Parental leave is an unpaid leave entitlement contained in the
National Employment Standards in the Fair Work Act 2009
(Cth) (Act) which can be taken when:
an employee gives birth; or
an employee's spouse or de facto partner gives birth;
an employee adopts a child under 16 years of age.
Parental leave entitles an employee to a return to work
guarantee which guarantees they will return to their
pre-parental leave position or, if that position no longer exists,
an available position for which he/she is qualified and suited,
nearest in status and pay to the pre-parental leave position.
In addition to this return to work guarantee, an employee is
also entitled to request flexible working arrangements under
Section 65 of the Act.
Who can take unpaid parental leave?
Employees, other than casual employees, are entitled to take
parental leave if they have or will have responsibility for the
care of a child and if they have 12 months of
service with their employer, either:
before the date or expected date of the birth of a child;
before the date of the adoption of a child under 16 years of
when the leave starts (if the leave is taken after another
person cares for the child or takes parental leave).
How much leave can an employee take?
Employees are entitled to up to 12 months of unpaid parental
leave. The start and end dates of the leave are agreed between the
employee and employer.
Employees are also entitled to request to take up to an
additional 12 months of unpaid parental leave. Employers may refuse
this request on reasonable business grounds, such
as if the extension would have a negative impact on the efficiency
or productivity of the employer's business.
Once on leave, if the employer agrees, an employee whose period
of unpaid parental leave has started may reduce the period of
unpaid parental leave that he/she takes.
Paid parental leave eligibility
Some employers may have established paid parental leave
programmes for eligible employees in their organisation. The
employer is responsible for administering and paying the costs of
Employees may also be entitled to receive parental leave pay
under the Australian Government funded Paid Parental Leave Scheme
(Scheme). Employees must apply to take part in this Scheme through
Centrelink, who will assess whether the employee is eligible and
will then contact the employer. In most cases, employers are
required to administer the parental leave pay under the Scheme
once the employer receives the funds from
It is important to note that the eligibility requirements which
apply in relation to the Scheme are different to the eligibility
requirements which apply in relation to unpaid parental leave. As
such, an employee who may not be entitled to unpaid parental leave
because he/she will not have the requisite 12 months of service (as
an example), may still be entitled to paid parental leave under the
Scheme. In these circumstances, the employer would not ordinarily
be required to administer the parental leave pay – this would
generally be administered directly through Centrelink.
Administrative requirements for employees
There are a number of administrative steps that employees need
to comply with in order to take unpaid parental leave
informing the employer of the intention to take unpaid parental
leave by giving at least 10 weeks written notice (unless it is not
possible to do so);
specifying the intended start and end dates of the parental
at least 4 weeks before the intended start date:
confirming the intended start and end dates; or
advising the employer of any changes to the intended start and
end dates (unless it is not possible do so).
Failure to do each of the above would render the employer in
breach of the NES in the Act.
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
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