There are many couples who upon having a child either through birth or adoption, will decide to share their parental leave entitlements and in doing so, will need to take into account of matters such as: how they will utilise their unpaid parental leave entitlements; how much leave do the employee couple actually have; and parental leave pay entitlements, are just some of the considerations a couple may need to take into account.
When can a couple share their parental leave entitlements?
First and foremost, in order for a couple to be able to share their leave entitlements, they must actually be able to do so under the unpaid parental leave provisions found in Division 5 of Part 2-1 of the Fair Work Act (the FWA) and the parties must meet the following criteriathey are an employee;
- the leave requested must be associated with either a birth or adoption of a child (s 70(a));
- the person who is requesting leave must or will have a responsibility in caring for the child (s 70(b));
- the person has been employed with the same employer on a continuous basis for at least 12 months (s 67); and
- if the person is a casual employee, they must be a long term employee who has a reasonable expectation of continuing employment on a regular and systematic basis (s 67(2)).
How is an employee defined in the Fair Work Act?
Both parties of the employee couple must be a national system employee, and both must also be working for a national system employer, as defined in s 14 of the FWA which includes the following entities:
“(a) a constitutional corporation, so far as it employs, or usually employs, an individual; or
(b) the Commonwealth, so far as it employs, or usually employs, an individual; or
(c) a Commonwealth authority, so far as it employs, or usually employs, an individual; or
(d) a person so far as the person, in connection with constitutional trade or commerce, employs, or usually employs, an individual as:
(i) a flight crew officer; or
(ii) a maritime employee; or
(iii) a waterside worker; or
(e) a body corporate incorporated in a Territory, so far as the body employs, or usually employs, an individual; or
(f) a person who carries on an activity (whether of a commercial, governmental or other nature) in a Territory in Australia, so far as the person employs, or usually employs, an individual in connection with the activity carried on in the Territory.”
How much unpaid parental leave is a couple entitled to?
An employee couple is entitled to up to 24 months of unpaid parental leave, which can be shared or divided between the two, with each member of the employee couple able to take up to 12 months of unpaid parental leave under s 70 of the FWA.
However, an employee couple should be mindful, that if one of the couple chooses to extend the period of leave beyond 12 months, then that extension will be deducted from the unpaid leave of the other party. Furthermore, if a couple does extend their unpaid parental leave beyond 12 months, then there is no extension which will be allowed beyond 24 months after birth or placement (s 76(6)).
How much parental leave pay is an eligible couple able to receive?
Under the provisions of s 11 of the Paid Parental Leave Act (the PPL Act) an eligible couple is able to receive 18 weeks pay after the birth or adoption of a child. However, only one member of the employee couple is able to take up parental leave pay, and furthermore, the entitlement must be claimed before the first birthday of the child, or the first anniversary of the child’s adoption as outlined in s 11 of the PPL Act. It’s also important to note, the parental leave pay entitlement will not be granted on the day, or after, the first birthday of the child, or the first anniversary of the adoption of the child, but it can be claimed at any stage before the child’s first birthday, or the first anniversary of the child’s adoption.
If you have any questions or concerns in regards to your parental leave entitlements, please seek the assistance of a lawyer who will be able to advise you of your entitlements.
