FAIR WORK ACT 1994 - SCHEDULE 5
FAIR WORK ACT 1994 - SCHEDULE 5
Schedule 5—Minimum standard for parental leave
In this Schedule—
adoption means the adoption of a child who is not the natural child of the
employee or the employee's spouse or domestic partner, who is less than five
years of age, and who has not lived continuously with the employee for six
months or longer;
continuous service means continuous service under a contract of employment and
includes a period of paid leave or absence taken under this Act or under an
award or enterprise agreement;
expected date of birth means a day certified by a medical practitioner as the
expected date of birth;
employee does not include a person engaged and paid as a casual employee;
parental leave means unpaid leave under this Schedule.
2—Entitlement to parental leave
(1) Subject to this
Schedule, an employee is entitled to take parental leave for a period of up to
52 weeks for—
(a) the
birth of a child to the employee or the employee's spouse or domestic partner;
or
(b) the
placement of a child with the employee with a view to the adoption of the
child by the employee.
(2) An employee is not
entitled to take parental leave unless the employee—
(a) has,
before the expected date of birth or placement, completed at least
12 months' continuous service with the employer; and
(b) has
given the employer at least ten weeks' written notice of intention to take the
leave.
(3) An employee is not
entitled to take parental leave at the same time as the employee's spouse or
domestic partner apart from one week's parental leave taken by the employee
and the employee's spouse or domestic partner immediately after the birth of
the child or the placement of the child for adoption with the employee and the
employee's spouse or domestic partner.
(4) Apart from the
period of one week referred to above, an employee's entitlement to parental
leave is reduced by a period of parental leave taken by the employee's spouse
or domestic partner for the same child.
3—Maternity leave to start 6 weeks before birth
A female employee who has given notice of her intention to take parental leave
for the birth of a child must start the leave 6 weeks before the expected date
of birth unless a medical practitioner has certified that the employee is fit
to work closer to the expected date of birth.
An employee who has given notice of intention to take parental leave for the
birth of a child must provide the employer with a certificate from a medical
practitioner certifying that the employee or the employee's spouse or domestic
partner is pregnant and the expected date of birth.
5—Notice of spouse's parental leave
(1) An employee who
has given notice of intention to take parental leave or who is actually taking
parental leave must give the employer notice of periods of parental leave
taken or to be taken by the employee's spouse or domestic partner for the same
child.
(2) A notice given
under subsection (1) must, if the employer requires, be verified by
statutory declaration.
6—Starting and finishing dates of parental leave
(1) The starting and
finishing dates for a period of parental leave must (subject to this Schedule)
be agreed between the employer and the employee.
(2) However, parental
leave may not extend more than one year after the date of the birth, or
placement for adoption, of the child to whom the leave relates.
7—Return to work after parental leave
(1) On finishing
parental leave, an employee is entitled to the position the employee held
immediately before starting parental leave.
(2) However—
(a) if
the employee was temporarily acting in, or performing the duties of, a
position immediately before starting parental leave, the entitlement under
this section relates to the employee's substantive position; and
(b) if
the former position is no longer available, the employee is entitled to an
available position for which the employee is qualified and suited nearest in
status and remuneration to the former position.
8—Effect of parental leave on employment rights
Absence on parental leave does not break an employee's continuity of service,
but is not to be taken into account in calculating the employee's period of
service.
9—Part-time employment in lieu of parental leave
An employee who is entitled to parental leave may, by agreement with the
employer, reduce the employee's hours of employment to an agreed extent in
lieu of taking parental leave.