Parental leave

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What is parental leave?

Parental leave is unpaid leave and includes:

leave for the birth of a child to a pregnant employee;
leave for the birth of a child of an employee's spouse ; and
leave for the adoption of a child.

Parental leave is available for an employee to be the child's primary care giver.

Who is entitled to parental leave?

Full-time and part-time employees who have had at least 12 months continuous service are entitled to parental leave. In addition, long term casual employees (i.e. casual employees who have been engaged by an employer on a regular and systematic basis for at least 1 year) are entitled to take parental leave.

Casual employees who are not long term casuals, seasonal employees and pieceworkers are not entitled to parental leave.

As long as an employee has completed 12 months continuous service with the same employer, they do not have to complete another 12 months at work to be eligible for a further period of parental leave.

An employee can be married, unmarried or living in a defacto relationship to have an entitlement to parental leave. There is no age qualification.

How much parental leave can the employee take?

A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid maternity leave for the childs birth and to be the childs primary care giver.

For the birth of a child to an employee's spouse, the employee may take:

short parental leave - one week at the time of the birth; and
long parental leave - up to a further 51 weeks to be the child's primary care giver or
apply for extended parental leave to include either or both
- an extension of short parental leave up to eight weeks in total
- an extension of long parental leave up to 96 weeks in total.

For the adoption of a child, an employee may take:

short adoption leave - up to three weeks at the time of the placement; and
long adoption leave - up to a further 49 weeks to be the child's primary care giver or
apply for extended adoption leave to include either or both
- an extension of short adoption leave up to eight weeks in total
- an extension of long adoption leave up to 96 weeks in total.

Parental leave cannot extend beyond one year after the child was born or adopted unless an extension of parental leave as provided under the Act has been made. New extension provisions operate as from 22 February 2006, however, if an extension was agreed under the old provisions, it continues.

An employee and their spouse can only take a total of 52 weeks parental leave or a total 104 weeks under the provisions where an extension has been granted.

Apart from short parental or short adoption leave, leave taken by a spouse reduces the amount of leave available to the employee. This is regardless of the fact that different employers may employ the employee and their spouse.

What extensions of parental leave are available to an employee?

Under the Act, an employee can apply for two types of extension.

an extension of parental leave or adoption leave where the total leave does not exceed 52 weeks, or
an extension of parental or adoption leave beyond 52 weeks and up to 104 weeks in total.

What must an employee do to extend their parental leave?

An employee who has applied for parental or adoption leave of less than 52 weeks may make an application to extend that leave up to the full 52 weeks. The application must be made in writing and the agreement of the employer is not necessary for this extension. However, an employee

may by written notice apply (once only) to extend their parental leave up to a total of 52 weeks
must give their employer at least 14 days notice before their parental leave starts or
if started, the notice to extend must be given at least 14 days before their parental leave ends.

The second type of extension (>52 weeks and <104 weeks) can be made even if an employee started their parental leave before 22 February 2006 : An application for this extension can only be made once within any 12 month period unless the employer agrees otherwise. The application must be made by giving the employer the following notice:

extension of short parental or short adoption leave - at least 2 business days before the leave ends,
extension of long parental of long adoption leave - at least 4 weeks before the leave ends

The written application must include:

the start and end dates for the proposed extension of leave,
the impact refusal of the application might have on the employee and their dependants,
the employee's statutory declaration that they are seeking an extension to continue to be the child?s primary caregiver,

Can an employer refuse to grant an employee's application to extend parental or adoption leave up 104 weeks in total?

An employer must not unreasonably refuse this type of application and must give proper consideration to an employee's application. An employer must give their written decision to the employee within 14 days or for short parental or short adoption leave - as soon as possible but before the short leave ends. In deciding whether to agree to an employee's application, an employer must consider:

the employee's circumstances particularly those relating to role of primary caregiver,
the impact refusal of the application might have on the employee and their dependants,
the effect that agreeing to the application would have on the conduct of the employer?s business. (e.g. any additional costs, reorganisation of work, replacement staff, any loss of efficiency, the impact on delivery of customer service)
if the application is refused, that the employer must provide the employee with written reasons for the refusal.

What are an employee's obligations to advise their employer about particular changes?

In addition to requirements about giving notice to take parental leave an employee must advise their employer of any change to their contact details including a change of address.

Take reasonable steps to advise their employer of any significant change about

the length of parental leave, or
intended date of return to work or
an earlier decision to return to work on a full time basis or
an application to return to work on a part-time basis.

Can an employee and their spouse take leave at the same time?

With the exception of short parental leave and short adoption leave, the employee and their spouse cannot both take leave at the same time. Long parental leave is taken to be the child's primary care giver.

Who is the employee's spouse?

Under the Industrial Relations Act 1999 (PDF, 1.9MB) the 'spouse' of an employee includes:

a former spouse; and
a de facto spouse, including a spouse of the same sex as the employee.

Is parental leave unpaid leave?

Yes, parental leave is unpaid leave granted by the employer.

Are casuals entitled to parental leave?

Long term casual employees are entitled to a maximum of 52 weeks unpaid parental leave or a total 104 weeks under the provisions where an extension has been granted.

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Employment conditions