The Fair Work Commission (Commission) has emphasised that women have the right to “give birth to children without foreclosing their employment” in the decision of Hanina Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 (31 May 2013) (the Rind Case).

The Rind Case confirms the Commission’s views on return to work practices when Employees take parental leave. Serious and genuine consideration of an Employee’s request for varied work arrangements must be part of an Employer’s parental leave process, policy and procedure.

Parental leave is often misunderstood however Employers must be vigilant in ensuring they are well informed as to when an Employee is entitled to parental leave and the obligations for when an Employee returns to work.

Unpaid Parental Leave

The Fair Work Act 2009 provides for an entitlement for unpaid parental leave and is part of the National Employment Standards.

An Employee is entitled to be absent from work for 12 months on unpaid parental leave.

Nothing prevents an Employee taking less than 12 months unpaid parental leave.

An Employee may also request a further additional unpaid leave of up to 12 months. The request for further leave must be done so in writing and must be given at least 4 weeks before the end of the first period of unpaid leave.

An Employer may refuse a request only on “reasonable business grounds”. Some examples of what are considered reasonable business grounds for refusing a request include:

  • the excessive financial cost of accommodating the request;
  • inability to recruit a replacement Employee; or
  • significant loss of efficiency or productivity.

Paid Parental Leave

The Paid Parental Leave Act 2010 provides for 18 weeks paid parental leave to eligible primary carers on the birth or adoption of a child. Paid parental leave is fully funded by the Federal Government and is paid at the national minimum wage rate. Primary caregivers are eligible for Paid Parental Leave.

Dad and Partner Pay were also introduced in January 2013 and provides for 2 weeks paid leave at the national minimum wage rate.

Currently as of May 2014 the minimum wage rate is $622.20 per week.

Importantly, Employers do not decide who is eligible for Paid Parental Leave. Eligibility is approved by the Department of Human Services (Department). The Department decide if the Employee is eligible and will notify the Employer in writing.

An Employer must respond to the notification within 14 days. The Employer will be responsible as paymaster for the payments but will be fully funded by the Department.

Any other obligations under industrial instruments such as Modern Awards and Enterprise Bargaining Agreements will be required to be met by an Employer as well as continuing to meet the obligations of passing on the payments made by the Department.

Ramifications

Employers should ensure that they fully comprehend their obligations regarding Paid and Unpaid Parental Leave. Any breaches of statutory obligations may result in penalties of up to $33,000 for the Company and $6,600 for each individual involved in the breach (this may include human resources, directors and managers).

At this point in time Parental Leave is a reality for Employers and this may change in the near future but as it stands Employers must understand the eligibility of Employees to take parental leave and seek legal advice from our Workplace Relations and Employment Law team for any clarification.

Written by
Jonathan Mamaril
Principal & Director, NB Lawyers – the Lawyers for Employers
07 3876 5111
jonathanm@nb-lawyers.com.au

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