There are many ways employees can now start a family – natural conception, IVF, surrogacy and even adoption. Employers may find themselves wondering what leave applies, and how to manage leave requests when an employee begins this stage of life.

Often when referring to taking leave for the birth of a child, it is called ‘maternity leave’. Maternity leave technically no longer exists as the Australian government shifted to the term ‘parental leave’ in 2011 when the Paid Parental Leave Scheme was introduced for both mothers and fathers, and covered the adoption of children, not just giving birth to a child.

Pregnant employees

Permanent employees are eligible to take unpaid parental leave if they have worked for their employer for 12 months by the time the leave begins, and the employee will have the responsibility of caring for a child. Casual employees are also entitled to unpaid parental leave if they have worked on a regular and systematic basis for at least 12 months and have an expectation of ongoing employment.

Unpaid parental leave can begin for the pregnant employee up to 6 weeks before the birth of the child. If a pregnant employee wants to work in the 6 weeks leading up to the birth, a medical certificate will be required stating that they are fit to work and fulfill the duties of their position.

Pregnant employees are also entitled to take special unpaid parental leave if they are unfit for work because they have a pregnancy-related illness or they have a pregnancy loss after 12 weeks and the baby is not stillborn. In the unfortunate event that a miscarriage occurs, the employee can take unpaid parental leave as well as compassionate leave.

IVF treatments

Currently, private sector employees do not have an entitlement to specific leave for IVF treatments unless offered by an employer. Employees may request to take personal leave to attend IVF appointments, but it is not necessarily an entitlement. Personal leave under the Fair Work Act 2009 is to be taken when an employee is either ill or injured. Attending IVF appointments does not fall under this definition so it is at the employer’s discretion whether they will allow the employee to take personal leave for these appointments or whether they will have to, instead, access annual leave.

Surrogacy

There are circumstances where an employee may become a parent through a surrogacy arrangement. Even if the employee is not giving birth to a child, if they have worked with the employer for 12 months, the employee will be entitled to 12 months unpaid parental leave, provided the leave is associated with the birth of a child of the employee or their spouse/de facto partner and the employee will have the responsibility to care for the child.

The surrogate parents – the person who is pregnant and gives birth and their partner are also entitled to take unpaid parental leave. The employer may request the employee to return to work if they no longer have the responsibility to care for the child with 4 weeks written notice, but no earlier than 6 weeks after the birth of the child.

The intended parents – the people who will raise the child after it is carried by another on their behalf are entitled to unpaid parental leave once they become the legal parent of the child born to the surrogate.

Adoption

Employees can access unpaid parental leave when they adopt a child under the age of 16 years. There are also 2 days of unpaid leave employees can access prior to the adoption placement to attend interviews or examinations. When attending further pre-adoption matters, an employer may direct an employee to take another type of leave instead, such as annual leave.

How can Business Chamber Queensland help?

If you need support in a parental leave matter, our Workplace Advisory team can help.

Our Workplace Advisory team provides insight, support and resources to guide you in making informed business decisions, helping you avoid issues around workforce management including in parental leave matters. Business Chamber Queensland Business Essentials and Business Evolve members can make unlimited calls to our Workplace Services Hotline for Human Resources support. Plus, all Business Chamber Queensland members can access Workplace Consulting Services at discounted rates.