By the Carroll & O'Dea Employment and Industrial Relations Group
TABLE OF CONTENTS
Overview – Part 1Who 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
INTRODUCTION
On 1 January 2011, Australia's first national paid parental leave scheme (funded by the Federal Government) will commence. Paid parental leave will be available to eligible employees in addition to unpaid leave from their employers (which is presently available to most employees under the "National Employment Standards"), as well as any additional paid parental leave offered by employers.
In recent times there have been many changes to the law regarding parental leave, both paid and unpaid, and in some respects this area of law is quite complex.
This Guide is intended to provide a general overview of the law regarding the minimum standards for parental leave (and related matters), essentially for the private sector workforce. Employers are encouraged to be aware of their obligations to their employees, both to ensure compliance with the law and avoid costly disputes and legal proceedings.
I acknowledge and thank Claire Bateman and Michelle Wright, lawyers with Carroll & O'Dea, for their contributions in preparing this Guide. I hope that you find this guide helpful, and my team and I would be happy to assist you if required.
Peter Punch Partner
Employment & Industrial Relations Group Carroll & O'Dea
OVERVIEW
Whilst the introduction of Government funded paid parental leave across Australia is a major development, the entitlement to unpaid parental leave is not new. Since 1979 most employees in Australia have had access to some form of leave after the birth of a baby, although the focus has always been on the mother and her traditional role within the 'normal' family unit.
The Government has now recognised that there is no such thing as a 'normal' family unit. Accordingly, care arrangements for a newly born or adopted child may vary greatly. A range of possible arrangements could exist, such as: the mother may return to work after childbirth whilst the father is the primary carer for the child; a child could be cared for by one partner of a samesex couple; or the child may be cared for by an adoptive parent. The provisions in the Fair Work Act 2009 (Cth) dealing with parental leave reflect such changes in modern society.
The "National Employment Standards" contained in the Fair Work Act commenced on 1 January 2010, and form the basis of most employees' entitlements to unpaid parental leave. This legislation provides a father with many of the same leave rights as a mother, and adoptive parents with largely the same leave rights as biological parents.
From 1 January 2011, many employees across Australia will also be entitled to seek paid parental leave from the Federal Government, in addition to unpaid parental leave and any such leave paid by their employer. The new paid parental leave scheme significantly enhances the parental leave entitlements of Australian workers.
[NB: Public Sector employees often have different entitlements, but that subject is not within the scope of this Guide.]
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.
