Changes to Paid Parental Leave

As per the paid parental leave scheme in Australia, eligible working parents are entitled to get government-funded pay when they take leave from work in order to take care of their newborn or a recently adopted child born on or after 01 January 2011. Eligible working parents include full-time, part-time, casual, seasonal, contract and self-employed workers.

In both 2012 and 2020 there were changes to paid parental leave that you should be aware of. Read on to learn how these changes to maternity leave and paternity leave affect your parental leave rights.

What are the changes to paid parental leave in 2020?

From 1 July 2020, eligible employees can split their parental leave pay (PLP) so they take it over 2 periods within 2 years. Employees can also claim PLP for 1 set period and 1 flexible period. Prior to this change to paid parental leave, employees could only use paid parental leave as one continuous 18 week period.

The set period

The set period of paid parental leave is 12 weeks in length. This leave needs to be taken within 12 months of the birth/adoption of the child. It cannot be split into more than one period.

The flexible period

The flexible period usually starts after the set period and is up to 30 days in length. It needs to be used within 24 months of the child’s birth/adoption and can be used in flexible periods negotiated with the employer.

2012 changes to paid parental leave

In 2012, the federal government’s paid parental leave scheme introduced a new payment called dad and partner pay. This change to paid parental leave is applicable to eligible fathers and partners (which include include adopting parents and parents in same-sex couples caring for a child, born or adopted on or after 01 January 2013.

According to this legislation, eligible fathers and partners will be able to receive two weeks’ dad and partner pay at the rate of national minimum wage during the first 12 months after a child is born or adopted.

The primary aim of this payment is to provide financial assistance to fathers and partners so that they can take more time off from their work to support new mothers or primary careers in their caring role.

Who is eligible for dad and partner pay?

Persons eligible to make a claim for dad and partner pay must be:

• The biological father of a child;
• The partner of the child’s birth mother (including same-sex partner);
• An adoptive parent of the child; and
• A person who satisfies circumstances prescribed by the Paid Parental Leave Rules 2010.

Birth mothers are not eligible to claim dad and partner pay. They are eligible to receive $606.50 per week (as of July 2012) for 18 weeks instead.

Dad and partner pay eligibility test

In order to be entitled to dad and partner pay, an eligible person is required to meet certain tests such as:

• Resident test: the person must be an Australian citizen.
• Work test: the person should have worked for:
  • At least continuous 10 months out of the 13 months before commencement of his dad and partner pay period; and
  • At least 330 hours in that 10 months period, with no more than an eight week gap between two consecutive working days.
• Income test: the person must have an adjusted taxable income of $150, 000 or less in the financial year either prior to the date of his claim, or the date of commencement of his dad and partner pay (whichever is earlier).
• The person must not be working during the period he receives the payment.
• The person must be providing care to a child, born or adopted, on or after 01 January 2013.

How to apply for dad and partner pay

A dad or partner may lodge a claim with the Family Assistance Office for a period up to three months prior to the expected date of birth or adoption, or within 12 months following the birth or adoption of a child from 01 January 2013. The claimant should nominate his start date for dad and partner pay.

Amendments to the Fair Work Act 2009

There were also certain amendments made to the parental leave provisions in the Fair Work Act 2009. These can be summarised as follows:

• A pregnant employee, in agreement with her employer, can commence unpaid parental leave for more than six weeks before the expected date of birth.
• The time period in which an employer can request an employee to use ‘Keeping in touch days’ has been extended. The employer must now wait 42 days after the child’s birth.
• If a parent experiences a stillbirth or death of a child during the first 24 months of life, they may be eligible to take unpaid parental leave for a maximum of 12 months. Employers cannot direct parents to return to work, but the parents can choose to return to work. The parents may also be entitled to take compassionate leave while on unpaid parental leave.
• There have also been changes to the Stillborn Baby Payment which provides financial assistance.
• Parents who experience premature births or other birth-related complications (that require the baby to stay in hospital) can now pause their unpaid parental leave (in discussion with their employer). This means the parents may return to work while the baby is hospitalised.
• Where an employer engages a replacement employee to perform the work of an employee on parental leave, the replacement employee must be notified that their engagement is temporary and may be brought to an end before the planned end date in certain circumstances.

If you have any questions about maternity leave in NSW or how these changes to parental leave in Australia impact you, speak to the expert employment lawyers at Owen Hodge.

More information related to parental leave:

• Workplace rights to take leave
• Unfair dismissal while on/requesting parental leave
• How NES applies to employment contracts & leave