Fair Work Act. Australia
employee is entitled to continue on that leave for the rest of that period.
(2) If:
(a) there is a transfer of employment in relation to an employee; and
(b) the employee has, in relation to the first employer, already taken a step that is required or permitted by a provision of this Division in relation to taking a period of leave;
the employee is taken to have taken the step in relation to the second employer.
Note: Steps covered by this subsection include (for example) giving the first employer notice under subsection 74(1), confirmation or advice under subsection 74(4) or evidence under subsection 74(5).
Subdivision B — Parental leave
70 Entitlement to unpaid parental leave
An employee is entitled to 12 months of unpaid parental leave if:
(a) the leave is associated with:
(i) the birth of a child of the employee or the employee’s spouse or de facto partner; or
(ii) the placement of a child with the employee for adoption; and
(b) the employee has or will have a responsibility for the care of the child.
Note 1:Entitlement is also affected by section 67 (which deals with length of the employee’s service) and, for adoption, section 68 (which deals with the age etc. of the adopted child).
Note 2:The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).
71 The period of leave — other than for members of an employee couple who each intend to take leave
Application of this section
(1) This section applies to an employee who intends to take unpaid parental leave if:
(a) the employee is not a member of an employee couple; or
(b) the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave.
Leave must be taken in single continuous period
(2) The employee must take the leave in a single continuous period.
Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).
When birth-related leave must start
(3) If the leave is birth-related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child.
(4) If the leave is birth-related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child.
When adoption-related leave must start
(5) If the leave is adoption-related leave, the period of leave must start on the day of placement of the child.
Leave may start later for employees whose spouse or de facto partner is not an employee
(6) Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if:
(a) the employee has a spouse or de facto partner who is not an employee; and
(b) the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave.
Note: An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).
72 The period of leave — members of an employee couple who each intend to take leave
Application of this section
(1) This section applies to an employee couple if each of the employees intends to take unpaid parental leave.
Leave must be taken in single continuous period
(2) Each employee must take the leave in a single continuous period.
Note: An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).
When birth-related leave must start
(3) If the leave is birth-related leave:
(a) one employee’s period of leave must start first, in accordance with the following rules:
(i) if the member of the employee couple whose period of leave starts first is a female employee who is pregnant with, or gives birth to, the child — the period of leave may start up to 6 weeks before the expected date of birth of the child, but must not start later than the date of birth of the child;
(ii) if subparagraph (i) does not apply — the period of leave must start on the date of birth of the child; and
(b) the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).
When adoption-related leave must start
(4) If the leave is adoption-related leave:
(a) one employee’s period of leave must start on the day of placement of the child; and
(b) the other employee’s period of leave must start immediately after the end of the first employee’s period of leave (or that period as extended under section 75 or 76).
Limited entitlement to take concurrent leave
(5) If one of the employees takes a period (the first employee’s period of leave) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave) during the first employee’s period of leave, if the concurrent leave complies with the following requirements:
(a) the concurrent leave must be for a period of 3 weeks or less;
(b) unless the employer agrees as referred to in paragraph (c), the concurrent leave must not start before, and must not end more than 3 weeks after:
(i) if the leave is birth-related leave — the date of birth of the child; or
(ii) if the leave is adoption-related leave — the day of placement of the child;
(c) if the employer agrees, the concurrent leave may (subject to paragraph (a)):
(i) start earlier than is permitted by paragraph (b); or
(ii) end up to 3 weeks later than is permitted by paragraph (b).
(6) Concurrent leave taken by an employee:
(a) is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and
(b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsection (3) or (4)).
Note: The concurrent leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.
73 Pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth
Employer may ask employee to provide a medical certificate
(1) If a pregnant employee who is entitled to unpaid parental leave (whether