This article forms part of our series of blogs covering the National Employment Standards (NES). These are the minimum terms of employment that apply to those Australian workers who are part of the National Workplace Relations System (which is the vast majority of workers, refer here for more details), regardless of whether or not they are covered by an Award.
Whilst employers and employees can agree to terms that supplement the NES, they cannot provide for conditions that are less than the NES or the national minimum wage. The NES cannot be excluded, modified, or reduced; they form part of the “safety net” that covers the majority of Australian workers.
What is Parental Leave?
Parental leave is one of the core entitlements under the NES. It enables eligible employees to take time off work following the birth or adoption of a child. Both parents have access to unpaid parental leave and have the right to request extended leave or flexible return-to-work arrangements if they meet other eligibility requirements.
Parental leave can be quite complex, and comes with detailed eligibility requirements and notice obligations, for example. It’s critical for employers to be familiar with the requirements so that they can manage parental leave requests and arrangements fairly and in accordance with the law.
Who is eligible?
Employees are entitled to unpaid parental leave if they:
- Have completed at least 12 months of continuous service with their employer before the date of birth or expected date of birth (or placement of an adopted child), and
- Have responsibility for the care of the child.
Casual employees are also eligible if they have been working on a regular and systematic basis for at least 12 months and have a reasonable expectation of ongoing work.
There are other, specific entitlements that apply in cases of premature birth, stillbirth or infant death.
What are the entitlements?
Eligible employees are entitled to up to 12 months of unpaid parental leave. They can also request up to an additional 12 months leave, bringing the total potential entitlement to 24 months. Requests for the additional 12 months must be made in writing at least 4 weeks before the end of the initial leave period, and there are specific rules/requirements around responding to these requests (see the links below for more information).
Unpaid parental leave can be taken as:
- a single continuous period
- flexible parental leave for up to 130 days, depending on when the child is born or placed for adoption
- a combination of a continuous period and flexible days.
Different rules apply depending on what type of leave is taken and how it is taken.
In addition to unpaid leave, employees may be entitled to:
- Paid parental leave under the Government’s Paid Parental Leave Scheme (administered by Services Australia, refer HERE), which currently provides for Parental leave pay of up to 120 days or 24 weeks (increasing to 130 days/26 weeks for babies born or adopted from 1 July 2026) at the national minimum wage. Employees should check their eligibility with Services Australia, who will then advise the employer if the employee is approved/eligible for the payment.
- Any additional benefits that may apply under any relevant policy of the business/organisation.
Notice and evidence requirements
Employees must provide at least 10 weeks’ written notice before starting parental leave, and must confirm the details at least 4 weeks before the leave begins. Employers can request evidence such as medical certificates or adoption documentation to confirm the entitlement.
Safe Job Entitlements Before Parental Leave
Pregnant employees have a right to transfer to a safe job if it is unsafe for them to continue performing their usual duties. This applies if the employee is entitled to unpaid parental leave, has provided evidence of the pregnancy, and the risks are linked to the pregnancy and/or the position itself. Medical documentation is usually required to support a request of this nature. If no safe job is available, the employee will be entitled to take ‘no safe job leave’ which may be paid or unpaid, depending on circumstances.
Keeping in Touch Days
Employees on unpaid parental leave can stay connected with the workplace through ‘keeping in touch’ days. These days allow employees to attend training, meetings, or perform work to help with their transition back into the workforce. An employee can work up to 10 keeping in touch days during the first 12 months of unpaid parental leave, and a further 10 days if their leave is extended beyond 12 months. These days are optional and must be mutually agreed upon by the employee and employer. They do not break the period of parental leave, and employees are paid as normal for performing work on a keeping in touch day.
Consultation
Employees on unpaid parental leave are entitled to be kept informed of any decisions their employer makes that will have a significant impact on the status, pay or location of their pre-parental leave position. The employer must take all reasonable steps to give the employee information about (and an opportunity to discuss) the effect of any such decisions on the employee’s position. The employee’s pre-parental leave position is the position they held before starting the unpaid parental leave, or the position they held before they were transferred to a safe job or reduced their hours due to the pregnancy.
Returning to work
Employees have a legal right to return to their pre-parental leave position. If that position no longer exists, they must be offered an available position that is comparable in pay and duties.
Before returning, employees may also request a flexible working arrangement (such as part-time work or adjusted hours). Employers must genuinely consider such requests in a timely fashion and can only refuse requests in limited circumstances (check out our article HERE and contact us if you are unsure of requirements).
Employers must not take adverse action against an employee because of they have accessed or have potential to access parental leave and/or related entitlements.
If an employee wishes to return to work early after parental leave, they can seek the agreement of their employer to do so. If the employer doesn’t agree, the employee has to return to work on the planned date.
Parental Leave Policies and Employer Paid Leave Schemes
While there is no legal obligation for employers to provide paid parental leave (outside of the Government scheme), businesses are free to offer their own paid parental leave scheme if they choose to do so. Offering paid leave can be a strong signal of a family-friendly workplace and may help with employee retention and engagement. Regardless of whether a paid scheme is offered, it’s important for employers to have a clear, written policy that outlines employee entitlements, notice requirements, and return-to-work expectations.
Best practices for employers
We recommend the following best practices for managing parental leave:
- Maintain clear parental leave and return-to-work policies
- Ensure employees are aware of their entitlements and obligations
- Plan well in advance for employee absences, transitions and return to work
- Genuinely and promptly consider requests for flexible return-to-work arrangements
- Keep communication open throughout the parental leave period
- Document all correspondence and decisions
As mentioned at this outset, parental leave can be quite complex, so this article includes key information only. For further information, visit the Fair Work Ombudsman’s page on Parental Leave HERE.
You can also download the Fair Work Ombudsman’s Best Practice Guide: Parental Leave and Related Entitlements HERE.
As always, we’re here to help! If you need assistance with parental leave requests or have questions about your obligations and rights as an employer, please get in touch.
This article provides general information which we believe to be correct at the time of posting. It is a summary and must not be considered complete, professional or legal advice. If you’re an employer and need support that takes into account your particular circumstances, please contact us directly.
