Parental Leave Policy

General

Parental leave allows you to take time away from work for the birth or adoption of a child. The term covers a number of different entitlements, including:

  • Unpaid parental leave under legislation
  • Government funded Parental Leave Pay
  • Adoption leave
  • The right to return to work

[The Company]-funded parental leave [delete if not applicable]

Statutory parental leave is unpaid and is governed by the Fair Work Act 2009 (Cth). The entitlements are summarised below, but because the rights arise under an Act of Parliament, those rights can change from time to time if the Act is amended. You should ensure to check before making any decisions around parental leave.

You may also be eligible for payments under either the Parental Leave Pay scheme or the Dad and Partner Leave Pay scheme, both administered by the Commonwealth Government. Neither scheme offers additional leave, but both those schemes provide for payments for leave subject to eligibility criteria (including work tests, income tests and residency requirements). You should make enquiries with Centrelink as to eligibility and how to apply. The Commonwealth schemes, summarised briefly below, change from time to time as legislation changes, and [the Company] has no control over changes to eligibility, rates or even the continuance of the schemes.

[Add if applicable] [The Company], in addition to the rights under legislation, has its own provisions for paid parental leave, which are set out in section 6. This policy is also subject to change at any time, and again, if you want to take advantage of the policy you should check with [name of person or position, for example, HR] as to the current status of this policy.

Statutory Parental Leave

General

This section is a summary of the legislative scheme. Your rights arise under this legislation. [The Company] will not provide less favourable conditions than those provided in the legislation, but may, at its discretion provide more. You should not assume that [the Company] will grant your request if it is outside of the statutory scheme, and you should check with [name of person or position, for example, HR] before making any decisions that depend on [the Company] consent.

Who is entitled to unpaid Parental Leave

Under the Fair Work Act 2009 all employees are entitled to parental leave, on the following terms:

  • You must have at least 12 month’s continuous service, measured from:
    • the date or expected date of birth if you are pregnant
    • the date of the adoption if adopting a child,
    • the date leave starts, if the leave is taken after another person cares for the child or takes parental leave
  • Casual employees must have been working for [the Company] on a regular and systematic basis for at least 12 months, and have a reasonable expectation of continuing work, but for the birth or adoption of a child
  • You must have, or will have, responsibility for care of the child.
  • If you have qualified for parental leave, you do not need to wait for another 12 months before taking further leave, unless there is some other break in the employment.

When you can take unpaid Parental Leave?

There are different rules about when an employee can take parental leave for the birth or adoption of a child, depending om whether one or both parents take leave, and on whether both parents want to take leave at the same time or different times.

When one parent takes parental leave

If you are the only parent who takes unpaid parental leave, you are entitled to take a period of up to 12 months’ unpaid Parental Leave (or 24 months with [the Company]’s consent—you should ask [name of person or position, for example, HR]). The leave must be taken in a single continuous period, so it is not possible, for example, to take seven month’s leave, return to work, and then take the remaining five month’s leave.

If you are a pregnant employee who takes unpaid parental leave, the leave must commence on the birth of your child, or up to six weeks before the expected birth (unless [the Company] agrees to an earlier date—you should ask [name of person or position, for example, HR]).

If you are an adopting parent who is the one taking leave, that leave must start on the date of placement of your child.

If you are the parent of the child but not the person who is pregnant, your leave must start on the date of the birth of your child. You can start unpaid parental leave after the birth of your child if you have responsibility for the care of the child, and your pregnant partner is not employed. You must take leave within 12 months of the birth or placement of the child.

When both parents take parental leave

If both you and your partner are working, you both may be able to take leave. It does not matter if your partner is working for [the Company] or for some other employer. The rules depend on whether you both want to take leave at the same time, or at different times.

If you both want to take leave at the same time (“concurrent leave”), the rules are that if you are married or in a de facto relationship, you and the other parent can take up to eight weeks’ unpaid leave at the same time. Concurrent leave can start on the birth or placement of the child, earlier than this date if [the Company] agrees (you should ask [name of person or position, for example, HR]), or later than this date, as long as it is within 12 months of the birth or placement of the child. This leave can be taken in separate periods, as long as the periods are at least two weeks at a time (again, [the Company] can agree to shorter periods—you should ask [name of person or position, for example, HR]). Note that this leave is part of your total leave entitlement and periods of concurrent leave will be deducted from the total of leave.

If you and your partner want to take leave at different times, the rules are that each parent can take a separate period of up to 12 months’ unpaid parental leave, but the combined leave cannot be for more than 24 months. Any concurrent leave or keeping in touch days (see below) are deducted from the overall total. If you are the pregnant parent and take leave first, the leave must start on the birth of the child, or up to six weeks before the expected birth (unless [the Company] agrees to an earlier date—you should ask [name of person or position, for example, HR]). If the leave is related to adoption, you or your partner must start leave on the date of placement. If you are taking leave first but are the partner and not pregnant, then your leave has to start on the birth or placement of the child. Leave must be taken in one continuous period, so one parent must start leave on the next working day after the other returns to work.

When do I need to tell [the Company] I am taking leave?

If you are planning to take unpaid Parental Leave, you must give [the Company] 10 weeks’ written notice of:

  • the expected date of birth or placement of your child; and
  • the intended start and end dates of your leave.

If you are unable to give 10 weeks’ notice (for example, the baby is born prematurely), you must give as much notice as possible.

While you are on Parental leave, you are required to provide [the Company] with written notice of your intention to return to work no later that four weeks prior to your return date.

If you and your partner are taking concurrent leave, you also need to give us the 10 weeks’ notice for the first period, and at least four weeks’ notice for any subsequent period.

What evidence does [the Company] require?

[The Company] requires a medical certificate showing the expected date of birth, and may ask you for evidence of the date of placement of an adopted child. If you do not provide evidence, you will not be entitled to leave.

What effect does taking parental leave have on my employment?

Taking unpaid Parental Leave does not break your continuity of service with [the Company] (that is, you will remain an employee), but the period of unpaid Parental Leave does not count as time worked for the purposes of accruing your other leave entitlements such as long service leave, annual leave, or personal/carer’s leave.

Can I also take other leave owing to me?

You do not accumulate any type of paid leave while you are on unpaid parental leave (this includes paid leave such as annual leave or sick leave). Paid leave also does not accumulate while you are receiving the Government-funded payments for parental leave (see below).

If you have accumulated annual leave from before your parental leave, you may use this accrued annual leave during the period of pregnancy or childbirth. This does not extend the period of parental leave. If you have qualified for long service leave (an issue that is governed by State legislation applicable to where you live and work) you may also be able to take long service leave.

You cannot take sick or carer’s leave, compassionate leave or (with one exception) community service leave during the period of unpaid sick leave. You will be able to take jury service leave.

[Delete if no paid Company scheme] During any period that you are on paid parental leave under [the Company] scheme (see below) you can take paid sick, carer’s and compassionate leave.

What if I am sick during pregnancy? (Unpaid Special Maternity Leave)

Pregnancy is not considered an illness or injury, but if you are pregnant you still are entitled to personal leave when you are sick.

You may also be entitled to unpaid special maternity leave, if:

  • you suffer from a pregnancy-related illness; or
  • your pregnancy ends other than in the birth of a living child (so by miscarriage, termination or stillbirth), within 28 weeks of the expected date of birth.

If you need to take unpaid special maternity leave you must give [the Company] notice as soon as possible (which may be after the leave has started), and medical evidence will be required.

If you take special maternity leave because of a pregnancy-related illness, the leave ends when the pregnancy or illness ends (whichever is first). If you take special maternity leave because of a miscarriage, termination or stillbirth, the leave continues until you are fit for work.

Unpaid special maternity leave taken while you are pregnant does not reduce your unpaid Parental Leave entitlement.

What if my work is unsafe for pregnant mum? (Safe Jobs)

If you are pregnant, you will be entitled to move to a safe job if it is not safe for you to do your usual job because of pregnancy (irrespective of whether you are eligible for unpaid parental leave). You must give [the Company] evidence that you can work but cannot do your normal job (including why your normal job is not safe) and evidence of how long you should not work in your normal job. Normally [the Company] will require this evidence to include a medical certificate.

If you are able to be moved to a safe job, you will get the same rate of pay, hours of work and other entitlements that you receive in your normal job. You and [the Company] may agree on different working hours, if that is appropriate. You will be able to stay in the safe job until it is safe to go back to your normal work, or until you give birth to your child.

If [the Company] cannot find a safe job, then you can take no safe job leave. If you are entitled to unpaid parental leave, this leave will be paid leave. If you do not have an entitlement to unpaid parental leave (for example, because you do not have 12 months’ service) then this leave is unpaid.

Can the Company make me take Parental Leave before I want?

If you want to work in the six weeks before the date of the expected birth, [the Company] may ask you for a medical certificate that says that you can continue to work and that it is safe to do your normal work.

If you do not provide the certificate, or the medical certificate says that you are not fit for work, then [the Company] may direct you to take unpaid parental leave which will count as part of the total unpaid parental leave entitlement. If you planned to take parental leave at a later date after the birth, this directed leave does not have to be continuous with the balance of your unpaid leave.

If the certificate say that you can work but cannot do your normal job as it is not safe), then you will be entitled to a safe job or to no safe job leave (see above).

Can I extend my Parental Leave?

You may apply to [the Company] for an extension of Parental leave. The time depends on your original leave period. Any extension must be taken straight after the original unpaid parental leave period.

Extending in the first 12 months

If you planned to take less than 12 months’ unpaid leave, you can apply to [the Company] to take up to the full 12 months’ leave. You need to give [the Company] four weeks’ written notice before your leave ends, stating the new end date. The total cannot be more than 12 months’ leave, but approval will be automatic for the first extension. Any subsequent extension will need to be agreed to by [the Company]—you should ask [name of person or position, for example, HR] about this.

Extending leave beyond 12 months

If you have taken 12 months of unpaid parental leave, you can request an extension, up to 24 months. You must give [the Company] at least 4 weeks’ written notice before the end of your initial parental leave period and state the new end date. If your partner is employed, then the request also has to state the amount of unpaid parental leave your partner has taken or will take (see below for the impact of your partner’s leave).

[The Company] will give you a written reply within 21 days of your request. [The Company] is entitled to refuse a request on reasonable business grounds (this will include such matters as the impact of finance, productivity or customer service, any difficulties in managing the workload of other employees, or difficulties in recruiting a replacement employee). If [the Company] is going to refuse a claim, it will discuss the issue with you beforehand.

What if my partner also takes leave?

You and your partner can only take a combined period of 24 months of unpaid parental leave. If you or your partner extends the leave, it can affect the rights of the other party. For example, if you take 12 months of leave and then extend your leave by four months, then your partner can only take eight months’ unpaid leave.

You must give [the Company] details of the unpaid leave your partner intends to take (or has taken) at the same you give [the Company] written notice of your request to extend your leave.

While on Parental Leave—Keeping in touch days

General

While on unpaid parental leave, you have the opportunity to go back to work for a few days to keep in touch with your employment so as to help you transition back into work at the end of your unpaid leave.

When can I use these days?

If you request or suggest the day: You cannot ask for a Keeping in Touch day within the first two weeks after the birth or adoption of your child.

If [the Company] requests or suggests the day: [The Company] can request or suggest a Keeping in Touch day if it is more than 42 days after the birth or adoption of your child.

How many days can I use?

You can use up to 10 days in the first 12 months of unpaid leave. If you extend your leave to 24 months of unpaid leave, you can take another 10 days. These days do not affect your unpaid parental leave entitlement, but nor do they extend it.

You should note that if you access more than 10 Keeping in Touch days during the period when the Paid Government Scheme operates (see below), you will be considered as having returned to work for the purposes of that scheme.

If you participate in a paid work activity for the purpose of Keeping in Touch for one hour or more on a day, that will count as one Keeping in Touch day towards the 10-day limit.

Must there be agreement?

Both you and [the Company] must consent to you performing work on any particular day. This means there needs to be genuine agreement on the type of paid work activity you will perform on the Keeping in Touch day.

For what purposes can I use these days?

These days are designed to help you transition back into work at the end of your unpaid leave. Such a day could be used to:

  • refresh your skills;
  • transition you back into the workplace;
  • help you become familiar with new or updated processes; or
  • allow you to be involved in forward planning discussions or meetings that may affect your role.

This means you could, for example:

  • participate in a planning meeting;
  • participate in training; or
  • perform work to become familiar with the workplace or your role before returning to work.

If you participate in paid work for reasons other than to assist your transition back to the workplace, you will be considered as returning to work; for example, resuming regular paid work or doing a day’s work to cover an absent employee. If you do this before the end of the Paid Parental Leave period under the Government Scheme (see below), you may lose your entitlements under that scheme.

If you participate in a workplace activity that you are not entitled to receive any payment or benefit for, the activity won’t count as a Keeping in Touch day or return to work. For example, Keeping in Touch does not prevent you voluntarily attending the workplace to:

  • visit colleagues;
  • participate in social events; or
  • undertake other unpaid activities at work, such as accessing emails while on a social visit to the workplace.

Are the days paid?

Keeping in Touch activities are defined as paid work, so you will be paid for the work you perform. Work performed on a Keeping in Touch day will count as service.

You cannot be on paid leave and perform paid work at the same time—if you access a Keeping in Touch day while on paid leave, [the Company] will either extend your paid leave or credit the paid leave back.

Returning from Parental Leave

Apart from Keeping in Touch days, there are some other aspects of returning to work that are worth noting.

Right to return to the same job

If you have been on unpaid parental leave (and were not on a fixed term contract), you have the right to return to the job you held before you went on leave, even if another person is working in your role as a replacement. If you were in a Safe Job role immediately before you went on parental leave, you are entitled to return to the role you had before taking up the Safe Job.

If you are an employee on a fixed term contract, and the contract ends while you are on parental leave, you do not have a right to return to the same job (unless this is in your contract of employment). If the contract ends after you return from parental leave, you are entitled to return to the same job and finish working the contract.

What if my job no longer exists?

If [the Company] decides to make significant changes to your role while you are on parental leave, we will discuss these changes with you and give you an opportunity to talk about the changes, even though you are on leave. Please make sure that we continue to have up-to-date contract details for you throughout the period of your parental leave.

If your job no longer exists or has significantly changed when you wish to return to work, [the Company] will offer you a suitable alternative role, which you are qualified and suited to work in and which is closest to your old role in pay and status.

If you cannot be placed because of changes that have taken place, the Redundancy Policy may apply.

Can I breastfeed at work when I return to work?

[The Company] supports the right to breastfeed infants, and will endeavour to make suitable facilities available. Please speak to [name of person or position, for example, HR] about this as soon as possible, so that we can discuss what you need and once agreed, make suitable arrangements for your return.

Flexible Work Arrangements

If you are returning to work after parental or adoption leave, you have the right to ask for flexible work arrangements to help you care for your child, for example, part time work, reduced hours, changed start/finish times, job sharing, and working from home.

Your request must be in writing, with details of the change you want, and your reasons.

[The Company] is required to provide the employee with a written response within 21 days of the request. Attempts will be made to accommodate the request, but [the Company] does have the right to refuse on reasonable business grounds.

The Government-funded Paid Parental Leave scheme

You and your partner may be eligible for payments under the Government funded Paid Parental Leave scheme. This Paid Parental Leave scheme, introduced on 1 January 2011, provides financial support for parents while they are off work caring for a newborn or recently adopted child.

Full-time, part-time, casual, seasonal, contract and self-employed workers may be eligible. Note that [the Company] does not determine eligibility, and you should make enquiries with the relevant Government Department (currently Human Services) as soon as possible. This information is provided only to assist you and you must make an application to the Department if you think you may be eligible.

There are two government-funded payments available to families under the scheme:

the child’s primary carer may receive up to 18 weeks of Parental Leave Pay

from 1 January 2013, fathers or partners (including adopting parents and same-sex couples) may receive up to two weeks of Dad and Partner Pay.

When you lodge your claim, you will need to tell the Department of Human Services when you want your Paid Parental Leave period to start. It can start from the day your child is born or on a later date. However:

  • to receive the maximum 18 weeks of pay, the Paid Parental Leave period must start within 34 weeks of the birth or adoption
  • you must receive all of you Parental Leave Pay within 52 weeks of the birth or adoption.

You can take Parental Leave Pay before, after or at the same time as any type of paid or unpaid leave, but it must be taken in a continuous block and after the child has entered your care. For example, in the 18-week period from the date of birth, you could take four weeks of annual leave and then 12 weeks of unpaid parental leave, all while you are receiving Parental Leave Pay.

Both payments are taxable and paid at the rate of the National Minimum Wage.

The scheme does not give you a new entitlement to leave, but you must be on paid or unpaid leave and not working to get Parental Leave Pay. To get Dad and Partner Pay, you or your partner must be on unpaid leave and not working.

If you are a full-time, part-time, casual, seasonal or contract worker, you could be eligible for Parental Leave Pay if you:

  • are the primary carer of a newborn or recently adopted child;
  • meet Australian residency requirements;
  • have received an individual adjusted taxable income of $150 000 or less in the financial year before the date of birth or adoption, or date of claim (whichever is earlier);
  • are on leave or not working from the time they become the child’s primary carer until the end of their Paid Parental Leave period; and
  • have met the work test.

To meet the work test you must have:

  • worked at least 295 days (approximately 10 months) of the last 392 days (approximately 13 months) before the birth or adoption of your child;
  • worked at least 330 hours in that 10-month period (just over a day a week), and
  • had no more than an eight-week gap between two consecutive working days.

You can count periods of paid leave towards the work test but periods of unpaid leave do not count. You can also include periods of Paid Parental Leave and Dad and Partner Pay you have previously taken in the 13 months before the birth or adoption.

For more information, you can go to Centrelink, visit https://www.humanservices.gov.au/customer/services/centrelink/parental-leave-pay, or [delete if not applicable] speak to [name of person or position in the Company who can assist, for example, HR].

[The Company] Paid Parental Leave Payment

[OPTIONAL: ONLY INSERT IF COMPANY HAS ITS OWN PAID SCHEME ON TOP OF STATUTORY SCHEME. Adjust paragraphs to reflect company scheme]

If you are a permanent employee who has completed 12 months continuous service with [the Company] you will be eligible for paid parental leave funded by [the Company] if you are the primary carer of a newborn or recently adopted child. This benefit is not related to the Government Parental Leave Scheme.

The paid benefit will be for [the Company will determine the length of time] at the rate of your usual salary including superannuation for the period of the benefit and will be payable during the normal payroll cycle up to 6 weeks before the birth or up to 52 weeks after birth (or adoption) during Parental Leave.

Free Parental Leave Policy Template

Download this free Parental leave Policy template for Australian businesses to ensure all staff know the parental leave policy and your organisation is protected from any issues.

By downloading this template, you agree to use it at your own risk and under your own legal advice. Nothing on this site should be considered legal advice.