On-going consultation

Employees who are on unpaid parental leave still require on-going consultation and consideration, particularly when it comes to changes to the employee's pre-parental leave position and their return to work.

Importantly, an employer has an on-going obligation to consult with an employee who is on unpaid parental leave about any decisions that may have a significant impact on the employee's pre-parental leave position, pay, or location of work.

While this may seem straightforward, it does require the employer to be proactive and not reactive. The employer cannot simply notify the employee of decisions. Rather, the employer must engage with the employee and discuss with them changes to their role, the impact such changes may have on the employee, and then listen to the concerns and feedback of the employee.

Can an employee work while on parental leave?

Should you require an employee to perform work while they are on unpaid parental leave, you can request what is known as a "keeping in touch" day. Simply put, a "keeping in touch day" allows an employee to perform work for an employer while they are on unpaid parental leave so as to help facilitate the employee's eventual return to work.

Employers must exercise care when arranging a "keeping in touch" day with their employee. For example, an employee can only work up to 10 "keeping in touch" days in any single unpaid 12 month period, all of which must be paid as if each "keeping in touch" day were an ordinary day of work.

Furthermore, an employer cannot request a "keeping in touch" day within 42 days of the day of birth or placement of a child (though an employee can request a "keeping in touch" day as long as more than 14 days from the date of birth or placement of the child has elapsed).

Finally, employers must remember that, while they can request that an employee work a "keeping in touch" day, ultimately, the employer must obtain the employee's consent (though such consent cannot be unreasonably withheld).

What about an employee who wants an additional 12 months parental leave?

An employee who has taken 12 months unpaid parental leave can request to take up to an additional 12 months unpaid parental leave. The employee must make the request in writing, and the employer must respond in writing as soon as practical thereafter, and in any event within 21 days of the employee making the request. The employer can either accept or refuse the request, but an employer can only refuse the request on reasonable business grounds. Before refusing the request, the employer must first have given the employee a reasonable opportunity to discuss their request.

What about returning to work?

An employee on unpaid parental leave has an entitlement to return to the same role they had prior to taking unpaid parental leave. This is known as the "return to work guarantee".

This guarantee regularly causes confusion amongst employers, particularly where an employee's pre-parental leave role no longer exists or they have placed another employee in that role for the time being.

As mentioned above, the employee must be consulted on decisions that affect their role, even while they are on unpaid parental leave. Should the employee's role no longer exist, but they are qualified and able to perform another vacant role, then the employee is entitled to be placed in that vacant role upon their return to work. Should there be two vacant roles, the employee is entitled to return to the vacant role that is nearest in status and pay to their pre-parental leave position.

If there are no vacant roles whatsoever, then the employee's employment will end by way of redundancy. While you can make an employee's role redundant when the employee is on unpaid parental leave, such a redundancy will only be legal if there is a valid operational reason for the redundancy. Any requirement to consult pursuant to a Modern Award, Enterprise Agreement or a Contract of Employment must be complied with. The fact that the employee is on unpaid parental leave at the time cannot influence the decision to make the employee's role redundant.

What about the employee who helped fill in?

Believe it or not, rules and regulations surrounding unpaid parental leave even extend to employees who fill in for others who are on unpaid parental leave!

When engaging an employee to fill in for another employee who is going on unpaid parental leave, you must tell that employee that their engagement is temporary and that the employee who is on unpaid parental leave is entitled to return to their role when their leave ends.

Importantly (and something that employers often forget) you must tell the replacement employee that you, as the employer, have the right to end the other employee's unpaid parental leave early should something unforeseen happen to the child or should the employee cease having responsibility for the care of the child.

The above is a snapshot of the various rules and regulations surrounding unpaid parental leave. As an employer, it is vitally important that you obtain professional advice when it comes to managing employees who are on unpaid parental leave or who are returning from unpaid parental leave. It would be our pleasure to assist. Call Sharrock Pitman Legal today on 1300 205 506.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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