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16 August 2012 Update on Parental leave

By Richard Ottley, Partner and Laura Sowden, Solicitor


On 1 October 2012 the balance of various provisions of the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measure) Act 2012 will commence. This piece of legislation in particular, amends two pieces of legislation: the Paid Parental Leave Act 2010 and the Fair Work Act 2009.


Dad and Partner Pay

This amendment will introduce a new parental paid leave for fathers and partners of newborn babies or adoption of a child from 1 January 2013 under the Paid Parental Leave Act 2010. If a father or partner meets the work and income tests for Paid Parental Leave they will receive 2 weeks leave paid at the national minimum wage rate from the Federal Government.

Timing of Unpaid leave

Unpaid parental leave under the Fair Work Act 2009 is amended for pregnant female employees so that:

  • Unpaid parental leave may start earlier than six weeks before the expected date of birth if the employer and employee agree (the former position was that it may commence up to six weeks prior to the expected date of birth)

Keeping in Touch Days

Fair Work Australia has long advised that best workplace practice makes keeping in touch practices important for employees on parental leave. However, currently only employees who receive paid parental leave payments under the Paid Parental Leave Scheme offered by the Federal Government are entitled to take up to 10 keeping in touch days.

Employees who were on unpaid parental leave as a result of the National Employment Standards were unable to return to work as their parental leave had to be taken in a single continuous period. Thus if they had a keeping in touch day it would break their continuous leave period meaning they may lose their entitlement to parental leave ongoing or their right to return to their pre-parental leave role at work.

The changes to the National Employment Standards (which came into effect in July 2012) in effect allow employees on unpaid parental leave to take up to 10 keeping in touch days without breaking their single continuous period of parental leave.

A keeping in touch day is, as the name suggests, for the employee to keep in touch with their workplace thus easing their return to work. There will be no obligation for employers to give the employee keeping in touch days and any such days must have been freely consented to by the employee and employer. The employee must not be pressured into agreeing to a keeping in touch day.

The keeping in touch day must not be within 14 days of the day the child was born or placed (in the case of adoption) with the employee, and also cannot be arranged at the request of the employer in the first 6 weeks after the day the child was born or placed with the employee.

An employee can only take 10 keeping in touch days during their 12 month unpaid parental leave period. If that period of leave is extended then the employee will have a further 10 keeping in touch days.

Taking keeping in touch days does not extend unpaid parental leave.

When an employee takes a keeping in touch day they do not have to work the full day and they will be paid for performing work at their ordinary rate.

Cancellation of Parental leave and Replacement Employees

The changes also provide a mechanism for return to work of an employee whose pregnancy ends other than by the child being born alive or where the child dies after being born. The changes also require employers to formally notify replacement employees who are to perform the work of an employee going on unpaid parental leave, that the work is temporary and of the rights of the employer and the employee concerning parental leave including the employee's right to cancel parental leave.

Common ways to maintain employee's engagement with the workplace while on leave
  • Arrange pre determined times to check in with an employee on parental leave.

  • Ensure someone in the workplace is responsible for passing on any important information about workplace changes to the employee on parental leave.

  • Forward work newsletters or the like to the employee.

  • Meet with the employee when they near the end of their parental leave period to discuss their return to work; for instance their hours and flexible working arrangements.

In response to these changes, employers should update their policies now.

Richard Ottley, Partner  |  Phone: +61 2 9233 5544  |  Email: rbo@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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