If an employee isn’t the primary caregiver, are they still eligible to claim unpaid adoption leave? We received this question through our workplace advice service.
Here is what the Fair Work Act says about eligibility.
Adoption leave refers to ‘a responsibility for care of the child’ as one of the factors determining an employee’s entitlement to the leave. What are the implications of this wording?
Q. We have an employee who is adopting a school-aged child. However, the employee has indicated they will not have responsibility for the care of the child.
Does this mean the employee may still have an entitlement to unpaid adoption leave because being one of the parents implies a responsibility of care for the child?
A. There are several requirements imposed by the Fair Work Act 2009 when an employee applies to take unpaid parental leave, which includes unpaid adoption leave.
Firstly, the employee must have completed 12 months of continuous service with the employer.
Additionally, s70(b) states that the employee must have or will have responsibility for the care of the child. This has been interpreted to mean that the employee must be the child's ‘primary caregiver’ for the period of the adoption leave.
An employee cannot take unpaid adoption leave if their spouse or partner is also taking unpaid adoption leave at the same time. However, the Act allows up to three weeks of unpaid leave to be taken concurrently.
An employee can take paid leave (e.g. annual leave or long service leave) concurrently with their spouse or de facto partner’s period of unpaid adoption leave.
Primary caregiver
If the employee’s spouse or de facto partner is not an employee and the non-working spouse or de facto partner is the primary caregiver of the child, the employee cannot access unpaid adoption leave. The employee can only start unpaid adoption leave once the non-working spouse or de facto partner ceases to be the primary caregiver of the child.
