Introduction

The Federal Government recently passed the Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act 2012 (Act) which makes a number of changes to the rules governing parental leave as well as introducing ‘dad and partner pay’ for eligible employees who take time off work to care for a new baby.  

We explain the changes below and analyse the implications they have for employers.

Dad and partner pay

Under the Act eligible dads and partners (including partners in same sex couples) will be entitled to a payment of up to two weeks ‘pay’ from the Federal Government if they take leave to care for a baby or newly adopted child born (or placed) on or after 1 January 2013.  The leave must be taken during the first 12 months of the child’s life (or placement for adoption).  The payment, known as ‘dad and partner pay’ is calculated at the National Minimum Wage (currently $606.40 per week gross).

In order to be eligible for the payment, an employee must:

  • satisfy the income test which currently states that the dad or partner must have earned less than $150,000 per year in the financial year immediately preceding the year in which the payment is made;
  • satisfy the work test which states the dad or partner must have worked continuously for at least 10 of the 13 months prior to their nominated start date for dad and partner pay and have worked at least one day per week during that 10 month period;
  • be an Australian resident;
  • use the leave to provide care for the child, whether as primary carer or jointly (for example, jointly with the child’s mother); and
  • not be working (or taking another form of paid leave, for example annual leave) at the time they receive the payment.

Changes to parental leave

The Act also makes a number of changes to the Fair Work Act 2009 in relation to the provision of parental leave.  The changes are summarised below and take effect immediately.

  • A pregnant employee is now able to commence unpaid parental leave more than six weeks before the expected date of birth, with her employer’s agreement.
  • Where a pregnant employee who has commenced parental leave experiences a still birth or infant death, they are entitled to return to work upon providing their employer with four weeks written notice (alternatively, the employer must give six weeks notice if they require the employee to return to work).
  • Where an employer engages a replacement employee to perform the work of an employee on parental leave, the replacement employee must be notified that their engagement is temporary and may be brought to an end before the planned end date in certain circumstances (e.g. if the employee on parental leave returns to work early following an infant death).
  • The rules surrounding ‘keeping in touch’ days have been varied so that a ‘keeping in touch’ day must not take place within 42 days after the day the child was born (or placed, in cases of adoption), except where the employee asked to perform work on such a day in which case the day must not fall within 14 days after the day on which the child was born (or placed, in cases of adoption).

Implications for employers

In light of the above changes, we recommend that employers take this opportunity to review their parental leave policies to ensure they are up to date and do not contravene legislative requirements. 

Further, the changes in relation to replacement employees and keeping in touch days appear to indicate a trend towards a more prescriptive approach in the sphere of parental leave.  It is vital that senior managers and human resource professionals are fully aware of employer obligations and now may be a good time to provide refresher training to these individuals.