Maternity leave now in force

Press, 27 May 1981, Page 16

Maternity leave now in force

By

OLIVER RIDDELL,

in Wellington

The provisions of the Maternity. Leave and Employment Protection Act, 1980, came into force recently. The Employers Federation has published an explanatory guide setting out obligations under the Act.

It is now mandatory for employers to grant on application by every female employee, who is qualified by reason of service and who becomes pregnant, a minimum of 26 weeks unpaid maternity leave, and either keep her job open or (where this is not: possible) give her preference of employment for a further 26 weeks after the leave ends.

The Act covers not only the circumstances of pregnancy but also of adoption, where the female employee assumes — with a view to adoption by her, or her and her husband jointly — the care of a child not more than five years old. It applies to all female employees, including those employed in the State Services, but does not include an independent contractor.

However, it does not apply to a female employee who is entitled under any other Act or award, agreement or contract, to rights that (while not as favourable as those in the 1980 Act) are as favourable or more favourable to the female employee in their over-all effect. In the circumstances of pregnancy or proposed adoption, a woman may apply for leave and an employer must grant it if:

® The woman will have been in the employment of the same employer for the 18 months immediately before the expected date of delivery, either by birth or adoption.

® The woman has worked for that employer for at least 15 hours a week for those 18 months.

® The application was made in writing at least three months before the expected date of delivery, or in the case of adoption as soon as possible.

@ The application is accompanied by a doctor’s certificate that the woman is pregnant and the expected date of delivery. A pregnant woman may also take up to 10 days of unpaid special leave, additional to maternity leave and before maternity leave begins, for reasons connected with her pregnancy.

Every woman who meets these requirements must be granted leave.

But this is not the same thing as keeping her job open for her.

If she is eligible, and the employer is able to hold open her position, then he must grant her leave and give her the job back when the leave ends. But if he is unable to hold the position open then he must grant her leave and in place of the job give her the first option for

employment if a suitable job becomes vacant.

A suitable job is one which is "substantially similar” to the original one.

Under the Act, an employer is unable to dismiss a female employee either during her maternity leave or during the preference period following the leave, for any of four reasons: because she is pregnant; because of her state of health during her pregnancy; because she applied for maternity leave; or because she has assumed care of a child she intends to adopt. However, an employer may dismiss her while on maternity leave or during the 26-week preference period after leave under certain conditions. These are if it can be proven either that since the employer replied to her application for leave a temporary replacement became the woman’s job became a key one and could not be kept open for her; or if there were no prospect of a substantially similar job being kept open for her; or where the employer was unable to offer her a substantially similar job.

The Act does not affect any redundancy payment that would be made under other legislation or any order, award, agreement, or contract of employment. An employer may dismiss a worker, however, where she consents, where she leaves her job more than six weeks before the expected date of delivery (or before the date agreed to by her employer and her), or for some substantial reason not related to pregnancy or adoption.