Mills Oakley Workplace Relations, Employment and Safety partner, Rachael Sutton and Graduate, Aidan Naicke recently prepared the below article to provide insight into the minimum entitlements parents and care givers are able to access with respect to leave arrangements and work flexibility, among other protections.

As a result of recent amendments to federal and state industrial employment related legislation, the rights of employees who are parents and caregivers have been added to substantially and they now have access to a number of entitlements to leave, rights to request flexible working arrangements and protections under the law.

Below is an updated summary of those rights for employees covered by the Fair Work Act, 2009 (Cth) (national system employees) and those employees that remain covered by all or some aspects of state or territory laws.

The table outlines minimum entitlements only and there may be more beneficial entitlements or additional entitlements under awards, enterprise agreements and employment related policies of respective employers.

 

Leave Entitlement – Annual Leave      

National System Employee = Fair Work Act, 2009:                                

See sections 86 to 91

• 20 days paid leave per annum for full-time, part-time (pro-rated)
• 25 days paid leave for shift workers
• Casuals no entitlement

 

Leave Entitlement – Annual Leave Cashing Out?  

National System Employee = Fair Work Act, 2009:

See sections 92 to 94

• Yes, this is permitted for award/ agreement covered and non-award/agreement covered employees subject to conditions and /or if modern award or enterprise agreement permits

 

Leave Entitlement – Personal/ Carers Leave                            

National System Employee = Fair Work Act, 2009:

See sections 95 to 99

• 10 days paid leave per annum for full-time, part-time (pro-rated)
• Casuals no entitlement

See sections 102 to 103

• Unpaid leave

 

Leave Entitlement – Carer’s Leave Cashing Out?                  

National System Employee = Fair Work Act, 2009:

See sections 100 to 101

• Yes, this is permitted for award/ agreement covered and non-award/agreement covered employees subject to conditions and /or if modern award or enterprise agreement permits

 

Leave Entitlement – Compassionate Leave  

National System Employee = Fair Work Act, 2009:

See sections 104-105

• 2 days paid leave for full-time and part-time employees for each occasion.

 

Leave Entitlement – Family and Domestic Violence Leave             

National System Employee = Fair Work Act, 2009:

See sections 106A to 107

10 days paid leave for full-time, part-time and casual employees

Leave Entitlement – Payment for Public Holidays including Right to refuse work on a Public Holiday       

See sections 114 to 116

There is an entitlement to be absent from employment on a public holiday and payment for absence on public holiday

 

Leave Entitlement – Unpaid Parental/ Adoption Leave  

 National System Employee = Fair Work Act, 2009:     

See sections 67 to 85

Employees are eligible after 12 months

• 12 months unpaid leave. Can extend up to 24 months with employer’s agreement.
• 12 months unpaid leave for regular and systematic casuals. Can extend up to 24 months with employer’s agreement.

Fair Work Commission can deal with disputes in respect to requests for extension of parental leave by conciliation and arbitration

 

Leave Entitlement – Parental Leave for stillbirth or death of child

National System Employee = Fair Work Act, 2009:                       

See section 77A provided for special leave to be taken.

 

Leave Entitlement – Paid Parental Leave                                        

Paid Parental Leave Act 2010 (Cth)

The PPL scheme currently offers eligible parents flexible PPL within the first 2 years after their     child’s birth or adoption. The maximum PPL entitlement will steadily increase over the coming year. The maximum PPL entitlement will be:

• 22 weeks (110 flexible PPL days) for a child born or adopted after 1 July 2024
• 24 weeks (120 flexible PPL days) for a child born or adopted after 1 July 2025 and
• 26 weeks (130 flexible PPL days) for a child born or adopted after 1 July 2026.

 

Parents can share the PPL entitlement (subject to various rules) and take it flexibly in blocks as short as one day, with the option to return to work between leave days. PPL is paid at the national minimum wage and is taxable. Typically, Services Australia provides funding to the employer for parental leave, who then pays the employee through the regular pay cycle after withholding tax.

For parents with a partner, 10 PPL days are reserved for the non-claiming partner on a “use it or lose it” basis.

 

As of 1 July 2025, this reserved period will extend by one week each year until reaching 4 weeks (20 days) by 1 July 2026. Up to 10 days can be taken concurrently by parents/their partners, increasing to 20 days from 1 July 2025.

 

The PPL Scheme operates as a social security payment ‘funnelled’ through employers to employees, rather than a workplace entitlement in the traditional sense. In terms of the interaction between payments made under the PPL Scheme and other workplace leave entitlements:

• PPL can be taken concurrently with, before or after any other paid or unpaid leave to which the employee has an entitlement (for example, under an enterprise agreement or the terms of their employment contract) and
• any such entitlements under an enterprise agreement cannot be withdrawn for the term of the agreement (but entitlements under an employment contract can be withdrawn with the consent of the employee).

 

Importantly, the PPL Scheme cannot be “absorbed into” employer-funded PPL schemes such as traditional ‘maternity’ or ‘parental’ leave schemes. Employer schemes can, however, operate concurrently with the PPL Scheme. For example, an employer can pay the difference between the employee’s PPL Scheme payments and their usual salary for a specified period of leave.

 

Eligibility rules and rates of payment is available from.

 

Leave Entitlement – Superannuation on Paid Parental Leave

Paid Parental Leave Act 2010 (Cth)

 

The Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Act    2024 amends the PPL Act to add a superannuation payment on the PPL Scheme for births and adoptions on or after 1 July 2025.whihc will be paid by the ATO – at the superannuation guarantee levy rate of 12% and as amended from time to time has just been passed by the parliament as of 19 September 2024.

Jurisdiction	Legislation	Entitlement	Long Service Leave Casing Out	Portable LSL
National System Employee	Fair Work Act, 2009 (Cth)	See s 113
ACT	Long Service Leave Act 1976 (ACT)	See s 3-4 After 7 years’ service – Entitlement 6.0667 weeks Or after 5 years – Entitlement 4.3 weeks if terminated by employer or resignation due to ill health, domestic pressure, retirement	No	Yes, for employees in construction, community services, community sector, contract cleaning and security
NSW	Long Service Leave Act, 1955 (NSW)	See section 4 After 10 years’ service – Entitlement 2 months (8.6 weeks) Or after 5 years – entitlement 1 month (4.3 weeks) if terminated by employer or resignation due to ill heath or other pressing domestic necessity	No	Yes, for employees in community services and building and construction
NT	Long Service Leave Act 1981 (NT)	See s 8 After 10 years’ service – Entitlement 13 weeks Or after 7 years – Entitlement 9.1 weeks if terminated by illness, retirement age or dismissal apart from misconduct	No	Yes, for employees in community services
QLD	Industrial Relations Act 2016 (QLD)	See s 95 After 10 years’ service – Entitlement 8.6667 weeks Or after 7 years – Entitlement 6.067 weeks if terminated by employer or resignation due to illness, another domestic pressing or retirement age	Yes, Form 13 Industrial Relations	Yes, for employees in community services, contract cleaning and building and construction
SA	Long Service Leave Act 1987 (SA)	See s 5 After 10 years’ service – Entitlement 13 weeks Or after 7 years – Entitlement 9.1 weeks if terminated or resigned not on the grounds of serious and wilful misconduct		Yes, for employees in building and construction
TAS	Long Service Leave Act 1976 (TAS)	See s 8 After 10 years’ service –  Entitlement 8.667 weeks Or after 7 years – Entitlement 6.067 weeks if attains age of retirement, is terminated by illness or by domestic pressing necessity, or dismissal other than for misconduct	Yes, see s 10	Yes, for employees in construction, community services, aged care, contract cleaning and security
VIC	Long Service Leave Act 2018 (VIC)	See s 6 After 7 years’ service – Entitlement 6.0667 weeks	No	Yes, for employees in construction, community services, contract cleaning and security
WA	Long Service Leave Act 1958 (WA)	See s 8 After 10 years’ service – Entitlement 8.6667 weeks Or after 7 years 6.067 weeks if employment ends by resignation, death or termination not by serious misconduct	Yes, see s 7(2)	Yes, for employees in building and construction

Other Entitlements

National System Employee – Fair Work Act, 2009 (Cth)

Right to Request Flexible Working Arrangements

Section 65

Need to have worked for 12 months before making a request

Examples of flexible working arrangements include changes to:

• hours of work – for example, changes to start and finish times
• patterns of work – for example, split shifts or job sharing
• locations of work – for example, working from home.

Employees need to follow certain rules when requesting flexible working arrangements.

Employers need to follow certain rules when responding to these requests.

If a dispute about these requests can’t be resolved at the workplace, the Fair Work Commission can conciliate and arbitrate the dispute.

 

 

Individual Flexibility Arrangement                             

National System Employee – Fair Work Act, 2009 (Cth)

An employer and an employee can negotiate to change how certain terms apply in an award or their enterprise or registered agreement. This written agreement is called an individual flexibility arrangement (or IFA).

 

For awards, an IFA can vary clauses like:

• working hours
• overtime rates
• allowances

An employer and employee need to genuinely agree to an IFA.

Employees cannot be forced to make an IFA. They also can’t be treated adversely or discriminated against for refusing to enter an IFA.

 

Right to Disconnect   

National System Employee – Fair Work Act, 2009 (Cth)                         

Section 333M applies to non-small businesses >15 employees

An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee’s working hours unless the refusal is unreasonable.

An employee may refuse to monitor, read or respond to contact, or attempted contact, from a third party if the contact or attempted contact relates to their work and is outside of the employee’s working hours unless the refusal is unreasonable.

It is not a general prohibition on employers contacting employees after hours. It is a prohibition on expecting or demanding a response.

Employees may be entitled to ignore calls and emails from their employers without a penalty.

Commences 26 August 2025 for small businesses.

 

Right to Request to Work from Home  

National System Employee – Fair Work Act, 2009 (Cth)

See above entitlement to request flexible working arrangements and some awards may soon include a term granting a right to make a request to work from home.

Jurisdiction	Legislation	Prohibition against unlawful discrimination due to Sex, Breastfeeding, Marital Status, Carer Responsibilities
National System Employees	Fair Work Act, 2009 (Cth) Sex Discrimination Act, 1984 (Cth)	Yes
ACT	Discrimination Act, 1991 (ACT)	Yes
NSW	Anti-Discrimination Act, 1977 (NSW)	Yes
NT	Anti-discrimination Act, 1992 (NT)	Yes. Except carer responsibilities
QLD	Anti-Discrimination Act, 1991 (QLD)	Yes. No explicit ‘carer’ responsibilities, but ‘family responsibilities’ listed.
SA	Equal Opportunity Act, 1984 (SA)	Yes
TAS	Anti-Discrimination Act, 1998 (TAS)	Yes. No explicit ‘carer’ responsibilities, but ‘family responsibilities’ listed.
VIC	Equal Opportunity Act, 2010 (VIC)	Yes
WA	Equal Opportunity Act, 1984 (WA)	Yes. No explicit ‘carer’ responsibilities, but ‘family responsibilities’ listed.

 

Watch this space…

Flexibility Work Requests for Menopause

and reproductive Leave

 

In September 2024 the Senate handed down a report into the impacts of menopause and perimenopause, proposing 25 recommendations including the following changes to the Fair Work Act, 2009 (Cth) to include

• access to flexible working arrangements during menopause; and
• paid gender-inclusive reproductive leave