VIC Employer refusing maternity leave

[Ravenus]

Hi. My official due date is one week after my 12 month anniversary at work. I asked HR to confirm I’d still be eligible for unpaid 12month mat leave and their company policy’s 3 month parental leave pay if the baby came early (their policy states I’m eligible if I’ve worked for the company for ‘12 months prior to expected due date’.) they have been deliberating for 2 weeks and when I asked about the delay they said they were considering a few elements such as how many other people were on mat leave and contracts etc (which should have nothing to do with the answer)
They came back today and said I’m not eligible for anything but that I should keep in touch and they’d let me know if there was any work going when it came time for me to want to return to work. Specifically they said ‘your end date falls before you’ve completed 12 months work so you are not eligible for maternity leave.’ I never actually even specified an end date.
I told them that I’d therefore aim to work until the day I give birth and they said ‘we wouldn’t recommend that’ but they can’t say that, they can only request a fit for work certificate?!
I called FWO and they agree with me about being eligible for unpaid mat leave and that I should not only be guaranteed a job after, but allowed to start leave up to 6wks before due date. But in regards to their company policy and the 3 months paid leave, do I have any rights to that? It doesn’t mention whether it’s discretionary, but it does say employees are entitled to ‘up to 3 months pay’. Should I talk to a lawyer about this? I’ve still got 5 months until my due date and need to go about this carefully so work life isnt unbearable for the next 5 months... pls advise?

 

[Rod]

Assuming your employer and you are covered by the Fair Work Act (most people in Vic are covered), then your entitlements cannot be less than what is covered by law, regardless of what the company policy says.

Your 12 months employment is calculated up to the expected birth date.

and the 3 months paid leave, do I have any rights to that?

Yes, assuming you meet the criteria (about to be mum primary carer, <$150K wage, worked 10 of the previous months before leave starts). It is a Government scheme, paying minimum wage. Employer or government pays it, I'm not sure of the mechanism.

I'd be telling the employer in the first instance they need to comply with the law - in a nice way.

 

[Ravenus]

Yes, assuming you meet the criteria (about to be mum primary carer, <$150K wage, worked 10 of the previous months before leave starts). It is a Government scheme, paying minimum wage. Employer or government pays it, I'm not sure of the mechanism.

I'd be telling the employer in the first instance they need to comply with the law - in a nice way.

Hi Rod! Thanks so much for your reply. Yes this is what I think too and I called the FWO who verbally reiterated that I'm eligible under the National Employment Standards.

With regard to the pay, I was actually referring to the company's own policy of topping up the government's paid parental leave to give me 3 months at full pay. The FWO couldn't comment on the company policy but said they should be held accountable so i might need to contact a lawyer for that. The only thing is that their policy states "UP TO 3 months" - would that imply that it's discretionary?:

Subject to the terms and conditions of this Policy, if an employee is eligible for paid leave under the Government Paid Parental Leave Scheme, <COMPANY NAME OMMITTED> will supplement the paid leave so that the primary caregiver will be entitled to a total of up to 3 months paid leave calculated according to their ordinary base salary during the period of leave. That is, eligible employees will be entitled to up to 3 months paid leave calculated according to their ordinary base salary inclusive of the payments received under the Government Paid Parental Leave Scheme. In addition, <COMPANY NAME OMMITTED> will supplement the paid leave entitlements for eligible employee partners so that they will be entitled to be paid a total of 2 weeks’ paid leave calculated according to their ordinary base salary.

Thanks again

 

[Rod]

Interesting. Whether you are entitled to the top up will then depend on whether company policies are tied to your employment contract. You need to check your contract. I'd imagine the length is not discretionary per se, but based on the amount of leave you take (eg someone may only take 1 months leave).

 

[Clancy]

Quote "they were considering a few elements such as how many other people were on mat leave and contracts etc (which should have nothing to do with the answer)"

Oh yes, well of course..... dont you know you are supposed to wait in line behind other workers before having permission to get pregnant??? Geeez, the hide of some people!!

(sarcasm)