Recent changes have been made to the National Employment Standard (NES) to provide parents with greater flexibility in relation to their unpaid parental leave entitlements, and also to improve entitlements for parents who experience traumatic events during or in anticipation of taking such leave, including stillbirth and premature birth.
Employers should consider updating their parental leave policies to ensure that they accord with these changes to the NES.
The changes to make unpaid parental leave more flexible have been partly driven by changes made to the Government-funded parental leave payment scheme. From 1 July 2020, the Federal Government changed its paid scheme to provide flexibility for eligible parents who are entitled to 18 weeks of parental leave payment. Those changes allow parents to take:
To ensure a corresponding flexibility with unpaid parental leave under the NES for parents who wish to claim flexible paid parental leave payments, the NES has been amended to also allow parents to take up to 30 days of their entitlement to 12 months unpaid parental leave flexibly, including on a single-day basis, at any time within two years of their child’s birth or placement.
An employer does not have the ability to refuse an employee’s request to take their unpaid parental leave flexibly, such as on the basis of reasonable business grounds. As a result, employers will need to take into account any flexibility requests when considering workforce planning.
Any period of ‘continuous’ unpaid parental leave that an employee requests to take must be taken first however, before the first day of taking any flexible unpaid parental leave.
Parents can still elect to use their full 12 months of unpaid parental leave in one continuous block, which means that that they will have no flexible unpaid parental leave entitlements left to use.
The changes are intended to give families more choice and flexibility in how they choose to combine care and work responsibilities and to promote mothers’ engagement in paid work in the early stages of their child’s life and fathers’ engagement in providing care to their child. We have summarised those changes below:
|Flexible unpaid parental leave||Summary|
|'Continuous' period of unpaid leave must be taken first||The employee must take their requested period of 'continuous' unpaid parental leave before taking any flexible unpaid parental leave.|
|30 days of flexible leave within two years||After any period of continuous leave, an employee may then take up to 30 days of their entitlement to 12 months unpaid parental leave flexibly.
The 30 days can be taken as a single continuous period of one or more days per week, or as separate periods of one or more days each, at any time within two years of the child's birth or placement.
|Notice requirements||An employee must give notice of taking flexible unpaid parental leave at the same time as giving notice of taking unpaid leave or, if the employee is only taking flexible leave, at least 10 weeks before taking such leave.
The notice must specify the total number of flexible days that the employee intends to take.
The employee must also give the employer written notice of when a flexible day will be taken at least four weeks before that day, or if that is not practicable, as soon as practicable (which may be a time after the leave has started).
However, notice of taking flexible unpaid parental leave may be given at any later time if the employer agrees.
|Flexible leave is not 'part-time' work||While employees can take flexible unpaid parental leave in a structured manner to reduce their regular days of work, this will not create a 'part-time' arrangement. It is a leave entitlement under the NES.|
|Request for flexible work arrangements||Employees who wish to make a permanent change to their working arrangements will still be entitled to request a flexible working arrangement under the NES, subject to the employer being able to refuse such request on reasonable business grounds.|
The NES now contains improved entitlements for parents of stillborn babies and babies (including adopted children) who die during the first 24 months of life:
Employers can no longer direct parents to return to work and cancel their unpaid parental leave in those circumstances.
Parents who experience premature birth and other birth related complications that require the baby to be hospitalised immediately following birth are also given improved entitlements if they have given notice that they will take unpaid parental leave.
The entitlement arises if the child is required to remain in hospital after the child’s birth, or is hospitalised immediately after the birth, including because:
The NES now allows parents in these circumstances to agree with their employer to effectively put their unpaid parental leave ‘on hold’ while their baby is in hospital and return to work during that time. They can then resume their leave when the baby goes home.
Should you have any queries relating to the subject of this article, please get in touch with Gadens’ Employment Advisory Team.
Steven Troeth, Partner
Claire Duggan, Associate
Sera Park, Associate
References: Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020; Explanatory Memorandum.