With changes to the Paid Parental Leave Act 2012 (Cth) and the Fair Work Act 2009 (Cth) coming into effect from 1 October 2012, it's important and timely for employers to review and update their parental leave policies. While the Paid Parental leave scheme for dads and partners is government funded, there are a range of other changes that employers need to consider. Many practices regarding keeping in touch days, and replacement employees are now legislative obligations. For details see our summary of the parental leave changes.
The Fair Work Act 2009 (Cth) (FW Act) has been amended so that a person on unpaid parental leave can agree to attend work for "keeping in touch days". "Keeping in touch days" must not be taken within 14 days of the date of birth of a child (or of placement) and are capped at 10 days for each period of leave. If an employee is paid for attending work for the "keeping in touch day", any statutory maternity pay or paternity pay can be offset against that contractual payment. No pressure can be applied to obtain an employee's consent to attend work on these days.
From 1 October 2012, under the Fair Work parental leave can be cancelled if a child dies after being born or the pregnancy ends before the child is born. Cancellation is only available where leave has not yet commenced. If the leave has commenced, there are specific return to work notice provisions which allow the employee or employer to request a return to work in these circumstances.
Employers will also required to inform any replacement employee that their employment is temporary and that an employee on parental leave has rights to cancel leave, return from leave early and also return to work at the end of unpaid parental leave.
The Paid Parental Leave Act 2010 (Cth) (Paid Parental Leave Act) has been amended to provide for two weeks' paid dad and partner's leave from 1 October 2012.
Dad and partner's pay will be available to eligible full-time, part-time, casual, seasonal, contract and self-employed fathers or carers who satisfy the same work, income test (earning less than $150,000 per annum) and Australian residency requirements that apply to parental leave pay. The recipient can be a father, a same or different sex partner or an adoptive parent. He (or she) also needs to have a child, who is born or adopted on or after 1 January 2013. Dad or partner's pay is paid in addition to any employer-funded leave or unpaid leave but cannot be received at the same time as any employer-funded leave or while the father or carer is working. It is not paid by the employer but is a government-funded initiative. It is paid at the rate of the national minimum weekly wage rate, currently $606.40 per week. In situations of multiple births (such as twins) there is only a single entitlement and the entitlement is not payable to more than one person in relation to a child.
It's time to review your parental leave policies in light of the changes to parental leave under the Fair Work Act. While previously it was a matter of good practice to ensure that replacement employees were aware of the temporary status of their employment, this is now a legislative obligation. Employers should ensure that they have written evidence that they have done this. Keeping in touch days can be used to ensure, for example, that an employee's knowledge and skills base are kept up to date. Care must be taken to ensure that the employee genuinely consents to attending work for this purpose and that no undue influence is applied by the employer.
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