By Samuel Jones

Did you know that one of the most common topics our 24/7 Telephone Advisory Service responds to are queries about parental leave?

Last year, more than 169,000 Australian workers used their parental leave entitlements, and this number is only expected to rise as our population grows. And, while this type of leave is one of the most important entitlements permanent employees have, it’s often the one that’s the least understood by employers and employees alike.

In this article, we explain what this important workplace right is, when and how employees can access it, and answer the most common questions our experienced consultants receive.

1. What is parental leave?

Parental leave is a leave entitlement an employee can take when a child is born or adopted. Unpaid parental leave is an entitlement provided for by the Fair Work Act 2009 (FW Act). All employees, including casual employees, are entitled to take unpaid parental leave if they have worked for their employer for at least 12 months and will have the responsibility or care of the child.

2. Is there a notice period to take parental leave?

When taking unpaid parental leave, an employee is required to give their employer at least 10 weeks’ notice before the commencement of the parental leave period. This includes both the start and end date of their time off. These dates must be confirmed by both parties at least four weeks before the leave commences. We advise that if an employer is knowledgeable about an employee taking parental leave in the future, a discussion of dates should be had as early as possible to mitigate any confusion down the line.

3. More leave? Yes, it’s possible but there are rules.

An employee has the right to request an additional 12 months of unpaid parental leave and must do so at least four weeks prior to the end of the initial period of parental leave. Upon receipt of such a request, an employer must respond to the employee in writing within 21 days advising whether the request is approved or refused. An employer can refuse such a request but only if there are reasonable business grounds to do so which must be explained to the employee in writing.

4. What happens if a pregnant employee is fit to work but just not in her present role?

This is a very common question. It’s surprising how often a pregnant employee has capacity for work duties but is unable to complete the duties of her primary position. If a medical practitioner advises against a female employee continuing her present job because of illness resulting from her pregnancy or because of job hazards, then, if practicable, the employee will be transferred to a safe job at the same rate of pay until the parental leave commences. If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave for the risk period. Paid no safe job leave is paid at the ordinary rate of pay for the employee’s ordinary hours of work. 

5. What happens when it’s time to return to the office? Does the employee have an unquestionable right to return to work?

In short, the answer is yes. Upon return to work, an employee who was on parental leave is entitled to their pre-parental leave position or, if that role no longer exists, a role suited nearest in status and pay to the employee’s pre-parental leave position. This is known as ‘The return to work guarantee.’ If while an employee is on parental leave the business is considering making changes to their role, it is imperative that the business seek advice from an employment law expert such as HR Assured before making changes. Failure to do so may open up a risk to a general protections claim.

A business should also be prepared that upon returning to work after a period of parental leave, an employee may request flexible working arrangements to help them transition more comfortably back into the workforce. It is common for an employee to request part-time hours, working from home arrangements or other flexibilities suited to their circumstances. It is important to know that an employee returning from parental leave has a right to make such a request for flexible working arrangements. The law has recently been developed in this area to create positive obligations upon an employer to genuinely consider an employee request for flexible working arrangements and explore alternative arrangements if the employee’s initial request is unable to me approved.

If any information in this article has raised any questions about parental leave or you have another matter you need advice on, please reach out to our experts via our 24/7 Telephone Advisory Service.

Not an HR Assured client? If you’d like more information about the benefits of becoming an HR Assured client, contact us today for an informal chat.

Samuel Jones is a Workplace Relations Advisor at HR Assured and assists a variety of clients via the 24/7 Telephone Advisory Service. He is currently studying for a Bachelor of Laws/Bachelor of Psychology (Honours).