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Who can take parental leave?

To get parental leave, the employee must have worked for the employer for 12 months or more immediately before the date of birth or placement of the child (or expected date of birth or placement).

If leave commences within 12 months of the date of birth or placement of a child, and the employee’s spouse or de facto partner cares for the child between the date of birth or placement and the commencement of leave, the employee must have worked for 12 months before the proposed leave is to start.

Casuals must have worked for the employer on a regular and systematic basis for 12 months and also reasonably expect to have continued working for the employer on a regular and systematic basis if they weren’t having or adopting a child.

Parental leave is available to both parents in a relationship, including de-facto and same-sex couples.
How much parental leave does an employee get?

New parents can each take a maximum of 12 months of unpaid leave. Generally, parental leave can only be taken by one parent at a time and in a single continuous period.

There is an option to request to extend one parent’s leave to a maximum of 24 months, reduced by the amount of any leave taken by their partner.

If a parent takes any other related authorised leave, including paid leave such as annual leave, this reduces the total of unpaid leave for the couple.

Minimum entitlements to parental leave under the NES apply to all employees employed in Australia (including those covered by state industrial laws). However, if state laws are more beneficial to employees than the NES, then these will apply.

How parental leave works

Parental leave differs for:

* parents where both are employees, each of which is the spouse or de facto partner of the other (an ‘employee couple’)
* parents who are single or the only employee in the couple.

Employee couple

Each eligible member of an ‘employee couple’ may take a separate period of up to 12 months of unpaid parental leave if the leave is associated with either:

* the birth of a child of the employee, or the employee’s spouse or de facto partner
* the placement of a child under 16 with the employee for adoption.

In either case, the leave is only available if the employee has or will have responsibility for the care of the child.

The entitlement of up to 12 months unpaid parental leave is reduced by the amount of any unpaid special maternity leave the employee has taken.
Both members of an employee couple intend taking leave

The following rules apply to an employee couple if both employees take unpaid parental leave:

* both employees may at the same time each take up to three weeks unpaid parental leave (reducing their overall entitlement) either immediately after the birth or placement of a child or by agreement with the employer, at any time during an extended period starting before the birth and ending no later than six weeks after the birth or placement.
* remaining leave must be taken separately in a single continuous period (paid leave, such as annual leave, may be taken at the same time)
* if the employee who takes leave first is pregnant or gives birth, they may start their leave up to six weeks before the expected date of birth
* if the employee who takes leave first is not pregnant, their leave must start on the date of birth or placement of a child
* the second employee must start their leave immediately after the first employee’s leave finishes
* they are entitled to no more than 24 months between them.

Only one employee intends taking unpaid parental leave

The following rules apply where one employee (or only one member of an employee couple) takes leave:

* leave must be taken in a single continuous period (paid leave, such as annual leave, may be taken at the same time)
* leave starts on the date of the birth or placement of the child or, in the case of a pregnant employee, up to six weeks before the expected date of birth
* leave may start at any time within 12 months after the birth or placement of the child if:
o the employee has a spouse or de facto partner who is not an employee
o the spouse or de facto partner has responsibility for the care of the child between the date of birth or placement and the commencement of the leave.

Definitions

The ‘child of a person’ includes a person’s biological, adopted or step child.

An employee’s ‘de facto partner’ is defined as a person who, although not legally married to the employee, lives with them in a relationship as a couple on a genuine domestic basis. Former de facto partners are also included.

The Fair Work Act 2009 ensures that same sex de facto relationships are recognised for unpaid parental leave entitlements. This means that the same sex de facto partner of either a person who gives birth or a biological parent may be eligible to take unpaid birth-related leave.
Extending unpaid parental leave

An employee who takes 12 months parental leave may request his or her employer to agree to an extension of a further 12 months leave (up to 24 months in total), provided that if the employee is a member of an employee couple the other member of the employee couple has not already taken that amount of leave.

The employee must request the extension in writing at least four weeks before the end of the initial period of leave.

The employer must respond in writing within 21 days stating whether they grant or refuse the request. Employers may refuse the request only on reasonable business grounds and must include the reasons for the refusal in the written response.

The NES do not define ‘reasonable business grounds’ for refusing a request, but relevant factors may include:

* the effect on the workplace (eg. the impact on finances, efficiency, productivity, customer service)
* the inability to manage the workload among existing staff
* the inability to recruit a replacement employee

Unpaid pre-adoption leave

Adopting parents can take up to two days of pre-adoption leave for necessary adoption interviews or exams (unless their employer requires them to take other leave they have available).

The employee must give notice of the intention to take unpaid pre-adoption leave and, if required, provide reasonable evidence of the purpose of the leave.

Notice and evidence

For parental leave, employees must do the following:

* inform their employer of their intention to take unpaid parental leave by giving at least 10 weeks written notice (unless it is not possible to do so)
* specify the intended start and end dates of the leave
* at least four weeks before the intended start date:
o confirm the intended start and end dates or
o advise the employer of any changes to the intended start and end dates (unless it is not possible to do so).

An employer may require evidence that would satisfy a reasonable person of the actual or expected date of birth of a child (eg. a medical certificate), or the day or expected day of placement of a child under 16.
Return to work guarantee

When an employee wants to return to work after parental leave:

* they are entitled to return to the same position they held before taking parental leave
* if the position they held no longer exists they are entitled to return to an available position for which they are qualified and suited that is nearest in status and pay to their previous position.

While the employee is on parental leave, the employer must keep the employee informed of decisions that affect the status, pay or location of the employee’s position.

Discrimination on the basis of family or carer’s responsibilities or pregnancy is illegal

* Facts about Discrimination

Special considerations
Can a pregnant employee be required to take parental leave within six weeks before the birth?

A pregnant employee wanting to work the six weeks before birth may be asked by the employer to provide a medical certificate containing the following:

* a statement of whether the employee is fit for work;
* if the employee is fit for work, a statement of whether it is inadvisable for the employee to continue in her present position because of:
o illness, or risks, arising out of the employee’s pregnancy; or
o hazards connected with the position.

The employer may require the employee to take a period of unpaid parental leave as soon as practicable if one of the following applies:

* the employee doesn’t provide the certificate within seven days after the request
* the employee provides a certificate within seven days stating that they are not fit for work or
* the employee provides a certificate stating they are fit for work, but that it is inadvisable to continue in the present position due to illness, risk to the pregnancy, or job-related hazards
* the employee is not entitled to transfer to a safe job or to ‘no safe job leave’ (see below).

This form of directed leave runs until the end of the pregnancy or until the planned leave was due to start, and is deducted from the employee’s unpaid parental leave entitlement. It is exempt from the rules about when the leave must start and that it be taken in a continuous period, as well as notice requirements.
What if it’s not safe for a pregnant employee to do her usual job?

If it’s not safe for a pregnant employee who’s entitled to parental leave to continue in her usual job, she can be transferred to a ’safe’ job. If transferred, she’s entitled to the same ordinary hours as her present job, or different hours by agreement.

The employee must provide her employer with reasonable evidence that she can work, but can’t perform her usual job. The employer may require the evidence to be a medical certificate.

If the employer can’t transfer the employee to a safe job, she may take (or be required by her employer to take) paid ‘no safe job’ leave for the time stated in the medical certificate or until the pregnancy ends (either by giving birth or otherwise).

The amount of this paid leave will not reduce the length of the unpaid maternity leave the employee’s entitled to.
What happens for stillbirths, miscarriages, or pregnancy-related illnesses?

A woman can take ’special’ maternity leave if she has:

* a pregnancy-related illness, or
* a miscarriage or stillbirth within 28 weeks of the expected date of birth.

The employee must:

* give notice that she is taking unpaid special maternity leave (which may be given after the leave has started)
* advise the employer of the period of leave (or expected period of leave)
* if required by the employer, give reasonable evidence of the reason for the leave, which the employer may require to be a medical certificate.

The entitlement to unpaid parental leave is reduced by the amount of any unpaid special maternity leave taken by the employee while she is pregnant.

Up to and including 31 December 2009

Parental leave entitlements under the Australia Fair Pay and Conditions Standard (the Standard) apply up to and including 31 December 2009 and are generally the same as those under the NES with the following exceptions under the Standard:

* New mothers can take up to 52 weeks continuous unpaid leave if they are the primary caregiver (’ordinary maternity leave’).
* New mothers taking ordinary maternity leave must take a minimum of 6 weeks leave immediately after the birth of their child.
* New fathers can take up to 52 weeks continuous unpaid leave if they are the primary caregiver (‘long paternity leave’.) or up to one week unpaid leave if they are not the primary caregiver (‘short paternity leave’).
* The maximum of 52 weeks of unpaid leave may be split between parents.
* Parental leave for adoption is restricted to children under five, along with other conditions (adoption leave).
* Extensions to parental leave over 12 months are not available.
* Same-sex relationships are not explicitly recognised for the purposes of parental leave.

Paid Parental Leave

The Australian Government is planning to deliver Australia’s first national Paid Parental Leave scheme from 1 January 2011. It will provide eligible working parents with 18 weeks of pay at the weekly rate of the National Minimum Wage.

Legislation for the Paid Parental Leave scheme has not yet passed through Parliament and is therefore subject to change.

Paid Parental Leave legislation is expected to be passed by Parliament before the end of June 2010.

The proposed Paid Parental Leave scheme will be fully funded by the Australian Government.

Taken from www.fairwork.gov.au, click here for more details