Commonwealth Numbered Acts

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FAIR WORK ACT 2009 (NO. 28, 2009) - SECT 80

Unpaid special maternity leave

Entitlement to unpaid special maternity leave

             (1)  A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during that period because:

                     (a)  she has a pregnancy‑related illness; or

                     (b)  she has been pregnant, and the pregnancy ends within 28 weeks of the expected date of birth of the child otherwise than by the birth of a living child.

Note:          Entitlement is also affected by section 67 (which deals with the length of the employee's service).

Notice and evidence

             (2)  An employee must give her employer notice of the taking of unpaid special maternity leave by the employee.

             (3)  The notice:

                     (a)  must be given to the employer as soon as practicable (which may be a time after the leave has started); and

                     (b)  must advise the employer of the period, or expected period, of the leave.

             (4)  An employee who has given her employer notice of the taking of unpaid special maternity leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for a reason specified in subsection (1).

             (5)  Without limiting subsection (4), an employer may require the evidence referred to in that subsection to be a medical certificate.

             (6)  An employee is not entitled to take unpaid special maternity leave unless the employee complies with subsections (2) to (4).

Taking of special maternity leave reduces entitlement to unpaid parental leave

             (7)  A female employee's entitlement to 12 months of unpaid parental leave associated with the birth of a child (see section 70) is reduced by the amount of any unpaid special maternity leave taken by the employee while she was pregnant.

Note:          Personal information given to an employer under this section may be regulated under the Privacy Act 1988 .

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