On 22 June 2023, the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (the Bill) passed both Houses bringing about major changes to parental leave under the Fair Work Act 2009 (Cth) (FW Act).
The provisions of the FW Act will now align with the amendments to the Paid Parental Leave Act 2010 which was amended earlier in the year.
Employers should be aware of these changes as they will impact all parental leave (outside of Company initiatives), that is to be taken from 1 July 2023.
Summary of major changes
The major changes in the Bill include:
- allowing both parents to commence parental leave, at any time in the 24 months following the birth or placement of their child;
- increasing the number of flexible parental leave days parents can take from 30 days up to 100 days over a 24-month period;
- enabling pregnant employees to access some of the 100 days flexible entitlement up to six weeks before the expected date of birth of their child;
- removing restrictions that prevent employees who are married or in a de facto relationship from taking more than eight weeks of unpaid parental leave at the same time;
- allowing both parents to take up to 12 months’ unpaid parental leave over 24 months, regardless of the amount of leave the other parent takes; and
- allowing both parents to request an extension of up to an additional 12 months, without impacting the amount of leave available to the other parent.
Provisions relating to ‘employee couples’ have been removed. All employees (as long as they are eligible) can take up to 12 months’ unpaid parental leave (UPL
) and request a further additional 12 months of UPL, regardless of how much leave their spouse or partner takes, up to a total of 24 months each
An ‘employee couple’ is defined as two national system employees who are the spouse or de facto partner of each other.
Prior to the amendment, employee couples could only take leave concurrently for a maximum of eight weeks, with limitations on how the leave could be taken. The Bill provides that employees will be allowed to take UPL concurrently without limitation
This means that employees can take leave at the same time as part of their individual 24-month UPL entitlement.
Flexible Unpaid Parental Leave
Since November 2020 employees had been able to take up to 30 days flexible UPL (in addition to 10 ‘keeping in touch’ days) from the date of birth or placement. This has now been increased to 100 days
of flexible UPL. Given the Government’s plan to increase paid parental leave entitlements to 26 weeks, the door has also been left open for the Fair Work Regulations to prescribe a higher number of flexible days in the future to align with such an increase.
Pregnant employees can also now take their flexible UPL during the period starting six weeks prior to
expected date of birth of the child. Any flexible UPL accessed would be deducted from the employee’s overall entitlement to 100 days of flexible UPL.
Period of Leave
Each parent will be able to access 12 months’ UPL, with the option to extend for another 12 months.
Employees are still required to have 12 months’ service prior to being eligible to take UPL. There has been some amendment to the way in which the 12 months' service is determined, the relevant date will now be:
- For birth-related leave starting before the birth of the child or Unpaid special parental leave - the expected date of birth of the child; or
- In any other case – the date on which the employee’s period of leave is to start, which can be anytime within the first 24 months of the child’s birth/adoption.
All employers should consider reviewing their parental leave policies and practices as a matter of priority to ensure they are compliant with these changes which commence from 1 July 2023.
ABLA has updated its template parental leave policy which is ready for use. However, we also encourage clients to contact us directly for assistance updating their own policy. Please get in touch with our workplace and employment team at email@example.com or call 1300 565 846.