Frequently Asked Questions
Q: What are the eligibility requirements for unpaid parental leave under the Fair Work Act?
In order for casual employees to be eligible for unpaid parental leave, they must satisfy the following criteria under s 67 of the Fair Work Act:
- the employee is, or will be, a long term casual employee of the employer immediately before the date, or expected date, of birth or placement of the child, or the date on which the employee’s leave is to start; or
- but for the birth or placement of the child, or the taking of the leave, the employee would have had a reasonable expectation of continuing employment with the employer on a regular and systematic basis.
You may have noticed that unpaid leave is only available to ‘long term’ casual employees – which means that the employee must have been employed on a regular and systematic basis during a period of at least 12 months, as outlined under s 12 of the FWA.
Similar to the definition of ‘casual employee’, there is no formulaic approach to employment on a ‘regular and systematic basis’. However, case law regarding the matter has stated that the work must be regular and systematic, rather than specifically looking to the hours and the days of work. Therefore, a defined pattern of rostered hours may be a strong indicator of regular and systematic employment, along with the offer to the employee to undertake work – and regular acceptance of available work by the employee may also be considered as evidence of regular and systematic employment, as was noted in Ponce v DJT Staff Management Services Pty Ltd  FWA 2078.