Under the Fair Work Act 2009 (Cth) (“FW Act”) and the National Employment Standards (“NES”), an employee is entitled to 12 months’ unpaid parental leave when they have (or adopt) a child.
Specifically, to qualify for parental leave, an employee must:
- Have worked for their employer for at least 12 months:
- Before the expected birth date, or
- Before the adoption date, or
- When the leave starts; and
- Have (or will have) responsibility for the care of the child.
However, situations arise where an employee is due to have a second child shortly after having their first, or in some instances, during the first period of parental leave. For many parents and employers, this can cause confusion as to the parent’s entitlement or access to further parental leave.
Continuity of Service
The main source of concern for parents and employers
who encounter this situation is how the 12 months’ service requirement in the
FW Act applies.
Specifically, does an employee who has completed 12 months’ continuous service before the birth of their first child need to work an additional 12-month period before they are eligible to take a second parental leave period?
The short answer is No! For parental
leave, s 22 of the FW Act
provides that an employee’s period of service will be the period which the
employee is employed by the employer, other than any period of ‘unauthorised
Ultimately, this means unless there is a period of ‘unauthorised absence’ (see explanation below), an employee who takes a period of unpaid parental leave will not break their continuity of service with their employer.
Therefore, an employee does not need to complete an additional 12 months’ service with an employer to ‘re-qualify’ for additional periods of parental leave. Once the parent has qualified for the initial ‘parental leave guarantee’ in ss 67 – 70 of the FW Act, they have a continuing entitlement / ‘guarantee’ to parental leave periods (be it a second, fourth or eleventh child / parental leave period). The service clock does not ‘reset’ after they return from the first parental leave period, such that the parent has to work another 12 months to re-qualify.
What is an “unauthorised
Unpaid parental leave will not
constitute a period of ‘unauthorised absence’ as once an employee has met the above
requirements, they have qualified for parental leave which cannot be denied by
An ‘unauthorised absence is when an employee fails to attend work
without a valid reason or being absent from work against employer’s lawful
direction (i.e. taking a sick day when not genuinely sick or failing to return
from a period of leave by the required/agreed date). Naturally, this does not
include instances of absence that are agreed with the employer (i.e. annual leave,
genuine sick leave or parental leave).
How Does this Impact the
Accrual of my Entitlements?
In Victoria, under the Long
Service Leave Act 2018 (Vic), employees will continue to accrue their long
service leave entitlements for up to 12 months for each period of unpaid
Furthermore, under the FW Act, an employee can choose to extend their
parental leave period from 12 to 24 months (with the approval of their employer).
Although extending the parental leave
period will not break the employee’s continuity of service, any period of
parental leave between 12 and 24 months will not contribute to an
employee’s long service leave accrual.
Furthermore, under the FW Act, any period of unpaid parental leave will not contribute to the accrual of other
NES entitlements such as paid annual leave or paid personal/carer’s leave. The
exception is that employees will accrue these entitlements during periods of
employer-funded paid parental leave.
What do the Wizards
For any period of parental leave, we encourage employees to maintain
an open line of communication with their employer as it is ultimately mutually
beneficial for both parties to know what is happening with the other.
If you are an employee who will be taking a second period of parental
leave, it serves as good practice to keep your employer ‘in the loop’ regarding
developments during the leave period (i.e. securing childcare, partner’s
working pattern etc.) to help reduce the possibility of a misunderstanding occurring
‘down the line’. This enables your employer to strategically plan business
operations around such developments so they can continue to work with you to
support you and your family whilst planning for your return to work.
Similarly, if you are an employer, you should encourage your employees
to maintain contact during any period of parental leave so that when the time
comes, you can make adequate plans to reintegrate them back into the
organisation as seamlessly as possible.
Workplace Wizards regularly advises employers and employees on all leave entitlements. For expert advice call Michael Stafford on 0488 649 998 to have a free, no-obligation chat about how we can assist you.