The National Employment Standards provide that an employee is entitled to 12 months unpaid parental leave, i.e. maternity, paternity, or adoption leave, provided the employee has completed at least 12 months' continuous service with an employer.
An employee may also extend the leave period by an additional 12 months of unpaid parental leave (total of 24 months) under certain circumstances. Such extension may only be refused on reasonable business grounds.
The National Employment Standards provide that an employee is entitled to 12 months unpaid parental leave, i.e. maternity, paternity, or adoption leave, provided the employee has completed at least 12 months continuous service with the employer. An employee may also extend the leave period by an additional 12 months unpaid parental leave (total of 24 months) under certain circumstances. Such extension may only be refused on reasonable business grounds.
The minimum provisions of the NES are to be read in conjunction with the relevant provisions of the modern award or an existing industrial agreement, where applicable.
Qualifying period of service
A full-time or part-time employee is entitled to take unpaid maternity/paternity leave after completing 12 months of continuous service with an employer.
“Continuous service” for the purposes of the Fair Work Act 2009 means all periods of employment other than any period of unpaid authorised absence or unpaid leave, or any period of unauthorised absence.
A casual employee is also entitled to unpaid maternity/paternity leave but must have been employed on a regular and systematic basis over at least a 12-month period prior to the expected date of birth.
Eligibility for leave
To be eligible, an employee’s maternity/paternity leave is to be associated with the birth of a child of the employee or the employee’s spouse (including a former spouse) or de facto partner, and the employee must have responsibility for the care of the child.
Amount of leave
The NES provides that each parent is entitled to be absent from work for separate periods of up to 12 months of unpaid maternity/paternity leave.
A parent who takes 12 months of unpaid maternity/paternity leave may request additional unpaid leave from their employer of up to 12 months (a total of 24 months unpaid maternity/paternity leave). The period of unpaid leave is reduced by the amount of any unpaid special maternity/paternity leave the employee has taken.
Nothing prevents an employee from electing to take less than 12 months of unpaid maternity or paternity leave, although a pregnant employee may be required to take unpaid maternity leave within six weeks of the expected date of birth of the child. This period of unpaid leave taken before the birth of a child comes out of the employee’s entitlement to 12 months unpaid maternity leave.
Notice to take leave
In order to access maternity/paternity leave, an employee is required to:
- provide 10 weeks notice of intention to take unpaid leave, unless this is not reasonably practicable
- provide reasonable evidence of eligibility (eg medical certificate confirming the pregnancy) on the employer’s request for such evidence.
The notice must specify the intended starting and finishing dates of the unpaid maternity or paternity leave.
Special maternity leave
A female employee is entitled to a period of unpaid special maternity leave if she is not fit for work because she has a pregnancy-related illness, or she has been pregnant and the pregnancy ends within 28 weeks of the expected date of birth otherwise than by the birth of a living child.
The employee must give the employer notice as soon as practicable (which may mean after the period of special maternity leave has started) and advise of the period, or expected period, of the leave.
A female employee’s entitlement to 12 months of unpaid leave is reduced by the amount of unpaid special maternity leave taken in association with the birth of a living child.
The employer may request satisfactory evidence be provided by the employee (eg a medical certificate).
Transfer to safe job and paid “no safe job” leave
A pregnant employee who is entitled to unpaid maternity leave, and has complied with the notice and evidence requirements, and she gives her employer satisfactory evidence (eg a medical certificate) that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period) because of illness or risks arising out of her pregnancy, or hazards connected with that position, is entitled to an appropriate safe job if such a job is available.
If there is no appropriate safe job available, the employee is entitled to take paid “no safe job leave” for the risk period.
An appropriate safe job is one that has the same ordinary hours of work as the employee’s present position, or a different number of ordinary hours agreed to by the employee.
An employee who takes paid “no safe job leave” is paid at the base rate of pay for the period of the leave.
If an employee is on paid “no safe job leave” during the six-week period before the expected date of birth of the child, the employer may ask the employee to provide a medical certificate stating whether the employee is fit for work. If the certificate is not provided within seven days after the request, or the certificate indicates the employee is not fit for work, the employer may require the employee to take a period of unpaid maternity leave.
Taking leave
In taking unpaid maternity or paternity leave, the NES refers to two circumstances:
- the employee is not a member of an “employee couple”, or the employee is a member of an employee couple but the other member does not intend to take unpaid maternity or paternity leave; or
- an employee couple if both employees intend to take unpaid maternity or paternity leave.
In each case, a period of maternity or paternity leave must be taken in a “single continuous period”. This means that an employee cannot commence unpaid leave, return to work and then recommence unpaid leave (other than where an employee couple may take up to three weeks concurrent unpaid leave at the time of the birth).
In regards to the taking of unpaid maternity or paternity leave:
- a female employee taking the first period of leave may start unpaid leave up to six weeks before the expected birth of the child or must start unpaid leave from the date of the birth of the child
- a male employee taking the first period of unpaid leave must start paternity leave from the date of birth of a child
- an employee taking a period of unpaid leave after their spouse has taken leave must start leave immediately after the end of the first employee’s period of leave.
Requesting additional 12 months of unpaid leave
An employee may request his or her employer to agree to an extension of unpaid maternity or paternity leave for a further period of 12 months immediately following the end of the first 12-month period.
The request must be in writing and must be given at least four weeks before the end of the first period of unpaid leave. The employer must respond to the request within 21 days after the request is made.
The employer may refuse the request only on reasonable business grounds and must give the reasons for the refusal to the employee, in writing. In the case of the additional 12 months of unpaid leave, the employee’s spouse may also take unpaid maternity and paternity leave concurrently, except where the employee is a member of an employee couple.
Extending/reducing the period of leave
The employee may extend the period of unpaid maternity or paternity leave by giving their employer written notice of the extension of at least four weeks before the end date of the original leave period.
The notice must specify the new end date for the leave. The employee must have an available period of unpaid maternity or paternity leave of 12 months less any concurrent leave, special maternity leave, paid “no safe job” leave, or extended unpaid leave.
Only one extension is allowed, although further extensions may be made by agreement between the employer and the employee, up to a maximum of 24 months.
If the employer agrees, an employee whose period of unpaid maternity or paternity leave has started may reduce the period of unpaid leave he or she takes.
Employee ceases to care for child
When an employee ceases to have any responsibility for the care of the child, the employer may give the employee written notice requiring the employee to return to work on a specified day.
The specified day must be at least four weeks after the notice is given to the employee, and if the leave is birth-related leave by a female employee who has given birth, not earlier than six weeks after the date of birth of the child.
Return from leave
The NES also entitles an employee returning from unpaid maternity or paternity leave to return to work to the position held immediately prior to commencing that leave. Where that position no longer exists, the employee will be entitled to return to a position comparable in status and pay with that former position.
Change of status during leave
If an employer makes a decision that will have a significant effect on the status, pay, or location of the employee’s pre-maternity or paternity leave position, the employer must take all reasonable steps to give the information about, and an opportunity to discuss, the effect of the decision on that position.
The pre-leave position is the position the employee held immediately before starting the unpaid leave, or the position held by the employee immediately before a transfer to a safe job or reduction in hours due to the pregnancy.
Interaction with other leave
Under s79 of the Fair Work Act 2009, an employee may take a period of paid annual leave concurrently with a period of unpaid maternity/paternity leave; however, an employee cannot take paid personal/carer’s leave, paid compassionate leave, or paid community service leave during a period of unpaid maternity/paternity leave.
The Fair Work Act is silent with respect to payment for a public holiday falling during a period of unpaid maternity/paternity leave, although it is presumed there is no entitlement to payment because the employee has no ordinary hours of work on that day because of absence on unpaid leave.
Subject to the provisions of the applicable state or territory statute, an employee is usually entitled to take long service leave in conjunction with unpaid maternity or paternity leave.
Modern awards
On 19 December 2008, the then Australian Industrial Relations Commission (AIRC) handed down its decision on priority awards with respect to the award modernisation process. In its decision, the AIRC determined that it would not include provisions in a modern award that would supplement the parental leave provisions prescribed by the NES. An employee’s minimum entitlement to unpaid parental leave usually will be determined by the NES.
Transfer of business
A transferring employee who is taking unpaid parental leave under the NES at the time his or her employment transfers continues as if there had been no change of employment. He or she retains the right to extend parental leave, etc. as if there had been no change in employment. The new employer has the right to refuse an employee’s request to extend the unpaid leave where there are reasonable business grounds for doing so.
