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
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
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?
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.
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