When an employee takes Parental Leave under the National Employment Standards (“NES”), the Fair Work Act 2009 (Cth) (“Act”) has special rules for that leave if the employee is a member of an ‘employee couple’ who each intend to take leave. Many employers believe that these rules only apply if the couple is employed by the same employer, however this is not the case.
Employee Couple Entitlements
The NES provides for eligible employees the basic entitlement to take unpaid parental leave. The NES also provides other related entitlements, including section 72, which contains special provisions to allow members of an ‘employee couple’ to share parental caring responsibilities equally and/or separately.
The Act defines an employee couple as two national system employees where each of the employees is the spouse or de facto partner of the other.1 The Act does not contain any other provision which limits this definition to mean that the two employees must be employed by the same employer. This means that the employee couple provisions apply to all eligible employee couples, including members of a couple who are employed by two different national system employers.
Managing these Entitlements
In order to assess an employee’s entitlement to parental leave under the NES, the employer will need to know whether the employee’s spouse or partner is a national system employee and what entitlements the spouse or partner intends to (or does) access. The employer should obtain evidence that would satisfy a reasonable person of this information. This could include, for example, obtaining reasonable evidence directly from the employee, such as a statutory declaration, obtaining the relevant contact details and permission to contact the employer of the employee’s spouse or partner directly.
Confirming an employee’s entitlement to parental leave as an employee couple should form part of the employer’s standard process for assessing applications for parental leave. Your standard process should comply with the criteria for eligibility in the NES to minimise the risk of disputes in relation to the leave, including disputes in relation to the quantum/timing of the leave, the return date, or the employee’s pre-leave duties and conditions.
EMA Note Subscribers have access to the EMA Consulting Parental Leave Checklist for this purpose. Click here to access the checklist. This is a free resource which you can use to assess leave applications. Alternatively you can use it to review your existing process. We can provide specialist advice to suit the particular needs and objectives of your organisation if required. Please note that if you have an enterprise agreement, contract, or policy which contains additional provisions relating to parental leave (such as paid parental leave), these issues should also form part of your process for assessing leave applications.
Require further information/assistance?
If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices
1 Act, s 12.