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As a workplace relations adviser, I regularly assist a number of employers as they undergo an audit by the Fair Work Ombudsman (FWO). Many ...
While it may seem natural that maternity leave be applicable to employees who have given birth, parental leave is also applicable to employees who have a partner or spouse who has given birth. It even extends to employees who have adopted a child under the age of 16. The only requirement is that they have responsibility for the child’s care.
That does not mean though that an employee can start a job and one month later take parental leave. For an employee to be entitled to parental leave, they must have completed at least 12 months of continuous service with the employer immediately prior to the child’s expected birth date. Or in the case of adoption, the expected date of placement of the child.
However, the circumstances are quite different if the employee is working on a casual basis. Casual employees are entitled to parental leave if they have served at least 12 months of continuous service on a regular and systematic basis with the same employer immediately prior to the expected birth date of the child. Or in the case of adoption, the expected date of placement of the child. There is also the stipulation that the same pattern of continuing employment on a regular and systematic basis would have occurred if the birth or adoption had not happened.
Just like other forms of leave such as sick leave and annual leave, employees on maternity leave or parental leave have certain entitlements. Most employees in Australia are entitled to 12 months of unpaid maternity or parental leave. It is important to note that each member of an employee couple, whether spouses or de facto, are entitled to 12 months of paid leave each, regardless of whether they are employed by the same employer or not.
If parents who are married or in a de facto relationship wish to take unpaid leave at the same time, they may do so, but it must be up to only eight weeks long. This form of leave is called ‘concurrent leave’. On the other hand, if parents wish to take separate periods of unpaid leave, they are entitled to up to 12 months each, however, the combined leave must not be more than 24 months.
Even though employees are entitled to take maternity and parental leave, there does need to be some form of evidence and notice given for the leave to take place. Employees need to provide their employers with written notice of intention to take maternity or parental leave at least 10 weeks in advance. This written notice must give specific details to the employer of the intended start and finish dates, which both must then be confirmed at least four weeks before the leave commences. Employers are also then entitled to request a medical certificate to support the request for leave.
It is also possible for employees to take other kinds of leave concurrently while they are on maternity or parental leave, including annual leave and long service leave. However, taking concurrent leave in this way does not make the period of maternity or parental leave any longer. Conversely, employees cannot take paid personal, carer’s, compassionate or community service leave during the period in which they are on maternity or parental leave.
When it comes to taking additional unpaid maternity leave, again, there are certain adherences to which employees must comply. If an employee wishes to ask for a further 12 months of maternity leave, they must do so in writing at least four weeks before the end of the first 12 months. As an employer, you need to respond in writing to their request within 21 days and are only entitled to refuse the request if there are reasonable business grounds for doing so.
Maternity leave and parental leave is made available so that parents can take care of their children or children to be. But what about pregnant employees who are still at work? Pregnant employees now have more rights under the Fair Work Act 2009 than previously. For example, as the employer, you are required to provide a safe job for a pregnant employee if it is not safe for her to complete her usual tasks. If you are unable to provide an alternative job, the pregnant employee is entitled to paid safe job leave during the period which they are at risk.
There are some circumstances in which special maternity leave can also take place. For instance, if an employee has a pregnancy-related illness, or if their pregnancy ends without a child, they are entitled to take special maternity leave after 12 months. Taking this leave does not reduce the amount of annual leave the employee is entitled to take.
It is important that if an employee of yours becomes pregnant and alterations to their working situation need to be made, you make sure that they freely agree to any changes made to their hours of work or pay. If you do not do this, you run the risk of unfair dismissal, discrimination, or even adverse action claims. All of which can be very detrimental to your business.
If an employee wishes to extend their parental leave for a further 12 months, they must request the extension in writing at least four weeks before the end of the first 12 months. Likewise, you as the employer need to respond to the request in writing within 21 days, and the request can only be refused if there are reasonable business grounds to do so.
A lot of employees avoid taking leave for fear of not being able to return to their same position once the leave is over. However, after taking maternity or parental leave, employees are entitled to return to the role they had before the leave, or if that role is not available, a role similar in status and pay. It is important that you discuss with the employee any possible changes to working conditions that could affect them to ensure that their return is as smooth as possible. You should also be aware of the fact that under the National Employment Standards (NES), an employee who has a child under school age in their care is entitled to ask for flexible working arrangements, such as working from home.
If you have any questions about maternity or parental leave, do not hesitate to speak to an Employsure specialist. Our team are available day or night on 1300 651 415.
For peace of mind, please call our 24-hour Advice Line now on 1300 651 415