What You Need To Know About Parental Leave Entitlements

The Australian Fair Work Act gives mothers (and spouses/partners) who are national system employees an entitlement to unpaid parental leave on the birth of a child. It also guarantees a return to work to the pre-parental leave position, or if that no longer exists, another available position when parental leave ends.

It is important to note that there are a number of minimum requirements under the Act that need to be complied with. If you go on parental leave without complying with these requirements, you would lose the parental leave protections under the Act. The minimum requirements include:

Minimum Period of Employment

First of all, for birth-related leave you need to have completed 12 months employment before the date of birth (or expected date of birth). For spouses/partners of non-employees who have care of the child from birth, you need to have completed 12 months of employment before starting the leave.

Start of Leave

For employee couples, the latest the first persons leave can commence is the birth of the child. For pregnant employees, leave can commence up to six weeks before the birth, or earlier due to a pregnancy-related illness or by agreement with your employer. The second of the employee couple must start their leave immediately after the end of the first employee’s period of leave (but note there is an exception for up to 8 weeks of concurrent leave). For spouses/partners of non-employees who have care of the child from birth, the leave can start any time up to 12 months after the date of birth.

Give Notice 10 Weeks Prior To Leave

Before you intend to start leave, you need to give notice in writing to your employer. This must specify the intended start and end date of the leave. The notice needs to be given 10 weeks prior to starting your leave, or if that is not practicable, as soon as practicable (for instance, if you had a pregnancy-related illness or your spouse/partner cannot continue to care for your child).

Confirm Start and End Dates 4 Weeks Before Your Leave

Unless it is not practicable to do so, you need to give another written notification at least four weeks before the start date specified in your first written notice. This notice needs to confirm (or advise of any changes to) the intended start and finish dates.

Give Reasonable Evidence if Required

If your employer asks, you must give them evidence (which may be a medical certificate) that would satisfy a reasonable person of the expected date of birth or pregnancy-related illness.

Extending the Parental Leave

There is an initial entitlement of unpaid parental leave of up to 12 months. If you did not notify the full 12 months, you can extend your period of leave by written notice. You can also request up to a further 12 months (up to a maximum of 24 months from the date of birth) and your employer can only refuse on reasonable business grounds. In either case, the notice/request must be given in writing at least four weeks before the end of your current period of parental leave.

These minimum requirements are a potential trap. There is so much going on for people who are working full time and preparing for the birth of a child. It would be easy to miss giving written notification first up or remembering to give that second notification. You could easily think, "Well, nothing's changed. I don't need to give the second notification.” However, that could mean that you lose your protections under the Fair Work Act to take parental leave and return to your pre-parental leave position.

My main to message to you is make sure you comply with the minimum requirements, including the written notifications in the time that you need to give them. There are also other rules that apply (including rules about parental leave for spouses/defactos) and it is a good idea to familiarise yourself with them all. If you're unsure, get some advice.

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