Who is entitled to receive parental leave entitlements and when?

There are different types of parental leave. In this article we describe primary carer leave, extended leave, partners’ leave and special leave. We also touch on some of the key principles.

Primary carer leave (previously ‘maternity leave’)

Primary carers are entitled to 26 weeks of paid parental leave if taken continuously. These payments are made by the Government – the amount of which depends on what each employee earns (but is currently capped at $661.12 and changes regularly).

To qualify as a primary carer, an employee must:

• Be the ‘primary carer’ of a child - i.e., they must be:
  • the birthing parent; or
  • the birthing parent’s spouse/partner and the child’s primary carer; or
  • the person who has the main responsibility for taking care of a child; and
• Meet the six-month or 12-month employment test – i.e., they must have worked an average of 10 hours per week in the six months or 12 months preceding the child’s due date or the date responsibility of the child is presumed.

The definition of primary carer is designed to ensure that paid parental leave can only be taken once in relation to every child – however, it can be split between two people, such as two parents.

Extended leave

Primary carers are entitled to extended parental leave up to 12 months if they meet the 12-month employment test. However, any leave taken beyond 26 weeks is unpaid.

Partners leave

Partners of primary carers are entitled to up to two weeks unpaid leave following the birth of a child or following the date on which care of the child is taken over by their partner (for example, where there has been an adoption).

To qualify for partner’s leave, an employee must also meet either the six-month or 12-month employment test. If they meet the six month test, they are entitled to one weeks partners leave, and if they meet the 12 month test, they are entitled to two weeks partners leave.

Special leave

Pregnant employees are entitled to 10 days unpaid special leave for pregnancy-related reasons. For example, midwife appointments or scans.

A message to employers

Keep the role open

You must keep a primary carer’s role open during the period of parental leave (both the paid 26 week period and any extended period up to 12 months). There are limited exceptions, including redundancy situations or employees in ‘key’ positions. In determining whether an employee’s position is a key position, you must consider the size of your business and the training period or skills required for the job, among other things. It is not something to be taken lightly, and we recommend that you be cautious and seek advice about dismissing an employee on parental leave (even for good legal reasons unrelated to the parental situation).

Do not forget preferential re-employment

One of the biggest mysteries of parental leave is the period of preferential re-employment. If you terminate an employee during parental leave because their role cannot be kept open, you must give them preference over other applicants for re-employment after the parental leave ends for 26 weeks for any role that is substantially similar to their old one.

Keep in touch

The law provides ‘keeping in touch’ days to employees on parental leave, allowing them to perform up to 64 hours of paid work at any point more than 28 days after the birth without affecting entitlements. Any activity should contribute towards their transition back to work, for example, team training days or to learn new processes.

Generally, keeping in touch goes both ways, and it is a good idea for you to also keep employees on parental leave updated about developments in the workplace, and invited to social events.

Employment deemed continuous

You do not need to pay employees while they are on parental leave but an employee’s service is deemed continuous. This means that on return from parental leave, the employee will be treated as having been at work for the purpose of any right to things like long service leave. There are some complex arrangements for determining how annual leave is paid following a return from parental leave – and it may be useful to seek specific advice on the question of how leave balances should be treated, both before and after parental leave.

Document, document, document!

Generally, it is a great idea to detail this legislation in your employment agreements and/or in your workplace policies. You might also consider offering more than the Act provides. For example, some businesses are offering to top up the Government-funded parental leave payment and bonding them for a period of time in return. Of course, you cannot offer anything less than what is provided by law.