When working while pregnant, both parents are entitled to maternity and parental leave and this applies to all employees in Australia. It can be taken when you give birth, spouse/defacto partner gives birth or adopting a child under 16 years of age.
Parental Leave Entitlements
Parental leave and related entitlements form part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract.
The NES establish minimum entitlements to unpaid parental leave and related entitlements, which apply to all employees in Australia. Parental leave provisions include birth-related leave and adoption-related leave, and also recognise same sex de facto relationships. In addition to unpaid parental leave, the NES also provide the following related entitlements:
- unpaid special maternity leave
- a right to transfer to a safe job in appropriate cases, or to take ‘no safe job leave’
- consultation requirements
- a return to work guarantee
- unpaid pre-adoption leave
What Is Parental Leave?
Parental leave is leave that can be taken when:
- an employee gives birth
- an employee's spouse or de facto partner gives birth
- an employee adopts a child under 16 years of age
Employees are entitled to 12 months of unpaid parental leave. They can also request an additional 12 months of leave.
Who Is Eligible For Parental Leave
All employees in Australia are entitled to parental leave.
Employees are able to take parental leave if they:
- have worked for their employer for at least 12 months:
- before the date or expected date of birth if the employee is pregnant
- before the date of the adoption, or
- when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
- have or will have responsibility for the care of a child
Pre-Adoption Leave
Employees who are taking parental leave to care for an adopted child are also entitled to 2 days unpaid pre-adoption leave to attend relevant interviews or examinations.
This leave can't be used if an employer tells an employee to take another type of leave (eg. paid annual leave).
Having Another Child
Employees who have taken parental leave don't have to work for another 12 months before they can take another period of parental leave with that same employer.
However if they have started work with a new employer they will need to work with that employer for at least 12 months before they can take parental leave.
Paid Parental Leave
Employees can get Parental Leave Pay from the Australian Government and paid parental leave from their employer.
Employees who get paid parental leave are still entitled to unpaid parental leave.
Australian Government Paid Parental Leave Scheme
Eligible employees who are the primary carer of a newborn or adopted child get up to 18 weeks' leave paid at the national minimum wage.
These payments are made to the employer first, who then pays them to the employee. These payments can be paid before, after or at the same time as other entitlements such as annual leave and long service leave.
Parental Leave Pay from the Australian Government doesn't change paid parental leave from an employer – an employee can be paid both.
These payments do not affect or replace unpaid parental leave.
This scheme does not provide an entitlement to any additional parental leave.
- The Australian Government has announced a new policy in relation to Parental Leave Pay. Please visit Centrelink - Parental Leave Pay for more information.
Dad and Partner Pay
Eligible working dads and partners (including same-sex partners) get 2 weeks leave paid at the national minimum wage. These payments are made directly to the employee.
Employer-Funded Paid Parental Leave
Employers can provide for paid parental leave in registered agreements, employment contracts and workplace policies. The amount of leave and pay entitlements depends on the relevant registered agreement, contract or policy.
Employer-funded paid parental leave doesn't affect an employee's eligibility for the Australian Government's Paid Parental Leave Scheme. An employee can be paid both.
Which Employees Are Eligible For Unpaid Parental Leave?
All employees in Australia are eligible for unpaid parental leave if they have completed at least 12 months of continuous service with their employer.
This includes casual employees, but only if:
- they have been employed by the employer on a regular and systematic basis for a sequence of periods over at least 12 months
- had it not been for the birth (or expected birth) or adoption (or expected adoption) of a child, they would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
Applying For Parental Leave
Before an employee can take parental leave they need to give their employer a certain amount of written notice and evidence, if they request it.
Notice Requirements
Employees who want to take unpaid parental leave need to give their employer notice that they are taking leave and confirm the dates.
If an employee can’t give the appropriate notice (eg. the baby is born prematurely) they will still be entitled to take the leave as long as they provide notice when they can.
10 weeks Before Starting Leave
An employee has to give notice to their employer at least 10 weeks before starting their unpaid parental leave. This notice needs to be in writing, and say how much leave they want to take, including the starting and finishing dates.
If an employee can’t give 10 weeks’ notice, they need to provide as much notice as possible.
4 weeks Before Starting Leave
An employee has to confirm their parental leave dates with their employer at least 4 weeks before they are due to start their leave. If there have been any changes to the dates the employee should tell their employer as soon as possible.
If an employee can’t provide 4 weeks’ notice, they need to provide as much notice as possible.
Concurrent Leave Notice
Employees who are taking concurrent leave (parents taking leave at the same time) need to provide at least 10 weeks’ notice to their employer for their first period of concurrent leave. For second and later periods, they need to provide at least 4 weeks’ notice.
If an employee can't provide these notice periods, they need to provide as much notice as possible.
Pre-adoption Leave Notice
Employees who are taking pre-adoption leave have to give their employer notice that they are taking leave as soon as possible (this can be after the leave has started). They should also tell their employer how long they expect to be on leave.
Evidence Requirements
Employers can ask employees for evidence of the expected date of birth or of the date of placement of an adopted child, for example a medical certificate or statutory declaration.
An employer can specifically ask for a medical certificate from their employee giving the expected date of birth. Employers can also ask for evidence to support pre-adoption leave.
If an employee can’t provide evidence, they won’t be entitled to the leave.
Source Reference:
Paid Parental Leave Act 2010 (Cth)
Fair Work Act 2009 (Cth) sections 67 - 70, 76 and 85
Fair Work Act 2009 (Cth) sections 74 and 84A
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