Parents can take different types of parental leave leading up to and after the birth of their child including:
- Unpaid parental leave provided to eligible employees under the Fair Work Act;
- Paid parental leave under an award, Enterprise agreement or employment agreement; and
- Parental leave pay/dad and partner pay paid by the Australian Government.
This article will explain parental leave entitlements in more detail and strategies for employers while their employees are on leave.
Unpaid Parental Leave
An employee, either employed on a full-time or part-time basis, is entitled to unpaid parental leave once they have worked with their employer for one year leading up to the expected or actual birth of their child. This entitlement to take unpaid parental leave is for up to one year. It extends to casual employees if they can reasonably expect to continue their employment as well as partners of the employees if they will be taking care of the child.
Employees who are in a couple are allowed to take no more than 24 months of leave between them.
Employees who initially told their employers that they were taking less than 12 months of leave can extend their leave if they provide notice to their employers. They will need to give written notice at least four weeks before they were expected to return to work. If the employee gives this notice within this time frame, the employer cannot refuse this request. The employee has the right to extend their leave up to 12 months.
Those employees who have taken 12 months unpaid parental leave have two options. They can return to work or apply to extend their leave. These employees have the right to request up to an additional 12 months by giving written notice. This notice also needs to be given at least four weeks before the initial 12 months of leave was going to end. To accept or refuse the request, employers must respond in writing within 21 days. However, if the employer refuses the request, they must rely on reasonable business grounds and set out the reasons for their decision.
The entitlement of full-time, part-time and casual employees to 12 months of unpaid parental leave also extends to their partners. However, different rules apply depending on whether both parents are working or one parent is working and the other is not.
If both parents are working, whether together or at different companies, they are entitled to take up to eight weeks of unpaid parental leave at the same time. The parents do not need to take all eight weeks of concurrent leave in one block. They can take the leave in separate periods, such as three weeks at the birth of the child and five weeks later. However, each block of leave must not be less than two weeks without the employer’s permission.
If one parent is working and the other is not, it is possible for the employee who has not given birth to start their leave later than the birth date. This is as long as they will have the responsibility for the care of the child and have accrued 12 months of continuous service with their employer before the leave starts.
Paid Parental Leave
The Australian Government provides paid parental leave as part of the Paid Parental Leave Scheme, which is comprised of Parental Leave Pay and Dad/Partner Pay. Under the Parental Leave Pay, the primary caregiver is entitled to receive up to 18 weeks of pay at the national minimum wage. This entitlement is as long as they are not working during the payment period. Employers will be required to provide Parental Leave pay if:
- The employer has employed the primary caregiver for at least 12 months;
- The employee will remain employed during the parental leave period; and
- The employee expects at least eight weeks of Parental Leave pay.
If your employee does not meet the above criteria, they may be eligible for payment by the Department of Human Services directly.
Dad/Partner pay is a payment of the national minimum wage for up to 2 weeks to the Dad or Partner of the child. The employer is not responsible for this payment as the Department of Human Services will pay it directly.
Anti-Discrimination law still protects employees who are not entitled to parental leave. Employers will be discriminating against their employee if they approve a period of unpaid leave for another employee and refuse another employee’s application.
To avoid discrimination, employers should consider:
- Providing other forms of leave to the employee such as annual leave;
- Discussing a reasonable period of absence by balancing the needs of the business and employee; and
- Providing the employee with reasons in writing as to why they have refused their leave.
While there are many legal obligations that employers must be aware of, employers may want to consider taking these a step further by making sure:
- Employees keep in touch with them while on leave;
- Employees have a return to work coordinator to connect with the employee on leave and facilitate their return to work;
- Employees have a return to work plan to support their reintegration; and
- Employees have the option of flexible work arrangements upon their return.
The benefits of implementing these strategies may include the following:
- Lower staff turnover;
- Lower recruitment and training costs;
- Improved employee satisfaction and commitment; and
- Smoother transition between work, leave and back again!
In the next article in this series, we will explore how to manage pregnancy in the workplace. Until then, if you require assistance on the best way to support pregnant employees in your workplace or if you need your Employee Handbook updated, get in touch with our employment lawyers by leaving us a message below or calling 1300 544 755.