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FAQ's - Paid parental leave & RTW entitlements

The Federal Government Family Assistance Office has published some useful information about Paid Parental Leave – here’s an extract below. These FAQ’s will be valuable for parents wishing to know more about their paid parental leave eligibility. We’ve added some Q and A’s around returning to work too. NOTE: The most accurate and up to date information on Paid Parental Leave entitlements is published by Department of Human Services, Centrelink - Click here.

What is Paid Parental Leave?
The Australian Government is planning to deliver Australia’s first national Paid Parental Leave scheme from 1 January 2011. Paid Parental Leave:

  • is funded by the Australian Government
  • is for mothers who have been working before the birth of their child
  • can be transferred to the other parent
  • is paid at the National Minimum Wage – currently $543.78 a week before tax
  • lasts up to 18 weeks
  • can be taken any time in the first year after birth
  • is also available to adoptive parents

What are the benefits of a Government-funded Paid Parental Leave scheme?
The Government’s Paid Parental Leave scheme is fair for families and fair to business. By providing time for parents to spend at home with their newborn baby the scheme will help promote early childhood development and maternal health. 
The Government’s Paid Parental Leave scheme will help employers enhance the family friendly workplace conditions many already offer.
The scheme will provide long-term benefits for business as more women of child bearing age stay connected with the workforce and their careers. It will help employers retain their skilled staff.

Who is eligible for the scheme?
Mothers of babies born on or after 1 January 2011 may be eligible for Paid Parental Leave. The initial primary carer of a child under 16 years of age who is adopted on or after this date may also be eligible.
You may be eligible for Paid Parental Leave if you:

  • are the mother of a newborn child
  • are the initial primary carer of a recently adopted child
  • have met the Paid Parental Leave work test before the birth or adoption occurs
  • have an individual income of $150,000 a year or less, and
  • are living in Australia and you are an Australian citizen or permanent resident.

You may be eligible even if you are no longer employed. Women in seasonal, casual, contract and self-employed work may be eligible.
Decisions that people make now about work could affect their eligibility for Paid Parental Leave. However, in planning people should take into account that the Government’s proposed Paid Parental Leave scheme is yet to be passed by Parliament and may still change.

What is the work test?
You meet the Paid Parental Leave work test if you:

  • worked continuously for at least 10 of the 13 months prior to the birth or adoption of your child
  • worked at least 330 hours in that 10 month period (just over one day per week)

You may be regarded as working continuously even if you:

  • work part-time or casually
  • have multiple employers, or
  • have recently changed jobs.

As long as you did not have more than an eight week break between working days in the 10 month period, you will be regarded as having worked continuously. A working day is a day on which you worked for at least one hour.

Does the scheme cover all people who work?
Yes. Full time workers are eligible. You may also be eligible for the scheme if you:
  • are a part-time, casual or seasonal worker
  • have multiple employers
  • are a contractor or self-employed
  • have recently changed jobs, or
  • are between jobs or on unpaid leave for no more than 8 weeks at a time
  • and meet the Paid Parental Leave scheme work test and other eligibility criteria.

If I already receive maternity leave from my employer, am I still eligible for Paid Parental Leave?
Yes, you will be able to receive Parental Leave pay before, after or at the same time as employer-provided paid and unpaid leave, such as parental leave, recreation or annual leave and long service leave.

Can I still work whilst receiving Parental Leave pay?
No. You will not be able to work while receiving Parental Leave pay, but you may engage with the workplace under the ‘Keeping in Touch’ provisions.

What if I have to return to work before the end of the 18 weeks?
If you return to work before you have received all of your 18 weeks of Parental Leave pay, your payments will stop. Your partner may be able to receive any unused Parental Leave pay.

Is my partner eligible for Paid Parental Leave?
Paid Parental Leave can be transferred to the child’s other parent to give families more options to balance work and family.  The transfer can even occur before the start date of the Paid Parental Leave period. In this case an eligible partner could receive the full 18 weeks of Parental Leave pay.
A transfer of Paid Parental Leave can occur if you have claimed and are eligible to receive Paid Parental Leave and:

you have not used all (or any) of your Paid Parental Leave; and

your partner becomes the primary carer of your child; and

your partner is eligible under the residency, income and work tests to receive Paid Parental Leave from the time they become the primary carer.

For example, a mother may decide that she will take Parental Leave pay for the first 14 weeks and then return to work. The remaining four weeks of Parental Leave pay may be transferred to the father, provided he is eligible and is the primary carer.
Claims for Paid Parental Leave must usually be submitted by the child’s mother or in the case of adoption, the parent who is the initial primary carer.  If you wish to transfer unused Parental Leave pay to your partner, they will also need to lodge a claim.

Q. What if I am not eligible for Paid Parental Leave?
If you are not eligible for Paid Parental Leave or choose to not receive it, you may be eligible for the Baby Bonus and Family Tax Benefit (Part A and Part B) under the usual rules.

Q. Would I be better off taking Paid Parental Leave or the Baby Bonus?
Every individual family’s circumstances are different. You can choose to receive the Baby Bonus instead of Paid Parental Leave if it suits you better.
The Government estimates that more than 85 percent of families will be better off receiving Paid Parental Leave.  These families will on average receive around $2,000 more than if they chose the Baby Bonus.  This is after tax has been paid and all interactions with other family assistance have been taken into account.
To help you make the best choice for you and your family, an online estimator will be available later in the year in time for you to apply for Paid Parental Leave.

Q. If I take Paid Parental Leave, can I still get the Baby Bonus?
Generally, parents receiving Paid Parental Leave will not receive the Baby Bonus. In cases of multiple births, for example twins or triplets, the Baby Bonus will be paid for the second and subsequent children, subject to eligibility requirements.
Parents who are not eligible for Paid Parental Leave, or choose not to take it, may still be able to get the Baby Bonus and other family assistance, under the usual rules.

Q. If I’m eligible for the Paid Parental Leave scheme, what do I need to do? 
Before you claim Paid Parental Leave, you should plan your caring and work arrangements for the 12 months following the birth or adoption.
You should organise your leave from work at least 10 weeks before you want your leave to start.
Next, you should lodge your claim for Paid Parental Leave.  You can lodge your claim up to three months before the expected date of birth or adoption of your child.
The first claims will be accepted from 1 October 2010. The Family Assistance Office will assess your eligibility.
For more information about paid parental leave in Australia see Fair Work Australia’s website on paid parental leave scheme

Q: Can my employer force me to take maternity leave?
A: Generally no. If your baby is born on a weekend, you can return to work on the following Monday if you wish. If you are employed by a ‘corporation’ and you do choose to take maternity leave, the current federal law stipulates that you take at least 6 weeks from the date of your child’s birth.
It is possible to take annual or long service leave (which is paid) instead of maternity leave (which is often unpaid).

Q: How does maternity leave affect my employment conditions and benefits?
A: Maternity leave does not break your continuity of service with your employer. However, unless provided in your specific contract or award, time away from work on maternity leave will not contribute to your annual or long service leave accruals.

Q: How long do I need to be with my employer before I can take maternity leave?
A: As a full-time or part-time employee you must have worked with your employer continuously for 12 months before you can take an initial period of maternity leave.

Q: If I have already taken maternity leave, do I need to work another 12 months before taking maternity leave again?
A: No.

Q: Can I take maternity leave if I am employed on a casual basis?
A: If you have been employed by one employer for at least 12 months, on a regular and systematic basis and if you had a reasonable expectation of ongoing employment, then you will be entitled to up to 52 weeks unpaid maternity leave.

Q: Can I have a longer period of maternity leave if I am having twins or triplets?
A: No. If, on the other hand you have two babies within one year (for example, one in January and a second in December), you are entitled to two periods of maternity leave

Q: Can my employer insist I take maternity leave either before or after the baby is born?
A: Generally no.

Q: Can I start maternity leave before the baby is due?
A: Assuming you and your employer agree, you can start your maternity leave up to six weeks prior to the expected birth date.

Q: Can my spouse take paternity leave at the same time I take maternity leave?
A: No. However, your spouse may be eligible for up to one week’s unpaid ‘short’ paternity leave at the time of the child’s birth. Your spouse may also be eligible to take annual or long service leave while you are on maternity leave. Check with your manager or Human Resources representative, and ask your spouse to do the same at their place of work to clarify each of your entitlements. Some employers offer up to a week’s paid paternity leave at the time of the child’s birth.

Q: Can I be dismissed because I am pregnant or while I am on maternity leave?
A: No. It is illegal for your employer to dismiss you either because you are pregnant or because you have applied for maternity leave. If this situation arises, seek professional advice.

Q: Can my employer hire someone to do my job while I’m on maternity leave?
A: Yes they can. This will be on a temporary basis for the period of your maternity leave. When you return from leave to your role, the replacement person will need to find an alternative position.

Q: Can I use my paid sick leave entitlements for pre-natal check-ups with my doctor?
A: There is no law regulating use of sick leave for pre-natal check-ups. Check with your manager and Human Resources representative to determine the policy regarding this in your workplace. 124 Working Parents Toolkit

Q: What is special maternity leave?
A: Special maternity leave is taken by a female employee to recover from a terminated pregnancy or when the mother is experiencing illness due to the pregnancy. You may be able to take standard sick leave as an alternative.

Q: My employer has asked me to come back to work to help out. How does this affect my maternity leave?
A: If you agree to this arrangement, ensure the details of the interruption to your maternity leave are documented. You can return to your maternity leave after having completed the required work. Generally the maternity leave must still be completed by your child’s first birthday unless your employer agrees to and approves an extended period.

Q: Can I work part-time before I start maternity leave?
A: Yes you can, if the part-time arrangement is negotiated and agreed with your employer. If a medical condition requires you to work part-time / flexibly and your doctor provides written advice, then your employer will need to comply accordingly.

Q: Can I choose to return to work part-time or under a more flexible working arrangement if I had previously held a full-time position?
A: Yes you can, if the part-time or flexible arrangement is negotiated and agreed to by your employer. You should find out what flexible work policies exist within your organisation for further information.

Q: What happens if my previous position no longer exists when I return to work?
A: If there is a similar job for which you are qualified, and the status and pay are comparable to your previous job, you may be entitled to that job. If there is no comparable job available, you may be entitled to a redundancy package.

Q: Can I resign from work while I am on maternity leave?
A: Yes, but you are still required to comply with stipulated notification periods. Refer to your employment contract or company policy to confirm the requirement.

Q: What if my employer refuses to grant me the return to work arrangements I would like?
A: If you have not been able to negotiate a mutually favourable return to work arrangement, contact your HR or union representative or alternatively the Office of Workplace Services (1300 724 200) for advice on your options and entitlements.

Q: What happens if I return to work and I don’t feel it’s working out?
A: Talk to your manager and identify what is concerning you the most. Brainstorm ways to resolve or alleviate the issues. Renegotiate working arrangements or care arrangements to better accommodate your situation (even if it’s just on a temporary basis until things change or improve for you).

Q: Where can I go to find out more information about my rights and entitlements?
Disclaimer: the answers to these questions are intended as a guide only. Refer your specific questions to your manager or Human Resources representative; Fair Work Australia or the Family Assistance Office to clarify the situation in your workplace and what your entitlements might be.

Sources: Maternity At Work, February 2007; NSW Department of Commerce, Office of Industrial Relations.  Fair Work Australia 2010 For more information go to PAID PARENTAL LEAVE Questions and Answers – Australia Department of Human Services


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