Who can use this form?

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This form can be used by all employers throughout Australia, except the following excluded employers:

• Non-constitutional corporation employers in Western Australia;
• State public sector employers (ie, employees of a Minister, the Governor or the Crown; and
• Local Government employers — except Tasmania and Victoria.

 

Excluded employers may wish to use this document, however they should first obtain legal advice before doing so.

Commentary 

Not all employees have a legal entitlement to take parental leave. 

In order to be eligible for parental leave, employees must satisfy certain eligibility criteria. An employee will be eligible for parental leave if he/she has (or will have) completed at least 12 months’ continuous service with the employer, or if he/she is a ‘long term eligible casual employee’, at the following relevant time:

• for birth-related leave/maternity leave — immediately before the expected date of birth of the child; and
• for paternity leave and adoption leave — immediately before the first day on which the parental adoption leave is taken or is proposed to be taken.

 

Long term casual

A ‘long term eligible casual employee’ means a casual employee who has been engaged by the employer on a regular and systematic basis for a period (or periods) of at least 12 months and who, but for the birth or placement of the child, has a reasonable expectation of continuing engagement on a regular and systematic basis.

In circumstances where an employee is not entitled to parental leave but submits a request for such leave due to pregnancy or adoption, you may nevertheless still need to consider the request and seek to agree to a period of other leave (such as accrued annual leave or unpaid leave). That other leave should not be classified as, or called parental leave.

You should be aware however, that if you refuse to grant other leave to employees with less than the statutory 12 months service period, this may constitute unlawful discrimination on the basis of sex, pregnancy, or carers’ responsibilities, particularly where the employee is forced to resign because of the refusal. If such a request is made, it is recommended that you seek legal advice.

Applying for leave

Employees who are eligible to take unpaid parental leave must first apply to take parental leave by giving appropriate notice of the leave to their employer. The form that you are about to create will assist employees to apply for parental leave. After an employee has applied for parental leave, they should also confirm that leave request no later than 4 weeks before their leave is due to commence. 

It is recommended that employers have a Parental Leave policy which details employee and employer obligations to accompany this Request for Parental Leave form.