In Short
- Employees in Australia are entitled to 12 months of unpaid parental leave if they have worked continuously for at least 12 months.
- Employers must receive at least 10 weeks’ notice of an employee’s intention to take parental leave.
- Upon returning, employees are entitled to their pre-leave position or a comparable role if the original no longer exists.
Tips for Businesses
Develop clear parental leave policies outlining eligibility, notice requirements, and return-to-work procedures. Maintain open communication with employees during their leave to facilitate a smooth transition back to work. Ensure compliance with legal obligations to support employee well-being and minimise potential disputes.
As an employer, you will likely have to grant an employee parental leave. The National Employment Standards outlines the workplace relations system in Australia. It covers all employees and entitles them to unpaid parental leave. This entitlement exists despite any modern award, agreement, or employment contract. This article will help you respond to your employee’s request for maternity leave and outline four considerations that you should make.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
1. What is Parental Leave?
Your employees are entitled to 12 months of unpaid parental leave, with the ability to request a further 12 months in particular circumstances.
Additionally, your pregnant employee may take their leave up to 6 weeks before the expected date of birth. If your employee is adopting a child, parental leave generally starts on the child’s date of birth or placement into adoptive care.
Whilst your employee can request additional leave, the combined leave cannot account for more than 24 months. This period includes the leave your employee’s partner takes, regardless of whether their partner works for you. So, for example, if one employee requests 18 months of maternity leave, their partner may only receive the remaining 6 months of parental leave.
In saying that, you should be aware of the different rules of unpaid maternity leave which vary depending on whether:
- one employee takes leave; or
- both members of an employee couple take leave.
One Employee Takes Leave
If an employee wishes to take leave, they may take it as a single continuous period. Additionally, your employee may take a combined continuous and flexible period of up to 30 days. Your employees can also request to take their accrued paid leave, such as annual leave while taking their unpaid parental leave. However, this will not extend their period of maternity leave.
An Employee Couple Takes Leave
If both members of an employee couple take parental leave, they are entitled to 24 months between them. Generally, they must take their leave in a single continuous period. Furthermore, both employees can take parental leave simultaneously for a maximum period of 8 weeks. In this case, employees are also entitled to take their accrued paid leave while they take parental leave. Although, this will not extend their period of parental leave.
2. Who is Eligible?
Excluding those on a casual employment contract, your employees are entitled to parental leave once they have completed at least 12 months of continuous service with their employer. This entitlement applies immediately before the child’s expected date of birth or, in the case of adoption, the child’s expected placement date.
Casual employees are entitled to parental leave if they:
- have served at least 12 months of continuous service on a regular and systematic basis with the employer immediately before their child’s expected date of birth, or in the case of adoption, the child’s expected date of placement; or
- would have expected to continue employment on a regular and systematic basis (except for the child’s birth).
3. Notice and Evidence Requirements
Before your employee takes maternity leave, they must first notify you of their intention to take leave. Next, your employee should specify the period of parental leave that they intend to take. Additionally, you should receive this notice at least 10 weeks in advance. Your employee should then confirm the period of parental leave that they intend to take at least four weeks before the leave commences.
As an employer, you may request supporting evidence that confirms the expected date of birth. This evidence might include a:
- medical certificate;
- letter from an adoption agency; or
- statutory declaration.
If your employee requests an additional 12 months of maternity leave, they must provide you with further written notice. You should receive this at least 4 weeks before the end of the first 12 month period of maternity leave. You must respond to their request within 21 days.
Additionally, you can only refuse your employee’s request if there are reasonable business grounds for doing so. These might include if:
- your business cannot accommodate the request for additional leave;
- it would be impractical to change the working conditions of others to accommodate the request for additional leave; or
- the request is likely to result in loss of productivity or have a negative impact on your business.
4. Return to Work Guarantee
Once your employee returns from maternity leave, they are entitled to:
- return to their pre-maternity leave position; or
- another available position for which they are qualified, is near in status and pays the same as their pre-maternity leave position.
As an employer, you must avoid engaging in any adverse action. Adverse actions cover a range of activities in the workplace that may be unlawful if carried out with discriminatory intentions. For example, you could be unlawfully discriminating against your employee if you:
- treat them less favourably than other people based on their sex, pregnancy or because they exercise a workplace right to take parental leave; or
- require them to comply with specific rules or conditions that may be unreasonable due to their personal attributes.
You should note that treating your employee differently does not necessarily mean you are committing unlawful discrimination. For example, you might choose to offer your returning employee a flexible work arrangement. This arrangement may allow them to care for their newborn or newly adopted child whilst also working. However, if you are concerned about carrying out unlawful discrimination in the workplace, it may be useful to seek legal advice.
Key Takeaways
Your employees are entitled to unpaid maternity leave of up to twelve months if they are expecting to:
- give birth; or
- adopt a child under the age of sixteen.
All employees in Australia are eligible for unpaid parental leave if they have worked for you continuously for at least 12 months. Your employee must provide you with at least 10 weeks’ notice of their intention to take maternity leave. You must then confirm the period of maternity leave at least 4 weeks before your employee commences their leave. Once your employee returns from maternity leave, they may return to their pre-maternity leave position or fulfil a position of similar status.
If you need help granting a request for parental leave, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
Flexible parental leave is where your employee takes up to 30 days of unpaid parental leave at any time within 24 months of a child’s birth or adoption. This form of parental leave does not have to be taken in a single period of continuous leave.
Special maternity leave is unpaid leave given to employees who experience pregnancy-related illnesses within 28 weeks before the expected date of birth of the child. Special maternity leave is separate from any unpaid parental leave entitlements.
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