By Sean Melbourne
Parental leave is one of the most highly protected areas in the Fair Work Act 2009 and can be tricky to navigate. Here is some guidance to help you through:
Paid or unpaid leave?
The Fair Work Act 2009 gives employees an entitlement to unpaid parental leave. Employees only get paid parental leave if the employer has its own paid parental leave scheme.
Employees can also seek paid leave for up to 18 weeks under the government paid parental leave scheme. Here are the criteria.
In the rest of this article, we will focus on unpaid parental leave under the Fair Work Act 2009.
Who is entitled to unpaid parental leave?
- An employee must have at least 12 months continuous service as of the date of birth, or the expected date of birth, of the child.
- The leave needs to be associated with the birth of a child of the employee or of the employee’s spouse or de facto partner.
- The employee needs to have a responsibility for the care of the child (they can be a man or a woman). They don’t need to be the sole carer.
- Parental leave can also be taken where a child has been adopted.
- Casual employees are not entitled to parental leave unless they are a long term casual employee with a reasonable expectation of continuing employment on a regular and systematic basis.
How long can an employee take parental leave for?
- An employee can take parental leave for up to 12 months.
- The leave must be taken in a single continuous period.
- An employee can ask to extend the leave for a further 12 months. The employer can only refuse the request on reasonable business grounds after giving the employee a reasonable opportunity to discuss the request.
- No extensions can be made after 24 months. However, if the employee becomes pregnant again during that time, they get a new entitlement to take 12 months parental leave from when that child is born.
When does parental leave start?
- If the leave is being taken by a female employee who is pregnant with, or gives birth to the child, the leave can start up to 6 weeks before the expected date of birth. It can also be earlier if the employer and employee agree. Otherwise, the leave must start on the date of birth of the child.
- The leave cannot start after the date of birth of the child.
- An exception to this is where the employee has a spouse or de facto partner who is not employed. If so, they can start their leave at any time within 12 months after the birth of the child if spouse or partner has a responsibility for the care of the child from the birth of the child to the start date of the leave.
Employee couples enjoy some exceptions to the general rules
If an employee is part of a couple where both people are employed, leave can be taken one after the other. The second employee can start their leave immediately after the first employee’s leave finishes.
Also, both employees are allowed take leave at the same time for up to 8 weeks. Concurrent leave can be taken in separate periods, but, unless the employer agrees, each period cannot be shorter than 2 weeks. Concurrent leave cannot be taken before the date of birth of the child, unless the employer agrees.
Notice and evidence requirements
- An employee must give written notice of taking parental leave at least 10 weeks before starting leave. If that is not practicable, the notice must be given as soon as practicable (which may be after the leave has started).
- The notice must specify the intended start and end date of the leave.
- At least 4 weeks before the intended start date the employee must confirm the intended start and end dates of the leave or advise the employer of any changes to those dates (unless it is not practicable to do so).
- An employee must give evidence that would satisfy a reasonable person of the date of birth, or the expected date of birth, of the child. The employer can require a medical certificate.
Taking paid leave simultaneously
An employee can take paid leave, such as annual leave or long service leave, at the same time as they are taking unpaid parental leave. Doing this does not extend the period of unpaid parental leave. An employee cannot take paid personal/carer’s leave or compassionate leave while they are on parental leave.
Keeping in touch days
An employer and employee can agree to the employee doing some work during parental leave for the purpose of keeping in touch with the company to facilitate their return at the end of the leave.
- This can be done for up to 10 days in each 12 month period of leave.
- The employer needs to pay the employee for any keeping in touch days.
- Unless the employee requests it, they cannot be asked to do ‘keeping in touch’ days within 42 days of the birth of the child.
- If the employee requests it, it needs to be at least 14 days after the birth of the child.
- Keeping in touch days do not break continuity of the parental leave.
Return to work guarantee
- At the end of their leave an employee is entitled to return to their pre-parental leave position.
- If an employer engages another employee to fill the position during the parental leave, the employer must tell the replacement employee before they engage them about the rules regarding the employee’s return to work. This includes that the employee can return to their position once the parental leave ends and that the leave may end early in certain circumstances.
- An employee’s position can be made redundant while they are on parental leave.
- If their position no longer exists when their leave ends, the employee is entitled to return to an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
- If an employee is on parental leave and an employer make a decision that 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.