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On 1 October 2012 the balance of various provisions of the
Paid Parental Leave and Other Legislation Amendment (Dad and
Partner Pay and Other Measure) Act 2012 will commence. This
piece of legislation in particular, amends two pieces of
legislation: the Paid Parental Leave Act 2010 and the Fair Work
Act 2009.
DAD AND PARTNER PAY
This amendment will introduce a new parental paid leave for
fathers and partners of newborn babies or adoption of a child from
1 January 2013 under the Paid Parental Leave Act 2010. If
a father or partner meets the work and income tests for Paid
Parental Leave they will receive 2 weeks leave paid at the national
minimum wage rate from the Federal Government.
TIMING OF UNPAID lEAVE
Unpaid parental leave under the Fair Work Act 2009 is
amended for pregnant female employees so that:
Unpaid parental leave may start earlier than six weeks before
the expected date of birth if the employer and employee agree (the
former position was that it may commence up to six weeks prior to
the expected date of birth)
KEEPING IN TOUCH DAYS
Fair Work Australia has long advised that best workplace
practice makes keeping in touch practices important for employees
on parental leave. However, currently only employees who receive
paid parental leave payments under the Paid Parental Leave
Scheme offered by the Federal Government are entitled to take
up to 10 keeping in touch days.
Employees who were on unpaid parental leave as a result of the
National Employment Standards were unable to return to work as
their parental leave had to be taken in a single continuous period.
Thus if they had a keeping in touch day it would break their
continuous leave period meaning they may lose their entitlement to
parental leave ongoing or their right to return to their
pre-parental leave role at work.
The changes to the National Employment Standards (which came
into effect in July 2012) in effect allow employees on unpaid
parental leave to take up to 10 keeping in touch days without
breaking their single continuous period of parental leave.
A keeping in touch day is, as the name suggests, for the
employee to keep in touch with their workplace thus easing their
return to work. There will be no obligation for employers to give
the employee keeping in touch days and any such days must have been
freely consented to by the employee and employer. The employee must
not be pressured into agreeing to a keeping in touch day.
The keeping in touch day must not be within 14 days of the day
the child was born or placed (in the case of adoption) with the
employee, and also cannot be arranged at the request of the
employer in the first 6 weeks after the day the child was born or
placed with the employee.
An employee can only take 10 keeping in touch days during their
12 month unpaid parental leave period. If that period of leave is
extended then the employee will have a further 10 keeping in touch
days.
Taking keeping in touch days does not extend unpaid parental
leave.
When an employee takes a keeping in touch day they do not have
to work the full day and they will be paid for performing work at
their ordinary rate.
CANCELLATION OF PARENTAL LEAVE AND REPLACEMENT EMPLOYEES
The changes also provide a mechanism for return to work of an
employee whose pregnancy ends other than by the child being born
alive or where the child dies after being born. The changes also
require employers to formally notify replacement employees who are
to perform the work of an employee going on unpaid parental leave,
that the work is temporary and of the rights of the employer and
the employee concerning parental leave including the employee's
right to cancel parental leave.
COMMON WAYS TO MAINTAIN EMPLOYEE'S ENGAGEMENT WITH THE
WORPLACE WHILE ON LEAVE
Arrange pre determined times to check in with an employee on
parental leave.
Ensure someone in the workplace is responsible for passing on
any important information about workplace changes to the employee
on parental leave.
Forward work newsletters or the like to the employee.
Meet with the employee when they near the end of their parental
leave period to discuss their return to work; for instance their
hours and flexible working arrangements.
In response to these changes, employers should update
their policies now.
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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A court has determined that an employee had a workplace right under the Fair Work Act 2009 to make a complaint entitling the employee to proceed with her general protections claim.
