QLD Am I Entitled to Paid Parental Leave?

[Jason Rivers]

Hello,

I have a baby due on June 7th. My employer has advised me that as a small business, she does not have to give me paid or unpaid leave or time off.

There is no enterprise agreement in place for the industry I am in and no employment contract was signed when I started full time employment with her three years ago.

One of the reason why she won’t give me time off is because another employee has already got all of June off and I am needed to fill in for that role on top of my own role. Normally I would not have to fill in for that employee but due to staff shortages, I have to, which is also the second reason staff shortages and the company policy states no unpaid leave to any employee.

I thought fathers were now covered by paid parental leave or am I wrong? I contacted Fair Work Australia and they advised me that it was up to the discretion of the employer.

What can I do?

 

[Rod]

Your employer is wrong.

She is confusing unfair dismissal with leave entitlements.

Why not compromise with her? Help her out and start leave later. Your baby won't know the difference, and in the overall scheme of things having a job to come back to is just as important as watching and helping your child grow and become independent.

 

[Jason Rivers]

I have tried to compromise with her. She won’t give me anytime off in June, not even two days after the baby is born. If my partner goes into labor while I am at work. I have to complete my shift. If my partner goes into labor outside of work hours. Then my employer wants a medical certificate for proof of birth. Like this is stupid.

Another male employee had a baby last year and was off for three months while we were short staffed so I don’t understand the drama

 

[Rod]

Your employer likely believes you are a 'soft touch' or considers you more valuable.

Options:
1. Give her a choice - compromise for a mutually suitable leave period.
2. Give in to her demand
3. Take leave when you want it - with adequate notice.

You have to work out what works for you.

 

[Splinter]

Do you have holidays owing? What would she do if you came down with an illness? She would have to find someone to fill in for you then? I think she is being very harsh.

 

[Clancy]

If it was me, I would be telling the boss I will be attending the birth whether or not she gives me permission. Personally for me, I would not want to regret missing the birth of my child for the rest of my life just for a job when I can easily get another job. But I can never take back missing the birth. But that's just me. I understand some people cannot necessarily afford to risk a job even for that reason.

 

[Jason Rivers]

Thanks all!

I do have annual leave up but have been denied my request for leave again. If we do come down with an illness, we are then required to go to her dr for a medical certificate and clearance as she does not trust the local GP’s. I have tried to compromise with her but her position is firm.

 

[Rod]

we are then required to go to her dr

Unlikely. Verifying your doctor's certificate is not a valid reason to use a doctor of her choosing unless your employment contract or award allows for it.

But using a medical certificate for the event you describe is not a valid reason for sick leave. Do not do it. You can be fairly sacked for abusing sick leave in this way.

You have tried option 1. Time to consider option 2 or 3.

 

[Splinter]

Thanks all!

I do have annual leave up but have been denied my request for leave again. If we do come down with an illness, we are then required to go to her dr for a medical certificate and clearance as she does not trust the local GP’s. I have tried to compromise with her but her position is firm.

Pretty sure she can’t force you to use a specific Dr.

Is there other work in your community? I would be looking for another job. She sounds awful. I wouldn’t work for someone like that.

And I agree with Clancy, don’t miss your child’s birth. Does she have children of her own? Surely she would understand if she does.

 

[@thelawbundle]

Don't worry about the lack of enterprise agreement or employment contract.

You (and your employer) just need to worry about the National Employment Standards (assuming that you are an employee covered by the Fair Work Act 2009).

These are minimum standards that apply to all employees and cannot be displaced (see section 61 of the Fair Work Act 2009).

The National Employment Standards cover parental leave.

The advice which you say you received from the Fair Work Ombudsman (which is the body I assume you spoke to) seems to be contrary to their advice here: Welcome to the Fair Work Ombudsman website (check the eligibility requirements). Also, see generally section 70 of the Fair Work Act 2009.

I would call the Fair Work Ombudsman again and clarify their position. I would then relay their advice (assuming it is positive) to your employer.

Contravening the National Employment Standards can result in significant penalties for your employer and the Fair Work Ombudsman may prosecute an employer for any such contravention.

This will be in addition to any right that you accrue should you be dismissed for taking the leave (e.g. a general protections action).

On a practical note, I would start liaising with Centrelink now if you wish to claim "Dad and Partner Pay" from them. This is a 2 -week payment at minimum wage if you are taking unpaid leave from your employment. Every little helps.

Best wishes to you and your family.