One of the most detailed and complex entitlements under The Fair Work Act 2009 (Cth) (‘the Act’) is parental leave. This is an entitlement that employers often struggle to adequately understand because it is considerably comprehensive, with various other entitlements falling within this category such as the right to extend an unpaid parental leave request, right to a safe job and safe job leave, and special maternity leave.
Considering just how much an employer needs to navigate to ensure they are aware of all their obligations in respect to Parental Leave, this can be overwhelming for most businesses. A question we commonly get asked for businesses that may have received their first parental leave request is “where do I start?” and what immediate actions does an employer need to take to set themselves up for success and manage this compliantly.
Below we outline the most common areas an employer needs to be aware of to ensure you are handling parental leave requests correctly, and what measures you should have in place to best prepare for this type of leave in your workplace.
What is Parental Leave?
The first aspect if you have received a parental leave request is to understand exactly what the entitlement is for employees. The Fair Work Act sets out the minimum entitlement for all eligible employees for up to 12 months of parental leave (including birth-related leave, special maternity leave, adoption leave and concurrent leave), provided that the employee has at least 12 months of continuous service with their employer before the date of birth of the child (or before the date of placement of an adopted child). This entitlement applies to all permanent employees, it also extends to casual employees who have worked on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing employment on a regular and systematic basis.
What other Parental Leave entitlements should I be aware of?
If you have had an employee request parental leave, they will generally be referring to the basic entitlements outlined above to the initial up to 12 months of unpaid leave. However, the Act provides for numerous other entitlements and protections related to parental leave that employers should be aware of:
- The right to request to extend parental leave up to a further 12 months
- The right to return to their pre-parental leave job
- 30 days of ‘flexible parental leave’
- Transfer to a Safe Job or Safe Job Leave
- Additional guidelines for parental leave in cases of stillbirth, infant death, or problems during childbirth
To ensure you are best prepared for any request for parental leave, it is important to also ensure you are across the various entitlements that may occur related to this type of leave. Our knowledge base (which can be found here) explores these entitlements in further detail to ensure you know exactly what entitlements your employees are able to utilise and what processes you should have in place for these types of leave.
Paid Parental Leave
A common question that arises is whether parental leave must be paid or if employers are required to pay employees during this time.
The entitlement under the Act is to unpaid parental leave. Some businesses may have different policies that provide for more generous provisions such as company paid parental leave, however, under the Act it is not mandatory for the business to provide this. Keep in mind whilst parental leave is unpaid, employees can access certain paid entitlements during this time such as their annual leave or long service leave. However, employees generally cannot take personal/carer’s leave during this time.
There is also the Australian Government Paid Leave Pay (PLP) scheme. Whilst it is up to your employee to apply for the PLP scheme through Services Australia, as an employer there are some things you may need to do in preparation. This includes registering for the scheme through the online Business Hub – which you can read more about here.
Keeping in touch days
If your employee is taking parental leave, the first step is to ensure you understand their entitlements during this time, however, businesses should also begin to think on how they will stay in touch with the employee and best help to support their transition back to work at the end of their leave. The Act provides for ‘keeping in touch days’ to assist with this aspect, helping employees maintain communication with their workplace and refresh their skills whilst on parental leave.
This is an entitlement we find many employers may not have utilised before and it can be considerably beneficial to ensure an employee’s transition back to work is as seamless as possible. The Act provides for employees on unpaid parental leave to utilise up to 10 keeping in touch days (and an additional 10 days if they extend their leave beyond 12 months) and this will not impact their entitlement to remain on parental leave. The purpose of the keeping in touch days is to allow an employee to go back to work for a part day, single day, or multiple days (including all at once). There are rules as to what work an employee can perform on a keeping in touch day, but this can include participating in a planning session, attending a meeting or conference, or engaging in training to keep their knowledge and skills refreshed.
It is important that the business and the employee agree upon the timing of when these keeping touch days are taken. These days can only be taken from 42 days after the birth or adoption of a child, at the request of the employee. A keeping in touch day cannot be worked earlier than 14 days after the birth or adoption of a child. Importantly, keeping in touch days are not mandatory – an employee does not have to use their keeping in touch days if they do not wish to.
If an employee does utilise a keeping in touch days, its vital to ensure you are aware that these must be paid. An employee will receive their ordinary wage and will accumulate leave entitlements for each keeping in touch day or part day they work.
Keep in mind, employees that are returning from parental leave also have an entitlement to request flexible work arrangements (such as changes to their pattern, hours or place of work) – so in addition to keeping in touch days, we recommend ensuring you have discussed the employees return to work arrangements ahead of their expected leave end date.
A vital recommendation for preparing your business for any future parental leave requests is to ensure you have the right policies in place to support this process.
We recommend all business have in place a clear Parental Leave policy that outlines clearly to employees their entitlements, and also what expectations the business has in applying for this type of leave.
This could be a standalone policy, or included in your company Leave policy – however, we recommend it is as detailed as possible especially considering the wide scope of parental leave entitlements. Generally, this should include:
- Entitlements: an explanation of the various entitlements that fall within this scope
- Notice: requirements for when and how employees should notify you of their parental leave and intended leave dates
- Transition: information around the procedural arrangements to ensure a smooth transition for the employee as they leave and return to work
- Keeping in touch: an explanation of the process the business will use to maintain contact with the employee during their parental leave period
- Flexibility: information around flexible working arrangements that may be available to the employee before and after their parental leave period
It is imperative to ensure that all your employees and managers are educated on this policy and the processes required when somebody is applying for parental leave. Consider whether you are confident you have the right procedures in place to make this process as simple and seamless as possible. Do all employees know when and how they need to notify the business of their intention to take parental leave? Are your managers aware of how to approach these requests? Also consider how you will remember to check in with employees who are on parental leave and keep them up to date on any important or workplace updates, as well as making sure your management team are educated on the rights and entitlements of employees taking parental leave and are aware of your Discrimination policies to prevent any issues from arising in the workplace.
There is a lot to be across as a business to ensure you are handling parental leave requests correctly and compliantly, and ensuring your workplace is adequately supporting employees looking to take this type of leave.
To ensure you are best prepared for when such a request does arise there are a couple of key take-aways for employers. Firstly, make sure your business has in place a robust Leave policy in place to ensure your employees are aware of their entitlements and what processes they should follow. Secondly, ensure you have provided education and training to all employees so that the whole business understands their role in the process. Finally, determine whether your business will opt to provide additional company-funded parental leave or any additional benefits, as well as understanding your role in facilitating the Government funded Paid Parental Leave scheme.
If you require any assistance in understanding your employees parental leave entitlements, or in having in place a robust leave policy, reach out to our HR Connect team today to see how we can best assist your business.
The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.