What is unpaid parental leave?
Parental leave is an unpaid leave entitlement contained in the National Employment Standards in the Fair Work Act 2009 (Cth) (Act) which can be taken when:
- an employee gives birth; or
- an employee’s spouse or de facto partner gives birth; or
- an employee adopts a child under 16 years of age.
Parental leave entitles an employee to a return to work guarantee which guarantees they will return to their pre-parental leave position or, if that position no longer exists, an available position for which he/she is qualified and suited, nearest in status and pay to the pre-parental leave position.
In addition to this return to work guarantee, an employee is also entitled to request flexible working arrangements under Section 65 of the Act.
Who can take unpaid parental leave?
Employees, other than casual employees, are entitled to take parental leave if they have or will have responsibility for the care of a child and if they have 12 months of service with their employer, either:
- before the date or expected date of the birth of a child; or
- before the date of the adoption of a child under 16 years of age; or
- when the leave starts (if the leave is taken after another person cares for the child or takes parental leave).
How much leave can an employee take?
Employees are entitled to up to 12 months of unpaid parental leave. The start and end dates of the leave are agreed between the employee and employer.
Employees are also entitled to request to take up to an additional 12 months of unpaid parental leave. Employers may refuse this request on reasonable business grounds, such as if the extension would have a negative impact on the efficiency or productivity of the employer’s business.
Once on leave, if the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid parental leave that he/she takes.
Paid parental leave eligibility
Some employers may have established paid parental leave programmes for eligible employees in their organisation. The employer is responsible for administering and paying the costs of such programmes.
Employees may also be entitled to receive parental leave pay under the Australian Government funded Paid Parental Leave Scheme (Scheme). Employees must apply to take part in this Scheme through Centrelink, who will assess whether the employee is eligible and will then contact the employer. In most cases, employers are required to administer the parental leave pay under the Scheme once the employer receives the funds from Centrelink.
It is important to note that the eligibility requirements which apply in relation to the Scheme are different to the eligibility requirements which apply in relation to unpaid parental leave. As such, an employee who may not be entitled to unpaid parental leave because he/she will not have the requisite 12 months of service (as an example), may still be entitled to paid parental leave under the Scheme. In these circumstances, the employer would not ordinarily be required to administer the parental leave pay – this would generally be administered directly through Centrelink.
Administrative requirements for employees
There are a number of administrative steps that employees need to comply with in order to take unpaid parental leave including:
- informing the employer of the intention to take unpaid parental leave by giving at least 10 weeks written notice (unless it is not possible to do so);
- specifying the intended start and end dates of the parental leave; and
- at least 4 weeks before the intended start date:
- confirming the intended start and end dates; or
- advising the employer of any changes to the intended start and end dates (unless it is not possible do so).
Failure to do each of the above would render the employer in breach of the NES in the Act.