Parental leave entitlements for LGBTI employees

Families come in all shapes and sizes. This diversity is reflected in new models of parenting; no longer is it a given that mum stays home with the kids while dad brings home the bacon. No longer is it a given that a household will have a mum and a dad. Many parents across Australia belong to the LGBTI community and parental leave is increasingly reflecting this changing face of families.

Under the Fair Work Act, the National Employment Standards provide unpaid parental leave for all Federal Government and Victorian Government employees, and for most private sector employees. If you work for a state government (other than Victoria) or for a local government authority, these standards may not apply, so make sure you seek advice.

The Fair Work Act is gender neutral and non-discriminatory. Under it, LGBTI employees have exactly the same rights as everyone else – including parental leave entitlements.

Know your rights

An employee must have completed 12 months of service to be entitled to unpaid parental leave. Parental leave is for the primary caregiver regardless of their gender or sexual orientation, and they are entitled to 12 months’ leave. The secondary caregiver (if applicable) is entitled to concurrent leave of up to eight weeks in total.

It’s possible for two employees to share parental leave consecutively. One employee may be the primary caregiver for the first few months, with the second employee taking over immediately afterwards. The leave must be taken in a single continuous period.

An employee is entitled to apply for an additional 12 months of unpaid parental leave. However, under the Fair Work Act, their employer is not required to grant the request.

There are two types of unpaid parental leave: birth related and adoption related.

Birth-related leave

To be entitled to birth-related leave, an employee must have completed 12 months of service leading up to the expected date of birth. Note the emphasis on expected date: if your 12-month service coincides precisely with your expected due date, say 10 June, but you give birth a few days early, 8 June, you’re still entitled to the leave.

Adoption-related leave

To be entitled to adoption-related leave, an employee must have completed 12 months of service leading up to the day of placement. Employees are also entitled to two days’ unpaid pre-adoption leave. However, if they have other leave available (that is, annual leave), the employer may require them to take that instead.

Other requirements for adoption-related leave are:

  • the child must be under 16
  • the child can’t have lived continuously with the employee for a period of six months
  • the child can’t be the child of the employee’s spouse or de facto partner.

Know your responsibilities

An employee must comply with notice requirements to be entitled to parental leave. They must give their employer written notice 10 weeks before starting the leave (or, if that’s not practicable, as soon as practicable). The notice must include the intended start and end dates. Four weeks before their leave, the employee must confirm these dates.

Surrogacy and foster arrangements

The Fair Work Act does not specifically cover surrogacy. Given there is little uniformity in surrogacy laws, parental leave entitlements may differ state by state. If an LGBTI employee plans to have a child via surrogacy, they should seek legal advice.

Foster arrangements are also not specifically covered by the Act. If the leave relates to a birth (that is, the birth of a foster child), then birth-related leave would apply.

Carer’s leave

Carer’s leave comes under personal leave, which has been extended to include providing care or support for an employee’s immediate family and members of their household. This could include your child, your partner’s child or your partner.

Enterprise Bargaining Agreements

Many workplaces have Enterprise Bargaining Agreements (EBAs) tailored to meet the needs of their employees. These are negotiated by either union representatives (on behalf of the employees) or by nominated employee representatives.

If your employer has an EBA you may be entitled to additional parental leave – sometimes paid parental leave. Paid leave is accessed concurrently with unpaid leave and employees must comply with their EBA’s notice requirements.

In line with the Fair Work Act, gender-neutral language is becoming more common in EBAs. There’s been a move away from references to ‘maternity’ and ‘paternity’ towards ‘primary and secondary caregivers’. This means that, as time passes, the LGBTI community is getting greater access to paid parental leave under EBAs.

However, there may be some EBAs that, by their language, exclude LGBTI employees from accessing the same entitlements as their non-LGBTI colleagues. The Fair Work Act provides that EBAs must not use discriminatory terms and the EBA may be open to challenge on the basis that it’s discriminatory. If you’re an LGBTI employee unable to access your EBA’s parental-leave entitlements, seek independent legal advice.

TOPIC: Employment law

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Alana Heffernan

Maurice Blackburn Sydney
Alana Heffernan is a Senior Associate in Maurice Blackburn's employment department in Sydney. She is listed by the prestigious Doyles Guide as a member of one of the top law firms for employee & trade union representation in NSW in 2017. Alana provides tailored advice and assistance in relation to a broad range of industrial and employment issues including dismissals, discrimination, disputes, issues related to professional registration, adverse action complaints, workplace investigations, disciplinary proceedings and contract issues. She has a comprehensive understanding of the employment and discrimination legal frameworks, and is experienced in appearing before the relevant courts and tribunals, as well as negotiating out-of-court settlements. “There is an inherent imbalance of power in the employment relationship and I enjoy assisting employees to access their rights, entitlements and fairness. I am able to provide creative solutions for issues faced by senior managers and executive clients, including with respect to statutory and common law rights. I have significant experience advocating for my clients, both directly with employers and their lawyers, as well as at relevant tribunals and courts,” says Alana. “I am creative and leave no stone unturned when it comes to finding practical solutions for my clients. From the outset, I work with my clients to develop a strategy for resolution and achieving the best outcome. “I am driven by helping clients achieve fair outcomes that protect their financial and reputational interests. I have worked across many industries and have a deep understanding of the tactics employers use against employees. These tactics vary greatly across industries and employers and I ensure my approach is tailored to the circumstances. I work hard to ensure my clients are in the best position possible to continue in their career, either with their current employer or with a future employer.” Alana has a particular interest in anti-discrimination law and has actively advocated for amendments to anti-discrimination law to include protections for victims of domestic violence. These proposed amendments have been supported and advocated for by various community and legal peak bodies, as well as the Australian Council of Human Rights Agencies. Some of Alana’s other significant achievements include: obtaining court orders preventing an employer from altering her client’s working conditions negotiating agreements that include reinstatement stopping employers from engaging in unlawful discrimination against clients negotiating settlements for clients that not only provide significant compensation, but also protect their professional reputation representing clients in a Royal Commission, and successfully appealing a decision of the Fair Work Commission in relation to allegations of unlawful industrial action. Alana regularly advocates for the rights and entitlements of the LGBTIQ community, and her diverse employment relations experience benefits from having worked for community organisations, unions and the (then) Department of Employment and Industrial Relations.  Memberships & accreditations Law Society of NSW member Industrial Relations Society of NSW member Awards Employment & Workplace Health Safety, Doyle's Guide 2016 Women's Law Association of Queensland Emergent Lawyer of the Year Finalist, 2015 Lawyers Weekly 30 Under 30 Workplace Relations, Employment & Safety winner, 2015  ...

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