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.

  • Unpaid parental leave is provided for eligible employees under the Fair Work Act. While on unpaid parental leave under the Fair Work Act, entitlements such as long service leave, annual leave and personal/carer’s leave do not accrue. Employers should check this with the relevant state legislation, industrial instrument or federal authority for information specific to their business.

  • An employee’s period of parental leave counts as service under the Fair Work Act for the purpose of determining the employee’s entitlement to unpaid parental leave for subsequent pregnancies.

  • 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.

  • An employee may also be entitled to a period of paid parental leave under an applicable award, enterprise agreement, policy or contract of employment.

  • The Australian Government Paid Parental Leave scheme provides two payments — Parental Leave Pay and Dad and Partner Pay.

  • Checklists can be useful to remind employees of their notice requirements. See Tool 4.  Also, the Fair Work Ombudsman has employer and employee parental leave checklists.

See Tool 4 Parental leave checklist for employers

Top Tip

Keep in touch

Discussing leave arrangements with your employees should involve more than calculating their leave entitlements. You should also discuss ‘keeping in touch’ when they are on leave.

Once your employee is on leave, don’t fall into an ‘out of sight, out of mind’ mentality.  

How much unpaid parental leave is an employee entitled to under the Fair Work Act?

Under the Fair Work Act, employees with at least 12 months of continuous service with their employer immediately before the birth or expected birth of their child are entitled to take 12 months of unpaid parental leave if they will have a responsibility for the care of the child. This applies to both the pregnant employee and the spouse or partner of a pregnant woman.

Casual employees who have been employed for 12 months on a regular and systematic basis 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.

For members of an employee couple, the entitlement to unpaid parental leave can depend on how much leave has been taken by the other parent (see How much unpaid leave are partners entitled to? below).

Other forms of paid leave (for example accrued annual leave or long service leave in some jurisdictions) can be taken concurrently with unpaid parental leave but do not extend any available unpaid parental leave period under the Fair Work Act.

What notice is required for an employee to take, shorten and extend unpaid parental leave?

Employees who are on unpaid parental leave under the Fair Work Act have the right to:

  • extend their leave to 12 months unpaid parental leave if they initially told you they were taking less than 12 months leave and
  • request an additional 12 months of unpaid parental leave beyond the initial 12 months.

If an employee initially requested less than 12 months of unpaid parental leave, they can extend their leave up to 12 months. This extension is a right under the Fair Work Act and cannot be refused by you if proper notice is given. Written notice must be given to you at least four weeks before the employee’s expected date of return.  You are obliged to provide one extension, any further extension is by agreement between you and your employee. 

The employee’s request for an extension of unpaid parental leave beyond the initial 12 months must be in writing and the employer must respond to the request in writing within 21 days. This extension of leave can be refused by the employer on ‘reasonable business grounds’.

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. Where the request is refused, the employer must also provide details of the reasons for the decision.

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.

As anti-discrimination laws still apply an employer must ensure that the employee’s sex, pregnancy or family responsibilities has not unfairly influenced a decision to reject the extension.

Entitlements for both parents

For situations where both parents in an employee couple are taking unpaid parental leave under the Fair Work Act, the parents are entitled to no more than 24 months of leave between them.  Employers are entitled to ask their employee how much leave the other parent has taken.

Notice periods relating to unpaid parental leave under the Fair Work Act

Action

Notice period

When must your employee notify you in writing of their intention to take unpaid parental leave under the Fair Work Act?

At least 10 weeks before they wish to commence unpaid parental leave (or as soon as practicable). Such notice must specify the intended start and end dates.

When must your employee confirm in writing the start and end dates of their unpaid parental leave or advise you of any changes?

At least 4 weeks before they start unpaid parental leave unless this is not practicable (e.g. the child is born prematurely).

When does parental leave have to start?

The leave may start up to 6 weeks before the expected date of birth (or earlier if agreed).

Where the employee is working within 6 weeks of the expected birth date, the unpaid parental leave under the Fair Work Act must not start later than the date of birth of the child.

What if your employee wishes to shorten their 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 you.

When must your employee tell you in writing that they are extending their initial period of unpaid parental leave (e.g. from 9 months to 12 months?)

At least 4 weeks before their expected date of return. This is a right under the Fair Work Act and cannot be refused by you.

When must your employee request in writing an extension to their 12 month period of unpaid parental leave? (e.g. from 12 months to 18 months)

At least 4 weeks before the end date of the original leave period.

When must you respond to a request for an extension to the unpaid parental leave period beyond 12 months?

Within 21 days of receiving the request in writing. If you refuse, your response must include reasons for the refusal.

Medical evidence

If an employee has given notice of their intention to take unpaid parental leave under the Fair Work Act, you may request medical evidence (e.g. medical certificate) that would satisfy a reasonable person of the date of birth or expected date of birth of the child.

If an employee wishes to work during the 6 week period before the expected date of birth of the child, you can request that the employee provide a medical certificate (within 7 days of your request) containing a statement of whether the employee is fit for work, and if she is, a statement of whether it is inadvisable for the employee to continue in her 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 this within 7 days of your request, or their medical certificate states that the employee is not fit for work, you can require the employee to start their unpaid parental leave.

How much unpaid leave are partners entitled to?

Under the Fair Work Act, employees (including regular and systematic casual employees) with at least 12 months or more of continuous service are entitled to take 12 months of unpaid parental leave if they have a responsibility for the care of the child. This applies to both the pregnant employee and the spouse or partner of a pregnant woman.

There are different rules regarding unpaid leave depending on whether:

  • both parents are working (known as an ‘employee couple’) or
  • one parent is working and one is not.

Employee couple

Up to 8 weeks unpaid parental leave under the Fair Work Act can be taken by both parents concurrently. This concurrent leave can be taken in separate periods (e.g. some at the birth and some later) but each block of concurrent leave must not be less than 2 weeks unless the employer agrees otherwise.

Parents are entitled to no more than a combined total of 24 months of leave between them. Apart from the 8 week concurrent period, each parent must generally take their unpaid parental leave separately in a single continuous period. Keeping in touch days do not interrupt the single continuous period requirement. 

Where one parent is working and one is not

The employee can take the initial 12 months of unpaid parental leave and request a further 12 month extension to their unpaid parental leave under the Fair Work Act.

Where the employee is not the person who has given birth and wishes to start the unpaid parental leave later than at the date of birth or expected date of birth of the child, the employee can start the leave later, provided that the period of unpaid parental leave starts within 12 months after the date of the birth of the child. To qualify for this unpaid parental leave, the employee must have a responsibility for the care of the child and 12 months continuous service with their employer immediately before the date on which the period of leave is to start. While the employee 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 the child.

What if my employee is not entitled to unpaid parental leave?

Employees not entitled to unpaid parental leave under the Fair Work Act are still protected by anti-discrimination laws. It may be discrimination if an employer provides long periods of unpaid leave to employees for a variety of reasons but then refuses an application for leave by a pregnant employee.

Employers must not discriminate and should consider:

  • providing access to other forms of leave (such as annual leave or leave without pay)

  • discussing a reasonable period of absence having regard to the needs of both their organisation and the employee

  • if leave is refused, providing the employee with reasons why the employer is unable to grant leave without pay or why other options are impracticable. Well documented and well-grounded reasons for not granting a period of leave will assist the employer explain the decision if required.

Employees not entitled to unpaid parental leave under the Fair Work Act may still be entitled to paid or unpaid leave under, for example, an enterprise agreement or contract of employment.

Do I need to inform an employee of changes within the organisation while they are on parental leave?

Yes, you must consult with your employees who are on parental leave if there is going to be a significant change to their 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 the employee’s role.

An employee who is on parental leave must not be treated less favourably than other employees. For example, if redundancies and offers of new employment are being made, employees on parental leave must be considered in the same way as other employees. See How should I handle redundancy? for further details.

How should I keep in touch with employees on leave?

It is good practice to have a meeting with the employee before they go on leave to discuss how and how often you will keep in touch while they are on leave. At this meeting you could request contact details for the employee while they are on leave or alternatively arrange for the employee to have remote access to their work email account. Let the employee know that they will receive important news and invitations to attend events. Keep in mind that any agreements may change once the baby is born.

Keeping in touch days

Employees on unpaid parental leave under the Fair Work Act can (if they wish to) work up to 10 days during their parental leave. The days are paid at the employee’s usual rate of pay and are designed to assist the employee to keep in touch with you in order to facilitate a return to work at the end of the leave.

The rules around keeping in touch days are specified in the Fair Work Act. 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;

  • both the employee and the employer consent to the employee working for the employer on that day;

  • the day is not within 14 days after the birth of the child (if the employee requests the day) or 42 days after the birth of the child (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.

Keeping in touch days could include attending an annual planning day, important training sessions or regular informal catch-ups.

Under the Paid Parental Leave Act 2010, an employee may lose the entitlement to Parental Leave Pay (see 3.8 below) if the work performed on a keeping in touch day is not for that purpose (i.e. to assist their transition back to the workplace) or is for more than 10 days. 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 12 month period are entitled to a further 10 keeping in touch days.

Employers cannot exert undue influence or undue pressure on an employee to consent to working a keeping in touch day. There can also be no negative consequences to an employee choosing not to attend any keeping in touch days.

What is the Australian Government Paid Parental Leave scheme?

See Tool 5 Australian Government Paid Parental Leave scheme

Employees may be eligible for payment under the Australian Government Paid Parental Leave scheme, which 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.

Parental Leave Pay

Parental Leave Pay helps eligible working parents with costs following the birth or recent adoption of a child. If eligible, employees can receive Parental Leave Pay at the national minimum wage for up to 18 weeks, while on leave. This payment can be claimed by either parent as long as they are the primary caregiver and are not working during the payment period. The payment is administered by the Australian Government Department of Human Services. Casual workers, contractors and self-employed people are also eligible for the Parental Leave Pay.

You will generally need to provide Parental Leave Pay if your employee:

  • has worked for you for at least 12 months
  • will remain your employee by during their parental leave period, and
  • expects to receive at least 8 weeks of Parental Leave Pay

Employers will be notified by the Australian Government Department of Human Services if an employee is eligible for Parental Leave Pay and whether you need to provide the payments.

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

If the baby is stillborn or dies, the person who would have been the primary carer may be eligible for Parental Leave Pay. In this situation, the employee is entitled to the payments regardless of whether they take leave or return to work.

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 her entitlements.

Her employer informed her about the Australian Government Paid Parental Leave scheme and 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 so they are aware they will need to provide the Parental Leave Pay.

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. When her baby was born, she received the 18 weeks of Parental Leave Pay at the 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, employees will be able to receive up to two weeks Dad and Partner Pay at the national minimum wage.

The Department of Human Services will pay this directly to the employee.

Employers should not prevent an employee from taking unpaid leave for the purpose of accessing this payment, even if the employee has accrued paid leave entitlements.

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

More information

Fair Work Ombudsman