What you need to know about your legal entitlements now that you’re a parent

As if infants aren’t enough of an enigma (why are they crying? Why won’t they go to sleep?), understanding your legal entitlements can be tricky as a new parent. You may have been concentrating on familiarising yourself with the entitlements in the lead-up to having a baby, but now you’re a parent, your entitlements look a little different.  

We are now going to revisit what you need to know about your legal entitlements. Buckle up. There’s a lot to cover.  

Unpaid parental leave  

An employee who is taking a period of 12 months of unpaid parental leave may also request one extension of a further 12 months (bringing the unpaid leave to 24 months in total). This request can be refused on reasonable business grounds. Unpaid parental leave is available to both parents, even concurrently.  

Flexible parental leave  

You may take up to 100 days of unpaid parental leave (flexible unpaid parental leave) during the 24-month period starting on the date of birth or day of placement of the child. Flexible unpaid parental leave may be taken as follows:  

• A single continuous period of one or more days. 

• Separate periods of one or more days each.  

Flexible unpaid parental leave comes from the employee’s entitlement to 12 months of unpaid parental leave. Other unpaid parental leave must be taken before the flexible unpaid parental leave commences.  

Dads and partners  

Since  July 2023, parents can share Parental Leave Pay with each other and take up to 10 days simultaneously. To encourage fathers and partners to take more parental leave, part of Parental Leave Pay is reserved for each parent to use. In this ‘use or lose it’ scheme, unused days will be lost if not used before a child turns two. Single parents will be able to get the total amount of Parental Leave Pay. 

Payments are now 22 weeks, and the total Parental Leave Pay available to families will  increase by two weeks each July, until 2026, when it will be 26 weeks of paid leave. 

For more on the new changes to Parental Leave Pay, visit the Services Australia website.  

Return to Work Guarantee  

Employees are guaranteed to return to their pre-parental leave position immediately after a period of parental leave.  

If someone was employed in your role during the parental leave period, that position must have been advertised and filled as a temporary parental leave replacement role (a maximum-term contract is recommended in these circumstances).  

If you as the returning employee moved to a safe job before the pregnancy or agreed to a flexible working arrangement (e.g. reduced hours), you are entitled to go back to the same position you had before the move or flexible arrangement.  

If your pre-parental leave position no longer exists, then you are entitled to any other available position which is nearest in status and pay to your pre-parental leave position and for which you are qualified and suited. 

You are also entitled to request flexible work arrangements when returning to work from parental leave.  

Flexible Work Arrangements  

Under the Fair Work Act 2009 (FW Act), an employee who is pregnant, or is a parent or responsible for caring for a child who is school-age or younger can request a Flexible Work Arrangement.  

This may include an employee requesting:  

• A reduction in working hours or days. 

• Applying to work on a part-time or job-sharing basis. 

• Applying for a change of responsibilities or duties, such as mentoring or training staff. 

• Training opportunities such as upskilling or reskilling.  

Where a request for Flexible Work Arrangements is made under the FW Act, you as the employee must make it in writing to the employer.  

The written request needs to clearly outline the following:  

• The change sought. 

• The reasons for the change.  

Discrimination  

The Sex Discrimination Act 1984 makes it unlawful to discriminate against a person because of their sex, gender identity, intersex status, sexual orientation, marital or relationship status, family responsibilities, because they are pregnant or might become pregnant, or because they are breastfeeding.  

Sex discrimination occurs when someone is treated less favourably than someone of the opposite sex would be treated in the same or similar circumstances. It can happen when employers assume what sort of work pregnant women are capable, or not capable, of performing. Or assuming fathers won’t want to take a long period of parental leave.  

It is unlawful for an employer to take adverse or discriminatory action against an employee for a prohibited reason. Examples of adverse action include when an employer dismisses an employee, alters their position to their detriment, or discriminates between them and other employees because of their pregnancy or another prohibited reason. 

It is also unlawful to discriminate against breastfeeding people, including those who need to express milk. For example, it may be discrimination if an employer does not allow staff to take short breaks at particular times during the day. This may disadvantage parents who are breastfeeding as they may need to take breaks to express milk.  

Additionally, it is against the law for employers to discriminate directly against a person because of their responsibilities to care for an immediate family member. This includes caring for a spouse or de-facto partner, child, grandchild, brother, sister, parent or grandparent. It is good practice for businesses to take positive steps to help employees meet their family responsibilities.  

Employers have a legal responsibility not to discriminate against employees and to take all ‘reasonable steps to prevent discrimination. ‘Reasonable steps’ depend on the size of the organisation, current policies and procedures, and how it deals with allegations of discrimination.  

Now that we’ve covered legal entitlements, you might want to read about the common thoughts that can be affecting your mental health at this time.