Introduction

In 2010, new legal obligations for employers in New South Wales were introduced.  These obligations included the application of National Employment Standards (NES) to all employees in Australia.  The NES list a number of minimum standards for employment, including parental leave entitlements and the requirement to provide all employees with a fair work information statement (FWIS).  The FWIS should set out all basic information on matters that  affect employment at your business including an employee’s leave entitlements.  In addition to parental leave under the NES, your employees may also be entitled to access the Commonwealth Government’s Paid Parental Leave (PPL) Scheme.


Parental Leave

The law sets out employers’ obligations in relation to the following three main types of parental leave:

Other types of parental leave set out in the law include:

  • special unpaid maternity leave;
  • unpaid pre-adoption leave; and
  • concurrent unpaid leave.

Who is entitled?

Employees

Generally, all of your employees are entitled to parental leave if they have or will have:

  • worked for you for at least 12 continuous months immediately before the date of birth or adoption, if the child is under 16 years of age; or
  • worked for you for at least 12 continuous months immediately before the leave starts (if the child is take care of by another person after the birth or adoption); and
  • responsibility for the care of a child.

Parental leave is available to both parents including de-facto couples, same sex couples and single parents.  There is no age qualification for parental leave.

Casual employees

Casual employees are also entitled to parental leave if the employee:

  • is, or will be, employed by you on a regular and systematic basis for 12 months immediately before parental leave is taken; and
  • would have a reasonable expectation of continuing to be employed by you on a regular and systematic basis were it not for the birth or adoption of a child.

Parental Leave

Amount of time

Your employees are entitled to take up to 12 months of unpaid parental leave.  Your employees may request an extension of their parental leave for another 12 months.  You may agree that your employee can attach other types of authorised leave to his or her unpaid parental leave, such as paid annual leave.  In this situation, your employee’s unpaid parental leave will be reduced by the amount of authorised leave your employee takes.

While both male and female employees are entitled to take parental leave, there are some differences. Expectant mothers may begin their unpaid parental leave up to six weeks before the expected date of birth.  However, expectant fathers or partners who take leave first, may only start their leave on the date of birth of their child.  In the case of adoption, parental leave for both parents must start on the day of placement of the child.

Your employee may take parental leave, concurrent with his or her partner for a maximum of 3 weeks at the time of the child’s birth or placement, in the case of adoption.  Your employee may also be able to take additional concurrent leave, depending on whether there is an enterprise agreement or award in place.

Together, expectant parents are not entitled to more than 24 months of parental leave.

Notice

In most circumstances, your employees must give you at least 10 weeks written notice of their intention to take parental leave.  This notice must include the start and finish dates of the intended leave.  Four weeks prior to the leave, your employee must provide you with confirmation of those dates or provide you with notice of any changes to those dates.

If your employee plans to take a further period of unpaid leave, then he or she must provide you with notice of his or her intention at least 4 weeks before his or her leave period comes to an end.  In certain circumstances, you may refuse the request for an extension of parental leave.  If you would like further advice on when you can refuse a request for extension, please contact Owen Hodge lawyers.

Effect on other entitlements

You must count your employee’s parental leave as part of their continuous service.  However, time on parental leave will generally not have to count toward accruing other entitlements such as long service leave, paid holidays or sick leave.


Adoption Leave

Except as set out below, adoption leave is the same as parental leave taken by parents for the birth of their child.  If your employee wishes to take adoption leave, you may request that they provide written evidence of the expected date of placement and that the child is under 16 years of age.

In the case of adoption, your employee is entitled to up to 2 days of unpaid pre-adoption leave.  Pre-adoption leave may be taken continuously or separately.  Before the use of pre-adoption leave, you may require that your employee take another form of leave, such as paid annual leave.  You may also require that your employee provides you with reasonable evidence showing that the leave will be taken in relation to the adoption.


Special unpaid maternity leave

If your employee has a miscarriage within 28 weeks of the expected due date and before she starts her parental leave, then her parental leave is automatically cancelled.  However, she is entitled to special unpaid maternity leave.  The employee must give you notice and advice you the amount of time she will be taking such leave.  This type of leave may last as long as a doctor states is necessary in a medical certificate.


Keeping in Touch Days

While on parental leave, your employee is entitled to work for you for up to 10 keeping in touch (KIT) days.  The purpose of these KIT days is to support the employee returning to work at the end of his or her parental leave.  There are certain conditions relating to the time of, and work undertaken during, KIT days.  You will also be required to pay your employee a normal wage for working a KIT day.


Return to Work

All employees (including part time and casual) are protected under the anti-discrimination laws in Australia.   In order to avoid breaching your anti-discrimination obligations as an employer, we recommend that you make sure that an employee who has taken parental leave and wishes to return to work:

  • is not disadvantaged in anyway by having taken parental leave on his or her return; and
  • has any request for flexible working arrangements considered on its own merits.

Same or similar role

When parental leave ends, an employee is entitled to return to the job they held before they took parental leave.  If the position no longer exists, then they are entitled to return to a job that is available for which they are qualified and is nearest to the status and salary of their former position.  If there is no such job,  they may be entitled to redundancy pay.

Flexible working

If an employee is eligible for parental leave, then they will be eligible to apply for flexible working arrangements if they are the primary carer of a child:

  • under school age; or
  • under the age of 18 with a disability.

You must respond to any requests for flexible working arrangements within 21 days.  You must not refuse such a request unless there are reasonable business grounds for doing so, which you must communicate with your employee. If you refuse a request for flexible working arrangements and you do not have reasonable business grounds for doing so, you may be in breach of your anti-discrimination obligations.

Breastfeeding

Although there is no express legal obligation that requires you to provide facilities to support your employee’s breastfeeding, we recommend that you do so.  We suggest that you provide breastfeeding mothers a quiet and private place with a comfortable chair and easy access to a power point so that they can express milk.  You should also provide them with access to a fridge so that they can store expressed milk.

These simple steps will help to ensure that you do not fall foul of discrimination laws.

Work place health and safety

You have a legal obligation to give special consideration to the health and safety of vulnerable workers.  You should consider whether you will need to make any special changes to your workplace as a result of an employee’s pregnancy or return to work after parent leave.

All pregnant employees whether or not they are entitled to parental leave, are entitled to move to a safe job if it is unsafe for them to do their job due to their pregnancy.   If there is no safe job available, your employee may be able to take no safe job leave.  If you need further advice on your obligations relating to your pregnant employees, Owen Hodge would be happy to help.


Next Steps

As an employer, you have a range of legal obligations relating to parental leave and the return to work of your employees.

You should ensure that your employees have all the information about their entitlements and consider every request from your employees on its own merits and in accordance with the law.  Treating your employees with respect and fairness will result in many benefits including employee loyalty, high levels of staff retention and employee commitment to their work.

If you need further advice, Owen Hodge would be happy to help. Call us today on 1800 770 780 or contact us via ohl@owenhodge.com.au to schedule a consultation with a legal professional who can assist you.