Fair Work

Parental Leave in Australia

By Paolo Coniglio, 31.12.2021

Parental Leave in Australia

Parental Leave is an entitlement that has evolved in Australia since its introduction in the Public Sector in 1973 (The Australian Public Service Maternity Leave for Australian Government Employees Act, 1973).

The 1990s saw the first of the two most significant shifts into the entitlement with the Workplace Relations Act redefining ‘Maternity Leave’ as ‘Parental Leave’ acknowledging a broader scope of the entitlement and extending the Government support to include both the birth and adoption of a child. The Act also included a provision to protect workers from unfair dismissal on the grounds of ‘marital status, family responsibilities and pregnancy‘ to be included in all Awards.

In 2010 the Australian Government introduced the Paid Parental Leave Act 2010, in which, amongst several other reforms, introduced, for the first time in Australia, the provision of financial support to eligible primary carers of a newborn or adopted child.

Since then, the Paid Parental Leave Act has had a number of amendments to broaden the scope of the legislation and fulfil the constantly evolving definition of the word ‘parent’ in our society.

This blog article provides an insight into the various types of Parental Leave and Financial support provided by the Australian Government and Employers to new parents. This is the first chapter of our two-episode blog series on Australia’s Parental Leave rights. The second episode of the series will focus on the Government Funded Parental Leave Pay Scheme and Employer Funded Parental Leave.

Types of Parental Leave

Parental Leave is a period of work absence available to the Primary Carer of a newborn or adopted child under 16 years old to help them care for their newborn baby or adopted child.

Parental Leave entitlements include the ability for an employee to:

  • apply for a period of up to 12 months of parental leave;
  • request an additional 12 months of leave;
  • request to be moved to a ‘safe job’ from their usual position paid at the same rate during the pregnancy or the right to take ‘No Job Safe’ Leave.
  • return to their job once the leave has ended.

For a pregnant Employee, Parental Leave can start up to 6 weeks before the expected date of birth, or earlier if agreed. If the Employee applying for Parental Leave is not the Employee giving birth, then the leave can start from the date of birth or placement of the child.

Additional Leave Types

The Act also includes additional leave types, including:

Pre-adoption Leave

Employees who are taking parental leave of an adopted child can also take 2 days of pre-adoption leave to attend examinations and interviews.

Special Maternity Leave

A pregnant Employee eligible for Parental Leave can also access Special Maternity Leave in the following instances:

  • she has a pregnancy-related illness;
  • her pregnancy ends after 12 weeks because of miscarriage, termination or stillbirth.

When an Employee takes Special Maternity Leave due to a pregnancy-related illness, the leave ends the moment either the pregnancy or the illness ends. However, Special Maternity Leave due to miscarriage, termination or stillbirth continues until the employee is deemed fit to return to work.

Special Maternity Leave does not affect or reduce the length of Parental Leave an Employee is eligible to take.

No Job Safe Leave

Pregnant employees can access ‘No Job Safe’ leave when the Employer cannot provide them with a ‘Safe Job’ alternative from their regular position which is no longer deemed safe due to the pregnancy.

Dad and Partner Pay

A 2 week leave period available to the Non-primary Carer of the newborn or adopted child.

Miscarriage Bereavement Leave (NSW Public Sector only)

From July 2021 Employees who work in the NSW Public Sector will also be entitled to access 5 days of paid Bereavement Leave if they suffer the loss of a child through miscarriage or stillbirth.

Primary and Non-Primary Carer

To avoid any gender discrimination, Fair Work has introduced the definition of ‘Primary’ and ‘Non-Primary’ Carer. The Primary Carer can access the main Parental Leave entitlements whereas the ‘Non-Primary’ Carer can access Dad & Partner Leave entitlements. These roles are interchangeable and can shift during Parental Leave (i.e. the initial Primary Carer can become a ‘Non-Primary’ Carer after the commencement of the Parental Leave).

A Primary Carer can be:

  • An Employee giving birth;
  • An Employee’s spouse or de facto partner of the person giving birth;
  • An Employee who adopts a child under 16 years old.

A ‘Non-Primary’ Carer can be:

  • the child’s biological father;
  • the birth mother’s partner;
  • the non-primary adoptive partner;
  • the person caring for a child born of a surrogacy arrangement.​

Government Financial Support for New Parents

Although the legislation refers to ‘Paid Parental Leave’, this may lead to confusion about Parental Leave entitlements.

The time of Parental Leave granted by the Government is defined as Unpaid Leave for an Employer. This means an Employer is not required to make any payments to Employees during the time they are on Parental Leave or to accrue additional entitlements during this time.

Parental Leave Pay is the provision of financial support by the Australian Government for a set number of weeks of the Parental Leave taken. A better way to define this period is ‘Government Funded Parental Leave’.  This is covered in detail in the second episode of our blog.

Although Parental Leave Pay is the most significant form of financial support provided to new parents, it is not the only one. Services Australia also manages an additional range of parental and family support payments, including:

  • Dad and Partner Pay
    Non-primary carers can apply to Services Australia and receive 2 weeks of payments for Dad and Partner Pay paid at the current National Minimum Wage rate. Dad and Partner Pay can be paid to the Non-Primary carer whilst the Primary Carer is receiving Parental Leave payments.
  • Newborn Upfront Payment
    A one-off payment available to primary carers eligible for the Family Tax Benefit Part A. This Payment is available to parents who are not receiving Parental Leave Payments.
  • Newborn Supplement
    Ongoing fortnightly payments for up to 13 weeks. Eligibility criteria to access these payments are the same as the Newborn Upfront Payment.
  • Parenting Payment
    Fortnightly payments available to parents that have children under 6 years old or 8 years old for Single Parents which includes both Rent AssistanceEnergy Supplement and other payments.
  • Stillborn Baby Payment
    A one-off payment paid to parents who delivered a stillborn baby.

With many forms of support from the Australian Government, it is important for both Employers and Individuals to gain a clear picture of the benefits as well as the rights and obligations of Parental Leave entitlements.

If unsure of the best options available for an individual that is about to conceive or adopt a child, Fair Work Australia and Services Australia (Centrelink) both provide extensive information on the subject.

If you are an Employer or an Employee wanting to know more about Government Funded Parental Leave Pay, or if you are an Employer wanting to find out how to introduce Employer Funded parental leave in your Organisation, please read part two of our blog on Parental Leave entitlements in Australia.

References

https://www.fairwork.gov.au/leave/maternity-and-parental-leave

https://www.servicesaustralia.gov.au/parental-leave-pay

https://www.service.nsw.gov.au/transaction/unpaid-parental-leave

https://www.servicesaustralia.gov.au/what-other-help-available-if-you-get-dad-and-partner-pay?context=22136

https://www.servicesaustralia.gov.au/how-much-newborn-upfront-payment-and-newborn-supplement-you-can-get?context=22186

https://www.servicesaustralia.gov.au/parenting-payment

https://www.nsw.gov.au/life-events/starting-and-growing-a-family/having-a-baby/getting-financial-support/family-assistance-payments

Disclaimer

This blog and attached resources are of general nature designed for informational and educational purposes only. They should not be construed as professional financial advice for your individual business. Should you need such advice, consult a licensed financial or tax advisor.

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