Commonwealth Consolidated Acts

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FAIR WORK ACT 2009 - SECT 72

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

Application of this section

             (1)  This section applies to an employee couple if each of the employees intends to take unpaid parental leave.

Leave must be taken in single continuous period

             (2)  Each 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).

When birth-related leave must start

             (3)  If the leave is birth-related leave:

                     (a)  one employee's period of leave must start first, in accordance with the following rules:

                              (i)  if the member of the employee couple whose period of leave starts first is a female 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, but must not start later than the date of birth of the child;

                             (ii)  if subparagraph (i) does not apply--the period of leave must start on the date of birth of the child; and

                     (b)  the other employee's period of leave must start immediately after the end of the first employee's period of leave (or that period as extended under section 75 or 76).

When adoption-related leave must start

             (4)  If the leave is adoption-related leave:

                     (a)  one employee's period of leave must start on the day of placement of the child; and

                     (b)  the other employee's period of leave must start immediately after the end of the first employee's period of leave (or that period as extended under section 75 or 76).

Limited entitlement to take concurrent leave

             (5)  If one of the employees takes a period (the first employee's period of leave ) of unpaid parental leave in accordance with paragraph (3)(a) or (4)(a), the other employee may take a period of unpaid parental leave (the concurrent leave ) during the first employee's period of leave, if the concurrent leave complies with the following requirements:

                     (a)  the concurrent leave must not be longer than 8 weeks in total;

                     (b)  the concurrent leave may be taken in separate periods, but, unless the employer agrees, each period must not be shorter than 2 weeks;

                     (c)  unless the employer agrees, the concurrent leave must not start before:

                              (i)  if the leave is birth-related leave--the date of birth of the child; or

                             (ii)  if the leave is adoption-related leave--the day of placement of the child.

             (6)  Concurrent leave taken by an employee:

                     (a)  is an exception to the rule that the employee must take his or her leave in a single continuous period (see subsection (2)); and

                     (b)  is an exception to the rules about when the employee's period of unpaid parental leave must start (see subsection (3) or (4)).

Note:          The concurrent leave is unpaid parental leave and so comes out of the employee's entitlement to 12 months of unpaid parental leave under section 70.



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