Employees and leave

Key points

  • Many different forms of leave can be used to support parents in the lead-up to birth and caring for their baby.
  • Under the Fair Work Act, if you have completed at least 12 months of continuous service with your employer immediately before the birth or expected birth of your child, you are entitled to take up to 12 months of unpaid parental leave if you will have a responsibility for the care of the child. This applies to both the pregnant employee and the spouse or partner of the pregnant employee.
  • Where an employee is not entitled to unpaid parental leave under the Fair Work Act, anti-discrimination laws still apply. This means that an employer must ensure that the employee’s sex, pregnancy or family responsibilities does not unfairly influence a decision to reject the employee’s leave application.
  • The Australian Government Paid Parental Leave scheme provides two payments – Parental Leave Pay and Dad and Partner Pay.

Top Tip

There are some requirements about when you need to tell your employer that you want to take leave. The section below sets out in table form the requirements.

How much unpaid parental leave am I entitled to?

Under the Fair Work Act, if you have worked for your employer continuously for at least 12 months immediately before the birth or expected birth of your child, you are entitled to take up to 12 months of unpaid parental leave if you will have a responsibility for the care of the child. This applies to both the pregnant employee and the spouse or partner of the pregnant woman.

Casual employees who have been employed for 12 months immediately before the date of birth or the expected date of birth of the child and but for the birth or expected birth of the child the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis are also entitled to take 12 months of unpaid parental leave if they will have a responsibility for the care of the child.

Annual leave or long service leave can be used at the same time as unpaid parental leave under the Fair Work Act, but do not extend any available parental leave period. An employee is not entitled to take paid personal/carer’s leave, compassionate leave or community service leave while he or she is taking unpaid parental leave.

Anti-discrimination laws apply both to employees who are and who are not entitled to unpaid parental leave under the Fair Work Act. This means that an employer must ensure that the employee’s sex, pregnancy or family responsibilities does not unfairly influence a decision to reject the employee’s leave application.  For example, it may be discrimination if an employer provides long periods of unpaid leave to employees for a variety of reasons but refuses an application for leave by a pregnant employee.

What is the Australian Government Paid Parental Leave scheme?

The Australian Government Paid Parental Leave scheme includes two payments – Parental Leave Pay and Dad and Partner Pay. The eligibility rules for these payments are different to the criteria for unpaid parental leave under the Fair Work Act. This means that sometimes an employee will receive payment under the Australian Government Paid Parental Leave scheme even if they are not eligible for unpaid parental leave under the Fair Work Act. See http://www.humanservices.gov.au/ for more information.

Parental Leave Pay

Parental Leave Pay helps eligible working parents with costs following the birth or recent adoption of a child. If eligible, you will be able to receive Parental Leave Pay at the national minimum wage for up to 18 weeks. Additionally, you must be on leave from your workplace and not be working for any other employer. It can be claimed by either parent as long as they are the primary caregiver.

To be eligible for Parental Leave Pay, you must:

  • be the primary carer of the child
  • have an individual adjusted taxable income of $150,000 or less in the financial year either before the date of birth or adoption, or the date you claim, whichever is earlier, and
  • have worked for at least 10 of the 13 months before the birth or adoption of your child, and 330 hours in that 10 month period, even if all of that work was not with the same employer, and
  • meet Australian residency requirements.

Casual workers, contractors and self-employed people are also eligible to receive the payment.

Parental Leave Pay can be claimed through the Australian Government Department of Human Services.

If you are entitled to Parental Leave Pay, your employer will provide the payment to you if you:

  • have worked for the employer for at least 12 months
  • will remain employed by the employer during the parental leave period
  • are based in Australia, and
  • expect to receive at least 8 weeks of Parental Leave Pay.

In other circumstances, the Australian Government Department of Human Services will pay you directly.

For more information, visit http://humanservices.gov.au/parentalleavepay

Example

Assisting a pregnant employee to understand and use the Australian Government Paid Parental Leave scheme

Jessica had been working as a filing clerk at a Sydney firm for 4 years. She notified her employer that she was pregnant and asked about the Australian Government Paid Parental Leave scheme.

For Parental Leave Pay her employer directed her to the Australian Government Department of Human Services website.

Jessica completed her claim online before the birth of her child. Her claim was assessed and she received notification from the Department of Human Services that she was eligible for payment. Her employer was also notified.

When Jessica’s daughter was born she provided proof of birth to the Department of Human Services online. This finalised her claim. Payment to her employer commenced from her nominated start date.

Jessica had some annual leave accrued that she also wanted to use. Jessica left work 6 weeks before her baby was due and commenced unpaid parental leave under the Fair Work Act. She took the first 3 weeks as annual leave and then had 3 weeks unpaid leave.  When her baby was born, she received the 18 weeks of Parental Leave Pay at the national minimum wage. After these 18 weeks she took 6 weeks of unpaid parental leave. Her total time off was (6+18+6 = 30 weeks), Paid = 21 and Unpaid = 9.

Dad and Partner Pay

This payment helps eligible working fathers or partners (including adopting parents and same-sex couples) when they take unpaid time off work to care for their new baby or recently adopted child. If eligible, you will be able to receive up to two weeks Dad and Partner Pay at the national minimum wage.

To be eligible, employees must be on unpaid leave, such as unpaid parental leave and not working through their two week Dad and Partner Pay period, and must:

  • have an individual adjusted taxable income of $150,000 or less in the financial year either before the start date of the Dad and Partner Pay period, or the date you claim, whichever is earlier, and
  • have worked for at least 10 of the 13 months before the start date of the Dad and Partner Pay period and 330 hours in that 10 month period, even if all of that work was not with the same employer, and
  • meet Australian residency requirements.

The Australian Government Department of Human Services will pay you directly.

Your employer should not prevent you from taking unpaid leave for this purpose even if you have accrued paid leave entitlements.

For more information, visit http://humanservices.gov.au/dadandpartnerpay

When must I stop working and go on parental leave?

The Fair Work Act provides for pregnant employees to start unpaid parental leave 6 weeks before the expected birth date. If you want to keep working in the 6 weeks before the expected birth date, your employer may request that you provide medical evidence to show that you are fit to work and whether it is inadvisable to keep working in your present position. If you do not provide your employer with a medical certificate within 7 days of their request, your employer can require you to start your unpaid parental leave under the Fair Work Act.

Unpaid parental leave under the Fair Work Act must not start later than the date of birth of the child.

If you are not eligible for unpaid parental leave under the Fair Work Act, you must stop working at a suitable time so that your employer can fulfill their obligations to provide a safe workplace. You also have an obligation to take reasonable care for your own health and safety at work.

Can I extend my unpaid parental leave under the Fair Work Act?

Under the Fair WorkAct, you have the right to extend your unpaid parental leave once (provided you have not used all of the 12 month unpaid leave period) by giving written notice to your employer at least 4 weeks before the end date of the original leave period. This is a right under the Fair Work Act and provided you give the required notice, cannot be refused by your employer. The original leave period can only be shortened by agreement with you.

You can request in writing an extension of unpaid parental leave for a further 12 months immediately following the end of the available 12 month parental leave period. The request must be given to your employer at least 4 weeks before the end of the initial 12 month parental leave period. Your employer must grant or refuse the request no later than 21 days after you make the request. Your employer may refuse the request only on reasonable business grounds and must include details of the reason for the refusal in their response.

The term ‘reasonable business grounds’ is not defined in the Fair Work Act and what is reasonable depends largely on the circumstances of your workplace. For example, it may be unreasonable if a large organisation with many employees (such as a supermarket chain) refused to allow a manager, who has the same skills as many other managers, an extension to their parental leave. The company could easily organise work among existing staff and if required, the company could recruit a replacement employee.

An employer must ensure that the employee’s sex, pregnancy or family responsibilities does not unfairly influence a decision to reject an extension. Otherwise, a refusal may be discriminatory.

For situations where both parents are taking unpaid parental leave under the Fair Work Act, (as part of an employee couple), the parents are entitled to no more than 24 months of leave between them.

Example

Taking and extending leave

May had worked for three years for her employer and was therefore entitled to unpaid parental leave under the Fair Work Act. She was pregnant and notified her employer that she intended to take 8 months of unpaid parental leave.  When she was on leave, she realised that she wasn’t ready to go back to work, so she notified her employer (4 weeks before her initial leave period ended) that she was extending her leave for the additional 4 months. She did not need to get her employer to agree to this as she had the right to extend and had provided sufficient notice (i.e. a minimum of 4 weeks).

Later she requested in writing an extension of 3 months past the initial 12 months as she could not get a childcare place until her baby was 14 months old.  When she set out why she needed the extra time, her employer considered its business needs and then agreed to May’s request.

When do I have to tell my employer that I want to take, shorten or extend my unpaid parental leave under the Fair Work Act?

The below table sets out when you need to notify your employer of your intention to take, shorten and extend unpaid parental leave under the Fair Work Act:

Action

Notice period

Telling your employer of your intention to take unpaid parental leave under the Fair Work Act

At least 10 weeks before you wish to commence unpaid parental leave (or as soon as practicable). This must be in writing and you must specify the intended start and end dates.

Confirming the start and end dates of your unpaid parental leave or advising your employer of any changes

At least 4 weeks before you start unpaid parental leave unless this
is not practicable (e.g. the child is born prematurely).
This must be in writing.

When can you stop working and start your unpaid parental leave?

The leave may start up to 6 weeks before the expected birth of the child but can start earlier if you and your employee agree. If you continue working during the 6 week period before the birth of the child your employer may request that you provide certain medical evidence that states you are fit to work and may require you to take unpaid parental leave if you cannot provide that evidence.

Shortening your original period of unpaid leave (e.g. from 12 months to 9 months)

The original leave period can generally only be shortened by agreement with your employer.

Telling your employer that you are extending your initial period of unpaid parental leave (e.g. from 9 months to 12 months)

At least 4 weeks before your expected date of return. This must be in writing. This is a right under the Fair Work Act and cannot be refused by your employer.

Requesting an extension to unpaid parental leave beyond the initial 12 months (e.g. 12 months to 18 months)

At least 4 weeks before the end of the initial 12 month unpaid parental leave period. This request must be in writing.
Your employer must respond to this request within 21 days.

My partner is not working. Am I still entitled to unpaid parental leave?

Under the Fair Work Act, even though your partner is not working, you can still apply for 12 months of unpaid parental leave provided you will have a responsibility for the care of the child while on leave and have completed 12 months of continuous service with your employer immediately before the period of leave is to start.

If rather than start the unpaid parental leave at the birth or expected date of birth of the child you wish to start the leave later, this is allowed provided that the period of unpaid parental leave starts within 12 months after the date of the birth of your baby. While you can request an extension to the initial 12 months of unpaid leave, the period of leave may not be extended beyond 24 months after the date of birth of your baby.

My partner and I are both working. Can we both take unpaid parental leave under the Fair Work Act?

Under the Fair Work Act, you and your partner are described as an employee couple. Both of you can take unpaid parental leave under the Fair Work Act provided that you have completed at least 12 months of continuous service with your employer:

  • for the carer who is to take the initial unpaid parental leave, before the birth or expected birth of your child and
  • for the carer who is to take a period of unpaid parental leave after the period of unpaid parental leave of the other member of the employee couple, the date that the employee’s period of leave is to start.

As a general rule, employee couples cannot take parental leave at the same time except for 8 weeks in total.  This concurrent leave can be taken in separate periods (for e.g. some at the birth and some later) but each block of concurrent leave must not be less than 2 weeks.

The total leave taken between the employee couple cannot exceed 24 months and if one employee requests an extension of unpaid parental leave, their employer is entitled to ask how much parental leave the other member of the employee couple has taken in order to work out the employee’s entitlement.

Example

Employee couple both taking unpaid leave – Anthony/Maria

When Maria was pregnant with her first child, due in April, she worked out with her husband Anthony how they could both take parental leave to best work for them. Maria worked as a teacher and it made sense for her to go back to work at the start of the school year, but they wanted to have one of them home with the baby for a bit longer.  Maria stopped work at the end of Term 1, 3 weeks before the birth. When the baby was born, Anthony also took 3 weeks concurrent parental leave and had 3 weeks annual leave, and then went back to work. When school started for the new year Maria went back to work. Anthony then took 6 months unpaid parental leave, returning to work when their baby was 15 months old.

Does my employer have to tell me if my position changes while I am on parental leave?

Yes, your employer must consult with you while you are on parental leave if there is going to be a significant change to your pre-parental leave position. This could include, for example:

  • a change in status, pay or location or
  • a business restructure involving redundancies, and possibly including your role.

Under anti-discrimination laws, an employee on parental leave must not be disadvantaged or treated less favourably than other employees, for example, in the provision of a redundancy or offers of new employment.

Australian Human Rights Commission case study

Complaint under the Sex Discrimination Act

The complainant was employed as a manager with the respondent marketing company. After over one year of working at the company, she went on 12 months of unpaid parental leave. She said that when she contacted her employer a month before she was to return to work, she was told that her position had been made redundant because of the acquisition of another company some months before. The complainant said that while on leave, she was not advised of the changes occurring in the company and was not given the opportunity to apply for another position. The complainant also alleged that her former position still existed, but had a new title. The complaint was resolved with an agreement that the company pay the complainant compensation. Please note that the complainant could have chosen to bring her complaint to another  organisation rather than to the Australian Human Rights Commission.  Please see ‘Assistance and making a complaint’ for information on the various organisations.

What communication should I have with my employer prior to and when I am on leave?

It is best to have a discussion with your employer prior to the taking of parental leave about, for example, your intended return date and whether you think you will want to work part time on return so that both parties’ preferences and wishes are understood. Keep in mind that this may also change once your baby is born. 

The Fair Work Act provides that you can work up to 10 days during unpaid parental leave under the Fair Work Act.  The days are paid at your usual rate of pay and are designed to assist you to keep in touch with your employer while you are on leave to facilitate your return to work after the leave. Keeping in touch days could include attending an annual planning day, important training sessions or regular informal catchups.

The rules around keeping in touch days are in the Fair Work Act, and provide that it is a keeping in touch day if:

  • The purpose of performing the work is to enable the employee to keep in touch with his or her employment in order to facilitate a return to that employment at the end of leave; and
  • Both the employee and the employer consent to the employee performing work for the employer on that day; and
  • The day is not within 14 days after the birth of the child (if the employee requests the day) or 42 days  (if the employer requests the day); and
  • The number of keeping in touch days has not been more than 10 in the period of unpaid parental leave.

As the Fair Work Act requires unpaid parental leave to be taken as a continuous period, an employee who does not comply with the purpose of the keeping in touch days or works for more than 10 days, may lose their entitlement to continue their period of unpaid parental leave and/or return to their former position.

Employees who have extended their unpaid parental leave beyond the initial available 12 month period are entitled to a further 10 keeping in touch days.

There can be no negative consequences to choosing not to attend any keeping in touch days.

More information?

Fair Work Ombudsman