This policy can be used by all employers throughout Australia, except the following excluded employers:
Long term casual
A ‘long term eligible casual employee’ means a casual employee who has been engaged by the employer on a regular and systematic basis for a period (or periods) of at least 12 months and who, but for the birth or placement of the child, has a reasonable expectation of continuing engagement on a regular and systematic basis.
Employees who are ineligible for parental leave
In circumstances where an employee is not entitled to parental leave and requests such leave due to pregnancy or adoption, you may nevertheless still need to consider the request and seek to agree to a period of other leave (such as accrued annual leave or unpaid leave). That other leave should not be classified as, or called parental leave.
If you refuse to grant other leave to employees with less than the statutory 12 months service period, this may constitute unlawful discrimination on the basis of sex, pregnancy, or carers’ responsibilities, particularly where the employee is forced to resign because of the refusal. If this situation arises, it is recommended that you seek legal advice.
Applying for leave
Employees who are eligible to take parental leave must first apply to take parental leave by giving appropriate notice of the leave to their employer. The
Request for Parental Leave Form on
HR Advance can be provided to relevant employees to assist them in meeting relevant notice and documentation requirements.
Government-paid parental leave
The FWAct does not require employers to provide eligible employees with paid parental leave.
However, from 1 January 2011, some employees who meet relevant work, income, and other eligibility tests will qualify for government-funded paid parental leave under the
Paid Parental Leave Act 2010 (the ‘PPL Act’). The PPL Act will entitle the primary care giver of a child born or adopted on or after 1 January 2011 up to 18 weeks of paid parental leave payments at the national minimum wage. In addition, it is expected that fathers and partners will be entitled to 2 weeks paid leave at the time of the birth or adoption of a child. This entitlement, however, has not been incorporated into the PPL Act and if it is, is not expected to begin until July 2012.
Paid parental leave under the PPL Act can be taken in conjunction with, or in addition to, employer-provided paid leave, such as annual leave or parental leave. However, no leave entitlements will accrue while an employee is on a period of paid parental leave under the PPL Act.
While paid parental leave under the PPL Act will be funded by the Government, employers will generally be required to make the payments to employees from funds provided to them in advance by the Government. This imposes a purely administrative requirement on employers. Employers will not have an obligation to determine whether an employee is eligible for payment under the PPL Act as that decision will be made by the Government’s Family Assistance Office.
Employers should be aware that despite the introduction of government-funded parental leave, they are
not permitted under the PPL Act to withdraw an existing entitlement to paid parental leave that has been created through an industrial agreement such as an award or enterprise agreement, or where it appears in a contract of employment.
If you require further information on the PPL Act, you should seek advice or click
here.
Employer-provided paid parental leave
Other than as required by a relevant award, enterprise agreement, or contract of employment, an employer has no obligation to provide an employee with paid parental leave.
The Parental leave Policy does, however, include an option to provide employees with a paid period of parental leave. You may need to adjust the paid parental leave section of the policy if it does not meet with your requirements. For example, you may wish to impose a minimum period for which the employee is to act as the primary caregiver in order to qualify for paid parental leave. This optional payment provision is intended to be provided
in addition to the paid provisions of the PPL Act.
If you include the paid parental leave option, you should be aware that during the period of paid leave the employee will continue to accrue relevant entitlements. This is a requirement under the FWAct and you cannot contract out of it. However, you may wish to take this into account in determining how much paid parental leave you decide to offer to employees.
Removing existing paid leave provisions
If you currently provide paid parental leave through:
Compliance check with industrial instruments
Before implementing the policy, you should check whether there are any awards or agreements applying to the employees who will be affected by the policy, which contain parental leave entitlements. If there are any such awards or agreements in place, you may be required to comply with these award or agreement provisions. If you are unsure of your obligations, you should obtain specific legal advice.
Limits in the policy
The sample policy does not include all of the circumstances when parental leave ends, or can be terminated or cancelled. The majority of these circumstances relate to the death or stillbirth of the child. If you would like to include these provisions, it is recommended that you seek legal advice.
Victorian employers
Employers in Victoria should seek additional advice, as further obligations apply in relation to accommodating parental/carer’s responsibilities. In particular, the
Equal Opportunity Act (VIC) contains much wider obligations on employers to accommodate those responsibilities.
Under the Victorian legislation, employers in Victoria must not, in relation to the work arrangements of a contractor, an employee, or a person being offered employment, unreasonably refuse to accommodate the responsibilities which that person has as a parent or carer. The responsibilities as a carer are not merely limited to children who are under school age or children under 18 years old with a disability — they apply generally to any person who is wholly or substantially dependent on the contractor, employee, or prospective employee for ongoing care and attention.
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Important note to subscribers
The commentaries and documents in HR Advance are updated as necessary, to keep them relevant. You should familiarise yourself with the relevant commentary each time you create a document.
This document has been drafted to suit a wide variety of businesses, with a number of options available to enable you to customise the document to better suit your business. Nevertheless, you may need to make other changes to the document so that it suits the specific needs of your business. If you make additional changes, we cannot guarantee that the changes and modifications you make to the document will be legally compliant or enforceable.
This commentary and any additional information provided to assist you in creating this document, does not constitute legal advice.
If you are unsure about any aspect of this document (including the changes or amendments you make to it), you should seek appropriate advice from a lawyer, skilled in these issues. You should consult with your financial advisor in relation to any relevant taxation or financial issues concerning the document you create.
After creating this document, you should read through it carefully to make sure it meets your business needs and is consistent with other industrial instruments, policies and procedures which operate in your workplace. This commentary is not designed to be provided to employees or other workplace participants. |
