A Federal Court case was not on my list of things to expect when I was expecting.
But last year, I found myself preparing a claim against a former employer. And making even more of an unexpected discovery in the process: I didn’t have a statutory right to return to my job after having a baby.
You see, under Australia’s National Employment Standards (NES), all employees must complete a full year of service before they are entitled to parental leave. Because this waiting period is longer than pregnancy, it creates a gap for women who become pregnant soon after starting a new job.
Four years ago, I fell into that gap.
As one of the one in eight women who suffer from what has recently been renamed PMOS, I had laughed off my GP’s warning about a “whoopsie” baby. I was delighted to fall pregnant with my son without the rigmarole of pre-IVF, but the timing wasn’t ideal: I had a six-month-old daughter, had just moved cities and started a new job.
Like many companies, our parental leave policy echoed the NES. So it was a huge relief when another new starter fell pregnant soon after, and my employer reduced the waiting period from one year to 40 weeks.
Only years later did I learn that taking parental leave under this more generous company policy had left me legally exposed. Australian businesses may be dropping their waiting periods, but return-to-work rights are still tied to the 12-month service test under the NES.
So my former employers could concede that I didn’t get my job back after I had my son, and rely on a clause in my contract stating that company policies aren’t enforceable rights.
Shortly after learning I’d failed the NES’ one year service test, I learned the UK government was expanding ‘day-one’ parental leave.
British women have long been guaranteed time off to give birth, regardless of how long they’ve been on the job. Recent reforms just extend this right to partners, who previously had to wait six months to qualify.
Parental leave is one area where treating pregnant people differently isn’t discrimination – it’s common sense.
Because Australian laws may seem gender neutral, but their impact is not. Despite my best efforts, I couldn’t outsource my reproductive duties to my husband. So adjusting my parental leave plans to suit the statutes was simply not an option.
Reading about the UK reforms led me to comparative data on parental leave policies across the globe, which confirmed how unusual Australia’s approach is.
Many other countries – including France, Ireland and Korea – have one-year service tests for paternity or partner leave. But crucially, pregnant women don’t have to pass them. In more than 90 per cent of the 52 countries compared, leave to give birth is not only accessible from day one – it’s mandatory as a health and safety measure.
Only a handful of countries require pregnant women to pass a continuous service test.
In New Zealand, parental leave is available after six months’ service. Canadian laws vary, but the most populous provinces offer day-one leave or short waiting periods. In practice, this means that an employee who falls pregnant soon after starting a new job usually has a right to leave by their due date.
The United States appears to be the only other country where the waiting period exceeds the human gestation period. Even there, many states have less restrictive policies.
It is hard to make an economic case for laws that could force a productive, tax-paying woman to resign simply to give birth – or deny her right to return to her job afterwards.
Even so, the UK’s impact assessment concluded that day-one parental leave policy could improve job mobility. Given Australia’s underperformance in this area, supporting women to move into roles that better utilise their skills makes economic sense.
We all know couples who have been trying for a baby for years, and it’s always the women who end up stuck in jobs they have outgrown for fear of falling into that three-month gap.
The UK analysis also concluded their day-one policy would improve fairness in the labour market, as lower-paying sectors tend to have shorter employee tenures.
Given our world-lagging status, this fairness may seem like a distant dream for Australians looking to start a family. But there are signs of change.
Numerous submissions to the current Parliamentary Inquiry into the NES—including from Professor Marian Baird, who helped secure Australia’s statutory paid parental leave scheme—are calling for a review of the 12-month service test.
That reform, introduced in 2011, made Australia one of the last OECD countries to provide paid parental leave.
Let’s hope the NES Inquiry reaches the same conclusion the Rudd Government did 15 years ago: an exclusive club with the United States is not one we want to be part of.