Australia: Curly questions: Unpaid parental leave

Last Updated: 14 October 2015
Article by Emily Dempster

Most, if not all, HR managers will be required to provide guidance on parental leave at some stage in their career, including in relation to some of the more 'curly' questions such as those outlined below.

Q. When calculating the 12 months' of service that an employee is required to have before becoming entitled to unpaid parental leave, is any period of annual, personal or unpaid leave counted as service?

Yes. In relation to parental leave, periods of annual, personal and/or authorised unpaid leave do count as service for the purposes of calculating the 12 months of service. However, unauthorised unpaid leave will not be counted as service.

Q. Are casual employees entitled to unpaid parental leave?

Casual employees are entitled to take unpaid parental leave if they:

  • have been working for their employer on a regular and systematic basis for at least 12 months; and
  • have a 'reasonable' expectation of continuing work with the employer on a regular and systematic basis.

Q. Is an employer obliged to provide a pregnant employee with leave during office hours to attend medical appointments?

While there is no specific requirement to provide a pregnant employee with leave during office hours to attend medical appointments, she will of course be entitled to utilise her accrued personal leave for such appointments. In addition, employers should ensure that they are not unreasonably refusing any requests from a pregnant employee to attend medical appointments if it will be adverse to her health and safety.

Q. What are an employer's obligations if a pregnant employee is unable to perform her duties because of her pregnancy or a pregnancy related illness?

If a pregnant employee gives medical evidence to the employer which demonstrates that she is fit for work, but that it is inadvisable for her to continue in her current position because of:

  • a pregnancy related illness; or
  • hazards connected to her position;

the pregnant employee will be entitled to be transferred to a 'safe job' (if there is one available). What is considered a 'safe job' should be determined in consultation with the employee's medical practitioner.

If there is no 'safe job' available, the employee will be entitled to 'no safe job leave'. Provided that the employee is eligible for parental leave and has complied with the administrative requirements discussed above, she will be entitled to be paid during the 'no safe job leave' period. Otherwise, she will not be entitled to be paid during the period.

Q. What are my obligations when hiring someone to fill the position of the employee on unpaid parental leave?

If an employer decides to replace the employee on parental leave with another employee (Replacement Employee), the employer is obliged to notify the Replacement Employee of the following:

  • that the engagement to perform work is temporary;
  • the rights that the parental leave employee has in the event that the pregnancy ends (other than by the birth of a living child) or if a child born alive dies (such rights are set out in subsections 77A(2) to (6) of the Fair Work Act 2009 (Cth) (Act));
  • the return to work guarantee to which the parental leave employee is entitled; and
  • the effect of Section 78 of the Act (which provides the employer with a right to require the employee taking unpaid parental leave to return to work if the employee ceases to have any responsibility for the care of the child).

If the Replacement Employee has excelled in the position, an employer may be reluctant to hand back the job to the employee returning from parental leave. However, given the return to work guarantee, the employer is legally obliged to return the employee on parental leave to his/her pre-parental leave position, no matter how much the employer may prefer the Replacement Employee. To not do so may result in the employee returning from parental leave making one of a number of claims in relation to unfair dismissal, general protections breaches or discrimination.

Q. What happens if the position of an employee on parental leave is made redundant?

If this occurs, the employer will need to be very careful about the way in which the redundancy is implemented as employees on parental leave must be treated no less favourably than other employees.

Employers should ensure that they comply with the requirements set out in the Act and/or any applicable workplace policy when implementing the redundancy - including offering the same opportunities to employees on parental leave. It is important to note that in the event that an employee on parental leave makes a claim in relation to the redundancy of his/her position, the Court or Commission will look very carefully at all of the facts and circumstances involved. Consequently an employer should ensure that they have a well-documented and regimented process in place which demonstrates that they:

  • have complied with their legal obligations (including as to consultation and any reasonable redeployment);
  • have afforded the employee on parental leave with appropriate procedural fairness; and
  • did not discriminate against the employee on parental leave.

Q. Is an employee who has returned from parental leave and now having another child, required to work for another 12 months before he/she can take another period of unpaid parental leave?

Not if the employee is employed by the same employer.

If the employee is employed by a different employer however (other than in a transfer of business situation), then the employee will need to complete 12 months of service before becoming entitled to unpaid parental leave.

In conclusion, while it may seem like simple, routine HR advice, getting parental leave queries wrong can result in an employer being in breach of the Act and potentially of discrimination laws. Furthermore, giving incorrect answers to parental leave queries can overcomplicate the planning and/or administrative process for employees seeking clarity in what is often a stressful time.

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. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.

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