Pregnancy, Parental Leave and Restructures: Your Rights as a Permanent Employee
Pregnancy and parental leave are major milestones, but they can also be moments where workplace decisions suddenly feel uncertain. Many employees are surprised to learn how extensive the legal protections are, and equally surprised when those protections are not followed.
At Leonard Lawyers, we represent employees navigating these issues every day. This guide explains the rights that apply from early pregnancy through to returning from parental leave, and what happens if your employer restructures while you are away from the workplace.
The Legal Framework: What Actually Protects You?
Two federal laws form the backbone of protection for pregnant employees and those taking parental leave:
Fair Work Act 2009 (Cth) Covers parental leave entitlements, flexible work requests, and the general protections regime. Under these provisions, employers cannot take adverse action because you are pregnant, because you might become pregnant, or because you choose to take parental leave.
Sex Discrimination Act 1984 (Cth) Prohibits discrimination based on pregnancy, potential pregnancy, or breastfeeding. This includes decisions about hiring, promotion, conditions of employment, and dismissal.
These laws overlap, and depending on what has happened, an employee may have claims under one or both.
Before You Go on Leave: Disclosure and Early Pregnancy
You do not have to tell an employer you are pregnant at any particular time, and you certainly do not need to disclose during recruitment. Once you do disclose, however, the legal protections activate immediately.
Adverse action can include:
reducing your hours
changing your duties
removing responsibilities
denying opportunities
altering reporting lines
dismissal
If any of these occur shortly after disclosure, the employer must prove the pregnancy played no part in the decision. This reverse onus is one of the strongest protections available to employees.
Your Parental Leave Entitlements
Permanent employees with at least 12 months’ continuous service are entitled to:
12 months of unpaid parental leave, with the option to request an additional 12 months
Concurrent leave for both parents
Flexible parental leave options, including split periods
Government-funded Parental Leave Pay, paid at the National Minimum Wage and as of 1 July 2026 at 26 weeks
The employer must respond to any request for additional leave within 21 days and can only refuse on reasonable business grounds.
Can Your Employer Restructure While You Are on Parental Leave?
Yes, but only if the redundancy is genuine and the employer meets strict consultation and redeployment obligations.
A redundancy is genuine only if:
Your job is no longer required due to operational changes.
The employer has complied with all consultation obligations.
Redeployment was genuinely considered and reasonably ruled out.
If your duties continue to be performed by someone else, or redistributed among the team, the first limb is unlikely to be satisfied.
Consultation: A Common Point of Failure
Section 83 of the Fair Work Act requires employers to consult with employees on unpaid parental leave if a decision is made that may significantly affect their pre‑leave role. This obligation exists even if the employee is not in the workplace. Sending a letter and assuming that is “consultation” is not enough. The employer must make a real effort to engage with you.
Redeployment: Not a Tick‑Box Exercise
If a suitable role exists, even one that arises during your leave, the employer must consider offering it to you. Ignoring vacancies or assuming you are “not available” because you are on leave can undermine the redundancy entirely.
When Redundancy and Parental Leave Collide: General Protections Risks
Even if an employer follows the redundancy steps, the decision may still breach the general protections provisions if pregnancy or parental leave influenced the selection.
Courts can award:
lost wages
superannuation
compensation for distress
penalties
The timing of the decision, internal communications, and the treatment of other employees will all be scrutinised.
Returning to Work: Your Right to the Same Role
Employees returning from unpaid parental leave are entitled to:
return to the same position they held before leave, or
if that position no longer exists, a role that is nearest in pay, status and responsibility.
A role that has been diminished, stripped of responsibilities, or altered in substance may breach this guarantee. Employers cannot “rebuild” a role in a way that disadvantages the returning employee.
Flexible Work Requests After Parental Leave
Parents of children under school age (or under 18 with a disability) can request flexible working arrangements, including changes to:
hours
patterns of work
location
The employer must genuinely consider the request and respond in writing within 21 days. A refusal must be based on reasonable business grounds.
When Should You Get Advice?
It is worth seeking advice promptly if:
your duties changed after you disclosed pregnancy
you were selected for redundancy while on leave
your role was altered or removed when you returned
your flexible work request was refused without proper process
you believe pregnancy or parental leave influenced a workplace decision
Strict time limits apply. For dismissals, you generally have 21 days to lodge an application with the Fair Work Commission.
We’re Here to Support You
Pregnancy and parental leave should not jeopardise your job or career. At Leonard Lawyers, we act for employees and understand how these decisions are made behind the scenes. If you’re unsure whether your rights have been respected, we can help you understand your options and the steps involved.
