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The Federal Government recently passed the Paid Parental
Leave and Other Legislation Amendment (Dad and Partner Pay and
Other Measures) Act 2012 (Act) which makes a
number of changes to the rules governing parental leave as well as
introducing 'dad and partner pay' for eligible employees
who take time off work to care for a new baby.
We explain the changes below and analyse the implications they
have for employers.
Dad and partner pay
Under the Act eligible dads and partners (including partners in
same sex couples) will be entitled to a payment of up to two weeks
'pay' from the Federal Government if they take leave to
care for a baby or newly adopted child born (or placed) on or after
1 January 2013. The leave must be taken during the first 12 months
of the child's life (or placement for adoption). The payment,
known as 'dad and partner pay' is calculated at the
National Minimum Wage (currently $606.40 per week gross).
In order to be eligible for the payment, an employee must:
satisfy the income test which currently states that the dad or
partner must have earned less than $150,000 per year in the
financial year immediately preceding the year in which the payment
is made;
satisfy the work test which states the dad or partner must have
worked continuously for at least 10 of the 13 months prior to their
nominated start date for dad and partner pay and have worked at
least one day per week during that 10 month period;
be an Australian resident;
use the leave to provide care for the child, whether as primary
carer or jointly (for example, jointly with the child's
mother); and
not be working (or taking another form of paid leave, for
example annual leave) at the time they receive the payment.
Changes to parental leave
The Act also makes a number of changes to the Fair Work Act 2009
in relation to the provision of parental leave. The changes are
summarised below and take effect immediately.
A pregnant employee is now able to commence unpaid parental
leave more than six weeks before the expected date of birth, with
her employer's agreement.
Where a pregnant employee who has commenced parental leave
experiences a still birth or infant death, they are entitled to
return to work upon providing their employer with four weeks
written notice (alternatively, the employer must give six weeks
notice if they require the employee to return to work).
Where an employer engages a replacement employee to perform the
work of an employee on parental leave, the replacement employee
must be notified that their engagement is temporary and may be
brought to an end before the planned end date in certain
circumstances (e.g. if the employee on parental leave returns to
work early following an infant death).
The rules surrounding 'keeping in touch' days have been
varied so that a 'keeping in touch' day must not take place
within 42 days after the day the child was born (or placed, in
cases of adoption), except where the employee asked to perform work
on such a day in which case the day must not fall within 14 days
after the day on which the child was born (or placed, in cases of
adoption).
Implications for employers
In light of the above changes, we recommend that employers take
this opportunity to review their parental leave policies to ensure
they are up to date and do not contravene legislative
requirements.
Further, the changes in relation to replacement employees and
keeping in touch days appear to indicate a trend towards a more
prescriptive approach in the sphere of parental leave. It is vital
that senior managers and human resource professionals are fully
aware of employer obligations and now may be a good time to provide
refresher training to these individuals.
As always, if your organisation intends to arrange training or
conduct a policy review, your contacts at Norton Rose Australia
would be delighted to assist.
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.
