December 12

Parental Leave – Key Obligations for Employers

Published 12 December 2020

Unpaid parental leave is one of the National Employment Standards. While it does not bestow any direct financial entitlement to employees, for eligible employees however, it provides a mechanism under which their employment with an employer is maintained (in spite being on unpaid leave) for up to two years. There are a number of obligations that employers are therefore required to consider.

Entitlement to Parental Leave
Minimum Service Requirement
Under section 67 of the Fair Work Act 2009 (Cth) (the FW Act), an employee, other than a casual employee, is entitled to parental leave only if they have completed at least 12 months’ continuous service up to the date, or expected date, of the birth of their child, or the date, or expected date, of the placement of the child they are adopting.

A casual employee is only entitled to parental leave if they were employed on a ‘regular and systematic basis’ for a period of 12 months up to the date, or expected date, of the birth of their child, or the date, or expected date, of the placement of the child they are adopting. Casual employees have the additional requirement of having the reasonable expectation of their employment continuing on a ‘regular and systematic basis’.

Leave Related to Birth or Adoption of Child
Section 70 provides that to be eligible for the 12 months’ parental leave, following the birth or adoption of the child, the employee must have or will have the responsibility of care of the employee’s child, the employees spouse or de facto partner’s child, or after the placement of a child for adoption.

Taking of Parental Leave
The FW Act stipulates how parental leave can be taken based on two situations:

  1. where the employee is not a member of an employee couple or where the employee is a member of an employee couple but only one of the employees intends to take parental leave; or
  2. both are members of an employee couple who intend to take parental leave.

An employee couple is where two national system employees are in a de facto or spousal relationship. To be an employee couple, the couple does not need to be employed by the same employer.

Not Employee Couple or One Member of Employee Couple Intends to take Leave
Section 71(2) provides that parental leave must be taken in one continuous period.

If the employee is pregnant, section 71(3) provides that parental leave can commence up to six weeks before the expected date of birth of the child, unless the employer and employee agrees for the leave to commence earlier. The parental leave cannot start later than the birth of the child.

If the leave is related to the adoption of a child, section 71(5) provides that parental leave is to commence on the day the child is placed with the employee.

In the case where the employee’s partner, who is not an employee of any employer, has been responsible for the care of their child from the child’s date of birth or placement, section 71(6) provides that the employee’s parental leave can commence at any time within 12 months of the birth or placement of the child.

Employee Couple
Where both members of the employee couple intend to take parental leave, the leave must be taken in a single continuous period.

Section 72 provides that if the leave relates to the birth of a child, and the member of the employee couple who is starting their leave first is pregnant, parental leave can start up to six weeks before the expected birth of the child, or earlier if agreed to. If the member of the employee couple is not pregnant, parental leave must start on the date of birth of the child. If the leave relates to the adoption of a child, the first member’s parental leave commences on the date the child is placed with the employee couple.

The member who is taking parental leave second, whether in relation to the birth or adoption of a child, their leave must start immediately after the end of the first member’s parental leave.

Notice and Evidence Requirements
An employee is only entitled to unpaid parental leave if they comply with the notice and evidence requirements set out in section 74 of the FW Act. Initially, an employee must give written notice of the intended start and end dates of their parental leave. This written notice is to be provided to the employer at least 10 weeks before the intended start date. If this is not practicable, the employee should provide the notice as soon as is practicable.

The employee is to confirm in writing the intended start and end dates of their parental leave at least four weeks before the intended start date. If there are any changes to the intended start and end dates, the employee should provide this in writing to the employer at least four weeks before the intended start date.

Section 74(5) allows an employer to require an employee to give them ‘evidence that would satisfy a reasonable person’ of the date or expected date of birth or placement of the child. This can be in the form of a medical certificate.

Extending Parental Leave
In the case where an employee has:

  • complied with the notice requirements;
  • the requested parental leave was less than 12 months; and
  • the parental leave has commenced,

the employee is able to extend their parental leave in accordance with section 75(3). To extend the leave, the employee must provide written notice stating the new end date of their parental leave at least four weeks before their initial requested end date.

An employee is only guaranteed to extend their parental leave for their first extension request. Section 75(3) allows an employee to request further extensions to their parental leave. However, any extension after the first extension is only if the employer agrees. This is so even if the employee has not utilised the full 12 months of their parental leave.

Under Section 76, an employee can request to extend their parental leave, so long as the total leave does not exceed 24 months. The employee must make this request in writing and be given at least four weeks before the end of the employee’s parental leave period. An employer must respond to the request within 21 days in writing, informing the employee whether their request is agreed to or not. An employer is only able to refuse this request on ‘reasonable business grounds’ and the written response must set out these reasons.

Request for Flexible Working Arrangements
If a parent is eligible for parental leave, they are also eligible to request flexible working arrangements under section 65 of the FW Act for when they return to work.

To request flexible working arrangements, an employee must make a request in writing setting out the details of what change(s) they are seeking and the reasons for this change. Employers must respond in writing to this request within 21 days. An employer can refuse a request, but only on reasonable business grounds, which can include;

  • the request would be too costly;
  • the employer is unable to change other employee’s working arrangements to accommodate the request;
  • it is unfeasible to change other working arrangements or recruit new employees to accommodate the request;
  • the request would mean a significant decrease in efficiency or productivity; or
  • the request would significantly impact customer service.

Workplace Rights
Under the FW Act Part 3-1 – General Protections, parental leave and requests for flexible working arrangements are protected workplace rights. Meaning, employers must not take adverse action against an employee because they have or have not or propose to or propose not to exercise the right to take parental leave or request flexible working arrangements.

Adverse action includes:

  • dismissing an employee;
  • injuring an employee in their employment;
  • altering the employee’s position to their detriment; or
  • discriminating against the employee.

Employers need to be very mindful when making decisions that affect employees who are entitled to parental leave that it does not amount to adverse action against the employee.

Conclusion
An employee is only entitled to parental leave if they have complied with the notice requirements and worked at least 12 months. An employee who has not utilised the full 12 months of their initial parental leave can extend their parental leave once. Any further extensions are only if the employer agrees to it.

If an employee is eligible for parental leave, they will also be eligible to request flexible working arrangements for when they return to work. Both parental leave and flexible working arrangements are workplace rights. Employers need to be careful not to take adverse action against employees who are entitled to take parental leave or request flexible working arrangements.

The above is only an overview of the main parental leave provisions. It is not an overview of all of the provisions. Should you require advice on specific circumstances, please contact us.

This content is general in nature and provides a summary of the issues covered. It is not intended to be, nor should it be relied upon, as legal or professional advice for specific employment situations. Working Knowledge recommends that specialist legal advice should be sought about specific legal issues.

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October 25

Another Chapter to the Paid Parental Leave Saga

In another chapter to the saga which is the Coalition’s position on parental leave, yesterday, Social Services Minister Christian Porter announced that he wanted amendments to the Federal Government’s Paid Parental Leave scheme to pass through the Senate and come into effect by 1 January 2017, just ten weeks away.

The amendments would see parents who receive payments from their employers for having a child be prevented from accessing the Federal Government’s Paid Parental Leave Scheme, which provides for up to 18 weeks of payments at the national minimum wage of $672.70 per week, or a total of $12,108.60.

Whilst there is no obligation to do so, some employers currently provide their employees with payments for parental leave on top of the government’s scheme. Businesses do this for a variety of reasons, including wanting to assist employees and their families through a difficult and undeniably expensive period of time, wanting to encourage parents to spend time with their new baby rather than rush back to work due to financial concerns, attempt to reduce the gender pay gap and in a bid to encourage employees to remain loyal to the business.

Under changes to the paid parental leave scheme which the Turnbull Government is hoping to bring in by the passing of the Fairer Paid Parental Leave Bill 2016, employees who receive payments from their employer for parental leave will only be able top up their payment to $12,108 or if they receive more than that from their employer, they will not be able to access the government scheme at all.

As an example, if an employee is provided with payments totalling $10,000 from their employer for parental leave, they will only be able to top up their paid parental leave by a further $2,108 from the government. If an employee receives $15,000 from their employer, they will be excluded from receiving any payments from the government.

This is the third change in the Coalition’s policy in three years. In the lead up to the 2013 federal election, Tony Abbott promised to pay women 26 weeks wages up to a threshold of $150,000 per year plus superannuation on each occasion they had a child. Had this policy been bought in, women would have been eligible to receive up to $75,000 from the government. This policy was later revised due to a budget “emergency”.

In May 2014, Abbott announced a change to the previously promised policy, with plans to provide women with 26 weeks of paid parental leave up to a threshold of $100,000 per year plus superannuation. This had the effect of reducing the total amount eligible to be received to $50,000. This policy was later dumped due to lack of parliamentary and party support.

Then, in one of the largest election backflips in Australian political history, Abbott announced in May 2015that the Coalition had again had a change in policy and that it planned to prevent women from “double dipping”, which they took to mean that parents would not be allowed to access the government scheme if they received parental leave payments from their employers. This complete backflip in policy meant that in a period of less than two years, the Coalition had varied their policy on three occasions, resulting in parents being up to and exceeding $63,000 worse off on the birth of each child than they would have been if the Coalition had stuck with Abbott’s “signature” “fair dinkum” policy that he was so passionate about.

Needlessly to say, the latest policy change was controversial, especially with it being implied that parents were rorting the system by “double dipping”, despite it being repeatedly pointed out that to amount to “double dipping”, parents would be required to be receiving payments from the same source, which was of course, not the case.

When asked about the rush to bring in the changes, Christian Porter said:

“It’s always been the case that the scheme has been designed, and these changes are also designed, to try and ensure that as many mothers are participating in the workforce and are able to re-participate after the birth of a child, having provided for a fair amount of time to bond with the child after birth.”

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This completely disregards the fact that the Productivity Commission, in its 2009 report, recommended providing parents with up to six months of parental leave payments because this was the amount of time deemed by the World Health Organisation as necessary for parents to bond with their child after birth and to allow mothers to breastfeed, which has numerous (uncontroversial) advantages for both the mother and child.

It now appears, based on the comments made by Christian Porter, that the government is no longer interested in the social and economic benefits offered by allowing employees time to bond with their child, but that instead, of primary importance, is that women return to work as soon as possible so that they do not continue being unproductive members of society. As one of our contributors, Brian Powles pointed out earlier this year, paid parental leave was never intended as (and is not) a welfare payment. However, it seems that nobody informed Christian Porter of this when he attempted to avoid using the inflammatory phrase, “double dipping” that have been used by his colleagues in the past and still explain the unexplainable reason for the government’s backflip.

If the Bill makes it through the Senate and comes into effect by 1 January 2017, this will impact thousands of women who are currently in their third trimester and have previously planned ahead with their partners to determine how much time they can afford to take off work to spend with their child. This unexpected change could force many parents back to work much earlier than they had previously planned and will undoubtedly cause financial pressure on many families, most of whom are from the lower to middle class.

By international standards, Australia’s paid parental leave is modest. In Sweden, parents are eligible to receive up to 480 days of paid parental leave, 90 of which are reserved solely for fathers and the leave can be used anytime up until the child’s eighth birthday. Even in Mexico, a country which is hardly renowned for its progressive social policies, mothers receive 12 weeks paid parental leave, which is paid at 100% of earnings.

The fact that Australia is offering parental leave at the national minimum wage and not at actual earnings, together with the fact that employees are capped at receiving $12,000, from the government, places Australia far behind much more progressive Scandinavian and European countries and on par with countries such as Brazil, Costa Rica and even Cuba.

So, what does this mean for employers who have, up until now, generously provided employees with parental leave payments on top of the government’s scheme? There can be no doubt that if the Bill passes through the Senate, that employers will be dis-incentivised to provide payments to their employees if this will reduce (or eliminate altogether) the employee’s entitlement to access the government scheme. After all, why should a business fork out money to pay an employee when ultimately, the employee will not get any added benefit for it?

This will lead to employers coming up with creative ways to provide payments to their employees for time they take off to have a child, whether that be a carefully timed ‘bonus’ payment before the leave commences, a return to work incentive bonus or non-monetary gifts such as gift vouchers or supplies for when the baby is born.

Whatever imaginative ways that businesses come up with to work around the government’s ‘loophole’, it can be almost guaranteed that the Coalition will not be saving the $1.2 billion it alleges will be saved by the changes if it can get Senate crossbenchers to support the Bill.

Category: Employment Law Updates | 1 Comment on Another Chapter to the Paid Parental Leave Saga
September 24

Flexibility at work. Are we throwing the baby out with the bathwater?

‘Flexibility’ has always been an aspect of workplace law, and a key obligation on employers.  It is both essential to anti discrimination law, as well as a key element of ‘a fair go all round’ – a fundamental tenet of Australian workplace law for half a century.

The flexibility provisions in the National Employment Standards do little but to codify some of these obligations.   We already knew about them.  But I have recently sensed a change in the way that these provisions are regarded.  Most notably, they are treated by many employers as if they apply only to parenthood,   and specifically to a female parent’s rights to work less without penalty once they have children.  This is a dangerous trend.

These provisions were intended as  a way of allowing people to maintain their careers on top of other personal responsibilities without being discriminated against, or adversely treated.   The provisions are gender neutral, and intended to apply to a wide range of personal characteristics or obligations outside of work.    There are grave dangers in ‘flexibility’ being used as a weapon of workplace negotiation, and in the political discourse as synonymous with ‘womens’ parental rights’.   When a provision is intended primarily to ameliorate discrimination against a certain group, it’s counter-productive to identify that group too prominently as the intended or only beneficiary.  This will always work towards fueling the discrimination, and allowing it to find alternative routes.   We end up throwing the baby out with the bathwater.  Furthermore,  other forms of discrimination  against different groups are allowed to fly under the radar.

In my opinion, one of the major problems in the push towards equality and contemporary work life balance is that fact that many men are still not comfortable requesting ‘flexibility’ from work for family responsibilities.  This is in spite of the gender neutrality of the current provision.   There is still a significant stigma against ‘family men’ in the business community.  This means that in the stereotypical heterosexual working family, it is still too often the woman that is required to ask for flexibility.  This perpetuates the imbalance and the traditional roles.  This project offers an interesting perspective on these issues.

We need to find a way to eliminate the sub-text, and regard “flexibility” as exactly that – “flexibility”.  And to encourage the use of the statutory provisions in an inclusive manner.  Flexibility doesn’t mean that an employee does less work, or is less committed to their job, it simply means that they are attempting balance work against other time sensitive aspects of their lives.  ‘Work life Balance’ shouldn’t always mean working less.  Sometimes, it means allowing employees to achieve more overall with their lives.  As employers, there are ways of regarding the acceptance of flexibility as actually beneficial.

This article at Forbes.com suggests five perspectives.   Firstly, giving employees flexibility is a way of respecting them as people, which will be returned by their own level of respect and ‘buy-in’.  Secondly, providing flexibility broadens your talent pool.  Sometimes, an employer making a slight ‘adjustment’ to their employment expectations can radically increase the amount of talent available for any given position.  Thirdly, allowing people to manage their jobs in a way that fits in with their responsibilities increases morale at work.   Fourthly, many modern employers regard flexibility as more than an employee entitlement, but a strategy which aids the development of an empathetic, energetic and progressive culture.  Finally, the article suggests that employees with an active, well-rounded  life can add value to an employer.

For these reasons, I believe we need start using ‘flexibility’ in a new way.  It’s not a ‘woman’s’ entitlement to do less work for the same money.  It’s a broader obligation, for all of us to frame our business relationships in a balanced, and sensible way for the benefit of everyone, and all aspects of society.

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March 10

Work-life balance, the ACTU and a jar full of condoms….

This article late last week, about the ‘work-life’ balance statements of Southern Cross Austereo executive Linda Wayman,  was reacted to with immediate controversy.

As parental rights at work are currently  a hot topic in Industrial Relations and HR circles (our own firm publishing this update just last week), I have to admit being more amused by her comments than anything else.   She claimed that ‘work-life balance’ was ‘bullshit’, and that she had a ‘jar of condoms’at work which she offered to her employees for free, to discourage her employees from having children.  An SCA chief executive defended the comments as ‘obviously tongue in cheek’.

But reading some of the comments on the article, this has clearly has not been accepted as tongue in cheek, and while she has had one or two supporters, Ms Wayman is described in at least two comments as a ‘horrible’ person, and by many others as having a ‘disgraceful’ attitude.  However in my opinion Ms Wayman at least should be applauded for the healthy dose of realism her comments provided, even if the infusion of ‘shock value’ was lacking in refinement.   And credit where it is due, a successful career woman with two children should be entitled to express her opinions freely on this issue.

But this is very important socially and  and philosophically, and  will not be solved long term by ‘tongue in cheek comments’, nor by  knee jerk internet hysteria.  Above all, as an issue it is not being served well by  interest groups such as the ACTU and ACCI tossing it around like a poker chip.

The first major problem is that contemporary discussion has tended to confuse the issues of ‘work-life’ balance and ‘gender equality’.  These are not the same thing, and to conflate them in discussion is extremely damaging to the progress of either cause.   To discuss ‘work-life balance’ as if it is an issue that concerns women more than it concerns men simply reinforces and perpetuates the notion that woman inherently hold primary responsibility for the care of children.  At the same time it undermines the rights (and obligations) of men in society in asserting their own interests in balancing home and family.  While it is accepted that woman are required to contribute more to the biological process, this is a short term factor.  There is no practical reason why women should be disadvantaged at work.  There is also nothing in the ‘black letter’ law of employment that currently  differentiates between men and women with respect of parental rights.   But the pay gap refuses to close, the ‘glass ceiling’ holds strong, and there are more men named Peter running ASX200 companies than women.    Conversely, those men seeking flexibility at work to contribute to their families often face greater resistance from employers than their female colleagues.  This issue is not a legal issue, it is a cultural issue.  And it will continue to pervade until it is properly addressed as such.

Secondly, when it comes to concepts of ‘work’ and ‘life’, there are no objective truths.  Each to their own.  It is common place to find people on the internet and social media spruiking their own family values – and this can often spill over from the subjective and anecdotal to the objectively prescriptive.  “I live this way with my family and it works for me, ……. so you should too”.  However any occurrence of someone publicly indicating that they have factored career considerations into their family lives is met with controversy.  The mere suggestion that one has considered having less children (or dare I even say  “no” children) to focus on other aspects of their life is often met with criticism.  Ms Wayman being described as ‘horrible’or ‘disgraceful’, for example,  are very strong responses to someone merely advocating contraception in a tongue in cheek manner to those seeking a career.  At no stage did Ms Wayman suggested that having a career was in any way preferable to having a family, and even if she did, is this opinion really that offensive to families?  The media and internet is littered with the mantra that family is everything, and career means nothing – and we rarely see career  minded individuals with small families (or no kids) describing this view as ‘disgraceful’.  As a parent myself I understand how much family and children become your ‘whole world’, especially while they are young.  In some ways this is instinctively ingrained into our evolutionary identities.  But herein lies the subjectivity – your children are your ‘whole world’, not the actual ‘whole world’.  Expressing a view that having less children has some advantages is not a criticism of your children.

Finally, we need to take ownership of our choices, and the consequences of those choices.  There is a considerable difference between a legal ‘right’ to pursue a particular course within life, and an ‘entitlement’ to every benefit accrued by that course.  In a free society such as ours, life is full of a wide range of opportunities for fulfillment.    We have the opportunity to do many things, but unfortunately we can’t do everything, and I believe it’s important to acknowledge these choices.  There are a great number of people that chose to pursue large families and / or quality family life as a priority far above career or work.  There are many that forgo families all together to focus on work.  (Not forgetting the very broad category of people for whom having a family is simply not an option for whatever reason.)  But our rights to pursue our own course through life is not the same as having an entitlement to the whole package.    Those people, like myself, that chose to balance work and family have to accept that their careers will not be quite as high reaching as if they had not chosen to put time and value into their family life.  Conversely, they cannot expect to have limitless opportunities at home. There are sacrifices to be made in the pursuance of any active or full life.  But like everything involving the word ‘balance’, there needs to be some give and take.

* Helen Carter is the Director and founding solicitor at PCC Lawyers, a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate.

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