Update on Parental leave

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.