Under the Paid Parental Leave Act, a parent is not able to work while receiving paid parental leave, but may keep in touch with the workplace for up to 10 days between the birth or adoption of their child and the end of their paid parental leave period.
Effectively, outside of the 'keeping in touch days', when a parent returns to work, paid parental leave will cease, Andrew Tobin, head of HopgoodGanim’s industrial and employment law practice says. Currently, the Paid Parental Leave Act provides that a parent may return to work without losing parental leave pay where:
the purpose of performing the work is to enable the parent to keep in touch with his or her employer in order to facilitate a return to work after the end of the period of leave;
both the parent and the employer consent to the parent performing the work; and
the return to work day is not within 14 days after the day the child was born or on placement of the child in the case of adoption.
This is in spite of the fact that the Fair Work Act provides for:
unpaid parental leave of up to 12 months;
the right for eligible parents with responsibility for a child to request flexible working arrangements; and
employee protection against discrimination (including protection against discrimination on the basis of parental responsibilities)
The Act is notably silent about keeping in touch during periods of parental leave.
Paid Parental Leave Act amendments
A new bill has proposed amendments to the Paid Parental Leave Act, and if passed, the legislation will prescribe that a 'keeping in touch day' must not be within:
14 days after the child was born (or upon placement of the child in the case of adoption) if the employee suggested or requested that he or she perform work for the employer on that day; or
42 days after the day the child was born (or upon placement of a child in the case of adoption) otherwise.
The amendment is intended to allow sufficient time after the birth (or adoption) of a child for the mother to recover physically, and will enable an uninterrupted six-week period for the caring parent to bond with their child. The exception – that a 'keeping in touch day' can occur, at the initiative of a parent on paid parental leave, at any time 14 days after the day the child was born (or placed, in the case of adoption) – is intended to retain flexibility for employees.
In any case, where a 'keeping in touch day' is requested, both the employee and the employer must agree to the performance of paid work on a day that would otherwise be a leave day. Further, the employer remains obliged to pay the employee (in addition to their parental leave pay) for performing work on any 'keeping in touch day'.
Fair Work Act amendments
The Bill proposes to amend the Fair Work Act to, among other things, enable early commencement of unpaid parental leave, and enable employees who are on unpaid parental leave to perform permissible paid work for short periods for the purposes of keeping in touch.
The amendments will enable pregnant employees to, if they wish, start unpaid parental leave more than six weeks before the expected date of birth, where the employer agrees.
Specifically, the Fair Work Act will be amended to provide that, for a pregnant employee, unpaid parental leave may start earlier than six weeks before the expected date of birth of the child if the employee and employer agree, but otherwise may start up to six weeks before the expected date of birth and must not start later than the date of birth of the child.
The Bill proposes the insertion of two new sections, 79A and 79B, into the Fair Work Act, which provide that:
an employee is not prevented from performing work on a 'keeping in touch day' while he or she is taking unpaid parental leave;
performing work on a 'keeping in touch day' does not break the continuity of the period of unpaid parental leave;
reflecting the position under the Paid Parental Leave Act, an employee who performs work on a 'keeping in touch day' is entitled to payment from their employer for that work (additional to any parental leave pay entitlement) in accordance with a relevant contract of employment or industrial instrument; and
taking paid leave or performing work on a 'keeping in touch day' during a period of unpaid parental leave does not extend the period of unpaid parental leave.
The Bill also amends the Fair Work Act to clarify unpaid parental leave arrangements where there is a stillborn or infant death.
Where to from here?
Employers need to be aware of the Paid Parental Leave Scheme and the various obligations owed to employee parents, including:
providing parental leave pay to eligible employees;
having an understanding of when an employee can (and cannot) perform work on a 'keeping in touch day'; and
having an understanding of the interaction between the Paid Parental Leave Scheme under the Paid Parental Leave Act and unpaid parental leave afforded under the Fair Work Act.
Employers should watch for ongoing legislative changes in this area and continue to be vigilant in reviewing their parental leave arrangements and how they are practiced and documented in their workplaces - for example, in relevant policy materials. When necessary, steps should be taken to implement any changes required to ensure legislative compliance.
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