Paid Parental Leave & Parental Leave Rights

In Australia, all employees are entitled to parental leave rights. This includes 12 months of unpaid parental leave and 18 weeks of statutory paid leave. To learn more about this workplace right or what you can do if your parental leave rights have been breached, read on. You can also get in touch with the experienced employment lawyers at Owen Hodge.

Parental leave entitlements

Parental leave entitlements include the following:

• Maternity leave
• Paternity and partner leave
• Adoption leave
• Special maternity leave
• A safe job and no safe job leave

Parental leave rights also include the right for the employee to return to their old job.

Is parental leave a legal right?

Under the Fair Work Act 2009, all employees are entitled to parental leave. Employees can take up to 12 months of unpaid parental leave (and request up to an additional 12 months) and 18 weeks of paid parental leave.

Who is eligible for parental leave rights?

Employees are able to take parental leave if they:

• Have worked for their employer for at least 12 months:
  • before the date or expected date of birth if the employee is pregnant
  • before the date of the adoption, or
  • when the leave starts (if the leave is taken after another person cares for the child or takes parental leave)
• Have or will have the responsibility for the care of a child.
• Are an Australian citizen or have a permanent visa, special category visa or a certain temporary visa.

Casual employees

Casual employees are also eligible for unpaid parental leave, but they must have:

• Been working for their employer for at least 12 months
• A reasonable expectation that they would have continued the work with the employer had it not been for the birth/adoption of a child.

Can an employer refuse parental leave?

No, an employer cannot refuse an employee’s parental leave request. Parental leave is part of the National Employee Standards and applies to all employees in the national workplace system, regardless of any award, agreement or contract.

An employer can potentially refuse requests to extend parental leave – however this refusal must be based on the impact the employee’s absence has had on the workplaces’s finance, productivity or customer service; difficulties managing the workload among existing staff and; difficulties in recruiting a replacement employee.

What is paid parental leave?

The Paid Parental Leave Scheme (the scheme) for employees is a welfare measure on behalf of the Government of Australia to provide financial support to eligible working parents of newborn children or recently adopted ones.

The payment calculation is based on a standard Monday to Friday working week basis and from 1 July 2012, the effective rate of pay is $606.50 per week before deduction of tax.

Learn more: changes to paid parental leave

Employer-funded paid parental leave

In addition to the government paid parental leave, employees may also receive paid parental leave from their employers. Employers can provide paid parental leave in enterprise agreements, employment contracts and workplace policies. The exact parental leave payment amount depends on the individual’s agreement/contract.

Note: employees can receive both government and employer-funded paid parental leave.

How long is paid parental leave?

Statutory paid parental leave is available up to 18 weeks when the working parent takes time off to take care of the child.

Paid parental leave eligibility

In order to get paid parental leave, you must:

• Be the primary carer of a newborn/newly adopted child
• Meet the income test
• Not be working during the leave
• Meet the work test
• Have registered/applied to register your child’s birth

How much paternity leave are fathers entitled to in Australia?

There is a general presumption that the primary caregiver of the child is the mother. However, the Government provides for ‘Dad and Partner Pay’ for eligible working fathers or partners, adopting parents or same sex couples and entitles them to get 2 weeks’ pay at the rate of National Minimum Wage standards.

Learn more: minimum age in Australia

Can I work while on paid parental leave?

No, you are not allowed to work while on paid parental leave in Australia. However, you can return to work before the end of your paid parental leave period for either:

• Allowable reasons
• Keeping in Touch days

Applying for paid parental leave

• A working parent may apply for paid parental leave up to 3 months before the expected date of child birth or adoption. They can also apply within 52 weeks after the child’s birth or adoption.
• The employee needs to indicate the date from which the paid parental leave period is expected to start.
• The payments cannot be started until adequate proof of child birth or adoption is provided.
• The entire amount of entitlement should be paid within 52 weeks from the date of child birth or adoption.

Speak to an employment lawyer

Whether you’re unsure about how to apply for parental leave or you believe your maternity leave rights have been breached, you can speak to the experienced lawyers at Owen Hodge.

Call us on 1800 770 780 to schedule an initial consultation about your parental leave rights.