Last Updated on 22/01/2026 by Damin Murdock
Pursuant to s 83 of the Fair Work Act 2009 (Cth) (the Act), if an employee is on unpaid parental leave and an employer intends to make a decision which will have a significant effect on the status, pay or location of the employee’s pre-parental leave position, the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.
Furthermore, pursuant to s 84 of the Act, upon the ending of unpaid parental leave, an employee is entitled to return to the employee’s pre-parental leave position, or, if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
It is well established law that an employer should not use a woman’s pregnancy as a convenient reason to decide which employee to make redundant and that the criteria for redundancy should be fair and merit-based, with pregnancy not being one of those criterions.
Tips
- If you are an employer, you should ensure you have performed an adequate merit-based review of all staff prior to making an individual on parental leave redundant.
- If you are an employee who has been made redundant whilst on parental leave, you should ask your employer for a copy of the merit-based review which resulted in your termination of employment.
If you have any questions in relation to this article, please contact Damin Murdock at Leo Lawyers on (02) 8201 0051 or at office@leolawyers.com.au.
DISCLAIMER: This article is not to be taken as legal advice and is general in nature. If you require specific advice, please contact us.
Damin Murdock (J.D | LL.M | BACS - Finance) is a seasoned commercial lawyer with over 17 years of experience, recognised as a trusted legal advisor and courtroom advocate who has built a formidable reputation for delivering strategic legal solutions across corporate, commercial, construction, and technology law. He has held senior leadership positions, including director of a national Australian law firm, principal lawyer of MurdockCheng Legal Practice, and Chief Legal Officer of Lawpath, Australia's largest legal technology platform. Throughout his career, Damin has personally advised more than 2,000 startups and SMEs, earning over 300 five-star reviews from satisfied clients who value his clear communication, commercial pragmatism, and in-depth legal knowledge. As an established legal thought leader, he has hosted over 100 webinars and legal videos that have attracted tens of thousands of views, reinforcing his trusted authority in both legal and business communities."
