The Fair Work Act 2009 (Cth) contains the National Employment Standards, called the NES. The NES are 10 minimum standards that apply to all national system employees. The NES cannot be excluded by your employment contract or company policy or procedure. One of the NES is the right to parental leave. Here is what you need to know.
Before you go on leave
You must have completed at least 12 months of service with your employer before you are entitled to parental leave. That is 12 months of service up to the date you commence parental leave.
You are entitled to up to 12 months of unpaid parental leave and you have the right to request up to an additional 12 months of unpaid parental leave – your employer can decline the additional period but only on reasonable business grounds. The first 12 months is guaranteed.
You can you tell your employer that you are pregnant whenever you want, as long as you provide 10 weeks’ notice of your intention to start parental leave.
You can start your parental leave up to six weeks’ prior to the expected date of birth.
If you are unsure of how long you want off you can ask for the shortest period of time you know you want, e.g. three or six months, you have the right to extend it up to 12 months if you change your mind. If you request 12 months then ask to come back early, it is only by agreement.
If you are sick during your pregnancy you can use your accrued personal leave.
Both you and your partner are entitled to take parental leave. As long as the leave periods are consecutive, e.g. you take the first 12 months and your partner commences the day you return to work.
There are special rights where you have a pregnancy-related illness or it is not safe for you to perform your job.
During parental leave
You are entitled to take your accrued annual and long service leave during your parental leave period, however it doesn’t extend your leave period beyond the 12 months. Leave doesn’t accrue while you are on parental leave.
You are entitled to 10 keeping in touch days while you are on parental leave. You can perform work during those days and you are entitled to be paid for them.
If your employer makes a decision while you are on parental leave that will have a significant effect on the status, pay or location of your pre-parental leave position, e.g. your employer is considering making you redundant, your employer has a duty to consult with you.
Consultation should not be treated as a mere formality. Your employer must take all reasonable steps to give you information about, and an opportunity to discuss, the effect of the decision on your position. Your employer must genuinely consider your feedback.
On your return to work
You have a return to work guarantee, which means that you are entitled to return to your pre-parental leave position or, if that position no longer exists, an available position which you are qualified and suited to, nearest in status and pay to the pre-parental leave position.
Read our case study on ‘Kate’ and her return to work