Changes to the parental leave provisions under the Fair Work Act 2009 (Cth) strengthen access to unpaid parental leave by both parents of a child born or adopted from 1 July 2023, and help families to share work and caring responsibilities. This article summarises the changes and provides some practical guidance on how unpaid parental leave can be taken and how it interacts with other leave.

What Is Unpaid Parental Leave?

Unpaid parental leave under the Fair Work Act 2009 (Cth) (Fair Work Act) is a period of unpaid leave to help care for a child that can be taken after an:

• employee gives birth
• employee's spouse or de facto partner gives birth
• employee adopts a child under 16 years of age.

As the name implies, this is an entitlement to take leave from work without pay. Paid parental leave (where you take leave and receive pay) is a separate entitlement. For more information on paid parental leave, see Services Australia.

What Are the Changes to Unpaid Parental Leave From 1 July 2023?

Changes to the unpaid parental leave provisions under the Fair Work Act strengthen access to unpaid parental leave for both parents of a child born or adopted from 1 July 2023, and help families share work and caring responsibilities.

The changes:

• entitle both parents to take up to 12 months of unpaid parental leave, regardless of the amount of leave that the other parent takes
• remove the distinction between primary carer and “dad or partner”
• remove the eight-week limit on the amount of time that parents can be on unpaid parental leave at the same time (“concurrent leave”). There is now no limit and no reference to concurrent leave
• mean that both parents have a right to request an extension of up to 12 months after the initial 12 months’ unpaid parental leave, without impacting the amount of leave available to the other parent (certain procedures must be followed by an employer in considering and deciding those requests)
• increase the amount of “flexible parental leave” days which both parents can take as a proportion of their 12-month unpaid parental leave entitlement, up from 30 days to 100 days
• allow pregnant employees to access their flexible leave entitlement up to six weeks before the expected date of birth of their child
• remove or amend gendered language, for example, references to “maternity leave” are now “parental leave”.

The Department of Employment and Workplace Relations, Australian Government's factsheet provides more information about these changes under the Fair Work Act. The Fair Work Ombudsman has also updated their guidance on parental leave, with some information on parental leave to be released at a later date.

How and When Can an Employee Take Their Unpaid Parental Leave?

The entitlement to 12 months’ Unpaid Parental Leave may be taken:

• as a single continuous period
• flexibly for up to 100 days
• as a combination of a continuous period and flexible days.

This period can be extended to 24 months, if the employer agrees to the extension.

Except for pregnant employees, the Unpaid Parental Leave may only start from the child’s date of birth or day of placement of an adopted child and must end within 24 months of the child’s date of birth or date of placement (including any flexible days).

In certain circumstances, pregnant employees may start their Unpaid Parental Leave (including any flexible days) in the six weeks prior to the expected date of birth of the child (or earlier if the employer agrees).

The Fair Work Ombudsman’s website provides practical guidance on how Unpaid Parental Leave can be taken, including these two examples:

Example: Taking Flexible Unpaid Parental Leave

Catherine is a new parent who has returned to work after 10 months of continuous unpaid parental leave.

As part of her parental leave request, she asked to take an additional 20 days of unpaid parental leave flexibly in the months following her return to work.

Catherine has specialist appointments to attend and other commitments to help care for her child, so she will use flexible parental leave to manage this.

Before starting her flexible parental leave, Catherine gives her employer more than four weeks’ notice of the specific days that she will be taking flexible parental leave to attend the appointments.

On the days of the appointment, Catherine is entitled to take the day off work but she won’t be paid. This is because flexible parental leave under the Fair Work Act is unpaid.

Example: Employee Taking Continuous and Flexible Unpaid Parental Leave

Tom is a full-time employee and is expecting the birth of his first child with partner Sarah. They both want to take unpaid parental leave.

Tom has planned his parental leave to be at the same time that Sarah is taking parental leave to help care for the baby.

Tom is taking six months of continuous unpaid parental leave starting on the date of the child’s birth. Sarah, who is pregnant, will take 12 months’ continuous unpaid parental leave.

Tom knows that in the child’s first year they will need to get vaccinations and attend specialist appointments. Because of this, Tom requests to take an additional 28 days of flexible unpaid parental leave after the initial six-month period to help manage these commitments.

In total, Tom will take six months of continuous unpaid parental leave and 28 days of flexible unpaid parental leave.

Just like Catherine, Tom is entitled to take these day off work but he won’t be paid. This is because flexible parental leave under the Fair Work Act is unpaid.

Other Leave Entitlements During Unpaid Parental Leave (Including the Federal Government’s Paid Parental Leave Scheme)

During Unpaid Parental Leave, employees can take some other leave entitlements such as:

• any annual leave that they have accumulated
• long service leave (if the law in their state or territory allows it)
• compassionate leave (only in certain circumstances).

However, employees cannot take paid sick/carer’s leave or community services leave (such as jury service).

The Paid Parental Leave Scheme is administered by Services Australia and provides financial support for eligible parents. This scheme is separate to unpaid parental leave and employer-funded paid parental leave. Employees can receive pay under the Paid Parental Leave Scheme before, after or at the same time as their paid and unpaid leave entitlements, including unpaid parental leave.

What Should Aged Care Providers Do About the Changes to Unpaid Parental Leave?

Aged care providers should:

• review and update their parental leave policies and procedures (including any leave application form/s) for staff who will take Unpaid Parental Leave for a child born or adopted from 1 July 2023
• review their HR, payroll and record-keeping systems to ensure capacity for managing continuous and flexible Unpaid Parental Leave and other paid parental leave entitlements
• inform staff that Unpaid Parental Leave entitlements have changed for those who plan to take Unpaid Parental Leave for a child born or adopted from 1 July 2023.