Under the parental leave and related provisions in the Fair Work Act 2009 ("the Act"), there are a number of different entitlements such as, adoption related entitlements, birth related entitlements, provisions which apply only to pregnant employees, and some provisions which apply to all employees. Please note that parental leave under the Act is separate from the Paid Parental Leave scheme which is now available: for more information on this please see our separate Paid Parental Leave Fact Sheet.
Who is entitled to parental leave?
The entitlement for eligible employees is up to 12 months of unpaid parental leave, with the ability to request a further 12 months.
What is the entitlement?
The entitlement for eligible employees is to 12 months of unpaid parental leave, with the ability to request a further 12 months. However, this varies depending on whether one person takes parental leave, or in the case of an employee couple, both take parental leave. Leave must be taken as a single continuous period.
An employee couple is two national system employees who are spouses or de facto partners (they do not have to be employed by the same employer).
One Parent Taking Leave
An employee is entitled to 12 months of unpaid parental leave associated with the birth of a child of the employee, or the employee's spouse or de facto partner, or the placement of a child with the employee for adoption (adoption related leave).To qualify, the employee must have responsibility for the care of the child.
Employee Couple Both Taking Leave
The entitlement to 12 months applies to both members of a couple, for a combined maximum of 24 months parental leave.
Notice and evidence
An employee must give their employer written notice of taking birth related or adoption related parental leave at least 10 weeks prior to starting the leave, or where that is not practicable, as soon as reasonably practicable. The notice must specify the intended start date and finish date of the leave, and at least four weeks prior to commencing the leave the employee must confirm the dates or advise of any changes. For birth related leave, the employer may require the employee to produce a medical certificate in support of the leave.
The employee is not entitled to take unpaid parental leave unless they comply with the notice and evidence provisions in the Act.
Limited entitlement to take concurrent leave
A couple is entitled to take concurrent unpaid leave. The amount of concurrent leave is limited to 3 weeks, ending no later than 3 weeks after the birth of the child or 3 weeks after the placement of the child, although it may start earlier or end later with the agreement of the employer. This is an exception to the rule that employees must take his or her period of parental leave in one continuous period.
Right to request further period of parental leave
If only one parent takes parental leave, they have the right to request an additional period of parental leave of up to 12 months. Such a request must be in writing and must be given to the employer at least 4 weeks before the end date of the original period of parental leave. The Employer must respond in writing within 21 days. An employer may refuse the request, but only based on reasonable business grounds and reasons must be given in the response.
In the case of a couple, if one of the employees requests a further period of parental leave, the 12 months is reduced by any period of parental leave their partner has already taken, including leave that was taken concurrently.
Where a couple both take leave, the second employee's leave must commence immediately following the end of first employee's period of parental leave.
Taking other leave concurrently with parental leave
An employee can take other kinds of leave (e.g. annual leave, long service leave) concurrently with parental leave, but it does not extend their period of parental leave. Employees are not entitled to take paid personal/carer's, compassionate or community service leave (jury service) while they are on parental leave.
Return to work guarantee
On ending unpaid parental leave, an employee is entitled to return to their 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.
Can I require a pregnant employee to go on parental leave?
If a pregnant employee who is entitled to unpaid parental leave continues to work during the 6 weeks prior to the expected date of birth of the child, the employer may ask the employee for a medical certificate stating whether the employee is fit for work, and if they are, whether it is inadvisable for the employee to continue to work in their present position because of:
- Illness or risks, arising out of the employee's pregnancy; or
- Hazards connected with the position
If the employee does not provide the certificate within 7 days, or where the employee does provide the certificate within the 7 days stating that the employee is not fit for work, the employer can require the pregnant employee to commence unpaid parental leave as soon as practicable.
Unpaid Special Maternity Leave
Unpaid special maternity leave allows a pregnant employee a period of unpaid leave if she is not fit for work during a period of time because she has a pregnancy related illness, or where she has been pregnant but the pregnancy ends other than with the birth of a living child, within 28 weeks of the expected date of birth of the child.
Any period of unpaid special maternity leave reduces her entitlement to 12 months of unpaid parental leave by an equivalent amount.
Transfer to a Safe Job
If a pregnant employee gives her employer evidence that would satisfy a reasonable person that she is fit for work but that it is inadvisable for her to continue in her present position during a stated period ("the risk period") because of illnesses or risks arising out of the pregnancy or hazards associated with that position, then that employee is entitled to a transfer to an appropriate safe job.
If the employee is transferred to the safe job there must be no other changes to the employee's terms and conditions of employment. If the pregnant employee agrees, the appropriate safe job may have fewer ordinary hours of work. The employee must be paid at their full rate of pay (for the position she was in before the transfer) for the hours that she works.
Make sure the employee freely agrees to any changes that are made to their hours of work and pay. If changes are made unilaterally the employee may have access to unfair dismissal, discrimination or adverse action claims.
Paid No Safe Job Leave
If there is no safe job in accordance with the above transfer provisions, the employee is entitled to take paid no safe job leave for the risk period. If the employee is on paid no safe job leave during the 6 week period prior to the expected date of birth of the child, the employer may ask the employee to give them a medical certificate stating whether the employee is fit for work.
If the employee does not provide the certificate within 7 days, or where they do but are not fit for work, the employer can require the employee to commence unpaid parental leave as soon as practicable.
Consultation with an employee on unpaid parental leave
If an employee is on unpaid parental leave and the employer makes 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 effects of the change.
Employers should be aware of any requirements to consult with employees (including those on parental leave) about workplace change, under an applicable modern award or enterprise agreement.
Employers should also be aware that failure to consult with employees on unpaid parental leave may not only breach the provisions of the NES and any applicable modern award or enterprise agreement, but it may be discriminatory.
Unpaid pre-adoption leave
As well as the above entitlement to parental leave, an employee is entitled to up to 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the employee's adoption of a child. However, the employee can only take this leave if they cannot take any other kind of leave (e.g. annual leave).
The employee may take the leave as a single continuous period of 2 days or any separate periods as agreed with the employer.
Please note that the information contained in this fact sheet is of a general nature and does not constitute advice of any form. Advice on the specific circumstances of any particular case should always be sought before taking any action. If you need any advice, or for any other enquiry please contact us.