exists, an available position for which they are qualified and that is nearest in status and pay to their original role.
If you’ve made significant changes while the employee was away (for example, a restructure), it’s important to handle return-to-work carefully and fairly - and to get advice early if you think their old role genuinely can’t be reinstated.
Flexible Work Requests After Maternity Leave
Many employees will request flexible work arrangements when returning (for example, part-time hours, changed start/finish times, or working from home).
In many cases, eligible employees have a formal right to request flexible work, and you must respond appropriately. You can refuse only on reasonable business grounds, and it’s important that your refusal (if any) is properly explained and documented (including meeting any required response timeframes).
As a small business, having a consistent internal approach makes this much easier to manage across your team.
What Policies And Legal Documents Should Employers Have In Place?
When it comes to maternity leave, your documents are your safety net. They help you communicate clearly, set expectations, and show that you’re treating employees consistently.
At a minimum, consider whether you have the following:
- Employment Contract: sets the employee’s base conditions (and is where extra paid parental leave benefits are often documented).
- Parental Leave Policy: explains notice requirements, evidence, how you manage “keeping in touch”, and the process for extending leave or returning early.
- Workplace Policy: supports a consistent approach across your business (for example, around conduct, communication, remote work, and workplace expectations).
- Staff Handbook Package: a practical way to compile key policies so your team can easily find the rules, including leave processes and return-to-work expectations.
- Award Compliance check: helps confirm minimum entitlements (including any award-specific parental leave rules) and reduces the risk of underpayment or missed obligations.
Not every business will offer employer-funded paid parental leave, but if you do (or you’re thinking about introducing it), it’s important to document:
- eligibility criteria (for example, minimum service period);
- whether it’s paid at base rate or includes allowances/penalties;
- whether it must be taken in one block or can be split; and
- how it interacts with annual leave, personal leave, and any government payments.
Having clear, tailored documents also helps you respond consistently if multiple employees take parental leave at different times (which is common as your business grows).
Key Takeaways For Employers
- Maternity leave is usually managed as parental leave under the National Employment Standards (NES), and the minimum entitlement is typically unpaid parental leave for eligible employees.
- Eligibility often depends on service (usually 12 months continuous service, with separate rules that may apply to long-term regular casuals).
- Paid maternity/parental leave isn’t automatically required under the NES, but it may be required by a modern award, enterprise agreement, contract, or your own policy.
- Risk often comes from process issues - discrimination, mismanaged return-to-work, inconsistent treatment, and unclear communications can create legal exposure.
- Plan your coverage early, and document replacement arrangements properly so you can keep the employee’s role (or an appropriate equivalent) available when they return.
- Strong documentation matters - a clear Employment Contract and parental leave policy can prevent misunderstandings and help you stay compliant.
If you’d like help reviewing your maternity leave employer obligations or putting the right documents in place, you can reach Sprintlaw on 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
