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Parental Leave Factsheet and FAQs

16 September 2014

This factsheet gives details about current parental leave obligations and entitlements and answers to some frequently asked questions. However, there will be changes in June 2015 when the Federal Government plan to implement their paid parental leave policy. Watch out for the new factsheet!

What is Parental Leave?

Parental leave is a general term encompassing maternity, paternity, special maternity, adoption and concurrent parental leave. All parental leave, except for concurrent parental leave, is taken by an employee to be the primary caregiver for a new born or adopted child.

Where did the term ‘Parental Leave’ come from?

Employees’ entitlement to take time off work when becoming a parent evolved from several test cases in the courts. The initial cases focused on granting unpaid maternity leave to mothers.  Rights of adoption leave were subsequently granted for those adopting children up to five years of age. Thereafter, paternity leave was extended to men.

As a result of the Parental Leave Case (1990), an employee with at least 12 months’ service could take up to 12 months off on the birth or adoption of a child. This leave, parental leave, is unpaid, apart from those components drawn from an employee’s annual or long service leave entitlement during that period.

Eligibility for Parental Leave

Parental leave is available to all permanent and casual employees who have a minimum of 12 months regular and systematic employment immediately prior to the date of birth or expected date of birth of the child, or in the case of adoption, the day of placement of the child.  For other forms of parental leave the employee must have a minimum of 12 months’ regular and systematic employment at the commencement of any planned leave.

Entitlements for Unpaid Parental Leave

As one of the National Employment Standards (NES), unpaid parental leave is an entitlement for a period of up to 12 months’ unpaid leave that is associated with:

  • the birth of a child to the employee or their partner, or
  • the placement of a child under 16 with the employee for adoption.

The employee must have responsibility for the care of the child. Further, they are required to inform the employer of their intention to take leave, giving at least 10 weeks’ notice unless it is not practicable to do so. There is also a requirement for an employee to provide evidence for the reason for leave, if this is reasonable in the circumstances.

Under the Fair Work Act (and as an NES), an employee with at least 12 months’ continuous service has a right to request an extra 12 months’ parental leave. This request can be granted if the other partner has not already taken that amount of leave. If the request is rejected, it has to be on the basis of ‘reasonable business grounds’.

Unpaid parental leave must also be taken in a single continuous period, starting at the birth or placement of the child, or any time (in the case of a pregnant employee) within six weeks of the expected date of birth of the child. 

Statutory Paid Parental Leave

On 1 January 2011 the government funded Paid Parental Leave scheme commenced.  Eligible employees are able to access up to 18 weeks of government-funded paid parental leave at the national minimum wage.  Employees should contact the Department of Human Services to determine if they are eligible and to apply for government funded paid parental leave. This paid 18 weeks is paid at the minimum wage rate, as opposed to the employee’s substantive rate and is part of the 52 week period (not in addition to it).  To be eligible, a carer must have undertaken paid work for at least 10 of the 13 months prior to the birth or adoption.  Further, the carer must have worked during that period without any breaks of more than eight weeks, and on average at least one day per week.  They must also have earned less than $150,000 in the last full financial year.

Statutory Dad and Partner Pay

On 1 January 2013 the government-funded Dad and Partner Pay initiative was introduced.  This initiative provides two weeks paid leave at the national minimum wage.  To be eligible for this federal government entitlement, an employee must either be on unpaid leave from work, or not working.  It is available to those who work full time, part time, casually, seasonally, on contract or are self employed.

Frequently Asked Questions

1. Does an employee have a ‘right’ to go back to their previous position when they return to work after parental leave?

When returning to work after parental leave, an employee is entitled to return to their former position.  If the position no longer exists, the employee is entitled to be given another position for which they are qualified and which is nearest in status and remuneration to their previous job.  While an employee is on unpaid parental leave, the employer must take all reasonable steps to inform them about any decision that will significantly affect the pay and/or status of their position.  This communication allows the employee to be consulted in relation to change/s, and have the opportunity to discuss them with the employer.

2. Do casual employees have rights to Parental Leave?

Yes. A further outcome of the Parental Leave Case (1990) was that the original entitlements for parental leave were extended to casual employees who had at least 12 months’ continuous service with their employer. This right also continues as one of the NES, in circumstances where the employee has a reasonable expectation of continuing employment with the employer but for the birth or adoption of a child.

3. What about the rights to Parental Leave for same sex couples?

The NES for parental leave applies to same sex couples.

4. What happens if the two partners (parenting the child) are both employees?

Where two partners are both employees of the same organisation, they may each take up to 12 months’ parental leave, but not at the same time. Apart from a short period of shared leave (up to a period of eight weeks) which can be taken in separate periods usually no shorter than two weeks, the bulk of parental leave is to be taken by one or other partner.  The two parents can choose to split the leave if they wish, taking turns to act as ‘primary’ carer for the child.

5. I have an employee who is 30 weeks pregnant and has advised me she needs to be on bed rest and cannot work for at least the next 2 weeks. What type of leave is she entitled to take and can I ask for any medical proof of her condition?

A female team member can utilise unpaid special maternity leave during pregnancy if she is suffering from a pregnancy related illness.  An employer can ask for evidence of the need to take special maternity leave, and can request a medical certificate.  A medical practitioner must certify the necessary period of leave. 

6. I have an employee who is pregnant and one of the major duties of her position is to lift and unpack. She has advised me she can’t perform that part of her position.  How should I handle this?

In some cases, women need to be transferred from their present position to an alternative role because of potential risks to their pregnancies. Such a transfer will require medical advice and the following conditions to be met:

  • A medical practitioner’s opinion that the team member is fit for work but it is inadvisable for her to continue in her present position;
  • There is an alternative role available with the Employer; and
  • The rate and conditions attached to the alternative role are the same.

Where there is no alternative role, an employee who is entitled to unpaid parental leave is also entitled to take paid leave (no safe job leave) for the period that she is at risk. This (no safe job) leave is unpaid in instances where the employee is not entitled to unpaid parental leave.

Not all cases will necessitate a transfer.  Where possible any duties that a pregnant employee cannot perform, such as heavy lifting, can be carried out by another employee, avoiding the need to transfer her to a safe job or pay no safe job leave.

7. I have an employee whose partner is expecting a baby next month, and he wants to take leave at the time the baby is born. What type of leave can he take?

Following the introduction of the federal government’s Dad and Partner Pay initiative, eligible employees are entitled to two weeks paid leave at the national minimum wage paid for by the government. The employee must meet the eligibility requirements and be on unpaid leave for two weeks to be entitled to the payment.  If the employee wishes to take a period longer than that offered by the federal government they can apply for a period of annual leave in addition to their unpaid leave of two (2) weeks.

8. I have a team member whose partner has been on 12 months’ parental leave and is returning to full time work. My team member has requested a period of parental leave so he can be the primary caregiver of the child. What are my obligations regarding this request?

Both parents or caregivers are entitled to a separate period of up to 52 weeks unpaid parental leave, if they have a responsibility for the child.  The period of the second parent or care-giver’s unpaid parental leave must start immediately (the next working day) after the end of the first period of parental leave.  The total period of parental leave taken by both parents or caregivers must not exceed 24 months, less any special maternity leave.

9. I have a team member who is pregnant who wants to work up to the week before her baby is due. I am concerned about both her safety and that of the baby; can I ask her to commence her leave prior to this time?

If a pregnant employee wishes to work in the final 6 weeks of pregnancy she must provide you with a medical certificate that contains a statement that she is fit for work. If so, the statement must also show whether it is inadvisable for her to continue in her present position during a stated period because of either illness or risks arising out of her pregnancy; or hazards connected with the position.  If the team member cannot provide a medical certificate to this effect then she may be required to commence her leave early.

10. I have an employee who is on parental leave and was due back in two months but has now requested further leave for another six; do I have to approve this request?

A team member who has been on unpaid parental leave for 52 weeks can request an extension of unpaid parental leave for a further period of up to 52 weeks immediately following the end of their available unpaid parental leave period.  An Employer is required to consider all such requests and respond in writing by no later than 21 days after the request is made.  The request may be refused due to reasonable business grounds, details of which must be included in the written response.

11. I have an employee on parental leave and she wasn’t expected to return to work for 52 weeks. She has called me to ask if she can return to work earlier because she needs the money. Do I have to approve this request?

An employee whose period of unpaid leave has started may request to reduce the period of their unpaid parental leave.  The approval of such requests will be at the employer’s sole discretion.  Such requests should be submitted in writing.

12. One of my team members who was previously employed on a full time basis is due back from parental leave within the next few months but has written to me requesting to return to work part time. How should I treat this request?

Under the Fair Work Act, an employee does not have a right to return from parental leave on a part-time basis. However, a team member who is a parent, or has responsibility for the care of a child, may make a request for flexible working arrangements, which would include a request for part time work, to assist them in caring for their child if the child is under school age or is under 18 and has a disability.  All requests need to be in writing and set out the details of the change sought and the reasons for the change.  Once a written request is received the employer must give the employee a written response to the request within 21 days, stating whether the employer grants or denies the request.  The request can be refused but this must be done on reasonable business grounds which must be detailed in the written response.

13. I am considering making some changes to the business which may have a significant effect on team members. One of my team members is off work on paternity leave.  Should he be included in the consultation process I am about to start?

Yes.  Where there is a definite decision to introduce major changes in the business that are likely to have significant effects on team members, an employer is obliged to consult with all team members who may be affected by the change, including those on a period of parental leave. An employer should make contact with the team member on parental leave and arrange a suitable time to discuss any proposed change with them. They should be included as part of any correspondence that is issued regarding the change and the employer should discuss with them the extent that they wish to be involved in any face to face meetings regarding the change process.

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