Australia: Maternity leave, paternity leave, partner leave, adoption leave and the right of an employee to return to the same position

Last Updated: 14 November 2016
Article by Geoff Baldwin

"Parental leave entitlements" is a broad term covering maternity leave, paternity leave, partner leave, adoption leave and the right of an employee to return to the same position.

Parental leave entitlements arise under the National Employment Standards (NES), which form part of the Fair Work Act 2009 ("the Act") and, at least as far as the private sector is concerned, apply to pretty much all Australian employers.

Parental leave basic entitlement

The basic entitlement is for 12 months' unpaid parental leave. This can be for either parent, provided the parent is to be the child's carer, and can be shared if both parents are employees of the same employer. There are some specific rules, referred to as "birth-related leave", applying to pregnant female employees. It does not matter if the parents are in a de facto relationship, rather than being married, and the rights extend to the adoption of infant children.

The Act does not require the whole period to be taken, but does require the leave to be in a single unbroken period. Unpaid parental leave can be taken in conjunction with other forms of accrued leave. An employee may request an additional period of unpaid leave beyond the basic 12 month entitlement. While the employer is not obliged to grant this additional leave, it can only refuse on "reasonable business grounds".

Is parental leave a potential operational problem for a business?

Many business owners and operators worry that parental leave will prove to be a serious problem for the efficient ongoing operation of a business.

The general limitations designed to protect against this are that parental leave entitlements are limited to employees who have worked continuously for 12 months prior to the date (or expected date) of commencing the leave. Casual employees are not entitled to parental leave unless the employee has been a "long term casual" prior to this date and has a "reasonable expectation" of continuing employment in the future.

It is therefore impossible for a newly-hired female employee who is pregnant at the time of starting work to have the right to demand parental leave entitlements, because she would not fulfil the requirement of 12 months of continuous service prior to taking the leave.

Right of return to the same position

One aspect of parental leave which might be of concern to you as an employer is the right of the employee to return to the job she or he held prior to going on parental leave.

When things are running smoothly, this may not be a problem. Indeed, the fact that the period of leave may be extended may help in securing a satisfactory temporary or casual replacement. But what if the business is shrinking and redundancies are on the horizon?

The brief answer is that employees cannot get better protection from the potential impact of a downturn than they would if they were still at work. However, if the pre-leave position no longer exists, there is an entitlement of return to an available position for which the employee is fit and qualified.

Successive pregnancies and employee entitlements

It is a reality that one pregnancy can be followed by another, often not too many years after the first. It is important to realise that an absence of an employee on unpaid parental leave does not break the employee's "continuous service" with you.

This means that an employee returning from parental leave does not have to serve another 12-month qualifying period before being granted another period of parental leave.

Finding a temporary replacement for an employee taking parental leave

Another thing to bear in mind is the process by which you find a replacement for someone who is going to take parental leave. Some employers feel that it is acceptable to ask the person who is going on leave to find their own replacement. This is not appropriate for two reasons.

The first is that it's not their job. You're the employer. It's your job. The second reason is that it can make the person going on leave feel guilty. Parental leave is just as legitimate a form of leave as any other.

You wouldn't go to hospital to visit an employee who has had a car accident to ask them to find a temporary replacement for their role while they're off work, so you shouldn't do it in situations of parental leave either.

And at the risk of stating the obvious, you can't sack someone on a whim while they're on parental leave just because you like their replacement better. This may expose you to legal liability.

Parental leave scheme structured around assumption of consultation

The good news is that plenty of information is available. The Fair Work Ombudsman website has a lot of useful material, including a resource for small businesses. However, as good as this information is, it won't necessarily give you advice about handling individual situations which may confront you as an employer. So, what will help you avoid pitfalls?

The whole scheme set up under the Act envisages that the employer will consult with the employee. This means listening to the employee's wishes and giving them serious consideration.

Just because you have a right as an employer to decline an extension of parental leave beyond the mandatory 12 months doesn't mean you should just say: "Nope, it can't be done" and dismiss the suggestion out of hand.

If an employee proposes a creative and sensible flexible work arrangement following parental leave and suggests giving it a three month trial, but you are not prepared to implement even a short trial of the proposed arrangement, the employee could challenge your refusal. In this situation you run the risk of an adverse finding being made against you, as well as the risk of losing a valuable employee.

However, consultation is a two-way street. If something the employee wants to do presents a serious operational problem to a business, this is your opportunity to explain clearly what the problem is and to have a discussion about possible solutions.

A woman's right to take leave when her child's birth is impending cannot be questioned. However, a number of aspects of the scheme provide scope for an agreed approach which is satisfactory to both employer and employee.

Agreeing to flexible arrangements can create a win-win situation

Although employers tend to be suspicious of job-sharing arrangements, especially those proposed by the sharers themselves, there is considerable evidence that these arrangements not only work well, but can also add value to the job.

Job-sharers typically put in additional effort to ensure continuity, and also frequently bring a broader range of skills and abilities to the task than a single employee does. I have seen these arrangements work well, and would encourage you as an employer to be open, at the least, to giving them a go.

Employers should document their decisions and take a long-term view

It is highly recommended that you document your decisions. For example, if you decline a request to extend parental leave on "reasonable business grounds", it's important that you can substantiate your reasons and demonstrate that these were clearly explained to the employee and any responses taken into consideration.

Finally, while the parental leave scheme has an undoubted social justice aspect, employers should also bear in mind that pregnancy is not fatal or permanent. Offering parental leave means retaining high quality employees. Presumably you have invested a lot in their training and development. So, take a long-term view.

Geoff Baldwin
Employment law
Stacks Law Firm

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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