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Parental Leave

Frequenty Asked Questions

Parental Leave


Can you please advise our obligations to grant Carer’s Leave in addition to Compassionate Leave after the death of a parent to assist with the care of the other parent. The employee has advised that a Stat Dec can be provided which advises that he was unfit for work.

Carer’s leave can be taken directly after compassionate leave where the employee is required to provide care or support to a member of their immediate family or household because that member is experiencing an illness, injury or has encountered an unexpected emergency (including the death). To be eligible for payment, the employee must provide evidence that would satisfy a reasonable person of the need to provide that care or support. A stat dec would suffice in this instance.

Are there any restrictions to an employee undertaking secondary employment with another employer whilst on parental leave under Fair Work legislation? Or is this be dependent on what is stated in workplace policies or the individual’s employment contract?

Generally speaking, an employee cannot take up paid work with another employer whilst on unpaid parental leave without their original employer’s consent. Although this is not specifically provided for in the Fair Work Act, the eligibility requirements for unpaid parental leave state that an employee must be the child’s primary caregiver. It is arguable that the employee ceases genuinely being in need of unpaid parental leave where they have taken up employment elsewhere as they are no longer taking the leave to primarily care for their child. If you wished to regulate this, you could state this in a company parental leave policy.

A case on Maternity Leave

We have had an employee go on Maternity Leave in August 2012 (and extend the period) until March 2013. She has requested to return to employment on a part time basis. We have been able to facilitate this request (on a short term, 3-6 month basis) but only in a different role within the team (different duties but at the same level and salary band). The employee is happy with this arrangement as obviously it gives her the opportunity to come back on a part time basis. We currently have a Fixed Term Contractor performing the employee’s old role.

Are we able to stipulate that we can only facilitate part time for a short period of time and then mandate that the employee has to return to full time work? If the employee doesn’t want to return to full time work after that period, would they be eligible for redundancy?

We would like to make the contractor performing in the employee’s old role permanent, but if the mat leaver does return to full time employment (3-6 months down the track), do they have the right to ask for their old role back at that time?

 

Unfortunately, there is no black or white answer to the query which you have asked and employers in this situation

should seek a professional legal opinion as to the best course of action to take. With this in mind, the following general points can be made: The question of whether you can request the employee to resume full-time work depends on the basis on which you offered the employee part-time work. Was it a permanent variation to the employee’s role and employment contract? If so, you cannot unilaterally change the basis for employment back to full-time. If you no longer required the part-time role it is a redundancy situation.

If the basis for the employee going part-time was under a flexible working arrangement, then you can end the arrangement on reasonable business grounds. If the employee declines to resume full-time work then it is treated as a resignation. The temporary employee’s rights depend on what was communicated to the employee and the arrangement made when they started the temporary assignment.

What constitutes “reasonable business grounds” is not specifically defined in the FW Act, however section 65(5A) of the FW Act provides some examples. Additionally, the Fair Work Ombudsman’s webpage on Flexible Working Arrangements, offers some guidance on this point. If you did decide that you wanted to refuse to accommodate the request, you would need to justify this decision. Accordingly, you will need to provide written advice to your employee (including reasons for the refusal) within 21 days.

How do I modify an employee’s job to make it “safe”?

This will depend on what the employee’s job involves, and what their medical practitioner has advised are safe duties for them to perform given their particular circumstances. If you have received an ambiguous medical certificate from the employee’s doctor that is ambiguous, such as “the employee can perform light duties”, you are entitled to seek clarification on what those light duties are in the context of their job description and requirements of the job. Once you have received this, you are able to make reasonable adjustments accordingly. This might include things such as; moving the employee to a desk job where they can remain seated and indoors.

We have an employee who has been working for us for less than 12 months and they have just advised they are pregnant. Are they entitled to unpaid parental leave? If not, what are they entitled to?

Under the FW Act, employees who have not completed 12 months continuous service with their employer are not entitled to take a period of unpaid parental leave. Despite this, State and Federal discrimination legislation still applies to protect employees from being discriminated against on the basis of pregnancy. These laws would require you to accommodate the employee’s pregnancy as far as it is reasonable. Ordinarily it would not be reasonable for you to provide an employee an extended period of leave after the birth.

Given the above, we would recommend sitting down with the employee to discuss possible alternatives to unpaid parental leave such as an agreed period of unpaid leave for a set period, or for the employee to take any accrued annual leave and/or personal leave.

An employee and her manager have agreed to reduce the employee’s ordinary hours of work due to her pregnancy related illness (the employee is entitled to unpaid parental leave under the FW Act). In accordance with the transfer to ‘safe job’ provisions in the FW Act, do we need to continue to pay the employee her ordinary full time hours/rate of pay? Or do we only pay her for the hours she actually works for the duration of the period?

When an employee transfers to a safe job in circumstances where it was unsafe for the employee to perform her original job due to pregnancy, the employer is required to pay the employee at the full rate of pay for the (i.e. her rate of pay in her normal job) for the hours she works in the safe job.

Our business is restructuring and we need to make positions redundant. Can we make a pregnant employee redundant? Can we make employees on parental leave redundant?

If the fact that the employee(s) are either pregnant or on parental leave has no bearing on the decision to make the role redundant, or the decision to select particular employees for redundancy then yes. However, pregnant employees and those on parental leave should be offered the same redeployment opportunities as a part of the redundancy process; otherwise employers may face discrimination claims on the basis of pregnancy, or carer’s responsibilities or other claims under the FW Act.

An employer is required to discuss with the employees changes likely to have a significant impact on the employee’s position. An employer is also required to give the affected employees information about proposed changes – this includes providing reasons for the decision. This is essentially because employees who are on parental leave during this period are at a natural disadvantage in respect of the consultation process.

We have a full time employee who is suffering a pregnancy related illness – her treating doctor has recommended she continues to work, but in a reduced capacity. The employee would like to reduce her hours of work to part-time from now until commencement of her unpaid parental leave. Is this Special Maternity Leave? And, can we simply agree to a temporary reduction in hours on the basis of her pregnancy related illness?

This is not ‘special maternity leave’ as provided under the Fair Work Act 2009 (Cth) (FW Act) – special maternity leave requires that the employee be unable to work at all due to a pregnancy related illness.

If a pregnant employee cannot perform her job safely because of pregnancy-related illness, but has capacity to perform some work you should transfer her to a safe job (which may include part time work or alternative duties). If you don’t have the ability to provide a safe job for her then you should place this employee on paid ‘no safe job leave’.

A pregnant employee has provided a medical certificate stating that she is fit for work, but on restricted duties. The medical certificate is not clear enough on what duties the employee can perform, can I go back to the medical practitioner and ask for more information?

Yes. You should request the employee return to their doctor and provide them with a list of the duties inherent to the job so that the doctor can assess the risks to the employee and her unborn child’s health.

When can I request medical certificates from pregnant employees?

Pregnant employees may be required to produce a medical certificate to their employer at different junctures during their pregnancy, depending on the circumstances. These may include:

  • Where an employer has requested evidence of the pregnancy to support a request for unpaid parental leave (this does not have to be a medical certificate, but is commonly used as evidence);
  • Where an employer requests a medical certificate as evidence that a pregnant employee is required to be transferred to a safe job;
  • Where an employee on paid no safe job leave enters the six week period before the birth of her child, and employer requests a medical certificate setting out whether the employee is fit for work or not;
  • Where an employee continues to work during the six weeks before the expected date of the birth of the child; and
  • Where an employee takes unpaid special maternity leave.

Can a (pregnant) employee go on unpaid parental leave before six weeks of the expected date of birth of the child?

If an employee is unfit for any work due to a pregnancy-related illness they can take paid personal leave or unpaid special maternity leave. This period is not included in the 12 month parental leave entitlement.

An employer suspects an employee who is on parental leave is guilty of stealing. Can the employer investigate while they are on leave? How do you handle this situation?

Yes, but you need to make reasonable adjustments to the investigation process to give the employee a reasonable opportunity to answer the allegations.

A full time employee has gone on parental leave (12 months), and six months into the leave has requested that she be able to return to a different position on a part-time basis. Does the employer have to adhere to this request?

No.

Does time spent on unpaid parental leave count towards an employee’s entitlement to long service leave?

No.

Does an employee accrue annual leave while on parental leave?

Only during the period (if any) that the parental leave is paid.

prefer my contracted parental leave employee to the employee who is on leave. Do I have to let them return to their old job?

When parental leave ends an employee is entitled to return to the position he/she held before commencing leave. If that position no longer exists, the employee is entitled to return to an available position at an equivalent level or similar nature and pay to the former position.

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