For employees recently welcoming a child, parental leave can be very helpful and sometimes crucial during such a critical time. Parental leave allows eligible working parents to take paid or unpaid leave from work to care for their new child. According to 2020-2021 WGEA data, 60% of employers offer access to paid parental leave. This is in addition to Australia’s national Paid Parental Leave scheme, introduced on 1 January 2011. There is a lot to know about parental leave in Australia: keep reading this Legal Kitz blog to find out more.
Unpaid parental leave
Unpaid parental leave and other related entitlements are covered by the Fair Work Act 2009 (the Act). Employees are entitled to 12 months of unpaid parental leave, and the ability to request a further 12 months if they fulfil particular requirements. Parental leave is awarded after an:
- employee gives birth;
- employee’s spouse or de facto partner gives birth; or
- employee adopts a child under 16 years of age.
A pregnant employee is also able to take their leave up to 6 months before the expected date of birth. If an employee has another child, they do not have to work for another 12 months before they can take unpaid parental leave with the same employer. However, they will have to work for 12 months if they start work with a new employer.
Parents who experience a stillbirth or the death of an infant during the first 24 months of life may also take unpaid parental leave.
Who is eligible?
An employee is eligible for unpaid parental leave if they have worked for their employer for at least 12 months before the baby is born (or before the date of the adoption), and are responsible for the care of the child.
What is parental leave pay
Parental leave pay is a government payment for up to 18 weeks, paid at the national minimum wage. An employee is entitled to parental leave pay from the government if:
- they are the birth mother of a newborn child;
- they are the adoptive parent of a child; or
- they are another person caring for a child under exceptional circumstances (such as severe illness or a serious accident).
They must also:
- be the primary carer of the child;
- earn under a certain limit (an adjusted taxable income of $151,350 or less);
- be on leave or not working while they receive the payment;
- have worked at the minimum number of hours per week for 10 of the 13 months before the birth or adoption of the child; and
- meet Australian residency requirements.
The parental leave pay cannot be claimed if the employee returns to work before the end of the leave period. The Australian Government will usually make payments to the employer, who will then pay the employee.
Employer-funded paid parental leave
Depending on the relevant awards, agreements, contracts or workplace policies, an employee may also be entitled to paid parental leave from their employer in addition to the government scheme. The amount will depend on the arrangements with the employer.
Benefits of granting paid parental leave as a business owner include:
- fostering a greater workplace culture;
- boosting employee morale; and
- supporting the mental health of both parents and children.
Dad and partner pay
Dad and partner pay is a relevant Australian Government scheme that provides eligible working dads and partners (including same-sex partners) with up to two weeks’ pay at the minimum wage rate. Full-time, part-time, casual, seasonal, contract and self-employed workers may be eligible.
An employee is eligible for the dad and partner pay if they are:
- the biological father of the child;
- the partner of the birth mother;
- an adoptive parent;
- the partner of an adoptive parent; or
- the person caring for a child born of a surrogacy arrangement.
They must also:
- be caring for the child every day during the time they receive the payment;
- have worked a certain number of hours in the past 13 months;
- meet residency requirements;
- be on leave or not working while they receive the payment; and
- have received an adjusted taxable income of $150,000 or less in the financial year before the claim.
Extending leave
Employees have a right to request an additional 12 months by giving written notice at least 4 weeks before the initial 12 months of leave ends. An employer has 21 days to respond to the request. If the employer declines the request, there must be reasonable business grounds, such as:
- the business cannot accommodate the request for additional leave;
- the impracticality of changing the working conditions of others to accommodate the request for additional leave; or
- that the request will likely result in a loss of productivity or harm to the business.
Going back to work
Once an employee returns from parental leave, they are entitled to:
- return to their pre-parental leave position; or
- if the pre-parental leave position no longer exists, they must be given another available position that is in near status and that pays the same as their previous position.
Adverse action can be taken against employers who engage in discriminatory activities, such as:
- treating an employee less favourably than other people because they exercised a workplace right to take parental leave; or
- requiring an employee to obey specific rules or conditions that may be unreasonable due to their personal attributes.
Legal advice
Parental leave is an entitlement that everyone must be aware of, employers and employees alike. Check out our sister company, Business Kitz’ subscription service today to access our full range of legal, commercial and employment documents to begin your business with a solid foundation that ensures compliance. If you are unsure about how to best protect yourself and your future business, arrange a FREE consultation with one of our highly experienced solicitors, click here today, or contact us at [email protected] or 1300 988 954.