Under the National Employment Standards, employees (including casuals) can take up to 12 months’ unpaid parental leave when they (or their spouse or de facto partner) give birth to a child, or they adopt a child under 16 years of age. They can also request up to an extra 12 months’ leave.
What do parental leave entitlements include?
Parental leave entitlements include:
- maternity leave
- paternity and partner leave
- adoption leave
- special maternity leave
- a safe job and no safe job leave.
Employee parents also have a right to return to their old job.
Who is eligible for maternity leave?
Employees are able to take parental leave if they:
- have worked for their employer for at least 12 months:
o before the date or expected date of birth if the employee is pregnant
o before the date of the adoption, or
o when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
- Have, or will have, responsibility for the care of a child.
Casual employees need to have been working for their employer on a regular and systematic basis for at least 12 months and must have a reasonable expectation of continuing work with the employer on that basis, had it not been for the birth or adoption of the child.
To take parental leave, an employee must generally give their employer notice in writing at least 10 weeks before they expect to start their unpaid parental leave (and confirm their leave dates at least four weeks before the expected start date). Different notice requirements may apply for employees taking flexible parental leave or concurrent leave.
Concurrent leave for employee couples
There is no longer a restriction on the amount of unpaid parental leave that an employee couple can take at the same time.
Flexible unpaid parental leave
Employee may take up to 100 days flexible unpaid parental leave during the 24-month period starting from the date of birth or date of placement of the child.
A pregnant employee may take flexible unpaid parental leave during the period that starts 6 weeks before the expected date of birth of the child.
Entitlement
Both parents can take up to 12 months unpaid parental leave at any time within 24 months of their child’s birth or the placement of a child. Both parents can also apply for an extension of up to 12 months beyond the initial 12-month period of leave, provided that the leave period does not extend beyond 24 months after the date of birth or placement of the child.
Pregnant employee working six weeks before birth
You may request that an employee, who intends on working the six weeks up until the expected date of birth, provide a medical certificate confirming if the employee:
- is fit for work, or
- may be at risk if they continue in their position.
The employer can require an employee to take unpaid parental leave if the employee is unfit for work, if there is a significant risk to the employee if they continue in the position, or if the employee fails to provide the requested evidence.
Transfer to safe job or no safe job leave
If a pregnant employee has obtained a certificate from a medical practitioner stating that the employee is fit for work but cannot remain in the employee’s current position, then, if it is reasonably practicable, an employer must transfer the employee to a safe job during the risk period. If there is no appropriate safe job available, the employee is entitled to take “no safe job leave” for the risk period.
If the employee is transferred to a safe job, then the employee must be paid for the time worked in the safe job at the employee’s full rate of (original position) pay.
If no appropriate safe job is available, an employer must pay the employee their base rate of pay for the employee’s ordinary hours of work in the risk period, where the employee has an entitlement to parental leave. Where there is no entitlement to parental leave, the “no safe job leave” will be unpaid.
Keeping in touch days
The Paid Parental Leave Act 2010 (Cth) allows “keeping in touch days” to be recognised as paid days of work without affecting the unpaid parental leave entitlement contained in the Fair Work Act. Employees who are on unpaid parental leave are able to perform approved paid work for short periods to prepare for their return to work.
Guarantee of return to work
An employee who goes on parental leave is entitled to return to the same position previously held by the employee before parental leave. If that position no longer exists, the employer must offer the employee a suitable alternative in status and remuneration.
Our Parental Leave Kit contains an extensive suite of template HR forms covering all aspects of managing pregnancy at work, parental leave, flexible work requests and other return to work arrangements following a parental leave period.
Contact us on (08) 9365 7660 or at [email protected] for more information.
