What are the changes to parental leave?
Parental Leave changes will amend the National Employment Standard (NES) dealing with unpaid parental leave to:
- allow employees to commence unpaid parental leave at any time in the 24 months following the birth or placement of their child;
- make it easier for employee couples to take unpaid parental leave at the same time;
- allow pregnant employees to access flexible unpaid parental leave in the 6 weeks prior to expected birth of their child; and,
- allow parents to request an extension to their period of unpaid parental leave, regardless of the amount of leave the other parent has taken.
Currently, the NES allows employees to access up to 30 days of their unpaid parental leave entitlement as flexible days, which may be taken a day at a time within the first 24 months of the child’s birth or adoption placement. However, once an employee takes a day of flexible unpaid parental leave, they forfeit any remaining entitlement to take continuous unpaid parent leave.
The new provisions will allow employees to take up to 100 days of flexible leave before and after a period of continuous leave.
The new provisions will also allow all employees to take up to 12 months’ unpaid parental leave and request a further 12 months of leave—regardless of how much leave their spouse or partner takes— up to a total of 24 months each. Moreover, two employees who are the spouse or de facto partner of each other can take unpaid parental leave at the same time.
New parental leave entitlements will trump flexible work arrangements for employees returning from parental leave
Amendments made to the unpaid parental leave in the NES, effective from 30 June 2023, have fundamentally improved rights for workers returning from unpaid parental leave.
Before these changes, an employee returning from parental leave had to request a flexible work arrangement or part-time employment to accommodate their parental responsibilities.
Under the new unpaid parental leave provisions, the employee can access up to 100 days of flexible unpaid parental leave, which can be taken in discrete blocks of one or more days. This flexible leave entitlement can be taken before and after a period of continuous unpaid parental leave.
This arrangement is not a part-time or flexible work arrangement. Rather, the employee is accessing their unpaid parental leave entitlement. The use of the leave in this manner would be limited to a maximum of 100 days, which must be used within the first 2 years from the child’s date of birth or placement.
For example, an employee could take 9 months of parental leave as a continuous period from the date of birth and then return on a full-time basis but with 2 days of flexible unpaid parental leave taken each week over the next 9 months (i.e. a total of 78 flexible days).
However, the total number of days of flexible unpaid parental leave the employee intends to take needs to be nominated by the employee in a notice given to the employer 10 weeks’ prior to commencing their first period of leave.
Unpaid parental leave under the NES can be taken at any time during the 24-month period starting on the date of birth of the child. This is not affected by the amount of parental leave taken by the employee’s partner.
The employee may take unpaid parental leave only if the period of leave is no longer than 12 months (subject to the right to extend the leave period by a further period of up to 12 months), less the employee’s flexible leave days taken.
An employee is entitled to request an extension of the period of leave beyond the employee’s available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child.
The employer can only refuse a request to extend their unpaid parental leave entitlement on reasonable business grounds, and an employee has the right to have a dispute about the refusal conciliated and arbitrated in the Fair Work Commission (FWC).
For example, a full-time employee may obtain an extension of their initial 12 months of unpaid parental leave by a further period of 12 months. The employee could then take their 100 flexible leave days in a manner that supports the transition back to full-time work.
Employees who wish to make a longer-term change to their working arrangements after returning from unpaid parental leave will have to request a flexible work arrangement. The employer can only refuse this request on reasonable business grounds, and an employee has the right to have a dispute about the refusal conciliated and arbitrated in the FWC.