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The Fair Work Act 2009 (Cth) provides specific obligations on employers who engage ‘replacement employees’ to cover for periods of parental leave.

If you engage an employee to cover for a period of unpaid parental leave, section 84A of the Fair Work Act 2009 (Cth) (“FW Act”) obliges you to notify the replacement employee of specific details before engaging them, including:

  • that the engagement to perform work is temporary;
  • that the employer and the employee taking unpaid parental leave have a right to cancel the leave in certain circumstances under the FW Act;
  • that the employee taking unpaid parental leave has a right to end the leave early in certain circumstances under the FW Act;
  • that the employee taking unpaid parental leave has a legislated right to return to work in the position (return to work guarantee); and
  • that the employer can require the employee taking unpaid parental leave to return to work under certain circumstances of the FW Act.

These requirements are part of the National Employment Standards of the FW Act. Therefore, each individual breach of these requirements can incur a maximum penalty of $12,600 (or $126,000 for a serious contravention).

Because it is crucial that you provide the necessary details to any replacement employees before engagement, we recommend this be done in the letter of offer. This EMA Note only summarises the requirements – to comply, they need to be worded very specifically.

Require further information/assistance?

If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices.

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