Fair Work Act. Australia
with section 74) continues to work during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate containing the following statements (as applicable):
(a) a statement of whether the employee is fit for work;
(b) if the employee is fit for work — a statement of whether it is inadvisable for the employee to continue in her present position during a stated period because of:
(i) illness, or risks, arising out of the employee’s pregnancy; or
(ii) hazards connected with the position.
Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.
Employer may require employee to take unpaid parental leave
(2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:
(a) the employee does not give the employer the requested certificate within 7 days after the request; or
(b) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is not fit for work; or
(c) the following subparagraphs are satisfied:
(i) within 7 days after the request, the employee gives the employer a medical certificate stating that the employee is fit for work, but that it is inadvisable for the employee to continue in her present position for a stated period for a reason referred to in subparagraph (1)(b)(i) or (ii);
(ii) section 81 does not apply to the employee.
Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and section 81 applies to the employee, the employee is entitled under that section to be transferred to a safe job, or to paid no safe job leave.
When the period of leave must end
(3) The period of leave must not end later than the earlier of the following:
(a) the end of the pregnancy;
(b) if the employee has given the employer notice of the taking of a period of leave connected with the birth of the child (whether it is unpaid parental leave or some other kind of leave) — the start date of that leave.
Special rules about the period of leave
(4) The period of leave:
(a) is an exception to the rule that the employee must take her unpaid parental leave in a single continuous period (see subsection 71(2) or 72(2)); and
(b) is an exception to the rules about when the employee’s period of unpaid parental leave must start (see subsections 71(3) and (6), or subsection 72(3)).
Note: The period of leave is unpaid parental leave and so comes out of the employee’s entitlement to 12 months of unpaid parental leave under section 70.
(5) The employee is not required to comply with section 74 in relation to the period of leave.
74 Notice and evidence requirements
Notice
(1) An employee must give his or her employer written notice of the taking of unpaid parental leave under section 71 or 72 by the employee.
(2) The notice must be given to the employer:
(a) at least 10 weeks before starting the leave; or
(b) if that is not practicable — as soon as practicable (which may be a time after the leave has started).
(3) The notice must specify the intended start and end dates of the leave.
Confirmation or change of intended start and end dates
(4) At least 4 weeks before the intended start date specified in the notice given under subsection (1), the employee must:
(a) confirm the intended start and end dates of the leave; or
(b) advise the employer of any changes to the intended start and end dates of the leave;
unless it is not practicable to do so.
Evidence
(5) An employee who has given his or her employer notice of the taking of unpaid parental leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person:
(a) if the leave is birth-related leave — of the date of birth, or the expected date of birth, of the child; or
(b) if the leave is adoption-related leave:
(i) of the day of placement, or the expected day of placement, of the child; and
(ii) that the child is, or will be, under 16 as at the day of placement, or the expected day of placement, of the child.
(6) Without limiting subsection (5), an employer may require the evidence referred to in paragraph (5)(a) to be a medical certificate.
Compliance
(7) An employee is not entitled to take unpaid parental leave under section 71 or 72 unless the employee complies with this section.
Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.
75 Extending period of unpaid parental leave — extending to use more of available parental leave period
Application of this section
(1) This section applies if:
(a) an employee has, in accordance with section 74, given notice of the taking of a period of unpaid parental leave (the original leave period); and
(b) the original leave period is less than the employee’s available parental leave period; and
(c) the original leave period has started.
(2) The employee’s available parental leave period is 12 months, less any periods of the following kinds:
(a) a period of concurrent leave that the employee has taken in accordance with subsection 72(5);
(b) a period of unpaid parental leave that the employee has been required to take under subsection 73(2) or 82(2);
(c) a period by which the employee’s entitlement to unpaid parental leave is reduced under paragraph 76(6)(c);
(d) a period of special maternity leave that the employee has taken.
First extension by giving notice to employer
(3) The employee may extend the period of unpaid parental leave by giving his or her employer written notice of the extension at least 4 weeks before the end date of the original leave period. The notice must specify the new end date for the leave.
(4) Only one extension is permitted under subsection (3).
Further extensions by agreement with employer
(5) If the employer agrees, the employee may further extend the period of unpaid parental leave one or more times.
No entitlement to extension beyond available parental leave period
(6) The employee is not entitled under this section to extend the period of unpaid parental leave beyond the employee’s available parental leave period.
76 Extending period of unpaid parental leave — extending for up to 12 months beyond available parental leave period
Employee may request further period of leave
(1) An employee who takes unpaid parental leave for his or her available parental leave period may request his or her employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately