NES Series – Part 3: Parental Leave

posted by Employment Innovations on April 26th, 2012  Posted in News


An employee is entitled to 12 months unpaid parental leave if the leave is associated with the birth or adoption of a child and the employee has or will have the responsibility for the care of the child.

A permanent employee must have completed at least 12 months of service immediately before birth or the date of placement of adoption of the child to be entitled to Parental Leave.

Casuals are not entitled to leave unless they are a long term casual. This is defined as when a casual:
- Has completed at least 12 months of service with the employer
- Has been employed on a regular and systematic basis – eg reasonably consistent and regular days and hours per week

And but for the pregnancy:
- Would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis

This applies to all couples including married, same sex and de facto partners. An employee who has not completed 12 months service with their employer immediately before the time of the birth or placement of the child has no entitlement to parental leave and no entitlement to return to their position at a later stage.

What happens if the employee has less than 12 months service and they want to keep their job?
An employee with less than 12 months service has no right to keep their job with the employer once they have left to have a baby. However, if an employer is also keen to keep the employee on as an employee so that they can return to the employer after the baby is born, the employer can agree to put the employee on unpaid leave for an agreed period, of say 6 months, after which time the employee can return to work for the employer. This type of agreement should be detailed in writing, signed by both the employer and employee and should set out all of the terms that have been agreed.

Adoption of a child
An employee is not entitled to adoption related leave unless the child is under 16 at the day of placement, has not lived continuously with the adoptive parents for a period of 6 months or more at the day of placement and is not a child of the employee’s spouse or de facto partner.

Employees are entitled in addition to the parental leave 2 days (either continuous or spread out on agreement with the Employer) pre adoption leave in which to attend any interviews or examinations required. This is only if the employee cannot take another form of leave and the employer doesn’t direct the employee to take that leave. Notice must be given as soon as practicable to the employer and may be asked to provide evidence to substantiate the leave.

If one member of the couple takes leave
This applies to an employee who intends to take unpaid parental leave if the employee is not a member of an employee couple or where the employee is a member of an employee couple but the other member does not intend to take unpaid parental leave.

This leave must be taken in a single continuous period. For pregnant women, this period may start up to 6 weeks before the expected due date of the child but no later than the date of the birth of the child. For employees other than pregnant women, the leave period starts on the date of the birth 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 for the period between the date of birth or day placement of the child and the start date of the leave, then the period of leave may start at any time within 12 months of the birth or placement of the child.

If both members of the couple take leave
If both employee of an employee couple intends to take unpaid parental leave, each employee must take the leave in a single continuous period and the second employee’s leave must start immediately after the first employee’s leave. One employees leave must start at the most 6 weeks before the birth of the child for pregnant women or at the time of birth for other employees.

If the leave is adoption related, one employee’s period of leave must start on the day of the placement.
Both members of an employee couple may take a period of concurrent leave for a period of up to 3 weeks from the date of the birth of the child or date of placement. If the employer agrees, it may start earlier and end up to 3 weeks later.

Working within 6 weeks of the due date
If a pregnant employee who is entitled to take unpaid parental leave continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate demonstrating fitness for work. If this is not given with 7 days or if the medical certificate demonstrates that the employee is not fit for work, then the employee may require the employee to go on unpaid parental leave.

Notice requirements of taking unpaid parental leave
An employee must give their employer written notice of their intention to take parental leave at least 10 weeks before the leave will start or if that is not practicable, as soon as practicable. The notice must specify the intended start and end dates of the leave. This must be confirmed with the employer at least 4 weeks before the intended start date of the leave and advise the employer of any changes to the intended start date.

What happens if the employee does not give notice?
An employee is not entitled to take unpaid parental leave unless the employee complies with the notice requirements.

Evidence requirements of expected birth or placement date?
An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person: if it is birth related leave, the date of the birth or the expected date of the birth, if it is an adoption, the expected date of placement of the child. The Employer may require a medical certificate as evidence.

Is extension of Parental Leave possible?
The employee may extend their parental leave, at first instance, by giving 4 weeks written notice to the employer to specify the new end date for the leave. If the employer agrees, this may be extended further one or more times. An employee may request to take up to 12 additional months immediately following the end of the available parental leave period, which must be made in writing at least 4 weeks before the end of the available parental leave period.

The employer must give a response in writing within 21 days of receiving the request specifying whether the request is approved or refused. An employer may only refuse a request for extension of parental leave on reasonable business grounds which must be stated in the response. Extension of parental leave is not an entitlement and is at the discretion of the employer. The maximum period of parental leave that may be taken by an employee is 24 months from the date of the birth or placement of the child. An extension should be documented.

What are “reasonable business grounds” for refusing a request?

The following factors taken from the Explanatory Memorandum to the Fair Work Bill are relevant in defining ‘reasonable business grounds:’

• the effect on the workplace and the employer‘s business of approving the request, including the financial impact of doing so and the impact on efficiency, productivity and customer service;
• the inability to organise work among existing staff;
• the inability to recruit a replacement employee;
• the practicality or otherwise of the arrangements that may need to be put in place to accommodate the employee‘s request.
Other factors (derived from cases on the flexible working arrangements test case)
• The work being done by the employee;
• The employee’s parental or carer responsibilities;
• What arrangements will be required to enable the employee to fulfil their parental or carer responsibilities;
• The timing of the request. For example, how quickly do the new arrangements need to begin and how long do they need to stay in place?
• How much the arrangements will cost your company. For example, in penalty rates, overtime, decreased production, training of replacement staff or additional equipment required (for example a laptop);
• The effect the arrangements will have on both other employees and the business;
• The effect not having the flexible work arrangements may have on the employee;
• The effect not having the flexible work arrangements may have on retention;
• The employee’s workload;
• The potential impact on customer service;
• Whether the employee can work safely under the arrangements;
• The accrued entitlements of the employee;
• Whether other legal obligations will be breached by modifying the work; arrangements. For example, safety laws; and finally
• Look at alternative options.

Reducing Period of Leave
If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave he or she takes.

If the Employee Ceases to have responsibility for the Child
If an employee on parental leave ceases to have responsibility for the child, the employer is entitled to give the employee written notice to require the employee to return to work. The return to work date must be at least 4 weeks after the notice is given or 6 weeks for a woman who has given birth. The employee’s entitlement to unpaid parental leave ends immediately before the specified return to work day.

Special Maternity Leave – what is this?
A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work during the period because she has a pregnancy related illness or has been pregnant and the pregnancy ends within 28 weeks of the expected dates of the birth of the child other than with the birth of the living child.
An employee must give her employer notice of the taking of the leave by the employee as soon as practicable and must advise the employer of the period of leave to be taken. The Employer may require a medical certificate.
The taking of a special maternity leave decreases the entitlement to 12 months parental leave after the birth of the child.

Interaction with other Paid Leave
An employee is not prevented from taking any kind of other paid leave whilst on parental leave, such as annual leave. If they do so, it does not break the continuity of the parental leave. Employees are not, however, entitled to take paid personal/parental leave or compassionate leave whilst taking unpaid parental leave, nor any payments for community service activities engaged in on leave.

Transfer to a safe job – obligations?
This section applies to a pregnant employee is entitled to unpaid parental leave, who has already complied with the notice and evidence requirements, and has provided her employer with evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position due to illness or risks arising out of the pregnancy or hazards connected with that position. Employers must transfer such employees to an appropriate safe job if there is one available with no change to the employee’s terms and conditions of employment.

If there is no such safe job available in the employer’s organisation, the employee is entitled to take paid “no safe job leave” for the risk period.
The employee must be paid at their full rate of pay for the hours that she works in the risk period and the base rate of pay for the period of leave should there not be a safe job. Employees under this section may be required to provide a medical certificate to the Employer.

Is there a Return to Work Guarantee?
On ending unpaid parental leave, an employee is entitled to return to their pre-parental leave position or if that position no longer exists, an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position. If the employee returns to work early, the parental leave period ends.

Is maternity leave paid or unpaid?
Maternity leave is unpaid leave. An employee may however be entitled to receive payments under the Government funded paid parental leave scheme. An employee should be directed to Family Assistance Office for information on this scheme.

My employee is eligible for PPL but has less than 12 months service with me. How does that work?
It is possible that an employee will be entitled to receive payments under the Government funded paid parental leave scheme but not be eligible to be on maternity leave from work.
To be eligible for the PPL, a person must:
1. Meet the residency requirements, live in Australia and be an Australian citizen or permanent resident. Some non-residents are able to receive the payment, as in the case with family assistance; and
2. Be the primary care-giver to a new born child or an adopted child under 16; and
3. Have worked continuously for at least 10 of the 13 previous months for at least 330 hours (approximately one day per week); and
4. Have an income of less than $150,000.

These requirements do not match with the 12 months continuous service eligibility requirement for Maternity Leave. The fact that an employee is entitled to funds under the PPL scheme, not mean that they are on a period of Maternity Leave.

NES Part 1 - Annual Leave

NES Part 2 - Personal/Carers and Compassionate Leave

NES Part 3 - Parental Leave

NES Part 4 - Long Service Leave

NES Part 5 - Hours of Work

NES Part 6 - Flexible Working Arrangements

NES Part 7 - Community Service Leave

Q and A on the NES - Fair Work Information Statement

Q and A on the NES - Public Holidays

Q and A on the NES - Notice of Termination

Q and A on the NES - Redundancy

2 Responses to “NES Series – Part 3: Parental Leave”

  1. [...] Dad and Partner Pay addition to the Paid Parental Leave scheme is well and truly underway, the payment equates to two weeks paid leave at the national [...]

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