On 26 November 2020, the Fair Work Act 2009 was amended to introduce greater flexibility for employees taking unpaid parental leave. Employees can now take up to 30 days of “flexible parental leave” at any time up to two years after the birth or adoption of a child, including after the employee has returned to work from their first period of parental leave.
This follows recent changes made to the Government paid parental leave (PPL) scheme which similarly now provides for eligible employees to access up to 30 days of the Government-funded paid parental leave on a flexible basis. The changes to the Fair Work Act mean that both systems are now aligned.
Other recent changes to the Fair Work Act include new parental leave entitlements for parents of stillborn babies, those with children that die within the first 24 months of life and for parents of premature babies or those with birth-related complications.
Changes to the Government Paid Parental Leave Scheme
The Government scheme provides eligible employees with up to 18 weeks of paid parental leave, whilst they are taking parental leave from their employer. This is paid at a rate equivalent to the minimum wage.
Effective from 1 July 2020, the Paid Parental Leave Act 2010 was amended to allow eligible employees to take up to 30 days of the 18-week entitlement, flexibly.
The flexible days can be taken up to two years after the birth or adoption of a child, including after the employee has returned to work. As an example, an employee may take a continuous 12 weeks of paid parental leave when the child is born, return to work, and then a couple of months later elect to take the remaining 30 days of paid leave, either in one block or in separate periods of at least a day. The intention of the change was to provide couples with more options to manage their income and equalise the dividing of work and carer’s duties.
Flexible Unpaid Parental Leave introduced in the Fair Work Act
To support the change to the paid parental leave entitlement and to align this with unpaid parental leave provisions, the Fair Work Act has now also been amended.
Employees can now take up to 30 days of the 12-month unpaid parental leave entitlement, flexibly, anytime within two years of the birth/ adoption of a child. The flexible days can be taken for a period of as little as one day. Employees that are wanting to utilise this entitlement must provide their employer notice of the intended amount of flexible days they will take, at the same time they notify their employer of their original parental leave request, or at least 10 weeks before the leave commencing. They must then notify the employer on what days/ dates they will take at least 4 weeks beforehand (or as soon as reasonably practicable).
All employees eligible for unpaid parental leave can use the flexible parental leave entitlement, regardless of whether or not they receive Government-funded paid parental leave.
New parental leave entitlements for parents of stillborn babies, those that die within the first 24 months of life and for premature babies or those with birth-related complications
Other amendments to the Fair Work Act also include extending the minimum 12 months unpaid parental leave entitlement to parents of stillborn babies or babies who die during the first 24 months of life. This means employers will no longer be able to direct an employee to return to work following a stillbirth or death of a child or infant. Rather, employees can request a return to work early from parental leave (should they wish) by providing their employer four weeks’ written notice. The changes also allow for an employee in this circumstance to take compassionate leave prior to commencing their period of unpaid parental leave.
Another change includes allowing employees, upon agreement with their employer, to return to work, should their newborn child remain in hospital or is hospitalised immediately following the birth, and then recommence their period of unpaid parental leave when the child is discharged, if the child dies, or at a time agreed to with the employer.
This will be useful to parents who will want to “pause” their parental leave whilst their child is in hospital, so that they still have a full period of parental leave to take when the child is released.
Do you need to update your parental leave policy?
Given the changes detailed above, employers should consider whether they need to update existing parental leave policies. Employment Innovations’ clients* have free access to template workplace policies which are regularly updated to take account of any changes to employment law. You can view an up-to-date list of our document library here and if you require a copy of an updated parental leave policy, please contact one of Employment Innovations’ consultants today.
(*HR Connect and HR Partner subscriptions)
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This article was originally published on 4 January 2021; updates have been made following the advice of State & Federal government authorities. Last updated on 30 June 2021.