Parental Leave Part 1 - Unpaid Parental Leave

Parental Leave Part 1: Unpaid Parental Leave

There are several different types of parental leave and other entitlements that parents and parents-to-be can utilise under employment law. These include:

  • Unpaid parental leave (which includes maternity leave, paternity and partner leave, and adoption leave)
  • Paid parental leave
  • Special maternity leave
  • A safe job and no safe job leave
  • A right to return to old job

The varying types of leave and entitlements will be explained over three blog posts. This first blog post explains unpaid parental leave.

Who can take unpaid parental leave?

Employees are eligible for parental leave if they have been working for their employer for at least 12 months:

  • by the time the child is born; or
  • by the time the child is adopted; or
  • when the leave starts (in the case of employees who are taking leave after their partner took parental leave); and
  • they will have responsibility for the child.

This includes casual employees, so long as they could have reasonably expected ongoing work if it hadn’t been for the birth or adoption of the child.

Parental leave can be taken by:

  • The biological parent of a child,
  • The spouse or de facto partner of the biological parent of a child, or
  • Parents of an adopted child.

Parental leave applies equally to heterosexual and same sex parents.

What are the parental leave entitlements?

An employee couple can take up to 24 months of unpaid parental leave combined. An employee couple is defined as two employees (not necessarily of the same employer) who are eligible for parental leave because they are in a spousal or de facto relationship and will have care of a child.

If only one parent wants to take leave, then they can apply to their employee to extend their leave for a second year. If both employees wish to take leave, then the leave generally needs to be taken continuously.

Employees who are adopting a child are entitled to an additional two days of unpaid pre-adoption leave. This is so they can attend any interviews or examinations. However, an employer is allowed to direct the employee to take another type of leave before accessing their pre-adoption leave.

One parent taking parental leave

You must take the parental leave in a single continuous period. Paid leave such as annual leave may be taken concurrently.

If the parent taking leave is pregnant, then they may begin the period of unpaid parental leave up to six weeks before the due date of the child. They can begin their unpaid parental leave even earlier if they make an agreement with their employer.

If the parent taking leave is not pregnant, they may take leave on the date of adoption or birth of the child.

The parent taking leave may begin their leave up to 12 months after the birth or adoption of the child if their spouse or de facto partner is not an employee and has been taking care of the child.

Both parents taking parental leave

The parental leave is no more than 24 months in total and must be taken separately over a continuous period. Both employees are eligible to take any paid leave such as annual leave concurrently with their unpaid parental leave.

An employee couple is eligible to take up to eight weeks of their unpaid parental leave simultaneously within the first 12 months of the adoption or birth of the child. This concurrent unpaid parental leave can be broken up into smaller periods of no shorter than two weeks unless the employer agrees.

The employee who starts their leave first is held to the same rules that apply to one parent beginning their parental leave, as explained above.

Requesting an extension of unpaid parental leave

An employee may ask their employer for an extension of their 12 months of unpaid parental leave. This extension can be for up to another 12 months, so long as their partner or spouse hasn’t already taken their 12 months of unpaid parental leave.

The employee must submit their request in writing at least four weeks prior to the end of the initial leave period. An employer must give their response in writing within 21 days. If the employer refuses, it must be due to “reasonable business grounds” and they must explain why they have refused.

There is no specific definition of “reasonable business grounds”, however the reasoning may include:

  • The impact of the extended leave on the workplace,
  • The workplace’s inability to manage the workload without the employee,
  • The inability of the workplace to recruit a temporary replacement for the employee.

Having another child

Employees do not need to work for another 12 months before they can take another period of parental leave with the same employer.

Notice requirements

An employee must give their employer 10 weeks’ written notice of their intention to take unpaid parental leave, unless it is not possible to do so. In that notice, they must nominate the expected start date and duration of the leave. At least four weeks before the leave is due to begin, the employee must confirm the dates or notify their employer of any changes in the dates, unless it is not possible to do this.

If an employee will be taking concurrent leave with their partner over separate periods, they must give 10 weeks’ notice of the first concurrent period and four weeks’ notice of subsequent concurrent leave.

An employer may ask for reasonable evidence. For example, a medical certificate stating the expected due date of the child.

Directing a pregnant employee to take leave

Employers are allowed to request a medical certificate from a pregnant employee who wants to continue working during the six weeks leading up to birth. This medical certificate can contain whether the employee:

  • is fit for work, and
  • should continue her present position due to potential hazards or risks associated with the position.

If an employee provides a medical certificate that says that she is fit for work but she cannot continue doing her normal job, then the employer needs to give the employee a safe job. If no safe job is available, the employee is entitled to no safe job leave. See Part 3 of this blog post series for more information on safe jobs and no safe job leave.

If an employee doesn’t provide the medical certificate within seven days of the request, or the medical certificate states that they’re not fit for work, then the employer may direct the employee to take unpaid parental leave.

Employer-directed unpaid parental leave is exempt from the rules about when the leave must start, notice requirements and that leave is taken in a continuous period.

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