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FAIR WORK ACT 2009 - SECT 71

The period of leave--other than for members of an employee couple who each intend to take leave

Application of this section

             (1)  This section applies to an employee who intends to take unpaid parental leave if:

                     (a)  the employee is not a member of an employee couple; or

                     (b)  the employee is a member of an employee couple, but the other member of the couple does not intend to take unpaid parental leave.

Leave must be taken in single continuous period

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

Note 1:       An employee may take a form of paid leave at the same time as he or she is on unpaid parental leave (see section 79).

Note 2:       Periods of unpaid parental leave can include keeping in touch days on which an employee performs work (see section 79A).

             (3)  If the leave is birth-related leave for a female employee who is pregnant with, or gives birth to, the child, the period of leave may start:

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

                     (b)  earlier, if the employer and employee so agree;

but must not start later than the date of birth of the child.

Note 1:       If the employee is not fit for work, she may be entitled to:

(a)    paid personal leave under Subdivision A of Division 7; or

(b)    unpaid special maternity leave under section 80.

Note 2:       If it is inadvisable for the employee to continue in her present position, she may be entitled:

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

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

(c)    to unpaid no safe job leave under section 82A.

Note 3:       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.

             (4)  If the leave is birth-related leave but subsection (3) does not apply, the period of leave must start on the date of birth of the child.

When adoption-related leave must start

             (5)  If the leave is adoption-related leave, the period of leave must start on the day of placement of the child.

Leave may start later for employees whose spouse or de facto partner is not an employee

             (6)  Despite subsections (3) to (5), the period of leave may start at any time within 12 months after the date of birth or day of placement of the child if:

                     (a)  the employee has a spouse or de facto partner who is not an employee; and

                     (b)  the spouse or de facto partner has a responsibility for the care of the child for the period between the date of birth or day of placement of the child and the start date of the leave.

Note:          An employee whose leave starts under subsection (6) is still entitled under section 76 to request an extension of the period of leave beyond his or her 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)).



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