Parental leave is another entitlement under the NES and is available to eligible employees when a child is born or adopted. Parental leave can be taken by male and female workers, and casual employees may be eligible for parental leave if they are employed on a regular and systematic basis.
What is parental leave?
Parental leave is an NES entitlement that can be taken when:
- an employee gives birth to a child; or
- the employee’s spouse or de facto partner gives birth; or
- an employee adopts a child under 15 years of age.
Under the NES, employees are entitled to take up to 12 months of unpaid parental leave. They can also request to take an additional 12 months of leave. The NES does not require an employee to take a minimum period of parental leave, which means an employee can choose to take a longer or shorter period of leave up to a maximum of 12 months.
Generally, the leave must be taken in a single, continuous period but the rules vary depending on the circumstances of the employee. The Fair Work Ombudsman can provide further advice specific to an employee’s circumstances.
Employees may also be eligible to receive payment from the government either via Parental Leave Pay or Dad and Partner Pay. Some employers may also provide payment during parental leave under a company policy.
Who is eligible for parental leave?
To be eligible for parental leave under the NES, an employee must have completed at least 12 months’ service with their employer by the date of birth (or placement in an adoption situation) of the child.
Casual employees are only eligible for parental leave if they are a “long term casual employee”. This means, they need to have been employed by the employer on a regular and systematic basis for at least 12 months.
Casuals who are not long-term employees, or other employees with less than 12 months of service are not eligible for parental leave under the NES. However, an employer may consider granting some form of leave.
When parental leave must start
For birth related leave, the period of leave must start no later than the birth of the child. In the case of an adoption, an employee’s leave must start on the day of placement.
A pregnant employee can choose to start parental leave up to six weeks prior to the expected date of birth but must not commence leave later than the child’s birth date. Leave can start earlier than six weeks before the expected due date by agreement between the employee and employer.
An employee is required to provide notice to their employer of the intended start and end dates of the leave, at least 10 weeks from the intended start date.
The employee must confirm the start and end dates of the leave at least 4 weeks from the start of parental leave.
Explaining parental leave rights and responsibilities
While most people know that there is an entitlement to leave, many do not understand the rights and responsibilities that come with parental leave. Here is a summary of the details:
- employees may take up to 12 months’ unpaid leave. There is also an ability for an employee to request an extension of parental leave for a further period of up to 12 months;
- leave may be paid or unpaid and other forms of paid leave can be taken as part of the parental leave period e.g. the employee can take annual leave at the same time;
- employees have the right to return to the same or a similar job in pay and status once their parental leave ends;
- start and return dates can be varied;
- the notification requirements under the NES are:
- notify the intended start and end dates of the leave at least 10 weeks before the start of the leave; and
- confirm the start and end dates at least 4 weeks from the start of the leave.
Recent announcement from the Federal Government
The Federal Government recently announced a plan to phase-in an increase in the total package of federally-funded paid parental leave from the current 20 weeks to 26 weeks between 2024 and 2026. A media release from the Prime Minister is available here: https://www.pm.gov.au/media/boosting-parental-leave-enhance-economic-security-support-and-flexibility-australias-families
Further information about parental leave is available on the Fair Work Ombudsman’s website: https://www.fairwork.gov.au/leave/maternity-and-parental-leave
Government payments that an employee can apply for can be found on the Services Australia website: https://www.fairwork.gov.au/leave/maternity-and-parental-leave and https://www.servicesaustralia.gov.au/parental-leave-pay