Published 12 December 2020
Unpaid parental leave is one of the National Employment Standards. While it does not bestow any direct financial entitlement to employees, for eligible employees however, it provides a mechanism under which their employment with an employer is maintained (in spite being on unpaid leave) for up to two years. There are a number of obligations that employers are therefore required to consider.
Entitlement to Parental Leave
Minimum Service Requirement
Under section 67 of the Fair Work Act 2009 (Cth) (the FW Act), an employee, other than a casual employee, is entitled to parental leave only if they have completed at least 12 months’ continuous service up to the date, or expected date, of the birth of their child, or the date, or expected date, of the placement of the child they are adopting.
A casual employee is only entitled to parental leave if they were employed on a ‘regular and systematic basis’ for a period of 12 months up to the date, or expected date, of the birth of their child, or the date, or expected date, of the placement of the child they are adopting. Casual employees have the additional requirement of having the reasonable expectation of their employment continuing on a ‘regular and systematic basis’.
Leave Related to Birth or Adoption of Child
Section 70 provides that to be eligible for the 12 months’ parental leave, following the birth or adoption of the child, the employee must have or will have the responsibility of care of the employee’s child, the employees spouse or de facto partner’s child, or after the placement of a child for adoption.
Taking of Parental Leave
The FW Act stipulates how parental leave can be taken based on two situations:
- where the employee is not a member of an employee couple or where the employee is a member of an employee couple but only one of the employees intends to take parental leave; or
- both are members of an employee couple who intend to take parental leave.
An employee couple is where two national system employees are in a de facto or spousal relationship. To be an employee couple, the couple does not need to be employed by the same employer.
Not Employee Couple or One Member of Employee Couple Intends to take Leave
Section 71(2) provides that parental leave must be taken in one continuous period.
If the employee is pregnant, section 71(3) provides that parental leave can commence up to six weeks before the expected date of birth of the child, unless the employer and employee agrees for the leave to commence earlier. The parental leave cannot start later than the birth of the child.
If the leave is related to the adoption of a child, section 71(5) provides that parental leave is to commence on the day the child is placed with the employee.
In the case where the employee’s partner, who is not an employee of any employer, has been responsible for the care of their child from the child’s date of birth or placement, section 71(6) provides that the employee’s parental leave can commence at any time within 12 months of the birth or placement of the child.
Where both members of the employee couple intend to take parental leave, the leave must be taken in a single continuous period.
Section 72 provides that if the leave relates to the birth of a child, and the member of the employee couple who is starting their leave first is pregnant, parental leave can start up to six weeks before the expected birth of the child, or earlier if agreed to. If the member of the employee couple is not pregnant, parental leave must start on the date of birth of the child. If the leave relates to the adoption of a child, the first member’s parental leave commences on the date the child is placed with the employee couple.
The member who is taking parental leave second, whether in relation to the birth or adoption of a child, their leave must start immediately after the end of the first member’s parental leave.
Notice and Evidence Requirements
An employee is only entitled to unpaid parental leave if they comply with the notice and evidence requirements set out in section 74 of the FW Act. Initially, an employee must give written notice of the intended start and end dates of their parental leave. This written notice is to be provided to the employer at least 10 weeks before the intended start date. If this is not practicable, the employee should provide the notice as soon as is practicable.
The employee is to confirm in writing the intended start and end dates of their parental leave at least four weeks before the intended start date. If there are any changes to the intended start and end dates, the employee should provide this in writing to the employer at least four weeks before the intended start date.
Section 74(5) allows an employer to require an employee to give them ‘evidence that would satisfy a reasonable person’ of the date or expected date of birth or placement of the child. This can be in the form of a medical certificate.
Extending Parental Leave
In the case where an employee has:
- complied with the notice requirements;
- the requested parental leave was less than 12 months; and
- the parental leave has commenced,
the employee is able to extend their parental leave in accordance with section 75(3). To extend the leave, the employee must provide written notice stating the new end date of their parental leave at least four weeks before their initial requested end date.
An employee is only guaranteed to extend their parental leave for their first extension request. Section 75(3) allows an employee to request further extensions to their parental leave. However, any extension after the first extension is only if the employer agrees. This is so even if the employee has not utilised the full 12 months of their parental leave.
Under Section 76, an employee can request to extend their parental leave, so long as the total leave does not exceed 24 months. The employee must make this request in writing and be given at least four weeks before the end of the employee’s parental leave period. An employer must respond to the request within 21 days in writing, informing the employee whether their request is agreed to or not. An employer is only able to refuse this request on ‘reasonable business grounds’ and the written response must set out these reasons.
Request for Flexible Working Arrangements
If a parent is eligible for parental leave, they are also eligible to request flexible working arrangements under section 65 of the FW Act for when they return to work.
To request flexible working arrangements, an employee must make a request in writing setting out the details of what change(s) they are seeking and the reasons for this change. Employers must respond in writing to this request within 21 days. An employer can refuse a request, but only on reasonable business grounds, which can include;
- the request would be too costly;
- the employer is unable to change other employee’s working arrangements to accommodate the request;
- it is unfeasible to change other working arrangements or recruit new employees to accommodate the request;
- the request would mean a significant decrease in efficiency or productivity; or
- the request would significantly impact customer service.
Under the FW Act Part 3-1 – General Protections, parental leave and requests for flexible working arrangements are protected workplace rights. Meaning, employers must not take adverse action against an employee because they have or have not or propose to or propose not to exercise the right to take parental leave or request flexible working arrangements.
Adverse action includes:
- dismissing an employee;
- injuring an employee in their employment;
- altering the employee’s position to their detriment; or
- discriminating against the employee.
Employers need to be very mindful when making decisions that affect employees who are entitled to parental leave that it does not amount to adverse action against the employee.
An employee is only entitled to parental leave if they have complied with the notice requirements and worked at least 12 months. An employee who has not utilised the full 12 months of their initial parental leave can extend their parental leave once. Any further extensions are only if the employer agrees to it.
If an employee is eligible for parental leave, they will also be eligible to request flexible working arrangements for when they return to work. Both parental leave and flexible working arrangements are workplace rights. Employers need to be careful not to take adverse action against employees who are entitled to take parental leave or request flexible working arrangements.
The above is only an overview of the main parental leave provisions. It is not an overview of all of the provisions. Should you require advice on specific circumstances, please contact us.
This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. Olexo Workplace Law recommends that specialist legal advice should be sought about specific legal issues.