There are two types of parental leave: paid and unpaid.
While many organisations have historically chosen to provide a period of paid maternity or paternity leave, legislated paid parental leave is relatively new to Australia having only been introduced by the government on 1 January 2011.
Unpaid parental leave is available according to the National Employment Standards under the Fair Work Act 2009.
Unpaid Parental Leave
The NES provide for an unpaid period of parental leave for employees when they become parents.
For primary caregivers of a newly born or adopted child, this period is up to 12 months provided that:
- The employee is a full-time or part-time employee (or classified as a “long term casual”- that is, has worked on a regular and systematic basis); and
- The employee has worked for the employer for a continuous period of 12 months.
An employee can apply to extend their parental leave for a further 12 months and this request must be made to the employer in writing at least 4 weeks before the expiry of their current unpaid leave period.
What to do prior to taking unpaid parental leave
- Give the employerwritten notice of their intention to take unpaid parental leave at least 10 weeks before they start the leave
- Inform the employer of the expected start and end dates of the leave
- If required provide the employer with a medical certificate confirming the expected dates
- Discuss with the employer any arrangements for payment of entitlements such as annual leave or employer-funded parental leave provided for pursuant to the employment contract
- Ensure the employee meets the requirements for an entitlement to take unpaid parental leave
- Ensure the employee has provided the required notice and dates for leave and provide written confirmation of the agreed dates to the employee.
- Make any necessary arrangements for payment or the employee’s entitlements
What to during unpaid parental leave
- It is good practice to keep in touch with the employer every now and then so that you are aware of any changes happening in the workplace
If you wish to vary the period of unpaid parental leave within the first 12 month period, provide a written request to the employer at least 4 weeks prior to the end date of the agreed leave period specifying the new end date requested.
- Extension of leave: If your original leave period is less than 12 months then you are entitled extend the period of leave on one occasion without the approval of the employer, provided the total period is 12 months or less. Any further extensions (up to the full 52 weeks) must be by agreement.
- Returning to work early: Any request to return from parental leave earlier then originally agreed must be by agreement between the employee and the employer.
- If you wish to extend the period of unpaid parental leave beyond the original 52 week period, again you need to provide a written request to the employer at least 4 weeks prior to the end of the original leave period including the new end date requested.
- The employer can only refuse a request for additional parental leave up to a further 52 weeks on “reasonable business grounds”.
- If the employee requests an extension of parental leave and their initial period is less than 52 weeks, then they are entitled to an extension on the first occasion without approval. Any further request must be by agreement.
- If the employee makes a request to return earlier than agreed then this must be by agreement between the employer and employee.
- If the employee requests an extension beyond the initial 52 week entitlement, the employer must provide a written response within 21 days after the request is made. The request can only be refused on reasonable business grounds. Reasonable business grounds may include the impact on the business, the inability to organize work amongst existing staff, or the inability to replace that employee.
- It is a good idea to stay in touch with employees on parental leave and this can include occasional emails or invitations to social work functions.
Paid Parental Leave
The Paid Parental Leave Act2010 entitles all eligible Primary Carers to up to 18 weeks pay at the national minimum wage (currently $589.30). The paid parental leave is in addition to any employer-provided benefits that the employee currently receives upon the birth or adoption of a baby.
Who is Eligible?
A new parent is eligible if they:
- have a newborn baby or have recently adopted a baby from 1 January 2011
- are the primary carer of that baby
- have individually earnt less than $150,000 in the previous financial year (worked out with the adjusted taxable income)
- have worked at least 330 hours in the ten month period before the baby is born or adopted
- have worked 10 of the 13 months before the baby arrives
- are on leave or not working from the time they become the primary carer
Paid Parental Leave can be taken anytime within the first 12 months after the baby is born/adopted, and the claim can be lodged up to 3 months before the baby’s due date. The paid parental leave does not affect any employer-funded paid parental leave.
In most cases the government pays the benefit directly to employers who are then required to administer the payment to the employee.
What to Do: Paid Parental Leave
In addition to the notice requirements for unpaid parental leave, you will need to assess whether you are eligible for paid parental leave using the criteria above. If you are eligible then you will need to:
- Complete the Parental Leave Pay claim form and lodge with the Family Assistance Office (FAO). This can be done online or by posting a hard copy of the form to FAO up to three months prior to the expected arrival date of your child. You should specify the date you would like the parental leave pay to start which will depend on when you become the full time carer of the child. In order to receive the full 18 weeks of pay the start date for payments must be within 34 weeks of the birth or adoption of the child.
- Once the child is born you will then need to lodge the proof of birth form with the Family Assistance Office within 28 days so that your claim can be finalised.
- If you are receiving parental leave pay and you return to work or are no longer the primary carer of the child, you will need to inform the FAO as this may affect your payments.
The Family Assistance Office (FAO) will determine if an employee is eligible for paid parental leave.
If the employee is eligible, Centrelink will then determine if the employer is required to provide the pay to the employee and advise the employer accordingly. If the employee has been employed for 12 months or more and is taking at least 8 weeks of parental leave pay, then the employer must make the parental leave payments to the employee. In other circumstances the employer can volunteer to make the payments, otherwise payments will be administered by the Family Assistance Office. Centrelink provides the parental leave pay to the employer in advance and the employer then pays the employee.
If the employer is administering the payments then:
- Centrelink will contact the employer to advise the amount and duration of parental leave pay.
- The employer should ensure it makes the necessary changes to payroll systems to accommodate the payments.
- The employer is not required to make any government-funded parental leave payments to an employee until these funds have been received from Centrelink.
Resignation or Termination during Parental Leave
Resignation by Employee
An employee may resign while on maternity leave by giving the required notice of resignation according to the NES, the relevant award or the employment contract.
Termination by Employer
The same provisions apply in relation to termination of an employee on parental leave as to termination while not on leave. The termination must be for a valid reason, for example a genuine redundancy, and not for reasons connected with the pregnancy. If termination is not for a valid reason it may be challenged in a number of ways including:
- A claim for unfair dismissal which is harsh, unjust or unreasonable
- A general protections claim
- A discrimination claim
- A claim for unfair dismissal based on temporary absence due to illness or injury
Frequently Asked Questions
Can I work while I am on maternity leave?
If you are receiving payments under the paid parental leave scheme, one of the requirements is that you be on leave or not working. This means that if you return to work your parental leave will stop.
However, after the first two weeks of your parental leave pay, you can 'keep in touch' with your workplace by participating in workplace activities for up to ten days until the end of the parental leave period. Women often use these days for training, conferences or special planning meetings. These ten days do not need to be all together, and you must be paid as usual in addition to your parental leave pay. This 'keeping in touch' can only be done at your existing workplace, so if you worked for another employer then your parental leave pay would stop.
If you are on unpaid maternity leave, it must be taken in one continuous period. So you cannot work 'keep in touch' days during your unpaid maternity leave, though this law is currently under review and you should check with your employer before agreeing to any 'keep in touch' days.
If you are on employer-sponsored maternity leave you can check with your human resources department or your employment agreement about the conditions of that leave.
Can my partner take leave when the baby is born?
When the baby is born the father is entitled to the government-funded paid parental leave, as long as he is the primary carer of the baby and meets the eligibility criteria. If you are already being paid parental leave and aren't working, then your partner can't get paid parental leave at the same time. If you go back to work before your 18 weeks of leave has been paid then your partner may begin paid parental leave if he becomes the baby's primary carer. If he is eligible for the government's paid parental leave scheme then he may be paid the remainder of the 18 weeks of leave.
If your partner has been employed for a continuous 12 months with his employer he will also be eligible for up to 12 months unpaid paternity leave. If he wants to take unpaid paternity leave at the same time as you, then the period of simultaneous leave must be three weeks or less.
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Author: Christine Broad
It is intended as a guide only and does not replace specific legal advice.