Fair Work Act 2009

This section applies to an employee who intends to take unpaid parental leave.

The employee must take the leave in a single continuous period.

An employee may take a form of paid leave at the same time as the employee is on unpaid parental leave (see section 79).

For provisions affecting the rule in this subsection, see:

subsection 72A(11) (flexible unpaid parental leave); and

subsection 73(4) (pregnant employee may be required to take unpaid parental leave within 6 weeks before the birth); and

paragraph 78A(2)(b) (permitted work periods while child is hospitalised); and

subsection 79A(1) (keeping in touch days).

If the leave is birth‑related leave for an employee who is pregnant with, or gives birth to, the child, the period of leave may start:

up to 6 weeks before the expected date of birth of the child; or

earlier, if the employer and employee so agree; or

during the 24‑month period starting on the date of birth of the child;

If the employee is not fit for work, the employee may be entitled to:

paid personal leave under Subdivision A of Division 7; or

unpaid special parental leave under section 80.

If it is inadvisable for the employee to continue in the employee’s present position, the employee may be entitled:

to be transferred to an appropriate safe job under section 81; or

to paid no safe job leave under section 81A; or

to unpaid no safe job leave under section 82A.

Section 344 prohibits the exertion of undue influence or undue pressure on the employee in relation to a decision by the employee whether to agree as mentioned in paragraph (3)(b) of this section.

If the leave is birth‑related leave but subsection (3) does not apply, the period of leave must start and end during the 24‑month period starting on the date of birth of the child.

If the leave is adoption‑related leave, the period of leave must start and end during the 24‑month period starting on the day of placement of the child.

The employee may take unpaid parental leave under this section only if the period of leave is no longer than 12 months, less the employee’s notional flexible period.

An employee is entitled under section 76 to request an extension of the period of leave beyond the employee’s available parental leave period. However, the period of leave may not be extended beyond 24 months after the date of birth or day of placement of the child (see subsection 76(7)).