What are your entitlements in the workplace?
Having a baby is a life-changing experience and often necessitates changes to your working life. Australia is lucky to have strong workplace laws which provide rights to parents and protect them from discrimination due to their care requirements.
We have previously explored your rights to flexible working arrangements once you return to work, but what are your rights in relation to parental leave, both before and after your baby is born?
Who is eligible for parental leave?
Soon to be parents (including couples in a same sex relationship) are eligible for parental leave if they have been employed for at least 12 continuous months with their employer.
Parents are eligible for parental leave either upon the birth of a child or the adoption of a child under 16.
How much parental leave are you entitled to?
Both parents are entitled to 12 months of unpaid parental leave and the pregnant parent may start their leave 6 weeks before the expected date of birth of the child, or earlier with the agreement of the employer. As a couple, the parents are entitled to a combined 24 months of parental leave.
Are casual employees entitled to parental leave?
Casual employees, who have been employed on a regular and systematic basis over 12 months and have a reasonable expectation that this would have continued but for their becoming a parent, are entitled to parental leave.
What happens if both parents take parental leave?
Where both parents take parental leave, they are entitled to no more than 24 months of leave between them, with such leave generally to be taken separately in a single continuous period.
Whilst the parents must generally take leave separately, they are entitled to take 8 weeks of concurrent leave within the first 12 months after the birth or adoption of the child. The concurrent leave may be taken in separate periods with each period being no shorter than 2 weeks.
What happens if only one parent takes parental leave?
In circumstances where only one parent has taken unpaid parental leave, they may request that their employer extend their parental leave for a further 12 months and the employer may only refuse where there are reasonable business grounds to do so. The leave must be taken in a single continuous period. If you are requesting an additional 12 months leave, you must make this request in writing to your employer at least 4 weeks before the end of the initial period of parental leave.
What are the notice requirements?
You must give you employer 10 weeks written notice (where it is possible to do so) of the intended start and end date of your unpaid parental leave. 4 weeks before you intend to start your parental leave you must confirm the start and end dates of your parental leave or advise your employer of any changes (where possible).
What are your entitlements during your parental leave?
You are entitled to be kept informed of any decisions made by your employer which will have a significant effect on your job, such as your job status, pay or location. If your employer is to make such a change to your job, they must take all reasonable steps to give you information on, and an opportunity to discuss, the changes to your job.
You are also entitled to 10 “keeping in touch days” for each period of 12 months parental leave, during which you may perform work, and be paid for such work, while on parental leave. The work performed must be for the purpose of enabling you to keep in touch with your job and assist you once you return to work.
What happens if there is a stillbirth or infant death
If the worst happens, it is possible to reduce or cancel your period of parental leave by giving written notice to your employer. If you need to cancel your leave before it starts, you are not entitled to any parental leave. If you cancel your leave after the leave has started, you may return to work within 4 weeks of giving notice. An employer may also request the employee to return to work on a specific day but has to provide 6 weeks’ notice.
Every employment arrangement is different, so if you are unsure about your rights or how to approach your employer to discuss parental leave, we recommend getting legal advice on your individual circumstances.