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Parental Leave Entitlements for LGBTI Employees

Employment Law

Following the legalisation of same-sex marriage in late 2017, more and more same-sex couples are contemplating their options to start a family. Often these choices are affected by work conditions such as parental leave entitlements. But what exactly are LGBTI employees entitled to?

Unpaid parental leave – the basics

Applying to most employees in Australia, the National Employment Standards (NES) comprise of the 10 minimum entitlements an employer can provide, one of which is parental leave. Under the Fair Work Act, an employee must have completed 12 continuous months of service to be eligible for unpaid parental leave. This can also include casual employees if they have been employed regularly over at least 12 months, and if there would be a reasonable expectation of that continuing but for the birth or adoption of their child.

Rather than basing eligibility for leave around who birthed the child, the majority of parental leave is for the primary caregiver who is entitled to 12 months. The secondary caregiver is entitled to concurrent leave of up to 8 weeks. The title of primary caregiver can alternate from one parent to the other but the leave must be taken in a single continuous period.

The Fair Work Act, which applies to all Federal government and most private sector employees, is gender neutral. It enables a same-sex de facto partner of a person who gives birth, or the same-sex de facto partner of the person who is the biological parent of the child to take birth-related leave. Some other workplaces will have an Enterprise Agreement (EA) negotiated most likely by a Union representative. In recent years, there has been a move away from terms like ‘maternity’ and ‘paternity’ and, instead, an adoption of gender neutral terms in these EBAs such as ‘primary’ and ‘secondary’ caregivers.

To be eligible for unpaid parental leave, an employee must give written notice 10 weeks before commencing leave (or as soon as practicable) and it should particularise start and end dates. These dates must then be confirmed with at least 4 weeks’ notice.

Unpaid leave types

Unpaid parental leave is generally one of two types – birth-related or adoption-related leave. If birth-related, the date of relevance is the due date of the child.

If adoption-related, it’s the date of placement. Further, the child must be under 16, can’t have already lived with the employee for six months, and can’t be the child of the employee’s spouse or de facto partner. Employees are also eligible for 2 days of unpaid leave before the placement occurs, however if the employee has other leave available, they may be required to use that instead.

There also exists unpaid special maternity leave, only for the employee who is pregnant, for a pregnancy-related illness or for the end of a pregnancy resulting in still-birth or miscarriage within 28 weeks of the due date.

Paid Parental Leave

Under the Government’s Paid Parental Leave Scheme, the primary carer of a baby or adopted child may be eligible to up to 18 weeks of paid leave at the rate of the national minimum wage.

Some employees will be entitled to paid parental leave through their award, or an employment agreement or policy. In this case, the employee is not disqualified from applying for paid leave from the Government and could receive both. Paid parental leave does not affect or replace unpaid parental leave entitlements LGBTI employees may already have from the Fair Work Act, any EBA or other employment contract.

LGBTI employees who are not the partner birthing a child are also given a modest payment under the Government’s ‘Dad and Partner Pay’ scheme. On application, two weeks of paid leave can be given to a biological father, an adoptive parent or partner of an adoptive parent, or partner of the birth mother, subject to fulfilling a range of other conditions around income and leave dates.

Employer obligations – paid leave

If your employee applies for and is successful in getting the government-funded paid parental leave, you must keep certain records relating to details of the payment receipt from the government and grant to the employee.

A basic overview of employer obligations can be found here:
https://supportingworkingparents.humanrights.gov.au/employers/

Other types of leave

Like all employees, LGBTI employees are entitled to apply for a further 12 months of unpaid parental leave but there is no requirement under the Fair Work Act for the employer to grant that request.

‘No safe job leave’ is another type of paid leave under the Fair Work Act that essentially only applies to a pregnant employee that can no longer perform their regular job safely. Evidence, usually a medical certificate, will be needed to prove that they are fit for work but unable to continue their role because of risks associated with pregnancy or inherent risks in their current role. If the employee is eligible for unpaid leave, then, they can be paid out for the duration of the ‘risk period’. Alternatively, if not eligible for unpaid leave, then they become eligible for unpaid ‘no safe job’ leave for the risk period.

Surrogacy arrangements

The Fair Work Act does not explicitly deal with unpaid parental leave for LGBTI employees conceiving through surrogacy, however the Australian Government’s paid parental leave does include those who conceive through surrogacy. It is best to seek legal advice to find out exactly what an employee’s entitlements may be if they are having a child through surrogacy,

If you are seeking to address discrimination, work health and safety issues, as well as issues arising from the Fair Work Act in relation to LGBTI future parent employees, contact the team at AV Lawyers today.