Further changes to parental leave from 1 July 2023

Following the recent passing of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 a number of changes have been made to how parental leave operates, which take effect from 1 July 2023.

The changes include an extension of the amount of parental leave available, a greater entitlement to flexible parental leave and the removal of the limit of only 8 weeks parental leave being able to be taken concurrently by an employee couple.

Employers are advised of the need to update parental leave policies to take account of these new changes, which operate in addition to other recent amendments to parental leave, such as those relating extension of parental leave requests (which took effect on 6 June 2023), and those relating to parental leave pay (which took effect on 1 July 2023).

What are the changes?

In the table below we set out the details of the new changes, together with an explanation of how this differs from the pre-1 July 2023 position.

	Pre-1 July 2023	From 1 July 2023 onwards
When can an employee commence parental leave?	Generally speaking: Where only one parent is taking parental leave and it is the pregnant employee that takes parental leave, the leave has to start on the birth of the child, or up to 6 weeks before the expected birth. If the employee who isn’t pregnant is the only parent taking parental leave, the leave must start on the birth of the child, or within 12 months after the birth of the child. Where both parents take parental leave, at least one parent’s leave needs to commence when the child is born (or up to 6 weeks before the expected birth if the pregnant employee is taking leave first). Up to 8 weeks leave may be taken by the parents at the same time (“concurrent leave”).	Either or both parents are able to commence parental leave at any time in the first 24 months following the birth of their child. If the employee is pregnant,, they may commence parental leave on the birth of the child or up to 6 weeks before the expected birth of the child (but they do not have to).
How much flexible parental leave can be taken?	Employees can reserve to themselves up to 30 days as “flexible parental leave” (ie leave taken after they have returned to work), which they can take up to the 2nd birthday of their child.	Employees can take up to 100 days as “flexible parental leave” up to the 2nd birthday of their child.
When can flexible parental leave be taken?	Flexible unpaid parental leave can only be taken after the child is born and up to the child’s 2nd birthday. Once flexible parental leave is taken, an employee cannot take a further period of “ordinary” / “non-flexible” parental leave. In effect, they forfeit any future entitlement.	Pregnant employees can access their flexible parental leave entitlement in the six weeks before the expected date of birth of their child. Flexible parental leave can be taken before or after a period of “ordinary” / “non-flexible” parental leave.
How much concurrent parental leave can be taken?	Employee couples can take no more than 8 weeks’ concurrent unpaid parental leave at the same time.	Employee couples can take their full amount of parental leave concurrently (ie up to 24 months at the same time).
What is the total amount of parental leave that can be taken?	Where one employee takes the leave, they can take up to 12 months and then can apply for an extension of 12 months (which can only be refused by the employer on reasonable business grounds). Where two employees take parental leave, the total period the couple may take between them is 24 months.	Both parents can take up to 12 months’ unpaid parental leave which must commence (and finish) within the first 24 months of the birth of the child, regardless of the amount of leave the other parent takes. Both parents can request an extension of up to an additional 12 months (which can only be refused on reasonable business grounds), without impacting the amount of leave available to the other parent. The extension cannot take the period of leave beyond the 24 months following the birth of the child. In effect, both employees can take up to 24 months parental leave each, but this is subject to: the leave commencing and finishing within 24 months of the birth of the child; and any period of leave longer than 12 months being able to be refused by the employer on reasonable business grounds.
Employees are entitled to take unpaid parental leave when they have 12 months’ continuous service. From what date is the 12 months’ continuous service calculated?	Employees must have 12 months’ continuous service at the time of birth or at the time the employee commences leave, if they are commencing leave after their partner.	Given either parent may now commence parental leave at any time within the first 24 months of the birth of the child, regardless of whether their partner has also taken leave, a technical amendment is required in the legislation to provide that: an employee must have 12 months continuous service on the date on which the employee’s period of leave is to start, unless the leave is taken prior to birth. Where an employee commences leave prior to birth (as before) the date that they must have 12 months’ continuous service is the expected date of birth of the child.

Similar changes apply to adoption leave, where the “date of the child’s birth” can generally be replaced with the “date of the child’s placement”.

Updating parental leave policies

If you require a template parental leave policy, or require assistance in updating your existing policy, please contact us.