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Family Law - Parental Leave

Date: January 13, 2012

Authors: Angelita Manlangit LL.B.

The Fair Work Act (Cth) 2009 consists of a number of provisions that promotes a balance between work and family life. The Act provides employees with a number of entitlements, including: parental leave; special maternity leave; pre-adoption leave; foster parent leave; and the right to return to work.

  1. Who can take Parental Leave?

Parental Leave encompasses all employees who has or will have completed at least twelve months of continuous service with their employer before the birth of the child (or before the placement if the leave is adoption-related leave).
 
In cases of casual employees, the employee must be, or will be, a long term casual employee of the employer immediately before the birth of the child (or before the placement); and the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis but for the birth (or the placement) of the child.
  1. When can I take my Parental Leave?

Parental Leave must be taken for a single continuous period. If the leave is birth related leave for a female employee who is pregnant with, or gives birth to, the child the period of leave may start 6 weeks before the birth of the child. Otherwise, the period of leave must start on the date of birth of the child.
 
However, if the employee has a spouse or de facto partner who is not an employee and the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth (or day of placement of the child) and the start date of the leave, the period of leave may start at any time within 12 months after the date of birth (or day of placement) of the child.
  1. Can I continue working even though I am entitled to unpaid parental leave?
Section 73 of the Act states that if a pregnant employee who is entitled to unpaid parental leave continues to work during the 6 week period before the expected date of birth of the child, her employer may ask her for a medical certificate containing a statement that she is fit to work and if so, whether it is inadvisable for her to continue in her present position because of illness, or risks, arising out of her pregnancy; or hazards connected with the position.
 
The employer may require you to take a period of unpaid parental leave if:
  • You were unable to provide your employer with a medical certificate within 7 days after the request;
  • You were able to provide a medical certificate stating that you are not fit to work;
  • You were able to provide a medical certificate stating that you are fit to work but it is inadvisable to do so.
  1. When do I have to give notice?
An employee must give his or her employer written notice at least 10 weeks before starting the leave and must state the intended commencement and end date for leave. The employee must inform his or her employer of any changes to the leave at least 4 weeks prior the start of the intended date for leave.

Our Family Law Solicitors can provide employees/parents with advice in respect of their rights and our Employment Law Solicitors can provide employers with advice in implementing workplace practices that allows flexibility and balance between family and work.

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