Unpaid parental leave proposed to be extended to 100 days in Protecting Worker Entitlements Bill

2 May 2023

Last month amendments were made to the Paid Parental Leave Act that increased the amount of time parents can claim as paid parental leave and removed restrictions which previously limited the accessibility of paid leave to both parents. You can read our article on these related changes to paid parental leave here.

On 29 March 2023 the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (the Bill) was introduced to Parliament by the Federal Government. This Bill contains proposed amendments to the Fair Work Act 2009 which will improve the protection of worker entitlements in several areas such as the certainty of the work status of migrant worker and including the entitlement to superannuation as a National Employment Standard. However, this article will primarily focus on the changes made to unpaid parental leave, which are complementary to the amendments recently made to the paid parental leave scheme. The following amendments will not take effect unless the Bill is passed by both houses of Parliament. The key changes are:

  • Employees will be allowed to take up to 100 days of flexible unpaid parental leave.
  • Employees will be able to use their unpaid parental leave at anytime in the 24 months following the birth of their child or the placement of a child for adoption.
  • Unpaid parental leave will be able to be taken up to 6 weeks before the expected birth or placement date of a child.
  • If an employee takes early unpaid parental leave it contributes to their use of the 100 days they are allowed after the birth.
  • There is a notice requirement that the employee gives their employer 10 weeks’notice before starting continuous leave. There is an exception to this requirement in situations where a child’s birth is unexpectedly early to take into account premature births and other complications.
  • Flexible unpaid parental leave is able to be taken before or after a continuous period of unpaid leave.
  • The current restriction that prevents two parents from taking more than 8 weeks of unpaid parental leave at the same time is removed.

If the Bill is passed the modernisation of the unpaid parental leave system will provide parents with more options to choose from when raising children including by allowing employees to intersperse their workdays with days of unpaid leave flexibly.

Being able to access unpaid parental leave 6 weeks before the birth or placement of a child will provide employees with more opportunity to have the time to prepare both themselves and their home for a child. This amendment has been designed with the purpose of strengthening existing provisions that protect the health of pregnant employees.

The above changes will only be implemented once the Protecting Worker Entitlement Bill is enacted. There is currently no change to how employers process unpaid parental leave.

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