Are you up-to-date with NES changes from 1 Oct?

by Elizabeth Barnard15 Aug 2012

From 1 October 2012 changes to parental leave under the Fair Work Act and related entitlements under the National Employment Standard (NES) will become effective, and employers must ensure policies and leave procedures are up-to-date.

Key changes which will soon take effect include:

1. There is no obligation to approve parental leave earlier than 6 weeks before the expected date of birth of the child.

2. If an employee expects to take parental leave in association with the birth of a child of their spouse or de facto partner, and the baby is still born or passes away after being born, either the employer or the employee may cancel the leave by giving written notice requesting a return to work.

3. In cases where a contract worker has been engaged to replace the employee, the contractor should be advised that their role is temporary, and conditional based on the rights of the  employee they are replacing and that employers have the right to cancel the leave if:

- the pregnancy ends other than by the birth of a living child;

- the child dies after birth; or

- the employer requires the employee taking unpaid parental leave to return to work because the employee ceases to have any responsibility for the care of the child.

‘Keeping in touch’ days

Also set to take effect on 1 October 2012 is the new provision for ‘keeping in touch days’ under the NES.

The parental leave and related entitlements under the NES will henceforth allow employees on unpaid parental leave to take up to 10 ‘keeping in touch days’ without affecting their NES entitlements. Importantly, the change has been made because currently under the federal government’s paid parental leave scheme, employees who currently return to work for a paid ‘keeping in touch day’ may be breaching the technicality which says that unpaid parental leave must comprise a continuous period. As such, returning to work for a keeping in touch day could mean the employee loses their NES protection to return to their pre-parental leave role.

However from 1 October 2012, the NES will be amended so that an employee will be allowed to perform paid work for up to 10 ‘keeping in touch’ days while they are taking unpaid parental leave, and it will not affect the continuity of their period of unpaid parental leave.

According to the Employment Law Handbook, from 1 October 2012:

  • Employers will not be obliged to give the employee ‘keeping in touch’ days
  • An employee cannot request to take a ‘keeping in touch ‘day in the 14 day period commencing on the date of birth, or day of placement, of the child
  • Employers cannot arrange a ‘keeping in touch’ day in the first 6 weeks after the date of birth, or day of placement, of the child
  • An employee can only take up to 10 ‘keeping in touch’ days during the available 12 month unpaid parental leave period. If their period of leave is extended, a further 10 days will be available
  • An employee taking a ‘keeping in touch’ day does not have to work a full day
  • You will be obliged to pay the employee for performing work on a ‘keeping in touch’ day as if it was ordinary work
  • You cannot exert undue influence or pressure on an employee to work or not work ‘keeping in touch’ days
  • Unpaid parental leave is not extended by ‘keeping in touch’ days


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