On 27 November 2020, amendments to the FW Act came into operation which enable eligible employees to take up to 30 days of their unpaid parental leave entitlement flexibly, including on a single day basis. The amendments also provide unpaid parental leave entitlements to eligible employees whose children are born prematurely requiring immediate hospitalisation, are stillborn, or die within the first 24 months of life.

Flexible parental leave entitlements

The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 (Amendment Act) amends the NES in the FW Act to introduce some important changes to how unpaid parental leave can be accessed by employees and associated employer obligations.

From 14 September 2020, eligible employees have been able to apply for flexible parental leave payments under the Federal Government’s Paid Parental Leave (PPL) scheme in respect of babies born or adopted on or after 1 July 2020. The Amendment Act varies the FW Act’s unpaid parental leave provisions to support the changes under the Government’s PPL scheme.

Eligible employees are entitled to take up to 30 days of the 12-month unpaid parental leave entitlement in the NES as flexible unpaid parental leave subject to satisfying notification and evidentiary requirements. Flexible unpaid parental leave may only be taken within 24 months of the birth or adoption of the child to whom the unpaid parental leave relates. Periods of flexible parental leave come out of an employee’s 12-month unpaid parental leave entitlement and are not an additional entitlement.

Flexible unpaid parental leave is available to full-time, part-time and long-term casual employees who are eligible to take unpaid parental leave under the FW Act. This includes employees who have that FW Act eligibility but who may not be eligible to receive parental leave payments under the Government’s PPL scheme.

An employee may take up to 30 days of flexible unpaid parental leave either in one continuous period of one or more days, or as separate periods of at least one or more days. Employees cannot take flexible unpaid parental leave for less than a day.

An employee choosing to take continuous unpaid parental leave, must use this leave first before taking flexible unpaid parental leave. However, an employee, who wishes to use only flexible unpaid parental leave, is not required to take continuous unpaid parental leave.

The following is one of several illustrative examples in the Explanatory Memorandum for the legislation:

Catriona is employed on a full-time basis. She intends to take a ‘continuous’ period of Unpaid Parental Leave (UPL) under section 71 of the FW Act starting on Thursday 1 July 2021. Catriona also wishes to take 30 days of flexible UPL within the 24 months of her child’s life. As such, Catriona’s notional flexible period is six weeks. The last day on which Catriona could be on her continuous period of UPL would therefore be Thursday 19 May 2022 and she would be required to return to work the following day. Catriona may then use her 30 flexible UPL days as suits her needs until her child’s second birthday.

The new flexible unpaid parental leave provisions are operative from 27 November 2020. Employees eligible for flexible unpaid parental leave are entitled to notify their employer of their intent to take flexible parental leave in relation to children born or adopted on or after 27 November 2020.

New and expanded unpaid parental leave provisions relating to children who are stillborn, hospitalised or who die within 24 months of birth.

The Amendment Act also implements various changes to unpaid parental leave entitlements in respect of children who are born prematurely and require immediate hospitalisation; who are stillborn; or who die within the first 24 months of life.

Eligible employees whose baby is stillborn, or dies within the first 24 months, are entitled to the same unpaid parental leave (generally up to 12 months) as parents of live babies. In addition, employees are entitled to compassionate leave in relation to a stillborn child if that child would have been an immediate family or household member had the child been born alive. Compassionate leave is not confined to the parents of the stillborn child.

A female employee who gives birth to a stillborn child will no longer be eligible for unpaid special maternity leave. Instead, the employee will be entitled to up to 12-month’s unpaid parental leave provisions as though the child was born alive.

The new provisions apply to stillbirths and infant deaths on or after 27 November 2020. The provisions apply to the hospitalisation of infants who are born on or after 27 November 2020.

If you would like more information about parental leave policies, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice and assistance in managing employees utilizing flexible parental leave entitlements,please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Adelaide, Melbourne or Brisbane or contact Ai Group Workplace Lawyers here.

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