What is flexible parental leave?

The process of granting and taking parental leave can be tricky for both employees and employers. What are the rules on flexible parental leave?

1 December 2022

Question: I heard about a new form of parental leave that can be taken in separate periods over an extended period. What are the details of that?

This question was recently answered by our workplace advice line.

Answer: ‘Flexible’ parental leave was introduced into the Fair Work Act in 2020. It gives parents a different way to take part of their standard 12 months' unpaid parental leave by taking some of it in separate periods after they have returned to work, rather than in one continuous block as was previously the case. 

Flexible parental leave comes from the balance of an employee’s entitlement to unpaid parental leave should they return to work before their 12 months is up.

For example, if a parent returns to work after 11 months of continuous parental leave their flexible parental leave entitlement would be the number of days they would expect to work in that unused month, which for a full-timer would be 20 days flexible parental leave (presuming they work 5 days a week x 4 weeks a month).

The main points to note with flexible parental leave are:

  • The entitlement is for a maximum of 30 working days. The total number of hours is not fixed but will vary based on the number of hours an employee is ordinarily rostered to work on any given day of leave.
  • This leave must be taken before the child turns two (or within 2 years of the ‘date of placement’ for adoptions).
  • The days can be taken consecutively, or separately, in any configuration agreed upon between the employee and employer.
  • The minimum period to be taken is one day at a time.
  • The rules on concurrent parental leave still apply i.e. a maximum of 8 weeks concurrent unpaid parental leave with their partner. 
  • Once an employee has returned from their initial period of ‘continuous’ parental leave they can not resume that continuous parental leave later.

Note the unpaid flexible parental leave discussed here comes from section 72A of the Fair Work Act. It is entirely independent of the federal government's paid flexible parental leave which comes from the Paid Parental Leave Amendment (Flexibility Measures) Act 2020 and is administered by Services Australia.

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Disclaimer: While all due care has been taken in the preparation of this information, and it is believed to be accurate, no warranty of accuracy or reliability is given and no liability is accepted for errors or omissions or loss or damage suffered as a result of a person acting in reliance thereon. This information is not legal advice. If a legal opinion is sought please contact your legal advisor.


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