Parental Leave

Under the National Employment Standards (NES) an eligible employee is entitled to unpaid parental leave, which includes birth-related leave and adoption-related leave.

The leave must be associated with the birth of a child to the employee, the employee’s spouse or the employee’s de-facto partner, or the placement of a child under 16 years of age with the employee for adoption.

What is the Parental Leave (Maternity & Paternity) Entitlement?

The NES provides for up to 12 months of parental leave (including birth-related leave, concurrent leave, special maternity leave and adoption leave) for eligible employees provided the employee has at least 12 months of continuous service with the employer before the date of birth of the child or before the date of placement of an adopted child. For casual employees to be eligible, he/she must be a long-term casual (i.e. with more than 12 months continuous service) and have a reasonable expectation of continuing employment on a regular and systematic basis.

Each eligible member of an employee couple may take a separate period of up to 12 months of unpaid parental leave provided they have responsibility for the care of the child. If only one person takes this leave, that person may seek an extension of leave for a further 12 months. An employee couple is where two employees are in a spousal or de-facto relationship (including same-sex couples).

The provisions in relation to parental leave have recently been amended to allow employees to take up to 30 days as “flexible parental leave” after they have returned to work (see further below).

What are the Documentation Requirements?

An employee must wherever practicable, provide 10 weeks’ notice of the intention to take leave, specifying the start and end dates of the parental leave, including how many days of flexible parental leave they wish to take, and providing reasonable evidence, such as a medical certificate, verifying the expected date of birth of the child (or the date of placement of the child if taking adoption leave).

At least 4 weeks before the intended start date, the dates of the leave should be confirmed with the employer and the employee should advise of any changes to these dates. The notice requirements for concurrent parental leave are different, as outlined below.

How is the Leave to be Taken?

Where one employee takes parental leave, the leave must be taken in a single continuous period (except for up to 30 days “flexible parental leave”, as explained below). Any paid leave such as annual leave may also be taken during this period. Leave commences at the time of birth of the child, or placement of the child, or if the employee is pregnant, up to six weeks prior to the expected date of birth. There are also special rules regarding parental leave where a baby is stillborn, dies in infancy or there are birth-related complications (as explained further below).

Where both members of an employee couple take leave, both employees may take simultaneous leave of up to eight weeks either:

• at the birth of the child or time of placement; or
• by agreement with the employer, at any time in the period before the birth and six weeks after the birth or placement.

The concurrent leave may be taken in separate periods, but, unless the employer agrees, each period must not be shorter than 2 weeks. The notice requirement for this is 4 weeks or as soon as is reasonably practicable. No couple is entitled to more than 24 months of parental leave between them.

When does Birth-Related Leave Commence?

The period of leave commences (provided the employee has completed the notice requirements) at any time within six weeks of the expected date of birth of the child for a female employee who is pregnant. In other circumstances, it commences at the date of birth. If the employee chooses to continue working during the six-week period, the employer can request that the employee provide a medical certificate stating that it is safe for the employee to continue working. If the employee fails to provide a medical certificate, the employer can direct the employee to commence maternity leave.

There are also special rules regarding parental leave where a baby is stillborn, dies in infancy or there are birth-related complications (as explained further below).

Can the Period of Leave be Reduced?

The entitlement of 52 weeks parental leave will be reduced to the extent that any other form of authorised leave is taken by the employee such as annual leave or long service leave.

Example: Sue is a pregnant employee who is entitled to parental leave. Sue also intends to take 3 weeks of annual leave and 10 weeks of long service leave, and a period of ordinary parental leave. The maximum amount of ordinary parental leave to which Sue is entitled is 39 weeks.

An employee can request to reduce the period of unpaid parental leave with the employer’s agreement.

Do you Have to Keep the Job Open for the Employee After Parental Leave?

An employee returning to work after a period of parental leave is generally entitled to return to the position that they held immediately before the period of leave. If that position no longer exists and the employee is qualified and able to work in another position for the employer, the employee is entitled to work in that other position.

Can the 12 Month Period of Unpaid Parental Leave be Extended?

Where an employee initially applies for and commences less than 12 months parental leave, they may seek to extend the leave up to a period of 12 months, (less any concurrent leave or “paid no safe job leave”). Applications for extension of parental leave must be made at least four weeks prior to the initial end date for the parental leave. Any requests for further parental leave are at the employer’s discretion.

What Happens if the Employee Requests an Additional 12 Months Parental Leave?

The employee must apply in writing at least 4 weeks before the end of the first parental leave period. If the employee is a member of a couple, they must indicate the amount of unpaid leave that the other member has or will take as this reduces the maximum 12 month period.

The employer must respond to the request in writing within 21 days giving reasons for any refusal. The request may only be refused on reasonable business grounds.

The NES does not define reasonable business grounds for the purposes of requests for an additional 12 months of parental leave however relevant factors may include:

• the effect on the workplace and the employer’s business of approving the request, including the financial impact and the impact on efficiency, productivity and customer service;
• the inability to organise work among existing staff; and
• the inability to recruit a replacement employee or the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employees’ request.

Special Maternity Leave

An employee is entitled to a period of Special Maternity Leave (SML) where she has a pregnancy-related illness or where her pregnancy ends within 28 weeks of the expected birth, other than by giving birth to a living child. An employee is further entitled to take paid personal/carer’s leave before taking unpaid SML.

Notice of the intention to take SML must be provided to the employer as soon as practicable. An employer may require evidence such as a medical certificate.

Any subsequent unpaid parental leave taken is not affected by the amount of SML taken by the employee.

Transfer to a Safe Job

All employees are entitled to transfer to a safe job regardless of their length of service with the employer. However, only employees with at least 12 months’ continuous service who are eligible for unpaid parental leave under the NES are entitled to “paid no safe job leave”.

Where safe job available: Where a pregnant employee has fulfilled the notice requirements and provides medical evidence that she is fit for work but that it is inadvisable for her to continue in her current job during a stated period (the “risk period”) because of illness or risks arising out of the pregnancy, the employee may seek a transfer to a safe job. The employer must transfer the employee to a safe job if one is available, on the same terms and conditions, for the risk period.

An appropriate safe job is a safe job that has:

• the same ordinary hours of work as the employee’s present position; or
• a different number of ordinary hours is agreed to by the employee.

If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.

If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.

Where no safe job available: Where no safe job is available, an employee’s entitlements will depend on the employee’s length of continuous service with the employer, as set out below.

“Paid no safe job leave” (employees eligible for unpaid parental leave): If there is no safe job available and:

• the employee has at least 12 months’ continuous service and is eligible for unpaid parental leave under the NES; and
• the employee has complied with the notice and evidence requirements for taking unpaid parental leave, the employee is entitled to take “paid no safe job leave” for the risk period.

If the employee takes “paid no safe job leave” for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.

“Unpaid no safe job leave” (employees not eligible for unpaid parental leave): If there is no safe job available and:

• the employee has less than 12 months’ continuous service and is not eligible for unpaid parental leave under the NES; and
• the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy (which the employer can require to be a medical certificate).

then the employee is entitled to “unpaid no safe job leave” for the risk period.

Difference Between Special Maternity Leave and Transferring an Employee to a Safe Job

With Special Maternity Leave (SML), the employee is not able to work at all because of a pregnancy-related illness.

With the transfer to a safe job entitlement, the employee is fit to work in the opinion of a registered medical practitioner, but that it is inadvisable for her to continue in her present position for a stated period because o

• illness or risks, arising out of the pregnancy; or
• hazards in connection with that position.

SML is a period of unpaid leave (the employee is not working) whereas the transfer to a safe job entitlement requires that, where a safe job is available, an employee will continue to be paid (as they are still working, albeit in a different “safe job” role).

If the employer does not think it is reasonably practicable to transfer the employee to a safe job, that is when the entitlement to “paid no safe job leave” can arise for eligible employees with more than 12 months’ continuous service. For employees who are not eligible for unpaid parental leave (with less than 12 months’ continuous service), “no safe job leave” will be unpaid.

Complications including stillbirths and infant deaths

Employees who experience either a stillbirth or death of a child during the first 24 months of life are entitled to take up to 12 months of unpaid parental leave (if they were already eligible for the leave). During this time, employers are unable to direct the employee back to work or cancel their leave.

If an employee wishes, they are entitled to cancel their leave with 4 weeks written notice of returning to the workplace. If the leave period has not yet commenced, the employee can give as much notice as practically possible.

Other leave employees are eligible to take include compassionate leave (2 days); this also extends to family members of the infant’s family.

Premature birth and birth-related complications

It is possible for employees to “pause” their parental leave if their newborn is hospitalised after birth due to:

• premature birth;
• illness developed by the newborn; or
• other birth-related complications.

During the time their newborn is in hospital, employees who return to work will not have that time deducted from any parental leave period.

Flexible Parental Leave

Flexible parental leave is an entitlement for those who are already eligible for 12 months of unpaid parental leave. 30 days of the 12 months can be taken as a “flexible” period.

Flexible leave can be taken as 1 day or longer in either continuous or separate periods up until either:

• their child’s second birthday; or
• the second anniversary of their adopted child’s placement.

If an employee commences flexible unpaid parental leave, the employee’s entitlement to any remaining unpaid parental leave ends. This means for an employee to utilise the entire 12 months of unpaid leave and access flexible leave, they would need to take one continuous period of parental leave and save 30 days at the end to be used at a later time.

Where two employees are taking unpaid parental leave, this period cannot exceed 8 weeks. If one parent is on a continuous period of parental leave, the other parent can take a flexible period of parental leave on the same day.

Can an Employee Take Other Forms of Paid Leave while on Parental Leave?

An employee may take paid annual leave within the parental leave period. However, they cannot take paid personal/carer’s leave or compassionate leave. They may also be able to take long service leave subject to applicable State or Territory legislation.

Consultation with an Employee on Unpaid Parental Leave

If, while an employee is on unpaid parental leave, 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 consult with the employee about the effect of the decision on their position. This includes consultation on redundancy.

Transfer of Employment

Where an employee is on parental leave and their employment is transferred to a new employer, they may continue the leave. If they have provided notice of intended leave to the first employer, the entitlement must be assumed by the second employer.

Hiring Someone to Cover Parental Leave

Where the employer is taking on a replacement employee to do the work of another employee who is taking a continuous period of leave, the employer must:

• tell the replacement employee that the engagement to do the work is temporary; and
• what the rights of the employee taking the parental leave are when she returns to work after the period of leave.

Employee’s Right to Terminate Their Employment

An employee may terminate his/her employment at any time during a period of parental leave subject to any notice required to be given by the employee to the employer.

Discrimination

An employer has to take particular care when handling situations involving parental leave to avoid exposure to a claim for unlawful termination or discrimination. No matter how well-intentioned the actions of an employer may be, they may still be considered discriminatory.

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Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact Employment Innovations for advice.