Human Resources – Rights & Responsibilities

 

Coming soon…  Common HR issues for employers and employees in our

PROFESSIONAL DEVELOPMENT LIBRARY

Leave entitlements, including Parental Leave

Sick leave, extended Medical Leave

Termination of employment

FAQ’s, references, further reading and useful links

 

Parental Leave and Other Leave Entitlements

Who is entitled to annual leave? How much am I entitled to?
All employees are entitled to annual leave, except casual employees.  Four weeks annual leave is based on your hours worked.

How does my annual leave accumulate?
From the first day of employment, annual leave will gradually accumulate and continue to do so even when on paid leave. Annual leave does not accumulate when on unpaid leave.

Under what circumstances is an employee entitled to parental leave?
An employee is entitled to parental leave when a child is born or adopted.

How long do I need to have worked for my employer before I am entitled to parental leave?
12 months before the date the leave is expected to begin

Are casual employees entitled to parental leave?
Yes, provided they have worked for their employer for a period of at least 12 months and there is an expectation that they would have continued to work for the employer were it not for the child. However, as a casual employee they are not entitled to paid parental leave

Can I receive paid parental leave from the Government as well as from my employer?
Yes. Government parental leave payments do not change employer paid parental leave.

Is my partner eligible to receive parental leave payments?
Working partners who meet the criteria can receive 2 weeks paid parental leave. For eligibility criteria visit Centrelink.
www.humanservices .gov.au/customer/services/centrelink/dad-and-partner-pay

When do you have to tell your employer you are pregnant?
There is no legal requirement to disclose your pregnancy to your employer at a particular time.  The best time to tell your employer depends on your own circumstances and medical advice.  You will need to consider the amount of notice required prior to applying for unpaid or paid parental leave however, as it is common for at least 10 weeks notice prior is expected.
Many parental leave arrangements, including unpaid parental leave, expect that you will commence parental leave six weeks prior to your due date, which essentially means that if you are going to take parental leave you will need to tell your employer about your pregnancy not later than at the end of your second trimester. You can still work during the last six weeks of your pregnancy if you wish to, but your employer may require you to provide a certificate from your doctor confirming that you are fit to continue working, taking into account your pregnancy and the nature of your position.

Do I need to provide evidence of the date of birth or date of adoption?
An employer is entitled to ask for evidence of the expected date of birth or date of adoption. This evidence could take the form of a medical certificate or a statutory declaration. If an employee is unable to provide this evidence they may not be entitled to take parental leave.

How long before my due date do I need to stop work?
An employee who wants to work in the 6 weeks prior to her due date may need to provide a medical certificate stating that she can continue to work and that it is safe for her to continue to perform her usual job.

How much parental leave can I take?
The rules are different depending on whether one or both parents are taking unpaid parental leave.
If one parent id taking unpaid parental leave they are entitled to take up to 12 months or up to 24 months if their employer agrees. However, this leave must be a continuous period of time.
If both parents are taking leave and wish to take this leave at the same time then they are entitled to take up to 8 weeks together. This type of leave does not have to be a continuous period but each period of time should be at least 2 weeks.
If both Parents are taking leave at different times they are entitled to up to 12 months each as long as the combined period is for no more than 24 months. This leave must be over a continuous period.

What are my rights and responsibilities as a pregnant employee?
Prenatal appointments in addition to sick leave, light duties and/or environmental modifications if advised by obstetric team. In some circumstances, it is unsafe for women to continue working in their role, for example, manual handling roles, standing for long periods of time or carrying heavy items. A medical certificate may be required in some workplaces, in order to transfer to ‘safe work’ or lighter duties.  It is always the legal responsibility however, of the employer to ensure all workers health and safety whilst they are in the workplace.

What are my rights and responsibilities prior to leaving on Parental Leave?
You should be afforded the opportunity to discuss expectations of communication and/or involvement with your workplace whilst on leave, including the best form of communication, frequency etc.  You can request to be kept informed of opportunities such as new roles, professional development and training, team building and service development activities etc.  Consider checking and ensuring you have copies of all of your paperwork, contracts, leave balances, employee position/organisational numbers, employer and important contacts prior to leaving.

Am I entitled to special parental leave?
If an employee is entitled to paid or unpaid parental leave then they would also be entitled to special parental leave.   If the employee has a pregnancy related illness the special leave will end when the pregnancy or illness ends. If the employee’s pregnancy ends after 12 weeks because of a miscarriage, termination or stillbirth she is entitled to special leave until she is fit to return to work.
Special parental leave will not reduce the amount of entitled normal parental leave that an employee can take.

What are my entitlements, rights and responsibilities during parental leave?
An employee on parental leave has options in regards to:

  • Requesting ‘Keeping in touch days’
  • Other leave entitlements
  • Extending parental leave
  • Going back to work early
  • Consultation regarding any major workplace changes
  • Ending employment

 

An employee is responsible for maintaining their professional development and professional registration, according to the national guidelines of their professional board. (see here for details)

What are ‘Keeping in Touch Days’?
The ‘Keeping in Touch’ provision is to let you stay connected with your workplace and help you transition back into work. A paid work activity of 1 hour or more on a day for the purpose of Keeping   in Touch counts as 1 Keeping in Touch day, and counts towards the 10 day limit. You can access up to 10 Keeping in Touch days from when you become your child’s primary carer until the end of your Paid Parental Leave period.
You can’t access a Keeping in Touch day within the first 2 weeks of the birth of your child. If you request or suggest a Keeping in Touch day and it’s more than 2 weeks after the birth, you can participate if your employer agrees. Your employer can’t ask you to participate in a Keeping in Touch day within the first 6 weeks after the birth or adoption. Keeping in Touch days won’t extend your Paid Parental Leave period and won’t affect your payment of Parental Leave Pay.
Activities could include, but aren’t limited to:

  • participating in a planning meeting
  • performing on the job training, or
  • performing work to become familiar with the workplace or your role before returning to work

 

Work performed on these days count as service and your employer must pay you for the time you work. A Keeping in Touch day may affect your workplace entitlements, such as leave accrual.
Resuming regular work activities other than Keeping in Touch days is considered to be returning to work. You’ll also be considered as having returned to work if you access more than 10 Keeping in Touch days before the end of your Paid Parental Leave period.

Other leave entitlements?
An employee does not accumulate other leave whilst on unpaid parental leave, such as sick leave or annual leave or whilst on the Paid Parental Leave Scheme which is Government funded. Leave balances do however, accumulate whilst on employer paid parental leave.
During unpaid parental leave, employees can take annual leave but not sick leave, compassionate leave or community service leave. During unpaid parental leave, employees may be able to also take long service leave but this differs between the Australian state laws. Employees on employer funded leave may also take sick leave or compassionate leave.

Going back to work early?
An employee may request to return to work early from unpaid parental leave, if the employer agrees. No notice period applies if both the employer and employee agree.

Can my employer request I return to work early?
An employer may request an employee return to work from unpaid parental leave, if they are no longer the primary carer for the child.  A notice period of at least 4 weeks is required in writing, or if the employee was pregnant at the time of the request, a minimum of 6 weeks after the birth of the child is required.

What are my rights and responsibilities when returning from Parental Leave?

  • The Fair Work Act guarantees anyone the right to return to work immediately after parental leave.
  • You are entitled to request flexible working hours.
  • You may have extra rights depending on your workplace.

 

When an employee’s job no longer exists or has been changed whilst they were on leave, they need to be offered a suitable position that matches their skills, experience and qualifications and is nearest in status and pay to the pre-parental leave position. If an employee’s job no longer exists after they return from parental leave, this may mean a redundancy has taken place.  If the job still exists and someone else has replaced them in that role, then there will be no redundancy and the parental leave ‘returner’ is entitled to return to that position.

Can I return to my position when my parental leave ends?
Yes. An employee who takes parental leave is entitled to return to the same job they had before their leave began. If any significant changes are made to the employee’s job status, pay or location, the employer needs to consult with the employee, whether they are on leave or not.  The Health Professionals Award outlines the consultation process for when there are major changes in the workplace.

What if my previous job was a fixed term contract?
An employer is only obligated to have the employee finish out their original contract. If the contract has already finished when the parental leave ends then the employer is not required to re-employ them. If the contract is not yet finished then they are only obligated to fulfill the time frame of the contract.

Can I change the hours of the job when I return, request flexible working hours?
Employees returning to work after taking parental leave have the right to request flexible working arrangements such as working part-time instead of full-time or changing the start or finish times or even working from home in some situations.  The employer must seriously consider the request, but they may refuse on reasonable business grounds including consideration given to costs, impact on other staff, productivity or efficiency, or impacts on customer service. If the request is refused, reasons must be provided in writing.  See Section 83 & 84 of the Fair Work Act.

What do I need to know about breastfeeding in the workplace?
As an employee, you are entitled to suitable facilities such as a private lockable room for breastfeeding, somewhere to store any equipment required such as a breast pump and a fridge in which to store any breast milk.  Employees should also have appropriate work breaks to enable breastfeeding or expressing.  Breastfeeding is a protected ground for discrimination.  A breach of any of these entitlements is considered a breach of work health and safety laws.
Check out the Australian Breastfeeding Association for advice for employees and employers –
https://www.breastfeeding.asn.au/workplace

What does discrimination look like?
Pregnant women or women returning to work after pregnancy are protected against both direct and indirect discrimination under several anti-discrimination State and Commonwealth laws in Australia.  For example direct discrimination may occur when an employee is treated less favourably than her colleague if she is overlooked for a promotion due to her requiring several small breaks during the day to breastfeed or express.  The Sex Discrimination Act (1984) makes it illegal to treat a person unfairly because they are pregnant, breastfeeding or have family responsibilities.  Indirect discrimination is when there is a requirement or practice that is the same for everyone, but disadvantages someone with a particular attribute.  For example; requiring strict uniforms for all staff but not providing a pregnancy friendly option!

What are my parental leave rights if I am on a fixed term contract?
If an employee on a fixed term contract takes unpaid parental leave, different rules apply. If the contract ends while they are on leave, they’re not entitled to return to the same role (unless the contract states otherwise).  If they return during the period of the contract, they are entitled to return to the same position as prior to the leave. An employer is not required to extend an employee’s fixed term contract because they are taking unpaid leave.

Where can I get help regarding parental leave within a small business?
You are required to pay your employee parental leave pay if they have been your employee for 12 months or more. You need to pay your employee parental leave pay through the same wage or salary system and you will receive funds from the Department of Human Services prior to your employee leaving. An eligible employee can choose to receive the parental leave pay before, after or at the same time as the paid leave already owed to them by the employer, such as annual leave.
You can register for the Paid Parental Leave Scheme through Centrelink’s Business Online Services, then you will be notified if and when you have an eligible employee.

Centrelink Business Hotline phone 13 11 16
Paid Parental Leave in Business
https://www.business.gov.au/info/run/employ-people/equal-opportunity-and-diversity/paid-parental-leave
Paid Parental Leave Toolkit for Employers
https://www.humanservices.gov.au/business/enablers/paid-parental-leave-scheme-employer-toolkit

What happens with parental leave when a still birth or infant death is suffered?
The employee may return to work when they are able.  They are unable to take unpaid parental leave but may use sick leave or special maternity leave. If the unpaid parental leave hasn’t started, the employer needs written notice to cancel or reduce the leave period. If it is during unpaid parental leave, the employee is still entitled to continue on the unpaid leave until either the employer ends the leave with at least 6 weeks notice in writing or the employee ends the leave by giving their employer 4 weeks written notice in writing, where the employer is required to respond with a return to work date within that 4 weeks.

What happens with parental leave when you’re self employment?
To get Parental Leave Pay, you must be on leave or not working from the time you become your child’s primary carer until the end of your Paid Parental Leave period. However, if you need to, you can perform occasional tasks to keep an eye on your business or to ensure your business remains operational while you’re on leave.
For example, you could:

  • pay an account
  • check on the delivery of an order
  • approve the business accounts
  • deal with ad hoc disputes
  • organise a repair
  • organise replacement staff to manage your absence
  • maintain a basic level of contact with clients, and
  • keep your professional skills up to date

 

References, Further Reading & Useful Links
Flexible working arrangements
www.fairwork.gov.au/employee-entitlements/flexibility-in-the-workplace/flexible-working-arrangments

Leave entitlements
www.fairwork.gov.au/leave

Parental leave
www.fairwork.gov.au/leave/maternity-and-parental-leave/returning-to-work-from-parental-leave

www.humanrights.gov.au/publications/get-facts-fact-sheet-9

http://www.supportingworkingparents.gov.au/

Keeping in Touch Days
www.humanservices.gov.au/customer/enablers/keeping-touch-your-workplace-while-receiving-parental-leave-pay

Policy and Procedure Register: Parental Leave
http://ppr.det.qld.gov.au/corp/hr/hr/Pages/Parental-Leave.aspx