Paid Parental Leave

Under the Fair Work Act 2009, eligible employees in Australia have a workplace right to take 12 months of unpaid parental leave, as well as access 20 weeks of statutory Parental Leave Pay. The Paid Parental Leave Scheme is a federal welfare measure intended to provide financial support for working parents of newborn children or recently adopted children. Some employers also offer it as part of the employment contract, enterprise agreement, or industrial award.

Government-funded paid parental leave

The Commonwealth Government introduced the Parental Leave Pay Scheme in 2011 to provide support for eligible working parents to stay at home after having a baby or adopting a child. Employees can access this scheme:

  • when they have (or will have) care of a child;
  • after working continuously for their current employer for at least a year immediately before the date/expected date of the child’s birth/adoption;
  • when they will continue as an employee during their parental leave pay;
  • when they are an Australian citizen, have a permanent visa, special category visa or some varieties of temporary visa; and
  • when they expect to receive eight weeks or more of parental leave pay.

In order to be eligible, the person must be the primary carer of the child, met the income test and work test, not work during the leave period except for allowable reasons, and (for a newborn) register the birth in the jurisdiction. This financial support is either paid directly to the parents by Centrelink or passed on via the employer. For babies born or adopted after 1 July 2025, eligible parents will also receive a 12% contribution to their superannuation fund on top of their government-funded paid parental leave.

Employees cannot work while on paid parental leave in Australia. However, they can return to work before the end of their leave period for Keeping in Touch days, or other allowable reasons.

The scheme currently provides for parents to receive a maximum of 20 weeks at the National Minimum Wage, with each parent in a couple required to access at least two weeks of the leave. This is an amalgamation of the previous two types of parental pay: Paid Parental Leave and Dad and Partner Pay. Sole parents receive all Parental Leave Pay days.

The scheme was extended under the Paid Parental Leave Amendment (More Support for Working Families) Bill 2023. By 2026, the total entitlement under this scheme will be 26 weeks, with four weeks reserved for each parent on a “use it or lose it” basis. This change is intended to encourage greater sharing of parental care responsibilities between co-parents.

Employment leave

Employees may also be entitled to paid parental leave from their employer. Some employment contracts, enterprise agreements, and workplace policies contain provision for paid parental leave, though this varies across companies and industries. In fact, an employee can receive Parental Leave Pay at the same time as they take any type of paid or unpaid employment leave. This includes annual leave, sick leave, maternity and parental leave. For instance, an employee might take the full 18 months while taking four weeks of annual leave from their employer, followed by six weeks of paid maternity leave, and eight weeks unpaid.

Legal right to parental leave

Australia has strict legal protections for workplace rights, including the right to parental leave. It is included in the National Employee Standards and applies to all employees in the Australian workplace system, regardless of any other contract, agreement, or award. As such, an employer cannot refuse a parental leave request, though they can refuse to extend parental leave. Any refusal of extended leave must be based on genuine concerns that the employee’s absence would impact productivity, finances, and customer services.

Right to return to work

Parental leave rights include the legal right for the employee to return to the same position they held prior to taking leave. If their role no longer exists, the employee must be placed in a role of equal salary and stature to their original position.

Adverse action

Under the Fair Work Act, it is unlawful for an employer to take adverse action against an employee based on their pregnancy, sex, gender identity, breastfeeding, marital status, or family or carer’s responsibility. In addition, an employer must not discriminate against an employee due to their sex, pregnancy, or family responsibilities when making employment decisions. Adverse action is an injury to a person’s employment, a detrimental alteration of their position or discrimination against the employee. This adverse action may be an actual action or the threat of taking adverse action.

Please contact the employment law team at Go To Court Lawyers on 1300 636 846 with any questions about your legal entitlement to paid parental leave, or for advice about workplace discrimination and adverse action.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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