Parental leave in Australia: What are my rights?

By Edward Mallett - Mar. 7, 2012
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Editors Note: This is a guest post written by Edward Mallett, Managing Director of Employsure. His opinions are his own.

Having recently welcomed my first child into the world, it seems an appropriate time to look into the subject of parental leave, hoping that I might be entitled to a few days off.

Under the National Employment Standards, all employees are entitled to a period of unpaid parental leave, as long as they have completed 12 months’ continuous service with their employer. This includes casual staff, as long as they have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation that they would have continued to do so but for the birth of their child.

The entitlement is to at least 12 months of unpaid leave for each member of an “employee couple”, which is where two employees, who can work for separate employers, are in a spousal or de facto relationship, including same sex de facto relationships. An employee couple can take a maximum of 24 months leave between them, with each individual employee being entitled to 12 months and a further 12 months at the discretion of their employer.

Any employees that return to work immediately following their leave have the right to return to their pre-parental leave position or, if that position no longer exists, an available position for which they are qualified and suited, which is nearest in status and pay to their pre-parental leave position.

These entitlements are quite separate to the right to receive some pay for parental leave, which was introduced on 1 January 2011. Interestingly, until then, Australia was one of only two OECD countries that did not provide for paid parental leave, the other being the United States of America. The scheme entitles all primary carers earning up to $150,000 in adjusted taxable income to a period of up to 18 weeks of paid leave at a rate of $589.90 per week, which is payable by the government through employers. The right applies to all employees, contractors and the self-employed, as long as they were being paid for work and meet the minimum requirements in respect of work done in the months prior to the birth of the child.

So, in my case, with my wife acting as the primary carer to our child, I am entitled to some leave but will not get any pay for it. That is set to change on 1 January 2013 when fathers and other eligible partners will receive two weeks Dad and Partner Pay. It looks like I have had my child a year too early.

You would have thought that I would know better.


Edward Mallett is a specialist employment law barrister, and Managing Director of Employsure. Employsure is a total risk management solution for employers, protecting them against workplace relations issues such as unfair dismissal, discrimination, breach of contract and harassment in the workplace – all for a fixed annual fee. Follow them on twitter.



Edward Mallett

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