Business Owners Franchising NSW

The 3rd National Employment Standard (NES) provides for at least 12 months unpaid parental leave for your full-time employees who have worked in your business for at least 12 months, and for your long term casual employees who would have an ongoing expectation of employment.

Note, this NES is extended to apply to State System employees as well as Federal System employees. The NES provide the statutory minimum entitlements which will become law from 1 January 2010. You can agree to provide more generous entitlements.

The NES provides entitlements which are greater than those which exist under current employment law.

Unpaid parental leave (“parental leave”) includes birth and adoption-related leave. The entitlements to both forms of leave are similar; however this article will deal only with birth-related leave, and only the main features of the new law.

Your employee is normally only entitled to take unpaid parental leave in a single continuous period, and must give you at least 10 weeks written notice of the parental leave start and end dates.

If your employee is not part of an employee couple, and is the female employee who is giving birth, then parental leave must commence either in the six week period before the expected birth date or on the day of the birth. If your employee is the spouse or partner of a female non-employee who is giving birth, the leave must commence on the day of the birth.

An employee couple exists if your employee has a spouse or de facto partner who is also an employee – whether within your business or not.

If your employee is part of an employee couple, then both your employee and their partner can take up to 3 weeks parental leave at the same time – this is concurrent leave. Concurrent leave is to begin on the date of the child’s birth. Concurrent leave can be extended to 6 weeks if you agree.

Other than where concurrent leave is taken, members of an employee couple cannot take parental leave at the same time. The couple must take their parental leave consecutively. That is, upon one member of the couple completing their parental leave, the other member must commence their parental leave.

Importantly, an employee is able to request an additional period of unpaid parental leave of up to 12 months (extended parental leave). The request must be in writing and given to you at least 4 weeks before your employee’s scheduled return date, and you must provide a written response to the request no later than 21 days after receiving the request.

If you refuse the request, your response must include the reasons for your refusal. You can only refuse such a request on reasonable business grounds. We expect reasonable business grounds may include, for example, any likely detrimental financial impact on your business, or likely detriment to your ability to organise work amongst your employees.

Any request for extended parental leave can only be made by your employee if he/she will first be taking their full entitlement to 12 months parental leave. In addition, if your employee is a member of an employee couple the employee’s partner’s entitlement to parental leave is reduced by the period of the extension.

Importantly, the NES permits same sex de facto partners to take parental leave.

I trust this has been of interest. If you have any questions, please do not hesitate to contact our Employment Law Team.


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