Under the national employment standards, employees are entitled to parental leave (both mother and father), and also adoption leave. Adoption leave can only be taken by employees who are adopting a child under 16 years of age. To be entitled to parental leave, employees must have completed 12 months of service, or if the employee is a casual employee, he/she must be a long term employee with a reasonable expectation of remaining with the business. However, if the parent no longer has responsibility for the child, they may be given 4 weeks notice to return to work. Due to recent developments in the law, parents are now entitled to paid parental leave. For more information on paid parental leave, click here.
Amount of leave
Employees are entitled to 12 months unpaid leave for the birth or adoption of their child. This period of leave can be extended to a maximum of 24 months after the date of birth of the child. Extensions must be applied for at least 4 weeks before the original period of leave is to end, and the amount of leave taken by the other member of the couple must be specified. At the latest, parental leave must start on the day or the birth or placement of the child. If the employee begins their period of leave with an employer and another employer takes over employment, then the leave continues with the second employer. Written notice for leave is required at least 10 weeks before starting leave or as soon as practicable. Any changes to arrangements require 4 weeks notice, and evidence must be provided.
Employees are also able to take 2 days pre-adoption leave to organise paperwork and attend any meetings which may be required prior to adoption.
Both parents taking leave
In the case where both parents are taking unpaid leave, the mother may take leave up to 6 weeks before the birth of the child, however, the father may not take leave until the date that the child is born. The amount of concurrent leave allowed is 3 weeks or less, unless there is an agreement stating otherwise. If not, one parent’s period of leave must start as the other’s finishes.
Arrangements prior to pregnancy
From 6 weeks prior to the expected birth of the child, an employer may request a medical certificate from a doctor stating that the employee is fit to work, and outlining any health risks associated with continuing to work. If it is unadvisable to work, or the medical certificate is not provided within 7 days of the request, the employee may be required to take unpaid leave.
A female employee can take unpaid maternity leave if she contracts a pregnancy-related illness or if the pregnancy ends within 28 days of the expected birth-date. Notice must be given to the employer as soon as practicable and she must advise the employer of the expected period of leave.
If a pregnant employee is fit to work but the environment is inappropriate and unsafe (during the ‘risk period’), then she is entitled to transfer to a safe job for the same amount of hours or an amount agreed upon by the employer and employee. An alternate option is that the employee takes ‘paid no safe job leave’ if there is no safer job available.
Returning from leave
The employer has a responsibility to consult the employee on unpaid parental leave, especially regarding the position available upon return from leave. There must be a ‘return to work guarantee’, which means that the employee is entitled to return to their position pre-leave or a position similar if that one no-longer exists.
How can Prime Lawyers help you?
At Prime Lawyers, our employment lawyers keep up to date with employment-related issues. They will carefully consider your concerns about leave entitlements and advise you if you feel you have not received the benefits that you are entitled to. For more information or to arrange an appointment, please call our office on (02) 9521 2222.