Parental leave is a statutory right which is governed by both Commonwealth and State legislation.
It is important for both employees and employers to be aware of their rights and obligations in respect of parental leave entitlements and requirements.
Here is a quick overview of some of the basic concepts of parental leave:
Eligibility for parental leave
The National Employment Standards provide that all employees in Australia are entitled to parental leave provided he/she has worked for their employer for at least 12 months before the date or expected date of birth (if the employee is pregnant or the date of adoption or when the leave starts, if the leave is taken after another person cares for the child or takes parental leave) and will have responsibility for the care of a child.
Eligibility for paid parental leave
The Government prescribes certain criteria, known as the “Work Test”, which a parent must meet in order to be eligible for paid parental leave.
In order to meet the “Work Test” you must have:
• Worked for at least 10 of the 13 months prior to the birth or adoption of your child; and
• Worked at least 330 hours in that 10 month period (i.e. just over one day a week) with no more than an 8 week gap between two consecutive working days.
There is provision for parents who work for more than one employer to satisfy the Work Test and we would draw your attention to the examples at www.humanresources.gov.au website in this respect.
Currently, provided you also earn less than $150,000 per year then you can take up to 18 weeks paid maternity leave funded by the Government.
This can be taken entirely by the child’s mother, as the child’s primary carer, or should the child’s mother wish to return to work part way through this period the remainder can be transferred to the child’s father, provided the father takes over full-time care of the child.
It is important to note that the Government does not pay the parent directly but rather the Government pays the employer and the employer must account to the parent for the paid parental leave entitlements.
Please note: recent media reports suggest that the current meanstest may change in the near future.
Obligations as an employee
The Industrial Relations Act (Qld) states that a pregnant employee who wishes to take maternity leave must provide her employer with:
• At least 10 weeks’ written notice that she intends to take maternity leave; and
• At least 4 weeks’ written notice of the start and ends dates of the maternity leave.
The legislation also prescribes that the employee must give her employer a doctor’s certificate confirming that the employee is pregnant and the expected date of birth.
As an employee you also have the right to request to return to work on flexible working arrangements, such as returning to work part-time to assist in the care of your child.
Obligations as an employer
Employers have an obligation to ensure that the employee is not disadvantaged by having taken maternity leave and to accommodate any “reasonable” request of an employee for flexible working arrangements.
In determining what is “reasonable” any employer needs to have consideration as to the following factors:
• The job performed by the employee;
• The type of flexible arrangement requested;
• The likely duration of the arrangement;
• Whether there are any alternative ways of addressing the reason for the request;
• The cost to the business; and
• The detriment to the employee if refused.
Any decisions regarding return to work on flexible arrangements needs to be considered on a caseby- case basis and on its own merits.
There are decisions that have found employees to have been “constructively” dismissed or that the employer has indirectly discriminated against an employee because the employers have failed to accommodate requests to return to work part-time after returning from maternity leave.
As such, we recommend that employers have clear policies and procedures in place to receive, consider and implement flexible working arrangements.
Entitlement to return to previous position after parental leave
An employee on parental leave is entitled to 12 months of unpaid leave after which time the employee has the right to return to employment with the previous employer in the same job and position that the employee had prior to taking leave.
If the employee’s job no longer exists at the time the employee returns to work, then the employer is obligated to offer a suitable available job that:
• The employee is qualified and suited to work in; and
• Is nearest to the employee’s pre-parental leave job in pay and status.
During the 12 months unpaid parental leave period the employee also has the right to 10 “Keeping in Touch” days. This allows the employee to be paid for up to 10 days worked (either full days, part days or a couple of hours here and there) without affecting the employee’s unpaid parental leave entitlement.
If you are concerned that you have been discriminated against as an employee, for example, or would like assistance as an employer in reviewing flexibility arrangements procedures, then please contact one of our experienced solicitors.
