A COVID-19 Baby Boom?
Florentino Ariza, the protagonist in author, Gabriel Garcia Marquez's 'Love in the Time of Cholera', reserved his heart for Fermina Daza and waited to declare his love to her again some fifty-one years, nine months, and four days after he first did so. Yet in this modern day pandemic, there has anecdotally been reported an increase in declarations of love, manifest, most prominently, in an foreshadowed increase in child births in Australia (particularly slated for the first half of this year).
In mid-2020 there were predictions that the COVID-19 outbreak would lead to a (further) decline in Australia's already low birth rate.1Those predictions were underpinned by community sentiment driven by fear and worry over economic uncertainty and increased health concerns, as well as the historic experience that birth rates fall in times of crisis (e.g. 1918 'Spanish' flu pandemic, the Great Depression, the Global Financial Crisis). However, an article published in The Australian on 9 December 2020 reported the opposite, with obstetricians and gynaecologists said to be fully booked from March to May this year.
In this context it is important for both employees planning a family and their employers to have an understanding of employee's entitlements in relation to parental leave under Australian law2. Such leave, which was first introduced into Australian law in 1979 by way of unpaid "maternity leave" (i.e. for women only) has developed since then into a much wider and more gender inclusive set of rights. As an expectant father, I recently reviewed and refreshed my understanding of these parental leave rights and entitlements.
What is Parental Leave?
Parental leave is leave that can be taken after:
- an employee gives birth;
- an employee's spouse or de facto partner gives birth;
- an employee adopts a child under the age of 16 years.
Eligible employees are entitled to up to 12 months of unpaid parental leave3. Employees can also request up to an additional 12 months of leave following that initial 12 month period4.
Who is Eligible for Parental Leave?
Employees in Australia are entitled to unpaid parental leave if they:
- have worked for their employer for at least 12
- before the date or expected date of birth (if the employee is the one that is pregnant); or
- before the date of adoption; or
- when the leave starts (if the leave is being taken after another person cares for the child or takes parental leave); and
- have or will have responsibility for the care of a child.
For a casual employee, they are entitled to unpaid parental leave if they have been working for their employer on a regular and systematic basis for at least 12 months and the employee would have a reasonable expectation of continuing work with the employer on a regular and systematic basis, had it not been for the birth or adoption of a child6.
Employees who have taken parental leave don't have to work for another 12 months before they can take another period of parental leave with the same employer. However, if they have started work with a new employer, they will need to work with that new employer for at least 12 months before they can take unpaid parental leave.
The National Employment Standards
Parental leave is part of the National Employment Standards (NES)7 which are the minimum terms and conditions that apply to all national system employees8. The NES applies to all employees in the national workplace relations system, regardless of any award, agreement or contract. The NES entitlement to unpaid parental leave and related entitlements apply to all (eligible) employees in Australia.
The parental leave provisions include:
- birth-related leave and adoption-related leave (including in relation to premature birth, still birth or infant death)9.
- unpaid pre-adoption leave10;
- unpaid special maternity leave11;
- a right to transfer to a 'safe job'12;
- a return to work guarantee13.
Taking Unpaid Parental Leave
There are different rules for taking unpaid parental leave depending on whether one employee takes leave or, if both members of an employee couple take leave.14
Where one employee15 (or when only one member of an employee couple) takes leave:
- leave must be taken in a single continuous period;
- for a pregnant employee, the parental leave can start up to 6 weeks before the expected date of birth (or earlier if agreed with the employer). If the employee is not giving birth (say, where the parental leave is one for adopting a child or, where the employee who is not pregnant is the parent taking the parental leave) the parental leave starts on the date of birth or placement of the child;
- the leave can start at any time within 12 months after the birth or placement of the child if the employee has a spouse (or de facto partner) who is not an employee and the spouse (or de facto partner) has responsibility for the care of the child;
- employees can take paid annual leave at the same time as unpaid parental leave.
Where both employees16 take unpaid parental leave:
- each eligible member of an employee couple can take a separate period of up to 12 months of unpaid parental leave. Between them, the combined leave can't be more than 24 months and usually must be taken separately in a single continuous period (see 'concurrent leave' exception noted below);
- if the employee who takes leave first is pregnant or gives birth, they can start their leave up to 6 weeks before the expected date of birth (or earlier if agreed with their employer);
- if the employee who takes leave first is not pregnant, that employee's leave must start on the date of birth or placement of the child;
- both employees of an employee couple can take leave at the same time for a maximum period of 8 weeks17 which can be taken in separate periods of no shorter than 2 weeks18 (unless agreed with the employer). Concurrent leave counts as part of an employee's overall unpaid parental leave and is deducted from their overall entitlement of 12 months unpaid parental leave;
- employees can take paid annual leave at the same time as unpaid parental leave.
I will discuss the topic of an employee's return to work following a period of parental leave in a future follow-up article, so watch this space for that one.
Review of your Employer's Parental Leave Policy
It is important for employees to review their employer's parental leave policy (if they have one) as it may provide for more (generous) entitlements above that which is provided for by the NES, such as, for example, a specified period of paid parental leave and/ or return to work top-up payment(s) upon the employee's return to the workplace. As each employer's parental leave policy may be slightly different, it will be of some utility for employees to find out what is encompassed within their own employer's policy.
Other points to take note of (for both employees and employers) when reviewing the employer's parental leave policy include:
- Gender neutrality of the employer's parental leave policy;
- Qualifying requirements for employees to be eligible to access the parental leave entitlements offered by their employer;
- Notice requirements to be provided by the employee to their employer regarding the intended parental leave;
- Provision for 'partner's leave';
- The return-to-work plan for the employee and potential lump sum or top-up payment(s) available to the employee upon their return to the workplace;
- The employer's designated representative for the employee to contact to speak about the employer's parental leave policy.
My wife and I are certainly going to be challenged in the year(s) ahead - learning on the fly how to be first-time parents as well as managing (as best as we can) our own individual work responsibilities and respective aspirations for further career progression. Wish us luck - we know we'll need it!
3 See s.70 Fair Work Act 2009 (Cth)
4 See s.76(1) Fair Work Act 2009 (Cth)
5 See s.67(1) Fair Work Act 2009 (Cth)
6 See s.67(2) Fair Work Act 2009 (Cth)
8 See s.61 Fair Work Act 2009 (Cth
9 See s.77A Fair Work Act 2009 (Cth)
10 See s.85 Fair Work Act 2009 (Cth
11 See s.80 Fair Work Act 2009 (Cth)
12 See s.81 Fair Work Act 2009 (Cth)
13 See s.84 Fair Work Act 2009 (Cth)
15 See s.71 Fair Work Act 2009 (Cth)
16 See s.72 Fair Work Act 2009 (Cth)
17 See s.72(5)(a) Fair Work Act 2009 (Cth)
18 See s.72(5)(b) Fair Work Act 2009 (Cth)
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.