Parental leave entitlements in Australia

Paid and unpaid parental leave entitlements in Australia

Updated 11 September 2023

The parental leave system in Australia consists of a combination of entitlements, including unpaid parental leave under the Fair Work Act (Cth) (FW Act), government funded paid parental leave and employer funded parental leave. Parental leave is often referred to as maternity leave, however, today’s modern parental leave system provides entitlements for a much broader cohort than the birth mother.

In this blog, we look at the various parental leave entitlements for employees upon the birth or adoption of a child.

Unpaid parental leave

The National Employment Standards (the NES) provides all employees (including casual employees) with the entitlement to unpaid parental leave, which consists of:

  • birth and adoption related leave;
  • flexible parental leave;
  • pre-adoption leave; and
  • special maternity leave.

Flexible unpaid parental leave

If an employee returns to work before their available 12-month unpaid parental leave period, they will be entitled to up to 30 days of flexible unpaid parental leave.

The flexible unpaid parental leave comes out of the employee’s entitlement of 12 months of unpaid parental leave. Therefore, it is important to note that it is not an additional entitlement.

Some of the primary considerations related to the taking of flexible unpaid parental leave include the following:

  • It is a maximum of 30 working days with a minimum period of one day at a time;
  • Days can be taken consecutively or separately, as agreed between the employee and employer; and
  • It must be taken before the child turns two, or for adopted children, within two years of the date of placement.

Notice when applying for flexible unpaid parental leave

An employee must give their employer notice that they intend to take unpaid flexible parental leave at the same time they give notice that they are taking unpaid birth or adoption parental leave.

If the employee is not taking a period of unpaid birth or adoption parental leave, then the employee must provide at least 10 weeks’ notice before starting the flexible unpaid parental leave. However, the notice may be given at a later time if their employer agrees.

The notice must specify the total number of days of flexible unpaid parental leave that the employee intends to take in relation to the child.

If the employer agrees, the employee may:

  • reduce the number of flexible days, including by reducing the number of days to zero; or
  • increase the number of flexible days up to a maximum of 30 days.

The number of days of flexible unpaid leave that the employee takes must not be more than the number of flexible days notified to the employer.

An employee must also give their employer written notice of a day on which they will take flexible unpaid parental leave at least 4 weeks before that day or as soon as practicable (which may be a time after the leave has started). However, the employee may change the day on which they take flexible unpaid parental leave from a day that was specified in their notice, if their employer agrees.

Taking of flexible unpaid parental leave

Flexible parental leave can be used any time within the first 24 months from the date of birth or adoption of a child to whom the unpaid parental leave relates, as:

  • a single continuous period of one or more days; or
  • separate periods of one or more days each.

An employee may take flexible unpaid parental leave after taking unpaid parental leave provided that the total does not exceed 12 months.

Notably, an employee’s entitlement to any unpaid parental leave, (that is, not flexible parental leave) ends on the first day the employee takes flexible unpaid parental leave. This means that if the employee is to take another type of unpaid parental leave under the parental leave provisions of the FW Act, the leave must be taken before the employee takes the flexible unpaid parental leave. If an employee is planning to take a period of continuous unpaid parental leave, then they should do so before they take flexible parental leave.

An employee can also take flexible parental leave on the same day their partner is on unpaid parental leave. However, as previously noted, the two employees can only take a total period of up to 8 weeks of unpaid parental leave at the same time.

If an employee gives birth to multiple babies (i.e. twins, triplets, etc.) or adopts more than one child at the same time, the employee will only be entitled to a maximum of 30 days unpaid flexible parental leave, rather than 30 days for each child.

Unpaid pre-adoption leave

Employees (including casual employees) are entitled to take 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.

However, an employee is not entitled to take a period of unpaid pre-adoption leave if:

  • the employee could instead take some other form of leave, such as annual leave; and
  • the employer directs the employee to take that other form of leave.

Notice when applying for pre-adoption leave

As with the notice required to be provided for special maternity leave (see below), an employee is required to provide their employer notice of their intent to take pre-adoption leave as soon as practicable, which may be a time after the leave has started. This notice also must specify the period, or expected period, of the leave.

Employer may seek evidence for pre-adoption leave

If an employee has provided notice to take unpaid pre-adoption leave, then an employer may ask the employee to provide evidence that would satisfy a reasonable person to demonstrate that they have to attend interviews or examinations to obtain approval for the adoption of a child.

The types of evidence that an employee can provide may include an appointment confirmation letter from an adoption agency.

An employee is not entitled to take unpaid pre-adoption leave unless they have provided their employer with notice and evidence if requested by the employer.

Unpaid special maternity leave

After 12 months continuous service, a female employee is entitled to a period of unpaid special maternity leave if she is not fit for work because:

  • she has a pregnancy-related illness; or
  • the pregnancy ends after a period of gestation of at least 12 weeks.

If the child is stillborn, the female employee may be entitled to the 12 months unpaid maternity leave.

If a female employee has an entitlement to paid personal/carer’s leave, she may take that leave instead of taking unpaid special maternity leave.

Notice when applying for special maternity leave

An employee must give her employer notice of the taking of unpaid special maternity leave.

The notice must:

  • be given to the employer as soon as practicable, which may be a time after the leave has started: and
  • advise the employer of the period, or expected period, of the leave.

Employer may seek evidence for special maternity leave

An employer may ask the employee to provide evidence that would satisfy a reasonable person to demonstrate that the employee is taking special maternity leave because she has a pregnancy-related illness or the pregnancy ended. An employer may request that the evidence provided by the employee be a medical certificate.

An employee is not entitled to take unpaid special maternity leave unless they have provided their employer with notice and evidence if requested by the employer.

Dad and Partner Pay

Dad and Partner Pay provides eligible fathers or partners with up to two weeks pay at the rate of the national minimum wage.

An employee is eligible to access Dad and Partner Pay if they are:

  • the child’s biological father, adoptive parent of the child, partner of the birth mother or adoptive parent, or the person caring for a child of a surrogacy arrangement;
  • meet the income, residency and work tests;
  • not working during their Dad and Partner Pay period, unless they:
    • need to work to comply with a court ordered summons;
    • are a defence force or law enforcement officer working due to a compulsory recall to duty; or
    • are a health professional, emergency services worker or other essential worker, responding to a state, territory or national emergency; and
  • taking care of the child during the Dad and Partner Pay period.

Employer funded paid parental leave

Employers may also provide its employees with an entitlement to paid parental leave, either through an enterprise agreement or employment contract. The amount of paid parental leave an employee is entitled to depends on the terms of the relevant enterprise agreement or employment contract.

Other entitlements under the Fair Work Act

Under the NES parental leave provisions, employees are also entitled to a range of other benefits, including:

  • for pregnant employees, to be moved to a safe job because if it isn’t safe for them to do their usual job because of their pregnancy, whether they are entitled to take unpaid leave or not;
  • paid leave if there is no safe job for a pregnant employee to be transferred to, for employees who are entitled to take unpaid parental leave;
  • unpaid leave if there is no safe job for a pregnant employee to be transferred to, for employees who are not entitled to take unpaid parental leave; and
  • a return to work guarantee upon the unpaid parental leave ending.

Get help from an employment lawyer

If you’re experiencing any issues with your employment, including issues related to parental leave (paid or unpaid), you should contact your Union or one of our award-winning employment lawyers for advice and assistance.

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au


  This article relates to Australian law; either at a State or Federal level.

The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances. For further information, please do not hesitate to contact Hall Payne Lawyers.


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