Maternity Leave Case [1979]

Updated time

Last updated

10 January 2017

(1979) 218 CAR 120, Coldham J, Gaudron J, Taylor DP, Matthews C, Cohen C, 9 March 1979


In this decision the Arbitration Commission introduced into one award a new entitlement of employees to take 12 months' unpaid maternity leave for the birth of a child. This clause was to be gradually applied to nearly all awards. It was later extended to include paternity leave, adoption leave, and to apply to regular and long term casual employees.

In the Maternity Leave Case, the Australian Conciliation and Arbitration Commission introduced an entitlement for a mother to take 52 weeks of unpaid maternity leave when she had a child.

Proponents of maternity leave argued that it was essentially about ‘job preservation during absence from work for maternity purposes’. If granted the claim would:

recognise the special industrial interests of those female employees who elect to combine motherhood with continued participation in the workforce. The preservation of job security in the event of maternity might well facilitate career opportunities and encourage career aspirations amongst women who have hitherto regarded termination of employment as an inevitable consequence of motherhood ... [which] in the long term ... could enhance the employment prospects of women and at the same time secure the retention of skills and abilities which might otherwise be lost to industry. [p.123]

Employers opposed the claim. The Commission noted:

the main direct costs relate to the accrual of other entitlements, including leave, during absence on maternity leave ... we do not propose to permit the accrual of entitlements during absence on unpaid maternity leave. The direct costs therefore ought not to be significant.

The indirect costs relied upon by the employers chiefly concerned the training of replacement employees. In the absence of provision for maternity leave, most pregnant women terminate their employment and this usually involves the employer in training replacement employees. It is difficult therefore to conclude that maternity leave will generate a substantially higher order of training costs. [p.123]

Then it concluded that:

maternity leave should not exceed 52 weeks but should encompass a compulsory period of six weeks immediately following confinement. A maximum period of 52 weeks’ leave, in our view, affords reasonable flexibility for the needs of mother and child and sufficient time for the mother to make a decision in relation to her further participation in the workforce. [p.125]

The compulsory leave after confinement was based on medical evidence indicating that this period involved the ‘most significant physical, emotional and psychological stresses for the mother’. The Commission went on to note:

The medical evidence suggests that at least in some occupations, the efficiency and capacity of a female worker may be impaired in the weeks immediately preceding confinement ... Therefore we think it reasonable that an employer should have the right, by not less than 14 days’ notice in writing, to advance the commencement of maternity leave by requiring it to commence within the six weeks immediately prior to the presumed date of confinement. This will [also] provide a degree of certainty and flexibility in the employment of replacement staff. [p.125]

As noted, the Commission refused to allow other entitlements to accrue while an employee was on maternity leave:

The concept of maternity leave necessarily involves an acceptance that the employment relationship should not be severed by reason of the fact that an employee absents herself for maternity purposes ...

However ... [w]e do not consider that an employee should accrue such entitlements whilst absent on unpaid maternity leave, because any such accrual might well be seen to confer an advantage over those who remain to perform work for the employer. It would also be a burden upon the employer. [p.129]

Finally, the Commission deal with a range of incidental matters, including transferring to a safe job during pregnancy, varying the period of leave, cancellation of leave, special leave (where pregnancy terminates other than by the birth of a living child) and the interaction with other forms of leave.