To assist an employee to care for their child full time in the first year of its life and to provide a guarantee of employment upon the completion of the 12 month period, the National Employment Standards (NES) includes the provision of unpaid parental leave.
All employees, including long term casual employees, who have completed at least 12 months’ continuous service with the employer immediately before the birth date, or in the case of adoption the placement date of the child, are entitled to 52 weeks of unpaid parental leave.
Under this NES provision, once the employee returns to work after the period of parental leave, they are entitled to return to the position they held before starting the leave. If the employee’s position no longer exists, they are entitled to return to an available position for which they are qualified and which is equivalent in status and pay to that of their previous position.
In order to access parental leave, the employee must provide evidence (e.g. a medical certificate) that would satisfy a reasonable person of the expected date of birth, or in the case of adoption the day of the placement, and the intended start and ending dates of the leave.
The evidence must be given to the employer no later than 10 weeks before the commencement of parental leave, or if not practicable, as soon as possible (which may be a time after the leave has started), for example, due to premature birth of a child.
Further, the employee must give the employer a written confirmation of the intended start and end dates of the parental leave by no later than four weeks before the first day of the parental leave.
Parental leave may start:
- for a female employee who is pregnant, up to six weeks before the expected date of birth of a child;
- for an employee, other than a female employee who is pregnant, on the child’s date of birth;
- for adoption leave, the day of placement of the child.
An employer can require an employee to take parental leave within six weeks before the birth unless the employee can provide a medical certificate from a medical practitioner certifying that they are fit to work.
In the case where the employee has a pregnancy-related illness or has been pregnant and the pregnancy has not resulted in the birth of a living child, the employee is entitled to take unpaid special maternity leave, which is included in the 52 weeks of unpaid parental leave.
Employees can also request an additional period of up to 12 months in unpaid parental leave immediately following the end of the available parental leave period.
To be eligible to request an extension, the employee must first take their full entitlement of 12 months’ unpaid parental leave and request in writing for additional leave four weeks before the end of the initial period of leave.
An employer can only refuse the additional leave due to ‘reasonable business grounds’, such as the effect the additional leave would have on the business (e.g. the impact on efficiency and productivity) and the ability to temporarily replace the employee.
It is important to note that any parental leave taken by the employee’s spouse/partner will reduce the total period of leave available to either the employee or spouse/partner.
Both parents cannot be on parental leave at the same time, except for three weeks of concurrent leave to be taken not more than three weeks either side of the date of birth or adoption.
For further information about parental leave under the NES, call Business SA's Business Advisory Centre on 08 8300 0101.