Taking parental leave

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Leave options for Dads

There are lots of different leave options available for dads to take time off during the birth and first year of their child’s life. Options include long vs short term leave, employer vs government paid leave and even unpaid leave that you can take concurrently with your partner. There is little consistency across organisations in what each leave type is called, and it may even be given a more generic label of 'parental' or 'paternity' leave. If you are a new dad or soon to be dad, you should speak to your HR representative as your first port of call to discuss available options.

Outlined below are brief descriptions of the common types of leave available for dads, with further details set out in the following section.

1. Employer-paid parental leave options:

  • Primary carer leave: Long-term paid leave available to the parent who takes on the primary duties for caring for the baby. The company may require evidence that you are the primary carer and your partner is back at work or university. Leave is paid by the employer, with the length and any conditions set out in the organisation's parental leave policy. The average length of primary carer leave in Australia is 10 weeks at full pay.

  • Secondary carer leave: Short-term leave available to the partner / spouse of the primary carer, typically to be taken immediately from the birth of the child. Leave is paid by the employer. The average length of secondary carer leave in Australia is 7.3 days at full pay.

2. Government-paid parental leave options (or 'Paid Parental Leave (PPL) scheme'

  • Parental Leave Pay: long-term leave offered to the primary carer, but paid by the government (via the employer). As not all employers offer primary carer leave, the government offers 18 weeks pay at the national minimum wage for eligible primary carers. The 18 weeks offered is per 'couple', not per parent, but can be shared by both parents sequentially. E.g. the mother might take the first 10 weeks, leaving the father the remaining 8 weeks. Both mother and father cannot claim parental leave pay at the same time, as only one parent can claim to be the primary carer at any point in time. It is also means tested.

  • Dad and Partner Pay (DAPP): short-term leave (two weeks paid at the national minimum wage) offered to the partner / spouse of the primary carer. The recipient is paid directly (not via the employer) and is claimable through Centrelink. Eligibility criteria applies(see below for more details).

3. Unpaid leave options

  • Individual unpaid leave: a parent can take unpaid leave of 12 or 24 months (if agreed with the employer) and have their role held by their employer. For dads, access to and timing of this leave is impacted by the employment status of his spouse/partner and whether they have or will also be accessing unpaid leave. If both parents are employed, they can also both take unpaid leave separately for up to 12 months each, as long as the leave is taken continuously e.g. with the dad commencing unpaid leave the day his partner / spouse returns to work.

  • Concurrent unpaid leave: unpaid leave of up to 8 week for parents who are married or in a de facto relationship that can be taken at the same time. This leave must be taken within 12 months of the birth or placement of the child. Concurrent leave can be taken in multiple periods of at least 2 weeks each. For couples with immediate family overseas, I highly recommend a strategy of combining this unpaid leave with annual leave to spend a significant amount of time with your distant family if you can afford it (and enjoy spending time with them!)

4. Non ‘Parental Leave’ options

Parents can also access other forms of leave provided by their employer, such as:

  • annual leave and long-service leave; and

  • sick / carer's leave (which may be agreed to be used upon the birth of the child).

A few more details...

1. Employer-paid parental leave options

‘Paid parental leave’ can mean something different to dads than it does for mums. For mums, paid parental leave typically refers to the extended period of paid leave taken upon the birth of the child when the mother assumes the responsibility as 'primary carer'. For dads, ‘paid parental leave’ could refer to having access to the same amount of extended leave offered to mums, allowing them the opportunity to also assume the role of primary carer. It can also refer to a much shorter period of leave taken upon the birth or adoption of the child where the dad takes on the role of 'secondary carer'.

Some organisations use the term ‘parental leave’ as a deliberately gender-neutral term that refer to the longer form of leave offered to the primary carer parent, offering the same leave to both mums and dads within a single parental leave policy. Other less progressive organisations use the term 'parental leave' as a heading for their different 'maternity' and 'paternity' leave policies, where dads are only offered short term 'secondary carer' leave at for the birth or adoption of their child. 

For example, some companies (including iconic Australian brands) advertise ‘paid parental’ and ‘adoption leave’ on their career pages as employee benefits, suggesting that benefits are equal for both men and women. However, internally they define parental leave differently for males and females, e.g. 10-12 weeks paid maternity for mums, 1-2 weeks paid paternity leave for dads and ~3 weeks paid adoption leave for parents.

  • Parental leave policies usually include conditions and restrictions for employees accessing this kind of leave, such as requiring employees to have been continuously employed by the organisation on a full time or part time basis for the 12 months prior to taking leave. This will be set out in the relevant parental leave policy and may even form part of the employee’s contract. These prerequisites also apply to government-paid parental leave options such as the Parental Leave Pay Scheme, which will be explored below. However more progressive workplaces have started removing these conditions, making parental leave more accessible to all workers regardless of employee status or tenure.

To further explore the parental leave options for dads, we need look at both 1. Primary carer leave (i.e. long term); and 2. Secondary carer leave (i.e. short term) in more detail.

i. Primary Carer Leave

Primary carer leave refers to leave taken where the carer takes on the primary responsibilities of the child as a condition for taking this form of leave. Primary Carer leave typically provides the primary carer with an extended period of paid leave as spelt out in the organisation’s leave policy and/or the relevant enterprise agreement for the employee.

The latest statistics from WGEA show that:

  • Only 45.9% of Australian employers currently offer paid primary carer leave

  • The percentage of Australian employers offering paid primary carer leave has decreased by 2.1% since 2015-16.

  • Average paid primary carer leave is 10 weeks

  • Dads account for less than 5% of parents utilising primary carer leave

The amount of time offered for primary carer leave varies from company to company (or industry to industry) and can range from as little as 6 weeks (typical in retail industries) to as long as 18 - 20 weeks offered by some banks, professional services firms and some technology companies.

There is also no standard legal definition for ‘primary carer’. Some organisations assume that only a mother can be primary carer, hence only offering this extended form of leave to mothers in the form of 'maternity leave'. Corporate dads will need to consult their HR representatives and the parental leave / primary carer policy to see if fathers are able to take primary carer leave under their policy.

ii. Secondary Carer Leave

Secondary Carer leave is most the most common form of leave taken by dads. In fact dads account for 95% of all secondary parental leave taken. Secondary carer leave refers to the short term paid leave provided by employers for the non-primary carer, usually from the day of birth or adoption of their child. The intent of this leave is to enable the father or partner of the primary caregiver the opportunity to be present for the birth or adoption of their child.

Only 39.3% of Australian employers offer this form of paid leave, with the average length being 7.3 days, but can range up to several weeks.

2. Government-paid parental leave options

The Australian government’s Paid Parental Leave (PPL) scheme allows eligible parents (mothers and fathers) to take time off work to care for a newborn or recently adopted child. The scheme covers for the equivalent of both Primary Carer leave (long term, called ‘Parental Leave Pay’) and Secondary Carer leave (short term, called ‘Dad and Partner Pay), as referred to above, but is paid by the government rather than by the employee only.

The Paid Parental Leave Guide provides key information, definitions and criteria that apply to the PPL scheme, including eligibility criteria that applies to both Parental Leave Pay (PLP) and Dad and Partner Pay (DAPP). The guide states that a “person is a primary carer of a child on a day if the child is in the person's care and the person meets the child's physical needs more than anyone else. Only one person can be a child's primary carer on a particular day.”

The purpose of the scheme is to help both parents and employers alike. From the parents perspective, the scheme aims to:

  • recognise that taking time out of the paid workforce to care for a child is part of the usual course of life for parents

  • promote equality between men and women, and

  • balance work and family life.

From the employer’s perspective, the scheme aims to help employers:

  • retain valuable and skilled staff by encouraging them to stay connected with their workplace when they become parents

  • enhance family friendly workplace conditions without having to fund Parental Leave Pay themselves, and

  • increase long term workforce participation by parents.

i. Parental Leave Pay (PLP)

Parental Leave Pay provides 18 weeks pay for the primary carer at the national minimum wage. This is the form of leave that some Australian employers use as a substitute for offering their own paid primary carers leave. However Parental Leave Pay assumes that only one parent can be the primary carer at any one time, and the 18 weeks paid leave applies to both parents collectively. In other words, a dad can only access this form of pay if he is/becomes the primary carer and his partner has not already used the full 18 weeks. If the initial primary carer has not used all of the 18 weeks, then the other parent can apply for what's left.

Primary carers must also satisfy eligibility criteria to qualify, including a ‘work test’ and a means (income) test (with an adjusted taxable income of $150,000 or less). 

In reality, this form of leave is rarely used by men. In fact dads made up just 0.36% of people who applied for the Parental Leave Pay (620 of 170,501 applicants) from June 2016 to the end of March 2017. While the PLP scheme has led to more mothers staying at home for at least 18 weeks after the birth of their baby, it is failing to assist fathers in taking primary carer leave to look after their newborns.

ii. Dad and Partner Pay (DAPP)

Dad and Partner Pay is the government-paid equivalent to secondary carer leave, providing 2 weeks pay (about $1345) for eligible working dads or partners, including adopting parents and same sex couples at the national minimum wage. Similar to PLP, there are numerous criteria for fathers to meet to be eligible, including work and means tests (i.e. an individual adjusted taxable income of $150,000 or less) AND being on unpaid leave during the period of receiving DAPP. DAPP is paid directly to the employer, then passed onto the father taking the unpaid leave.

Yet again, this form of paid leave is heavily underutilised, with only about one in three eligible dads / partners taking up this form of payment. There are likely to be many factors contributing to this, with lack of awareness found to be a major factor by a University of Queensland review conducted in 2014.

For corporate dads, applying for DAPP may not be sufficient incentive if annual leave or sick / carers leave could be accessed instead. As an example, a father earning the maximum $150,000p.a. to be eligible for DAPP actually earns $3996.16 a fortnight, almost three times more than the $1345 available under DAPP. This means that during a time of increased expenses due to the birth of their baby, dads in this pay bracket would actually be making a loss of $2,651.16 by applying for DAPP if other forms of personal leave were available. This therefore isn’t an incentive to the entire target audience of DAPP.

These calculations also highlights just how appalling it is when large organisations (e.g. of >1,000 people, as mentioned above) are able to, and do, claim that government leave is sufficient as an excuse for not offering fathers secondary carers leave. Surely it is time for government to set a different standard for large corporations in regards to the provision of primary and secondary leave for fathers.

3. Unpaid leave options

Under the Fair Work Act 2009 (Cth), parents who are married or in a defacto relationship can also take unpaid leave to be with their baby, both 1) at separate times to each other, and/or 2) at the same time.

i. Individual unpaid leave

If only one parent is taking unpaid leave, then they can take 12 months leave, or up to 24 months if their employer agrees. The leave must be taken in a single continuous period. If the dad is the only parent accessing this form of leave (and pending other criteria), he will need to take leave from the date of birth or adoption placement of the child. Under some circumstances, the dad may be able to start the unpaid leave after the birth / adoption placement, but must be taken within 12 months of this date.  

If both parents are employed, they can both take separate periods of up to 12 months unpaid parental leave provided that the leave is taken in a single continuous period. This means the other parent has to start their unpaid parental leave the next working day after the first parent's leave ends (e.g. dad takes unpaid parental leave when the spouse / partner returns to work). The combined leave cannot be for more than 24 months. Any concurrent leave or keeping in touch days taken are deducted from this overall entitlement.

ii. concurrent unpaid leave

Parents are also able to take unpaid leave at the same time for a period of 8 weeks. This is called Concurrent Leave and can start:

  • on the birth or placement of the child

  • earlier than this date, if the employer agrees or

  • later than this date, but has to be within 12 months of the birth or placement of the child.

Concurrent leave can also be taken in separate periods, with a minimum of 2 weeks taken for each period, unless shorter periods are agreed by the employer. Concurrent leave also counts towards the total unpaid leave entitlement of 12 months for each partner.

4. Non ‘Parental Leave’ options

Finally, employees can also access any accrued sick / carers leave, annual leave or unpaid leave as approved by their employer at the time of birth or adoption of their child. Annual leave and unpaid leave can also be accessed at any point in time upon agreement with the employer. Annual leave and sick/carers leave are forms of paid leave and will be subject to the employers leave policy. Employers that do not provide their own paid parental leave options frequently encourage dads to use these forms of leave, as well as any government-paid leave if they want to to enable dads to spend some time with their new family.

A bit more on ‘primary carer’ vs 'sick / carer' leave

Some employers extend the eligibility for primary carer leave to dads. However, where it is typically assumed that mums are automatically the primary carer, many policies will require the dad to provide proof that he is taking on the 'primary carer' responsibilities in order to access this form of paid leave.

There is no standard definition of 'primary carer'. While the Paid Parental Leave Guide defines 'primary carer' for the purposes of accessing PLP and DAPP, for paid primary carer leave offered by the employer, the relevant definition may be determined in their own leave policy or any governing industry enterprise agreement. 

Depending on how 'primary carer' is defined, determining which partner assumes the role of primary carer may not be as simple as parents deciding on who will take on the primary responsibilities between themselves. In an Australian landmark case (CFMEU v BHP Coal Phyllis Ltd (2015)), two BHP employees requested primary carer leave for separate scenarios where their respective wives each required a cesarean and were subsequently incapacitated for a period of several weeks while they recovered from the surgery. In each scenario, the father applied for primary carer leave, claiming that he was taking on the primary carer role during the period of his wife’s incapacitation. In both instances, the application for primary carer leave was declined by BHP.

BHP required both dads to provide proof that they were the primary carer under their leave policy. One employee provided a medical certificate stating that:

“[employee’s name] is scheduled to have a caesarean delivery at North West Private Hospital in Brisbane on the 30th of October. [Mr D] is her primary carer and will need carer’s leave to care for her for six weeks while she recovers from the operation.”

The other employee provided a statutory declaration claiming that he was the primary carer for the period. Both employees believed that they had satisfied the required ‘evidence’ criteria under BHP’s leave policy.

The dads appealed their case to the Fair Work Commission. The Commission focused on understanding the definition of 'primary carer' as set out in the relevant industry enterprise agreement, as well as the intent behind the definition when writing. The Commission decided in favour of BHP, concluding that in this scenario:

A mother who requires care and support from her partner to enable her to provide primary care to a newborn child does not cease on that account to be the primary carer for the child. The purpose of paid primary carer’s leave is to provide an entitlement to employees who take leave from their employment to provide care for a newborn child where the mother is unable to provide that care, for reasons including physical incapacity or because she has returned to work. An employee who requires leave to provide that care and support to the mother of a child, is entitled to access personal leave. That is the purpose of personal leave - to give employees an entitlement to use their own sick leave to provide care and support to a family member who requires that care and support.” [emphasis added]

The decision also outlined that a medical certificate would need to specifically state that the mother “will be incapable of undertaking the duties of the primary caregiver to her child for the period from [date] to [date]” in order to satisfy the evidentiary requirements under the Enterprise Agreement and relevant BHP policies.

If you are a dad wanting to take primary carer leave, don't make assumptions that you qualify as primary carer. Make sure you read your relevant workplace policies and industry enterprise agreements, and most of all, speak to your HR representative to make sure you qualify before attempting to take primary carer leave.