Parental Leave

Managing parental leave can be challenging for employers with grave consequences in the event this leave is mishandled.

Unlike annual leave and personal/carer’s leave, parental leave does not ‘accrue’. It is best thought of as an entitlement that will become available to an employee once they have completed 12 months’ continuous service with the employer (at the due date or expected due date of the child).

Parental leave allows an employee to access up to 12 months’ unpaid leave from the employer and have the ability to return to their role (or if that role no longer exists, a position of similar pay and status).

An employee doesn’t need to be the primary carer of the child to access parental leave and only needs to have some responsibility for the care of the child. This means employees who are the sole income earner for the household are able to access this leave. This would also apply to employee’s who are not currently in a relationship with the other parent of the child.

An employee who is accessing parental leave has the ability to request to extend their parental leave for a further 12 months- however this does not have to be agreed to by the employer and can be declined on reasonable business grounds.

A common scenario and a difficult one for employers, can be the incidence of the ‘employee couple’. Simply, when both parents of the child wish to access parental leave. Whilst both members of the ‘employee couple’ do not need to be employed by the same employer, an ‘employee couple’ only has the potential to access up to 24 months parental leave between them. For example, if the mother of the child wishes to access 15 months leave from her employer (with the additional 3 months being agreed to) the father of the child can only access up to 9 months unpaid leave.

Parental leave must be accessed in one continuous period with both members of the employee couple only able to access leave at the same time for an 8 week period (this is known as concurrent leave).There can otherwise be no gap in the taking of parental leave- if both members of the employee couple are back at work at the same time the parental leave has effectively ended.

When an employee accesses parental leave, there are some notice and evidence parameters to be mindful of in the Fair Work Act 2009 (Cth). These parameters include:

  • an employee to provide at least 10 weeks’ notice of their intention to take parental leave; and
  • 4 weeks’ prior to the commencement of parental leave, and employee to confirm the anticipated start an end dates of the leave.

Employee’s on parental leave also have the right to request to return to work early or the right to automatically return in the event the leave is no longer required.

While an employee is on parental leave, any leave accrual will pause for the duration of the leave. This leave will begin to accrue when they return to the workplace. Whilst on parental leave, an employee has the opportunity to return to work for a period of up to 10 days for the purpose of ‘keeping in touch’. These days will not break the continuity of the parental leave period.

Managing a pregnant employee can be difficult. Employers are often faced with the quandary of the employee who is no longer fit for work due to the pregnancy or it is unsafe for them to remain in their current role. Whilst an employer can direct an employee who is not fit for their role onto parental leave 6 weeks prior to the birth, complications can arise when an employee becomes unfit for their role early into the pregnancy and the employer may be obligated to maintain their current rate of pay when they have been transferred into a lower role and they can access the leave.  If you are having difficulty managing a pregnant employee, we always recommend you seek advice.