Parental Leave is a mine field. There are a number of factors employers need to take into consideration when an employee requests or is taking parental leave.
Employers owe a number of differing obligations to employees in relation to parental leave. When an employee is taking parental leave employers must take into account:
- Contractual obligations;
- Statutory obligations;
- Dad and partner pay;
- Returning to work; and
- Flexible working arrangements.
Set out below are the minimum obligations that an employer owes to an employee. Many employers go beyond this minimum standard, by providing for maternity leave in their employment contracts. Doing this has many benefits to the employer and employee relationship and is an attractive benefit employees may look for when applying for employment.
Being supportive during what may sometimes be a difficult transition is imperative as employees who feel valued and supported are more likely to be flexible and committed.
Employment contracts may stipulate maternity leave provisions. The employer must comply with the time and/or payments stipulated in the employee’s employment contract.
Parental leave may also be a requirement under enterprise agreements. If an employer is required to pay or afford time off for parental leave through an industrial agreement, they cannot withdraw the entitlement until the agreement ends.
It should be noted that employer funded pay under an industrial instrument does not affect the employee’s ability to receive payment under the government’s paid parental leave scheme.
There are two (2) statutory instruments that provide requirements and obligations of parental leave. These are the Fair Work Act 2009 (Cth) (FWA) and the Paid Parental Leave Act 2010 (Cth) (PPLA).
The two (2) Acts operate independently of each other and offer two (2) different entitlements to employees.
Unpaid Parental Leave under National Employment Standards
Under the National Employment Standards (NES) a provision of the FWA, employees are entitled to unpaid parental leave. The NES provide that employees are entitled to the following:
- If an employee has provided twelve (12) months or more of continuous service with their employer they are entitled to take twelve (12) months unpaid parental leave;
- Employees can request an additional twelve (12) months of unpaid leave to be approved by their employer;
- Employers must provide employees with a return to work guarantee. If an employee’s position no longer exists, the employee must be transferred to a position, which is nearest in status and pay as the job they had before they took parental leave; and
- Employers must inform employees of any decisions that will affect the status, pay or location of their preparental leave position.
Paid Parental Leave Scheme
The Paid Parental Leave scheme as mandated by the PPLA provides entitlements for working parents. This scheme provides pay at the national minimum wage for a maximum of eighteen (18) weeks. This scheme provides the following:
- This payment can commence from the date of birth of the child or a later date. It must be taken within twelve (12) months of the child being born;
- If the employee has been working for longer than twelve (12) months with the employer, the employer has the obligation of administering the payment under the Paid Parental Leave scheme; and
- If the employee has been working for a period of less than twelve (12) months for the employer, the Family Assistance Office will make the payment under the Paid Parental Leave scheme. [Payments of Paid Parental Leave are distinct from any payment of the “Baby Bonus”. The Federal Government has recently announced plans to scrape the Baby Bonus scheme.]
Father and Partner Pay
From 1 January 2013, fathers and partners will be entitled to paid leave. This entitlement provides up to two (2) weeks pay at the national minimum wage for working fathers and partners; this includes same-sex partners.
Claims for this pay can be made by dads and partners from 1 October 2012, for babies born or adopted from 1 January 2013.
Returning to Work
The date an employee is required to return to work will be determined by what leave entitlements they are entitled to, and when they elect to take these entitlements.
To make the transition of an employee returning to work easier, the employer can do a number of things during and prior to the leave period. These are:
- Keeping in touch with employee during the period of leave;
- Have clear and open communication about how the employee intends to manage their return to work;
- Having a clear understanding between employee and employer on the expectations the employee will be required to meet in relation to hours of work and leave arrangements; and
- Take into consideration that the employee may make a request for a flexible working arrangement.
Flexible Working Arrangements
The NES provides that parents may have the right to request flexible working arrangements. An employer can only refuse a request for a flexible working arrangement if it is on ‘reasonable business grounds’.
An employee may request a change in hours of work, change in pattern of work or a change in location of work.
An employee can apply for a flexible working arrangement if they have been working for the employer for longer than twelve (12) months.
This is a brief overview of the matters to consider when faced with any employee’s request for or access to parental entitlements (leave or pay). Employers need to ensure that they comply with the relevant contractual, industrial and statutory requirements.
If both parties clearly communicate and are aware of what is expected of each other it will make the transition during this period much easier for all involved.