Flexible unpaid parental leave

What is flexible unpaid parental leave?

Flexible unpaid parental leave (UPL) allows employees to take some of their UPL in separate blocks of at least one day, instead of one continuous period.

The amount of UPL that an employee can take as flexible UPL depends on the date of birth or adoption:

*The number of weeks of flexible UPL aligns with government-funded parental leave pay entitlements.

Who is entitled to take flexible UPL?

All employees who are eligible to take UPL are entitled to flexible UPL.

Full-time, part-time and casual employees are entitled to UPL if they have been employed for at least 12 months. For casual employees, the 12 months must be worked on a regular and systematic basis.

When and how can employees take flexible UPL?

All eligible employees can take flexible UPL starting from the date of birth (or adoption).

Pregnant employees can also take flexible UPL in the six weeks before the expected date of birth (i.e. before starting continuous UPL).

For all eligible employees, flexible UPL must end within 24 months of the date of birth (or adoption).

What are the notice and evidence requirements for flexible UPL?

Notice requirements

10 weeks before the date of birth or adoption, an employee must give their employer written notice of the number of days of flexible UPL they intend to take. There is no requirement to specify the dates on which the employee intends to take flexible UPL at this point.

If an employee only intends to take flexible UPL, the employer can agree to a shorter notice period than 10 weeks.

4 weeks before a period of flexible UPL, or if it is not practicable to give 4 weeks’ notice, as soon as practicable, an employee must give their employer written notice of the day(s) on which the employee will take flexible UPL.

An employer may agree to a request by the employee to reduce or increase the number of flexible UPL days and/or to change the date(s) on which the employee takes it.

Evidence requirements

The evidence requirements for flexible UPL are the same as for continuous UPL.

In summary, if required by their employer, an employee must give the employer evidence that would satisfy a reasonable person of:

• the date (or expected date) of birth of the child. The employer can require the employee to provide a medical certificate for this purpose, or
• the day (or expected day) of placement of the child.

Key take aways

• Employers and employees should ensure that arrangements for UPL and flexible UPL are made well in advance. Pregnancy, birth and adoption can be unpredictable. Planning the leave in line with the notice requirements in the Fair Work Act will mean one less thing for the employer and employee to worry about if the employee needs to finish work earlier than expected.
• Employers should review their leave policies to ensure they include up to date information and procedures in relation to flexible UPL.
• The Fair Work Ombudsman’s website contains further flexible UPL information and resources for employers and employees.