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Ask Maddy: Parental leave – what are my rights to a safe job?

Ask Maddy: Parental leave – what are my rights to a safe job?

Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)

There are various protections for pregnant workers under both the Fair Work Act 2009 and the Equal Opportunity Act 2010. These provisions are mirrored in both public sector enterprise agreements and their successive replacements. The below references are direct from the new Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020–2024 (‘the Agreement’) but broadly the same is true of almost all workplaces.

During the current COVID pandemic, many pregnant members may hold concern about their current role and risk to themselves and their pregnancy. The entitlement to ‘paid no safe job leave’ is an important protection for such members and ANMF can assist you in holding discussions with your employer if required.

I’m pregnant. What do I need to do?

Firstly, you must advise your employer of your intended start and finish dates for parental leave, at least 10 weeks prior to the commencement of your leave. This includes the provision of a statutory declaration stating:

  • that the Employee will become either the Primary Carer or non-Primary Carer of the Child, as appropriate;
  • the particulars of any parental leave taken or proposed to be taken or applied for by the Employee’s Spouse; and
  • that for the period of parental leave the Employee will not engage in any conduct inconsistent with their contract of employment.

This is a critical first step before seeking a ‘safe job’. Remember: you will need to provide more accurate parental leave dates no later than four weeks from your originally proposed start and finish dates, so it doesn’t matter if the dates change a bit.

Employers may request that you provide evidence that you are fit to work. This evidence must satisfy a reasonable person.

I’m in a high-risk role and pregnant. What do I do if I have concerns?

You are entitled to a safe job in the context of your pregnancy. This will mean different things to different people, depending on your role, level of risk and advice from your treating practitioner.

If after speaking with your treating practitioner, they advise that you are fit for work (and being fit for work is a critical part of this) but in their opinion, you should not continue to work in your current role for a stated period (known as the risk period) then you must be transferred into an appropriate safe job during this risk period. This decision from your treating practitioner should be based on the following:

  • illness or risks arising out of the pregnancy, or
  • hazards connected with the position.

No employee should be worse off in this arrangement, i.e. your employment terms and conditions should not change.

What if there is no ‘safe job’ available for me?

The 2020–2024 Agreement states that if you

  • are fit for work; and
  • have provided your employer with evidence that you are pregnant; and
  • you have provided your employer with notice of your intended start and finish dates for your parental leave period; and
  • your treating practitioner states it is inadvisable for you to work in your current role for the entirety of your risk period, and you have notified your employer of this

Then if no safe job is provided, you are entitled to ‘paid no safe job leave’. This entitlement is in addition to any other leave you may have or take during this time.

If I am eligible for ‘paid no safe job leave’, can my employer require me to commence parental leave early?

Yes. In the six weeks prior to the expected date of birth, an employee who is receiving ‘paid no safe job leave’ may be required (if requested by your employer) to provide a medical certificate stating that you remain fit for work.

If you do not provide a medical certificate that states you are fit for work, or you do not comply with this request from your Employer, then your entitlement to ‘no safe job leave’ may end, and your employer can require you to commence parental leave as soon as practicable.

What about ‘unpaid no safe job leave’?

‘Unpaid no safe job leave’ applies to pregnant Employees for the risk period if:

You are not entitled to parental leave as at the expected date of birth, but you do meet the other requirements (above) for ‘paid no safe job leave’.