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Request for second lot of paid parental leave denied: ineligible for it

An employee's request for a second period of paid parental leave was denied due to a discrepancy in the enterprise agreement's requirements.

18 Apr 2024

Mike Toten

Mike Toten is a freelance writer, editor and media commentator.

An employee was ruled ineligible to take a second period of paid parental leave because it would have been due to commence only 6.5 months after the first period of leave ended. The employee’s enterprise agreement required a minimum gap of 12 months between parental leave periods, but she had followed her paid parental leave with six months of other forms of leave.

Facts of case

The employee worked part-time for a university. She took 12 months of paid parental leave followed by a further six months of annual and long service leave. She notified her manager of her second pregnancy before returning to work, and five months later, she notified her intention to take paid parental leave again, commencing the month after. After the university was notified of her pregnancy and intention to take leave, it recruited for a temporary replacement employee.

During the five-month gap, a new enterprise agreement covering employees came into operation. The day before she intended to commence her second period of leave, the university told her she could not take it because the agreement required a minimum 12-month period of returning to work between parental leave periods. The employee then lodged a dispute with the Fair Work Commission (FWC).

She argued that she had notified her intention to take leave while the previous enterprise agreement was still in force, and that agreement included parental leave as part of “continuous service”, which in turn included periods of approved paid leave. The new agreement required her to return to work “for a continuous period of 12 months” before taking further leave, but it did not define “continuous period”. The employee claimed that it should include periods of paid parental leave.

Decision

The FWC ruled that the enterprise agreement that applied to the situation was the one in effect on the date the employee intended to commence leave, not the date on which the employee notified her intention to take leave. Therefore, the second enterprise agreement was the relevant one.

The FWC defined “return to work” as meaning return to actual work and the performance of work after a previous period of parental leave. Under that definition, the employee had not “returned to work” for the required minimum of 12 months. Taking annual and long service leave immediately after paid parental leave did not count as “returning to work”.

The FWC also pointed out that if the employee’s interpretation of the enterprise agreement and legislation were to apply, an employee who notified an intention to take leave before they became eligible for it (e.g. annual leave) would then not be entitled to take the leave on the date requested, even if that date was after the employee had otherwise qualified for the leave.

The earlier notification of intention to take the second period of parental leave did not create a contractual obligation to grant the leave.

What this means for employers

Taking leave, such as paid parental leave, is governed by the legislative or enterprise agreement provisions that apply at the time the leave actually commences, not the date on which the employee applies for or notifies intention to take it.

Where an employee seeks to take a second period of paid parental leave, the employee must have physically returned to work and performed work for the minimum stipulated period of time (in this case, 12 months). If an employee follows the first period of leave with other types of leave (e.g. annual), the eligibility date is delayed until after the employee has been back at work for the stipulated period.