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.

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Alexandra Grayson

Maurice Blackburn Sydney

Alexandra (Alex) Grayson is a Principal Lawyer who manages the Employment and Industrial Relations Practice of Maurice Blackburn’s Sydney office. She has almost 20 years’ experience in industrial relations, including almost a decade as a labour lawyer. The prestigious Doyles Guide lists Alex as a recommended lawyer for employees and trade union representation in NSW in 2018 and her team as one of the top law firms …

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