Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 72A

Taking leave during 24 months starting on date of birth or day of placement

  (1)   An employee may take up to 100 days (or, if a higher number of days is prescribed by the regulations, that higher number of days) of unpaid parental leave ( flexible unpaid parental leave ) during the 24 - month period starting on the date of birth or day of placement of the child if the requirements of this section are satisfied in relation to the leave.

Note 1:   The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental leave under section   70.

Note 2:   The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection   74(3C) (subject to any agreement under subsection   74(3D)).

  (2)   Flexible unpaid parental leave under subsection   (1) is available in full to part - time and casual employees.

Taking leave that starts up to 6 weeks before the expected date of birth of the child

  (2A)   A pregnant employee may take unpaid parental leave ( flexible unpaid parental leave ) during the period that starts 6 weeks before the expected date of birth of the child if the requirements of this section are satisfied in relation to the leave.

Note 1:   The flexible unpaid parental leave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental leave under section   70.

Note 2:   The number of days of flexible unpaid parental leave that the employee takes must not be more than the number of flexible days notified to the employer under subsection   74(3C) (subject to any agreement under subsection   74(3D)).

  (2B)   Flexible unpaid parental leave under subsection   (2A) is available in full to pregnant part - time employees and pregnant casual employees.

  (2C)   The amount of flexible unpaid parental leave to which an employee is entitled under subsection   (1) in relation to the child is reduced by the number of days of flexible unpaid parental leave taken by the employee under subsection   (2A) in relation to the child.

How flexible unpaid parental leave may be taken

  (3)   The employee must take the flexible unpaid parental leave as:

  (a)   a single continuous period of one or more days; or

  (b)   separate periods of one or more days each.

Effect of taking unpaid parental leave under other provisions

  (4)   The employee may take the flexible unpaid parental leave whether or not the employee has taken unpaid parental leave under another provision of this Division in relation to the child.

  (5)   However, the employee may take flexible unpaid parental leave after taking one or more periods of unpaid parental leave under another provision of this Division only if the total of those periods (disregarding any extension under section   76A) is no longer than 12 months, less the employee's notional flexible period.

Meaning of notional flexible period

  (6)   An employee's notional flexible period is the period during which the employee would be on flexible unpaid parental leave if the employee took leave for all the employee's flexible days in a single continuous period. For this purpose, the employee's flexible days are the flexible days notified to the employer under subsection   74(3C) (subject to any agreement under subsection   74(3D)).

  (7)   For the purposes of subsection   (6), assume that:

  (a)   the employee ordinarily works each day that is not a Saturday or a Sunday; and

  (b)   there are no public holidays during the period.

Multiple births

  (10)   An employee is not entitled to take flexible unpaid parental leave in relation to a child if:

  (a)   the child and another child:

  (i)   are born during the same multiple birth; or

  (ii)   are both placed with the employee for adoption and have the same day of placement; and

  (b)   the employee takes flexible unpaid parental leave in relation to the other child.

Interaction with section   71

  (11)   Flexible unpaid parental leave taken by an employee is an exception to the rules in section   71 about:

  (a)   taking the employee's unpaid parental leave in a single continuous period; and

  (b)   when the employee's period of unpaid parental leave must start.

  (12)   Despite anything in subsection   (11), flexible unpaid parental leave cannot be used to break up a period of unpaid parental leave taken under section   71.