It may happen that an employee falls pregnant with less than 12 months separating the births of the children; so, how is such a situation regarded from the aspect of unpaid parental leave.
Q: We have an employee who is four months into a total absence of twelve months of unpaid maternity leave.
She is due to return in May 2013. She has worked for the company for approximately 18 months prior to commencing unpaid parental leave.
A work colleague of the employee has indicated that this employee has again fallen pregnant, with the baby due soon after the employee returns from the current period of parental leave.
The National Employment Standards (NES) state the employee must have completed 12 months continuous service with the employer to qualify for a period of unpaid parental leave.
Does this mean the employee must return to work for an additional 12 months before she can claim another period of unpaid parental leave?
A: The employee would not be required to work for another 12 months to qualify for another period of unpaid parental leave.
Under the NES, an employee (including a long-term casual employee) must have completed at least 12 months continuous service with the employer before the birth of the child to be eligible to take unpaid parental leave.
For the purposes of parental leave, ‘continuous service’ is defined in s22(4) of the Fair Work Act 2009 to mean ‘the employee’s period of service with the employer other than any period of unauthorised absence’.
The effect of this definition is that an employee’s absence from work on unpaid parental leave does count as service for the purpose of determining the employee’s entitlement to a later period of unpaid parental leave, even though it does not count as service for the purpose of accruing other entitlements under the NES, such as paid annual leave or paid personal/carer’s leave.
Unpaid parental leave is not a period of unauthorised leave. Examples of ‘unauthorised absence’ include when an employee has abandoned his or her employment, is engaging in industrial action or is otherwise absent from work for a period contrary to a direction made by an employer.