Most Read Contributor in Australia, September 2016
On 1 October 2012, the remaining provisions of the Paid
Parental Leave and Other Legislation Amendment (Dad and Partner Pay
and Other Measure) Act 2012 (Act) commence,
giving rise to new rights of employees who have become parents and
associated rights for employers. We set out below some important
changes to parental leave.
Dad and Partner Pay
Employees who become parents to a baby born or a child adopted
on or after 1 January 2013 and who take unpaid time off during the
first 12 months after the birth or adoption, may be eligible for
government-funded Dad and Partner Pay of up to 2 weeks at the
National Minimum Wage (which is currently $606.40 per week), under
the Australian Government Paid Parental Leave Scheme.
Employees who will be eligible include biological fathers,
partners of the birth mother, adopting parents and their partners,
parents and their partner in a surrogacy arrangement and same sex
partners, who are caring for the baby or child (either through
primary care or joint care). However, the employee must be an
Australian resident and meet the same income and work tests that
apply to the current Parental Leave Pay.
Claims for Dad and Partner Pay can be made by eligible employees
from 1 October 2012.
Keeping in Touch Days
In July this year, the Act also amended the Fair Work Act
2009 (Cth) (FW Act) by introducing a new
right for employees who are on unpaid parental leave. Employees on
unpaid parental leave can now perform paid work on up to 10
"keeping in touch days" without breaking the continuity
of the period of parental leave, provided that:
the purpose of performing the work is to enable the employee to
keep in touch with their employment in order to facilitate their
return to work at the end of the leave period;
both the employee and employer consent; and
the days are taken at least 42 days after the birth or
placement of the child, unless an employee requests to take the day
earlier, in which case it cannot be within 14 days of the birth or
Keeping in touch days will not extend the period of the
employee's unpaid parental leave and can be worked 1 day at a
time or all together. The employee must be paid for any work
performed at their normal rate of pay.
When can pregnant employees commence unpaid parental
The FW Act provides that a pregnant employee can now commence
their unpaid parental leave period earlier than 6 weeks before the
expected date of birth, with the employer's agreement.
Cancelling leave and returning to work early
Under the FW Act, there are now provisions allowing an employee
to unilaterally cancel their unpaid parental leave and return to
work. Previously, the employer had to agree to any request for an
early return. This can now occur in the unfortunate case of a
stillbirth or infant death in which case the employee can return to
work within 4 weeks of giving notice to the employer.
Employers must now also notify any employee engaged to replace
an employee who is going to take or is taking unpaid parental leave
the engagement is temporary;
both the employer and employee taking unpaid parental leave
have the right to cancel the leave before it starts or end the
leave early in the unfortunate case of a stillbirth or infant
the employee taking unpaid parental leave has the right to
return to work to their pre-parental leave position.
Implications for employers
Given the above changes, it is important for all employers to
review their parental leave policies to ensure they adequately
provide for these changes and that the business is complying with
the FW Act when managing employees who propose to take or are
taking unpaid parental leave.
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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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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