When you hear the term ‘parental leave’ you will no doubt assume that this describes a situation where a pregnant employee is about to take some time off work in anticipation of the birth of their child. While this is certainly the most common type of parental leave, there are several other types of parental leave that many employees are largely unfamiliar with.
You might be asking questions like:
What are my entitlements as a Dad or Partner?
What if we are adopting a child?
What if there are complications with my pregnancy?
What parental leave is paid or unpaid?
How much leave am I entitled to?
In this article we explain the different types of parental leave that are available under legislation and how to work out if you are eligible.
Please also note however that your contract of employment, Enterprise Agreement, Award or workplace polices and procedures may also provide for certain entitlements. This article only addresses statutory entitlements.
What is parental leave?
Broadly speaking, parental leave is a type of leave that can be taken in 3 different scenarios. These scenarios include:
- Where an employee gives birth;
- Where an employee’s spouse or de facto partner gives birth; and
- Where an employee adopts a child who is under the age of 16.
What are my parental leave entitlements?
Parental leave is made up of a combination of different entitlements. It includes:
- Maternity leave – i.e. when you are a female pregnant employee and take leave in anticipation of the pending birth of your child
- Paternity leave and partner leave – i.e. parental leave for fathers and partners of new mothers
- Special maternity leave – i.e if you experience an unexpected complication with your pregnancy or get a pregnancy-related illness
- Adoption leave – i.e. leave taken in association with the placement of a child for adoption
- Safe job and no safe job leave – i.e. if there is no safe job available (and unpaid parental leave is not available) you can take no safe job leave
Am I eligible to take parental leave?
In Australia, all employees are entitled to parental leave but you will only be eligible to take parental leave if you meet the following criteria.
To be able to take parental leave, one of the following conditions must be met:
- If you are a pregnant employee, you must have worked for your employer for at least 12 months, either before the date or expected due date of the birth of your child; or
- If you are adopting, you must have worked for your employer for at least 12 months before the date of adoption; or
- If you are taking leave after another person takes parental leave or cares for the child, you must have worked for your employer for at least 12 months before the date of commencement of the leave; and
- In all of the above scenarios, you must have responsibility for the care of the child.
Am I eligible if I am a casual employee?
Whether or not a casual employee will be eligible to take parental leave will depend on three things:
- First, you must have been working for your employer on a ‘regular and systematic basis’ for at least 12 months.
- Second, you must have a reasonable expectation that, had it not been for the birth or adoption of a child, you would have continued to be employed on a regular and systematic basis.
- Third, you must have responsibility for the care of the child.
Am I eligible if I have taken parental leave before?
If you are still working with the same employer as you were when you first took parental leave, you are eligible to take another period of parental leave following the birth or adoption of another child.
You do not need to work a further period of 12 months in order to be eligible.
If you change jobs in between you taking one period of parental leave and another period, you will need to be employed for at least 12 months before you are eligible to take parental leave. This is based on the assumption that you have commenced an entirely new position with a new entity that has no association with your old employer.
What if my employer’s business is sold and I start employment with the new employer?
Different arrangements apply in circumstances where you have commenced new employment but only because of a transfer of business, such as where the business has been sold.
Situations involving transfer of businesses can be tricky to interpret correctly. However generally speaking, if there has been a transfer of business and you continue employment with the new employer, your service with your old employer must be recognised when working out your entitlements to certain types of leave. This includes parental leave, requests for flexible work arrangements and personal/carer’s leave.
How much parental leave can I take?
You are entitled to up to 12 months of unpaid parental leave. You can also request up to an additional 12 months of leave.
There a specific requirements that must be complied with in order to submit a request to extend your unpaid parental leave for a further period.
What types of parental leave are unpaid?
Under the National Employment Standards, the following types of parental leave are unpaid entitlements:
- birth and adoption related leave
- flexible parental leave;
- pre-adoption leave; and
- special maternity leave.
In each case, there are notice and evidence requirements that must be complied with. We will address those requirements in a later blog.
Birth and adoption unpaid parental leave
If you are taking parental leave following the birth or adoption of a child (and you meet the eligibility criteria referenced above) then you are entitled to take 12 months unpaid parental leave.
In the unfortunate event that you experience a stillbirth or your child passes away in the first 24 months of life, you are also entitled to access 12 months of unpaid parental leave.
Flexible unpaid Parental Leave
If you decide to return to work sooner than 12 months, you will be entitled to up to 30 days of flexible unpaid parental leave.
These days can be taken consecutively or separately as agreed between you and your employer.
The days must be taken within 2 years of the birth of your child (or withi 2 years of placement for adoption).
The entitlement to 30 days of flexible unpaid parental leave is deducted from your entitlement to 12 months of unpaid parental leave. In other words, if you decide to return to work after 11 months and 27 days, you will not then be entitled to an additional 30 days flexible unpaid parental leave on top of that. Rather, the exact amount of flexible unpaid parental leave will depend on how much unpaid parental leave you took and what the balance remaining under that period is. In the above example, it would be a maximum of 3 or 4 working days.
Unpaid pre-adoption leave
You are entitled to take 2 days of unpaid pre-adoption leave to attend any interviews or related appointments required to obtain approval for the adoption of a child.
However, you will not be entitled to take unpaid pre-adoption leave if you have another form of leave entitlement (for example annual leave) accrued that you could use instead and your employer directs you to take that other form of leave. In other words, if you request unpaid pre-adoption leave and your employer directs you to use another one of your entitlements instead (like annual leave) then the entitlement to unpaid pre-adoption leave won’t apply
It is recommended that you first request to take unpaid pre-adoption leave and see what your employer’s response is. Perhaps they will approve the leave without issue such that your usual accrued entitlements do not have to be used.
Unpaid special maternity leave
If you are a female employee and you experience the unfortunate event of either a pregnancy-related illness or your pregnancy ends after a gestation period of at least 12 weeks, either of which make you not fit for work, then you will be entitled to a period of unpaid special maternity leave.
If the child is stillborn, you may be entitled to the 12 months unpaid parental leave (as opposed to unpaid special maternity leave).
If you have an entitlement to paid personal/carer’s leave, you may take that leave instead of taking unpaid special maternity leave.
What types of parental leave are paid?
Paid Parental Leave Scheme
In addition to the different types of unpaid parental leave that have been outlined above, some employees are also entitled to paid parental leave. This is either through the Government’s Paid Parental Leave Scheme, a paid parental leave policy within the workplace, or a combination of the two.
Under the paid parental leave scheme, eligible employees can obtain paid parental leave from the Australian Federal Government for a newborn or recently adopted child.
There are two types of payments that are available under the scheme. These include:
- Parental Leave Pay; and
- Dad and Partner Pay.
Parental Leave Pay
Note: On 30 November 2022, a number of proposed reforms were introduced to Federal Parliament via the Paid Parental Leave Amendments (Improvement for Families and Gender Equality) Bill 2022 (Cth). These reforms were intended to provide families with better security and support upon the birth or adoption of a child than what has previously been on offer.
These reforms were assented to and take effect from 26 March 2023 via the Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Act 2023.
Significantly, these reforms provide for an increase in pregnant employees’ paid parental leave entitlement from 18 weeks to 20 weeks (for any child born after 1 July 2023). There are further plans to increase this to 26 weeks in 2026.
For now, what you need to know is that if you are eligible to paid parental leave under the current scheme:
- If your child is born or adopted after 1 July 2023, the entitlement is 20 weeks paid parental leave pay; or
- If your child is born or adopted before 1 July 2023, the entitlement is 18 weeks paid parental leave pay.
Parental Leave Pay is paid at the national minimum wage rate at the time the leave is taken.
To be eligible for Parental Leave pay, you must meet a series of criteria, including (but not limited to) that you are the primary caregiver of the child or adopted child, you meet the applicable income test for the relevant financial year, you meet the residency test and you meet the applicable work test.
To find out more about your eligibility for Parental Leave Pay, check out the resources available on the Services Australia website: Parental Leave Pay – Services Australia
Dad and Partner Pay
If your child is born or adopted before 1 July 2023, Dad and Partner Pay provides eligible fathers or partners with up to two weeks pay at the rate of the national minimum wage.
To be eligible for Dad and Partner Pay, you must meet a series of criteria, including (but not limited to) that you are the child’s biological father, adoptive parent of the child, partner of the birth mother or adoptive parent, or the person caring for a child of a surrogacy arrangement; meet the income, residency and work tests; and not working during the period of your Dad and Partner Pay (with a couple of exceptions).
To find out more about your eligibility for Dad and Partner Pay, check out the resources available on the Services Australia website: Dad and Partner Pay – Services Australia
How Can Rubix Legal Help
There are a plethora of issues that can arise when you are pregnant and/or contemplating taking parental leave. The last thing you want to have to deal with when you are preparing for possibly the most exciting chapter in your life is a workplace dispute concerning the security of your employment, your entitlements or your rights.
If you are unsure what your rights are or if you hold concerns about how your employer may react to the news that you are intending on taking parental leave, Rubix Legal can help.
We frequently assist employees with workplace issues involving pregnancy, parental leave, discrimination, pay issues and general workplace disputes caused from any of the above.
Our passion is to assist employees with finding their voice so you can get what you deserve out of work and life. You’re just one step away from confidently being able to navigate your Parental Leave entitlements: book your 1 hour legal advice consultation here.
Disclaimer: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
