Parental leave rights in Australia
Rights for employees in Australia who are expecting a new child
Unfortunately, the joy that often comes with becoming a parent or expanding your family can be overshadowed by work-related worry, guilt, frustration, and fear. The good news is that expectant parents and their partners have legal rights and leave allowances: Maternity Leave, Paternity or Partner Leave, Adoption Leave, Special Maternity Leave, a safe job, and no safe job leave.
The even better news is that leading employers are going above and beyond these rights to support their workers. Meet these employers and explore the benefits and policies on their WORK180 employer pages.
Want to help your company create a parental policy that truly supports employees? Here are six expert tips from leading employers.
Expectant parents and their partners may be eligible for a range of time off from work (paid and unpaid):
Parental leave and paid time off for pregnant employees and their partners
What is parental leave?
Parental leave is a term used to describe the time off granted to employees in order to give birth and/or introduce a new child into their home and/or family. According to the government’s website, this leave can be taken:
- after an employee gives birth;
- an employee’s spouse or (legal or non-legal) partner gives birth;
- an employee adopts a child under 16 years of age.
Who is eligible for parental leave?
All employees in Australia are entitled to parental leave and, according to the government’s website, are able to take it 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.
Please note, casual employees, require the following in order to be eligible for unpaid parental leave:
- They must have been working for their employer on a regular and systematic basis for at least 12 months
- There must have been a “reasonable expectation” that the worker would have continued to provide services to the employer on a regular and systematic basis, had it not been for the birth or adoption of a child
Leave and entitlements for employees having another child
Employees must have worked with an employer for at least 12 months before they are legally entitled to take parental leave. However, this doesn’t mean they have to work a full 12 months before taking another period of parental leave with that same employer.
Paid and unpaid parental leave
Employees in Australia are entitled to both paid and unpaid parental leave.
Paid parental leave
There are two types of pay for parental leave, which are Parental Leave Pay (PLP) from the government and employer-funded paid parental leave.
Parental leave pay (PLP)
This is an Australian Government scheme available to eligible employees who are the primary carer of a newborn or newly adopted child. The scheme provides such employees with up to 20 weeks of pay, at the National Minimum Wage.
Employer-funded paid parental leave
Leading employers also offer additional paid parental leave to top up the government-funded pay. This doesn’t impact an employee’s eligibility for the Australian Government’s PLP Scheme, which means they are able to receive both sets of funding at the same time.
Don’t forget, that you can see exactly what parental leave, pay, and support leading employers offer using the WORK180 platform.
Unpaid parental leave
There are two types of unpaid parental leave. These are ‘continuous unpaid parental leave’ and ‘flexible unpaid parental leave.’.
Unpaid parental leave
The rules around unpaid parental leave — also known as ‘continuous unpaid parental leave’ when distinguishing it from ‘flexible unpaid parental leave’ — vary depending on different situations:
When one parent takes unpaid parental leave:
In this circumstance, employees can take up to 12 months of unpaid leave. This can increase to 24 months if their employer agrees. This can be taken as;
- a one continuous period;
- or as one continuous period and then a flexible period of up to 30 days.
When an adoptive parent takes unpaid parental leave
In this circumstance, the employee must start their period leave on the date that the child is “placed” with them.
When both parents take leave at the same time (whether at the same workplace or not)
There are a few different rules and regulations in this circumstance. For example, parents who are married or partners (legal or non-legal) are able to take up to eight weeks of unpaid parental leave at the same time. This leave is called ‘concurrent leave’ and is part of an employee’s total unpaid leave entitlement.
To read all rules and regulations in this circumstance, visit the government’s website.
When both parents take parental leave at different times
According to the government’s website, there are a few different rules and regulations in this circumstance:
- Parents can take a combined total of 24 months of unpaid parental leave.
- In the case of adoption, one parent needs to start their leave period on the date of placement of the child.
- Unpaid parental leave usually has to be taken in a single continuous period. This means that the other parent may need to start their unpaid parental leave the next working day after the first parent’s leave ends.
Flexible unpaid parental leave
Employees can take up to six weeks (30 working days) of their unpaid parental leave flexibly at any time within 24 months of a child’s birth or adoption. Like continuous unpaid parental leave, the rules around this ‘flexible unpaid parental leave’ vary depending on different situations:
Flexible unpaid parental leave
When one parent takes parental leave
In this circumstance, an employee can;
- take up to 30 days of their 12-month unpaid parental leave flexibly. The deadline for this second anniversary of the day their child was “placed” with them;
- take this leave as a single continuous period of one day or longer, or in separate periods of one day or longer each;
- take flexible unpaid leave within the first 24 months of the placement of their child. However, note that the employee’s entitlement to unpaid parental leave (not flexible unpaid parental leave) will end on the first day that the employee takes flexible unpaid parental leave. So, as advised on the government’s website, if an employee plans to take a continuous period of unpaid parental leave, they should do so before they take any flexible unpaid parental leave.
- take flexible unpaid parental leave after taking one or more periods of continuous unpaid parental leave. However, note that the total of both these time periods must not be longer than 12 months.
For more information, visit the government’s website.
When one parent takes flexible leave and one parent takes continuous parental leave
In some cases, an employee can take flexible unpaid leave while the other parent is on unpaid parental leave. However, it’s important to note that both parents can only take up to eight weeks of unpaid parental leave at the same time.
Adoption: Parental leave and paid time off for employees adopting a child
According to the government’s website, adoptive parents are eligible for parental leave as long as they meet a certain criteria:
- The employee must have worked for their employer for at least 12 months before the date of adoption. This 12 months period can also be before the leave starts, as long as the leave is taken after another person cares for the child or takes parental leave.
- The employee is or will be responsible for the child’s care.
About unpaid pre-adoption leave
Those taking parental leave for an adopted child can also take two days of leave, called “pre-adoption leave”. This leave is for them to attend appointments regarding the adoption, such as interviews or examinations.
Note, as per the government’s website, an employee must give their employer notice they are taking unpaid pre-adoption leave as soon as possible. An employer may also direct them to use any available annual leave instead.
Special maternity leave: Parental leave for stillbirth, premature birth, or infant death
According to the government’s website, an employee who is eligible for unpaid parental leave can take unpaid special maternity leave. This leave is not deducted from the amount of unpaid parental leave that an employee can take.
Special maternity leave can be taken in two circumstances:
Pregnancy-related illness
This leave will end when either the pregnancy or the employee’s illness ends (whichever is first)
Miscarriage
This leave can continue until the pregnant employee feels fit to return to the workplace
Note that employees must notify their employers of their intention to take this leave as soon as possible, which could be after the leave has already commenced. It’s also important to note that the employer is entitled to ask for evidence in the form of a medical certificate.
Employees also have the right to certain leave and support during the difficulties incurred due to stillbirth, premature birth, or infant death. For a comprehensive explanation of these entitlements, please visit the dedicated maternity and parental leave page of the government’s website.
Pregnant employee entitlements: The right to a safe job
Regardless of whether an employee is casual or even eligible for support such as unpaid parental leave, the government’s website makes it clear that all pregnant employees are entitled to request and be moved to a job that is safe for them to do while pregnant. What’s more, this job must be at the same pay, hours, and entitlements as their usual role.
If no safe job is available then the employee can take ‘no safe job leave’. This leave is paid for those who are entitled to unpaid parental leave.
Want to find out how employees can request to move to a safe job? Visit the pregnant employee entitlements page on the government’s website.
Protection from discrimination
Every pregnant employee in Australia is protected against discrimination. This means that it’s unlawful for employers to fire, demote, or treat employees differently from others due to pregnancy.
Employee rights when returning to the workplace after parental leave
Employees have a range of rights when returning to the workplace after parental leave.
The right to return to the same job
An employee who’s been on unpaid parental leave is entitled to come back to the job they had before going on leave, even if another person is working in their role as a replacement. This includes those who were transferred to a ‘safe job’ or reduced their hours during their pregnancy.
Unless otherwise stated in their contract, the right to return to the same job doesn’t apply to those whose fixed-term contract ends while they’re away on unpaid parental leave.
If that role no longer exists or has changed, the returning employee must be offered another suitable job. The government’s website describes that as a role that the employee is qualified and suited to work in, and is as close to their old job and pay status as possible.
The right to be informed
Similar to an employee’s right to return to the same job, employees have the right to be informed if an employer makes a significant change to their job while away on unpaid parental leave. This right requires employers to invite the employee to discuss these changes together.
The right to request flexible working arrangements
Requesting flexible working when returning to the workplace after parental leave is a legal right. For example, employees may wish to work part-time, change their hours, or work from home.
Breastfeeding in the workplace
The government’s website makes it clear that breastfeeding is a protected ground of discrimination. As such, no employee should be made to feel uncomfortable, unsupported, or unable to breastfeed while at work. The employer is also responsible for ensuring that any breastfeeding member of their workforce is provided with adequate facilities or breaks.
Compassionate leave
Compassionate leave (also known as bereavement leave) can be taken by all employees. This includes those currently on unpaid parental leave. However, casual employees must take this leave unpaid.
- A member of their family dies or contracts or develops a life-threatening illness or injury
- A member of their household dies or contracts or develops a life-threatening illness or injury
- A member of the immediate family or household is stillborn
- They or their spouse or partner (legal or non-legal) has a miscarriage
Shared caring responsibility
Creating a culture that promotes and supports equal and shared responsibility for parents and carers — regardless of gender — is critical to enabling women to thrive in the workplace.
From gender-neutral parental policies to return-to-work programs, employers can support their all-important workforce while removing damaging stereotypes. WORK180 amplifies the impact of such policies by displaying them on our transparent platform, ultimately showing women what a supportive workplace looks like.
Disclaimer:
The information on this page has been compiled on the basis of general information current at the time of publication. Please note that the contents of webpage and any information provided by WORK180 do not constitute legal advice and are not intended to be a substitute for legal or other professional advice and should not be relied upon as such.
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