Q. We have an employee who has commenced unpaid parental leave and is currently receiving paid parental leave under the Government paid parental leave scheme. We have arranged the delivery of a training package to which she has been invited to attend some training sessions that will comprise two separate days. The employee will receive her ordinary day’s pay for each day of attendance. The company is concerned about two things. Firstly, as she is returning to work does this terminate the period of unpaid parental leave under the National Employment Standards and, secondly, would this jeopardise her entitlements under the Government Paid Parental Leave Scheme?  

A. The Fair Work Act (s79A) provides for “keeping in touch days” which are designed to allow an employee to return to work for brief periods to enable the employee to maintain skills, etc in preparation for their ultimate return to work. The performance of that work does not break the continuity of the period of unpaid parental leave.  

 

What restrictions apply?  

A keeping in touch day cannot be worked earlier than 14 days after the birth.  42 days after the birth of the child, the employer can suggest or request a keeping in touch day and the employee can agree to it. 

 

Fair Work Act  

A day on which the employee performs work for the employer during the period of leave is a keeping in touch day if:   

  • the purpose of performing the work is to enable the employee to keep in touch with his or her employment in order to facilitate a return to that employment after the end of the period of leave; and   
  • both the employee and the employer consent to the employee performing work for the employer on that day; and   

the day is not within:   

  • if the employee suggested or requested that he or she perform work for the employer on that day--14 days after the date of birth, or day of placement, of the child to which the period of leave relates; or   
  • otherwise--42 days after the date of birth, or day of placement, of the child; and the employee has not already performed work for the employer or another entity on 10 days during the period of leave that were keeping in touch days.   

The duration of the work the employee performs on that day is not relevant.  

It should be noted the employer will be obliged, under the relevant contract of employment, modern award or enterprise agreement, to pay the employee for performing work on a keeping in touch day.  

 

Government paid parental leave scheme  

Performance of work on keeping in touch days is also dealt with in the Paid Parental Leave Act 2010 (ss49 and 50). Under this legislation, paid parental leave continues to be payable if the employee performs paid work for a ‘permissible purpose’. A keeping in touch day is regarded as a permissible purpose under the Paid Parental Leave Act. Under any other circumstance, however, a person is deemed to have returned to work from parental leave if the person performs one hour or more of paid work.  

 

Bottom line  

Training on a ‘keeping in touch day’ does not break the continuity of a period of unpaid parental leave.