By the Carroll & O'Dea Employment and Industrial Relations Group
TABLE OF CONTENTS
Overview – Part 1Who is entitled to parental leave?Part 2
How much parental leave can be taken? Part 2
What is the process for claiming parental leave? Part 3
How can an employee take up to two years leave? Part 3
What about Dad? Part 4
Are employees entitled to paid parental leave? Part 4
Are there special requirements when hiring replacement staff? Part 5
What happens when an employee returns to work? Part 5
What if there is a dispute? Part 6
Where can I get more information? Part 6
Are There Special Requirements When Hiring Replacement Staff?
Prior to the Fair Work Act it was a legislative requirement that an employee hired to replace an employee on maternity leave be advised of the temporary nature of their employment. This is no longer legislated, but nevertheless employers would be wise to ensure that a replacement employee clearly understands that his or her employment will not or may not necessarily continue when the employee returns from parental leave.
WHAT HAPPENS WHEN AN EMPLOYEE RETURNS TO WORK?
An employee who has taken unpaid parental leave is entitled to return to work in the position they held immediately prior to the start of their parental leave, or for female employees the position they held immediately prior to any transfer or alteration in their duties made due to pregnancy.
The Fair Work Act also provides employees, who have responsibility for the care of a child, with the right to request changes to their working arrangements to assist the employee to care for the child. However, the child must be under school age, or under 18 and have a disability.
The types of requests that could be made include: different hours of work; different patterns of work; and changes in location of work.
An employee is not entitled to make a request unless the employee has completed at least 12 months of continuous service with the employer before making the request, or the employee is a long term casual employee immediately before the request and has a reasonable expectation of continuing employment on a regular and systematic basis.
Requests for flexible working arrangements must be made in writing, and set out the details of the changes sought along with the reasons for the requested change. An employer must respond in writing within 21 days of receiving the request, and the response must state whether or not the request will be granted. Employers may only refuse a request on "reasonable business grounds", and if a request is refused the written response provided to the employee must include the reasons for the refusal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.