Questions & Answers - Parental leave

Question:

We employed a new staff member in June. She now wants to take parental leave. Does the Fair Work Act change the requirement for the employee to have completed 12 months' continuous service to be entitled to unpaid parental leave?

Answer:

No. When the NES in the Fair Work Act commences on 1 January 2010, employees will still not be entitled to take unpaid parental leave unless they have completed 12 months' continuous service.

Question:

I work in local government - an employee of some 3 years was presented with a new revised position description 3 months ago. Then went on maternity leave for 3 months, on her return was told her job would have some changes due to a review. This employee was very upset as the new job description was somewhat of a lower level (no pay reduction). What rights if any do employees have in this area?

Answer:

The employee is entitled to return to her pre-leave position. It sounds like her pre-leave position was changed before she commenced leave. If she did not object to those changes at the time, then the altered role is her pre-leave position. If the changes after the leave are significantly different to the pre-leave position then the employer may be breaching its obligations. The employer can make the pre-leave position redundant, but absent redundancy they cannot 'tinker' with the pre-leave role simply because the opportunity arises while the employee is on leave.

Question:

A pregnant member of staff has been told by her doctor to apply for maternity leave in 3 month blocks rather than 12 months. Are there changes to maternity/paternity leave that I am unaware of?

Answer:

No, that sounds inconsistent with her minimum entitlements.

Question:

I returned to work from 12months maternity leave in February 2009. Unexpectedly, I am pregnant again, due in October 2009. Am I entitled to another 12 months unpaid maternity leave?

Answer:

Yes, you are entitled to another 12 months unpaid maternity leave. The Workplace Relations Act does not deal directly with second and subsequent pregnancies, the only specifications are that you must have been employed with the employer for at least 12 months prior to taking unpaid maternity leave.

The Australian Industrial Relations Commission has held that an employee does not need to work for another 12 months in order to be eligible for a second period of maternity leave: ABEU -and- ANZ Banking Group 1990 AILR 111. This decision was approved by a Full Bench of the Commission in the Paternity Leave - Test Case 1990 AILR 284.

Question:

Do employees on maternity leave continue to get accruals for annual leave and sick leave?

Answer:

No, leave does not accrue during unpaid maternity leave.

Question:

Can an employee, whilst on maternity leave, be made redundant and can the maternity leave include the 4 week notice period, or does the 4 week notice period commence when maternity leave finishes?

Answer:

Yes, so long as the fact that the employee is on maternity leave has nothing to do with the redundancy. You can give notice during the maternity leave.

Question:

If someone has not been with a company for 12 months and does not qualify for parental leave what are your options. Do they have to resign as they cannot come to work because they are pregnant and having a baby.

Answer:

If they do not qualify for unpaid parental leave you need to inform them of that fact and indicate that their employment will end on the day they leave work to have their baby.

Question:

Recently, a male employee who had requested one week’s unpaid 'paternity' leave at the time his wife gave birth presented a medical certificate from his wives Dr stating that he was entitled to take paid carer's leave to take care of his wife after the child's birth. To our knowledge his wife did not have a ceasar or experience any significant difficulty with her health or function after the birth of her child and was discharged from hospital within the reasonable timeframe. Under section (79) of the Fair Work Act - it states that an employee is not entitled to take personal/carer's leave or compassionate leave while he or she is taking unpaid parental leave. My issue here is that the Fair Work Act, to my knowledge does not make any reference to one week’s unpaid 'parental leave' for the partner whom is not the primary care giver. The Workplace Relations Act makes reference to maternity leave and paternity leave for the male employees for up to one week of unpaid leave after the birth of the child. My question is can we enforce section (79) clause 1 -3 of the Fair Work Act where he will not be entitled to take paid carer's leave? I would also like to amend our parental leave policy accordingly to reflect this, however a view on whether we can enforce this would be ideal and have I interpreted the Act correctly!

Answer:

The Workplace Relations Act (WR Act) continues to apply until 31 December 2009. The WR Act does not contain a prohibition similar to s 79(2) of the Fair Work Act. The WR Act makes it clear that an employee can take short paternity leave as part of a continuous period that includes paid carer's leave (s 283(2)). However, an entitlement to paid carer's leave only arises under the WR Act if the wife has an illness that requires the employee's care and support. The wife's doctor needs to state in a certificate supplied to you that the wife is ill.

Question:

What rights do we have as an employer to ask an employee to delay her return from maternity leave (due to business reasons)? The employee wants to return after 9 months of leave which she had advised us of at the commencement of her leave with a TBC. We had not committed to this return date (as we knew it could change). We would like her to return in February which would be after 12 months leave.

Answer:

Under section 278 of the Workplace Relations Act (which applies in relation to maternity leave until 1 January 2010) a period of maternity leave cannot be lengthened or shortened without the mutual consent of the employer and the employee. This means that you cannot, without the consent of the employee, ex-tend her period of maternity leave.

The Workplace Relations Act also provides an employee with a guarantee to re-turn to work (in the position she held before she left, or a similar position). How-ever to trigger this guarantee, the employee must provide their employer with written notice at least 4 weeks prior to the date of her return date.

Question:

Adoption leave – Does the child have to be under school age or age 16?

Also just to clarify regarding parental leave: If the female takes 6 months parental leave, can the male take firstly 6 months, and then ask for an extension of 12 months parental leave?

Answer:

Adoption-related leave (including unpaid pre-adoption leave) is only available if the child placed with the employee is, or will be, under 16 years of age as at the day of placement, or the expected day of placement (section 68(a) of the Fair Work Act). Additional eligibility rules are that the child has not, or will not have, lived continuously with the employee for six months or more as at the day of placement, or the expected day of placement and that the child is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or de facto partner (sections 68(b) and (c) of the Fair Work Act).

In respect of your second question, the male could apply for an extension of pa-rental leave. However, this could only be done after he has used all of his avail-able parental leave period (i.e. 12 months). Consequently, the scenario would be as follows:

1. The female could take 6 months of her 12 month parental leave entitlement.
2. The male could then take his 12 month parental leave entitlement.
3. The male could apply to extend his parental leave for a further period of 6 months.

The reason that the male could only extend his parental leave for a further period of 6 months is due to section 76 (6) (b) of the Fair Work Act, which provides that the extension "cannot exceed 12 months, less any period of unpaid parental leave or unpaid special maternity leave that the other member of the employee couple has taken, or will have taken, in relation to the child before the extension starts". This is to ensure that the maximum period of leave that an "employee couple" can take is 24 months. Also, for completeness, we note that each mem-ber of an employee couple can only take parental leave in a single continuous period. This precludes the members of the couple from swapping and changing who is on parental leave throughout the 24 month period.

Question:

We currently looking at a number of redundancies within our company and have three employees who are pregnant. One is due to take paid maternity leave in February and the other two are not due until April 2010. Consider the company offers 14 weeks paid maternity leave after 12 months continuous service, which they are entitled to, are they entitled to the redundancy and the 14 weeks mater-nity leave? Are they considered to be disadvantaged in finding full time employ-ment and not qualifying for maternity leave entitlements as they will not be em-ployed for over 12 months before having their child?

Answer:

It depends on the detail of your paid maternity leave policy, but generally speak-ing, if you make the employees' positions redundant before they are due to commence maternity leave (and you are not selecting them for redundancy for this reason, which would be unlawful), they will not be entitled to the paid mater-nity leave.

Whether they are disadvantaged in finding other employment because they will be absent from the workforce for 12 months is not a matter for which your com-pany can be held liable.

Question:

We are reviewing our parental leave policy and I want to confirm three points to ensure our understanding is correct:

1. Parental leave for adoption is now available to employees adopting a child under 16 years of age and they are eligible for the 52 weeks unpaid?
2. Employees are now eligible for separate 52 weeks maternity/paternity leave irrespective of leave taken by their spouse? I believe prior to this the 52 weeks was reduced by any leave taken by their spouse?
3. Only one parent can request an additional 52 weeks unpaid parental leave?

Answer:

1. Yes, adoption-related leave (52 weeks) is only available if the child placed with the employee:
   1. is, or will be, under 16 years of age as at the day of placement, or the ex-pected day of placement;
   2. has not, or will not have, lived continuously with the employee for six months or more as at the day of placement, or the expected day of place-ment; and
   3. is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or de facto partner.
2. Parental leave can only be taken by one parent at one time (by the primary carer of the child). However, couples will be entitled to take up to 3 weeks pa-rental leave at the same time after the birth or placement of a child.
3. Yes, only one parent can request an additional 52 weeks unpaid leave, which request his/her employer will only be able to refuse on reasonable business grounds.

Question:

1. Does unpaid maternity leave count towards years of service when consider-ing redundancy payment?
2. What happens with 457 visa holders in terms of NES and 12 months unpaid parental leave? Does this take precedence or do the minimum salary re-quirements per annum?
3. Average Working Hours - If we reference averaging of hours based on 26 weeks in employee handbook, is the fact that employees sign off on the handbook sufficient to meet obligation in NES which states "employee may agree in writing to average hours over 6 months or less"?

Answer:

1. Generally speaking, unpaid maternity leave does count towards years of ser-vice when considering redundancy payments. This position could be changed in a company policy, industrial instrument or contract of employment.
2. 12 months parental leave does not disrupt the continuous service require-ments of a 457 visa holder.
3. In our view, it would be preferable to have an employee sign a document that specifically states that they agree to average their hours over 6 months or less.