Maternity, Paternity and Parental Leave

An eligible employee is entitled to unpaid parental leave under the National Employment Standards (NES), which includes time connected to childbirth and leave linked to child adoption.

The leave must be connected to the adoption of a child under the age of 16 or the birth of a child to the employee, the employee’s spouse, or the employee’s de facto partner.

 

What is the Parental Leave (Maternity & Paternity) Entitlement?

The NES allows eligible employees who have worked for the employer for at least 12 months straight prior to the birth of a child or prior to the placement of an adopted child to take up to 12 months of parental leave, including birth-related leave, concurrent leave, special maternity leave, and adoption leave. They must be long-term casuals (i.e., with more than 12 months of continuous work) and have a reasonable expectation of ongoing employment on a regular and systematic basis in order to qualify as casual employees.

If they are both responsible for the child’s care, each eligible member of a couple of employees may take a separate 12-month unpaid parental leave. If only one individual uses this leave, that person may ask for an additional 12 months of leave. An employee pair consists of two employees who are married or living together as a couple (including same-sex couples).

Recently, the rules governing parental leave were changed to allow workers to take up to 30 days of “flexible parental leave” after returning to work (see further below).

 

 

What documentation is required?

Wherever possible, an employee must give 10 weeks’ notice of their intention to take leave, specify the start and end dates of their leave, how many days of flexible leave they wish to take, and provide adequate documentation, such as a medical certificate, to support their claim that the child will indeed be born on the expected date (or the date of placement of the child if taking adoption leave).

The dates of the leave should be discussed with the employer at least 4 weeks prior to the planned start date, and the employee should inform them of any alterations. The details of the varying notification requirements for concurrent parental leave are provided below.

 

 

How is the leave taken?

Except for up to 30 days of “flexible parental leave,” which is described below, parental leave taken by one employee must be taken in one continuous period. Any paid leave, including yearly leave, is also permissible during this time. When the child is born, placed, or if the employee is pregnant, up to six weeks prior to the anticipated due date, leave can begin. Additionally, there are additional guidelines for parental leave in cases of stillbirth, infant death, or problems during childbirth (as explained further below).

When both employees in a pair take time off, they may do one of the following simultaneously for a total of eight weeks:

  • when the child was born or when it was placed; or
  • at any moment between the time before the birth and six weeks following the birth or placement, by agreement with the employer.The concurrent leave may be taken over several different times, but each time cannot be less than two weeks long without the employer’s consent. 4 weeks’ notice is required for this, or as soon as it is practically possible. No couple may take a combined total of more than 24 months of parental leave.

 

 

When does birth-related leave commence?

For a female employee who is pregnant, the leave period can start at any time within six weeks of the projected date of delivery (if the employee has fulfilled the notice requirements). In some situations, it starts on the day of birth. The employer may ask the employee to provide a medical certificate saying that it is safe for the employee to continue working if the employee decides to work during the six-week term. The employer has the right to order the employee to start maternity leave if the worker is unable to submit a medical certificate.

Additionally, there are additional guidelines for parental leave in cases of stillbirth, infant death, or problems during childbirth (as explained further below).

 

 

Can the Period of Leave be Reduced?

If the employee takes any other type of authorised leave, such as yearly leave or long service leave, the amount of the person’s 52-week parental leave entitlement will be decreased accordingly.

Example: Tracey is a worker who is eligible for parental leave since she is pregnant. Tracey also plans to take a period of regular parental leave, 10 weeks of long service leave, and three weeks of yearly leave. The total number of weeks Sue may take for regular parental leave is 39.

With the employer’s approval, an employee may request to shorten the duration of unpaid parental leave.

 

 

Do you have to continue to employ the employee once they return from parental leave?

The position that a person held right before taking parental leave is typically available to them when they return to work following the absence. The employee has the right to work in another position for the employer if that position is no longer available and they are qualified and capable of doing so.

 

 

Can the 12 Month Period of Unpaid Parental Leave be Extended?

Employees who initially request and start less than a 12-month parental vacation may ask to have it extended up to a 12-month period (minus any concurrent leave or “paid no safe job leave”). Applications for parental leave extensions must be submitted at least four weeks before the leave’s scheduled end date. Additional parental leave requests are at the employer’s discretion.

 

 

What Happens if the Employee Requests an Additional 12 Months Parental Leave?

At least 4 weeks prior to the conclusion of the initial parental leave period, the employee must submit a written application. In order to avoid exceeding the maximum 12-month term, employees who are part of a pair must disclose the whole amount of unpaid leave that the other person has taken or will take.

Within 21 days of receiving the request, the employer must answer in writing, outlining any refusal reasons. Only valid business reasons may be used to reject the request.

For the purposes of requests for an additional 12 months of parental leave, the NES does not define legitimate business grounds, however pertinent criteria may include:

  • the impact of granting the request on the workplace and the employer’s operations, including the costs involved and the effects on effectiveness, productivity, and customer service;
  • the difficulty of organising the work of the current personnel; and
  • the inability to find a replacement worker, or the necessity or otherwise of the preparations that may need to be made to satisfy the employees’ desire.

 

 

Special Maternity Leave

If an employee experiences a pregnancy-related illness or if her pregnancy ends earlier than 28 weeks before the scheduled delivery, other than by giving birth to a live child, she is entitled to Special Maternity Leave (SML). Before taking unpaid SML, an employee is also allowed to take paid personal or caregiver leave.

The employer must be notified as soon as practically possible of the employee’s intent to take SML. An employer can want proof, such a medical certificate.

The quantity of SML taken by the employee has no bearing on any later unpaid parental leave.

 

 

Transfer to a Safe Job

Regardless of their length of service with the employer, all employees have the right to transfer to a safe job. However, only employees with at least 12 months of continuous service who are eligible for unpaid parental leave under the NES are eligible for “paid no safe job leave.”

If a pregnant employee has fulfilled the notice requirements and provides medical evidence that she is fit for work but that it is not advisable for her to continue in her current job during a specified period (the “risk period”) due to illness or risks associated with the pregnancy, the employee may request a transfer to a safe job. If a safe job is available, the employer must transfer the employee to it on the same terms and conditions for the duration of the risk period.

A suitable safe job is one that includes the following features:

  • the same number of ordinary hours as the employee’s current position; or
  • the employee agrees to a different number of ordinary hours.

The employer is required to pay the employee for the safe job at the full rate of pay (for the position she held prior to the transfer) for the hours that she works during the risk period if the employee is transferred to a suitable safe employment for the risk period.

The risk period finishes when the pregnancy concludes, even if the employee’s pregnancy ends before it does.

When there is no safe job available, an employee’s entitlements will depend on how long they have worked continuously for the employer, as detailed below.

 

“Paid no safe job leave” (employees eligible for unpaid parental leave)

If no secure employment is offered and:

  • The employee is entitled to “paid no safe employment leave” for the risk period if they have completed the notice and documentation requirements;
  • and are qualified for unpaid parental leave under the NES and have at least 12 months of continuous service.The employer is required to pay the employee at the employee’s base rate of pay for the employee’s regular hours of work during the risk period even if the employee takes “paid no safe employment leave” during the risk period.

 

“Unpaid no safe job leave” (employees not eligible for unpaid parental leave)

If no secure employment is offered and:

  • The employee has given the employer evidence that would persuade a reasonable person of the pregnancy, even if they are ineligible for unpaid parental leave under the NES because they have fewer than 12 months of continuous service (which the employer can require to be a medical certificate).

During this time, the employee is entitled to “unpaid no safe employment leave.”

 

 

Difference Between Transferring an Employee to a Safe Job and Special Maternity Leave

A pregnancy-related ailment prevents the employee from working at all during Special Maternity Leave (SML).

Upon transfer to a safe job entitlement, the employee is deemed medically fit to work but it is not advisable for her to remain in her current position for a predetermined amount of time due to;

  • illness or risks, arising out of the pregnancy; or
  • hazards in connection with that position.

The transfer to a safe job entitlement mandates that, where a safe job is available, an employee will continue to be paid (since they are still working, albeit in a new “safe job” function). SML is a period of unpaid leave (the employee is not working).

The right to “paid no safe job leave” may become available to qualified employees with more than 12 months of continuous service if the employer determines that it is not reasonably practicable to transfer the employee to a safe employment. “No safe job leave” will be unpaid for workers who are not qualified for unpaid parental leave (with fewer than 12 months of continuous employment).

 

 

Complications including stillbirths and infant deaths

Employees are entitled to up to 12 months of unpaid parental leave if they experience a stillbirth or the death of a child within the first 24 months of life (if they were already eligible for the leave). Employers are unable to tell the employee to return to work or end their absence at this time.

An employee has the right to revoke their leave with four weeks’ written notice before returning to work. Employees are permitted to provide as much notice as is practically possible if the leave term has not yet started.

Compassionate leave, which is also available to the infant’s family’s members, is another type of leave that employees are permitted to take.

 

 

Premature birth and birth-related complications

Employees may “pause” their parental leave if their child is admitted to the hospital soon after birth because of:

  • premature birth;
  • illness developed by the newborn; or
  • other birth-related complications.

Employees who return to work during their newborn’s hospital stay will not have that time subtracted from any parental leave time.

 

 

Flexible Parental Leave

Those who are already qualified for 12 months of unpaid parental leave are also entitled to flexible parental leave. A “flexible” period is any 30 days within a 12-month period.

Flexible leave may be taken for a single day or longer, continuously or intermittently, till the earlier of:

  • their child’s second birthday; or
  • the second anniversary of their adopted child’s placement.

The employee’s right to any outstanding unpaid parental leave expires once flexible unpaid leave is started. This means that in order to use all 12 months of unpaid leave and to be eligible for flexible leave, an employee must take one continuous period of parental leave and set aside 30 days at the end to use later.

This time frame cannot exceed 8 weeks when two employees are on unpaid absence. The other parent may take a flexible duration of parental leave on the same day as the parent who is taking a continuous parental leave.

 

 

When on parental leave, is the employee still eligible for other types of paid leave?

During the parental leave period, an employee is permitted to take paid annual leave. They are not, however, permitted to take paid personal or compassionate leave. In accordance with any applicable State or Territory laws, they might also be able to take a lengthy service leave.

 

 

Consultation with an Employee on Unpaid Parental Leave

The employer must make all reasonable efforts to confer with the employee about the decision’s impact on their position if it is made while the employee is on unpaid parental leave and will have a major impact on the status, compensation, or location of their pre-parental leave position. Redundancy consultation is part of this.

 

 

Transfer of Employment

When an employee’s job is transferred to a new company while they are on parental leave, they are permitted to extend their leave. The second employer must accept the claim if they informed the first employer of their intention to take a leave of absence.

 

 

Hiring Someone to Cover Parental Leave

When a business hires a replacement worker to cover for another worker who is taking a sustained leave of absence, the employer is required to:

  • Inform the substitute worker that the work engagement is only temporary and;
  • that she has the same rights as the employee on parental leave when she returns to work following the leave time.

 

 

Employee’s Right to Terminate Their Employment

Anytime throughout a parental leave period, an employee may resign from their position, subject to providing the employer with any required notice.

 

 

Discrimination

When handling cases involving parental leave, an employer must exercise extra caution to protect itself from being accused of discrimination or wrongful termination. Regardless of how well-intentioned an employer’s activities may be, they may nonetheless be viewed as discriminatory.

 

How HR Connect can help

If you require assistance with dealing with disciplinary issues concerning staff, HR Connect can help. Our HR Advisors will be able to guide you through each step of the disciplinary process and we have template documents (e.g. direction to attend a disciplinary meeting, written warning, letter of termination, etc) available as part of our subscription packages.

 

 

About HR Connect

HR Connect is one of Australia’s leading providers of HR & workplace safety advice services, designed to help small business owners make confident and compliant business decisions.

 

Disclaimer

The information provided in these knowledge base 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. The information in this summary is correct as of August 2021.

 

This knowledge base article will change over time, as Modern Award legislation relating to this Industry or Occupation is passed by the Fair Work Commission. Originally published on 21 September 2021 and last updated on 18 February 2022.

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