Pregnancy sick leave in Australia: personal leave and no safe job leave

Ten days, and they accumulate

The National Employment Standards give employees 10 days' paid personal/carer's leave, which includes sick leave. The Fair Work Act sets it out precisely: for each year of service with an employer, other than periods of casual employment, an employee is entitled to 10 days of paid personal/carer's leave.

Two features of the statutory wording matter. The entitlement accrues progressively during a year of service according to your ordinary hours of work, and it accumulates from year to year. So unused days are not lost at the end of the year, and someone with several years' service may have a substantial balance.

For part-time employees the yearly entitlement depends on ordinary hours of work; 10 days a year is the full-time figure. Casual employees and contractors do not get paid personal or carer's leave, but can access unpaid carer's leave.

You may take paid personal/carer's leave because you are not fit for work because of a personal illness or injury, which covers pregnancy-related illness like any other.

Unpaid special parental leave

Australia has a specific pregnancy provision that sits alongside ordinary sick leave. Under section 80 of the Fair Work Act, an employee is entitled to a period of unpaid special parental leave if they are not fit for work during that period because they are pregnant and have a pregnancy-related illness.

It also covers an employee who has been pregnant where the pregnancy ends after a period of gestation of at least 12 weeks otherwise than by the birth of a living child, and the child is not stillborn. If the child is stillborn, unpaid parental leave provisions apply instead.

The Act adds a note worth reading: if you have an entitlement to paid personal/carer's leave, you may take that paid leave instead of unpaid special parental leave. In other words, do not let an employer push you onto unpaid leave while you still have paid days accrued.

You must give your employer notice of taking unpaid special parental leave as soon as practicable, which may be after the leave has started.

If your job becomes unsafe

This is the strongest protection in the Australian scheme and the least used. Section 81 applies to a pregnant employee who gives their employer evidence that would satisfy a reasonable person that they are fit for work, but that it is inadvisable to continue in their present position during a stated period, called the risk period, because of illness or risks arising out of the pregnancy, or hazards connected with the position.

The employer's first obligation is to transfer you to an appropriate safe job.

Paid no safe job leave

If section 81 applies but there is no appropriate safe job available, and you are entitled to unpaid parental leave and have complied with the notice and evidence requirements, you are entitled to paid no safe job leave for the risk period. The employer must pay you at your base rate of pay for your ordinary hours of work in the risk period.

That is full base pay, not sick leave and not a benefit. If your work is unsafe, being signed off sick is usually the wrong route and it costs you money and accrued leave.

If you are not entitled to unpaid parental leave, for example because you have not completed 12 months of continuous service, section 82A gives you unpaid no safe job leave for the risk period instead, provided you give evidence of the pregnancy if the employer requires it.

One caveat to plan for: if you are on paid no safe job leave during the 6 week period before the expected date of birth, the employer may ask you for a medical certificate stating whether you are fit for work, and may then require you to take unpaid parental leave.

The service test that gates several of these

Most leave in this Division requires at least 12 months of continuous service with the employer immediately before the relevant date, with unpaid pre-adoption leave and unpaid no safe job leave excepted. Regular casual employees can qualify through a sequence of periods of employment over at least 12 months.

What we cannot answer here

Your modern award or enterprise agreement may provide more than the NES minimum, and awards differ by industry and occupation. We are not going to generalise from one award. Check your award or agreement, and your employment contract, because a more generous term applies over the statutory minimum.

The Fair Work Commission publishes the National Employment Standards and authorised versions of the Act. The Fair Work Ombudsman handles workplace complaints and can give you tailored advice on your award.

Notice, evidence and what your award may add

For paid personal/carer's leave, notice and evidence requirements come from the Act, your award or agreement, and your employer's policy. Employers may ask for evidence showing why you were away; medical certificates and statutory declarations are examples of acceptable evidence, and the evidence does not need to include exact details of the injury or illness.

For unpaid special parental leave, notice must be given as soon as practicable, which may be after the leave has started, and must advise the employer of the period or expected period of the leave.

Casual employees

Casual employees and contractors do not get paid sick or carer's leave, though casuals can access unpaid carer's leave, and regular casual employees can qualify for parental leave entitlements through a sequence of periods of employment over at least 12 months. Unpaid no safe job leave is one of the few entitlements in the parental leave Division that does not require 12 months of continuous service.

If your award or enterprise agreement gives you more than the statutory minimum, the more generous term applies. Check it rather than assuming the NES figure is your ceiling.