By the Carroll & O'Dea Employment and Industrial Relations Group

TABLE OF CONTENTS

Overview – Part 1
Who is entitled to parental leave?Part 2
How much parental leave can be taken? Part 2
What is the process for claiming parental leave? Part 3
How can an employee take up to two years leave? Part 3
What about Dad? Part 4
Are employees entitled to paid parental leave? Part 4
Are there special requirements when hiring replacement staff? Part 5
What happens when an employee returns to work? Part 5
What if there is a dispute? Part 6
Where can I get more information? Part 6

WHO IS ENTITLED TO PARENTAL LEAVE ?

An employee is entitled to be provided with unpaid parental leave if they satisfy the following:

  • They are a permanent employee; and
  • They have had at least 12 months continuous service with an employer immediately before the date, or expected date of birth of the child, or date or expected date of placement of an adopted child.

OR

  • They are an eligible casual employee, being a casual employee who has been employed by their employer on a regular and systematic basis for a sequence of periods of employment during a period of 12 months, and who would have a reasonable expectation of continuing engagement by the employer on a regular and systematic basis, but for the birth or placement of a child, or the taking of a period of unpaid parental leave.

Significantly, the definition of "de-facto partner" includes members of a same sex couple, which means that gay and lesbian couples now have access to most parental leave entitlements.

However, if an employee wishes to take unpaid parental leave that is to start within 12 months after the birth or placement of a child, the above requirements will apply immediately before the date on which the leave is to commence.

An employee will not be entitled to unpaid parental leave in connection with the adoption of a child unless the child is or will be under 16 years of age at the date, or expected date, of placement, and has not lived continuously with the employee for 6 months or more as at the date, or expected date, of placement. The child being adopted also cannot be a child of the employee or the employee's spouse or de facto partner.

"Spouse" is defined quite narrowly under the Fair Work Act, and only extends to a former spouse. However, "de-facto partner" is broadly defined and includes: a person who lives with the employee in a relationship as a couple on a genuine domestic basis; and a former de-facto partner of the employee. This is a significant development in the law, and reflects changes in modern society.

HOW MUCH PARENTAL LEAVE CAN BE TAKEN?

Parental leave:

  • can start for female employees any time within 6 weeks before the expected date of birth of the child;
  • can be for a period of up to 12 months (with extension to up to 2 years by agreement with the employer);
  • may be unilaterally extended by the employee on one occasion if they have commenced a period of unpaid parental leave that is shorter than their available parental leave period (i.e. less than 12 months). The employee needs to provide their employer with at least four weeks notice of an extension; and
  • may be reduced or further extended by agreement between the employee and employer.

The Fair Work Act also provides female employees with an entitlement to unpaid special maternity leave in circumstances where the employee is not fit for work because: she has a pregnancy-related illness; or the pregnancy has ended within 28 weeks of the expected date of birth.

Special provisions also apply where the child dies or the employee ceases to be the primary care-giver for the child, which enable the employer to cancel the remaining parental leave period after providing notice to the employee.

A female employee's entitlement to unpaid parental leave may be unilaterally extended by the employee once, up to a total period of 12 months, if they have commenced a period of unpaid parental leave that is shorter than their available parental leave (i.e. less than 12 months).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.