Paternity Leave In Australia: A Guide For Employers

Welcoming a new child is a major milestone for your team member and your workplace. As an employer in Australia, you have clear obligations around partner (paternity) leave - from eligibility and notice requirements to supporting flexible work and a safe return to work.

In this guide, we explain how partner leave works under the National Employment Standards (NES), what you need to do before, during and after leave, and the practical policies and documents that help you stay compliant and support your people.

What Does “Paternity Leave” Mean Under Australian Law?

In Australian employment law, “paternity leave” sits within the broader concept of parental leave. Under the NES (part of the Fair Work Act), eligible employees can take up to 12 months of unpaid parental leave and can request a further 12 months (up to 24 months in total). Partners - including same‑sex partners - may access these entitlements if they meet the eligibility rules.

Separately, the Australian Government provides Paid Parental Leave (PLP), which replaced the old “Dad and Partner Pay.” PLP is a government-funded payment at the national minimum wage for a set number of weeks. Parents can usually share PLP between them, and the total entitlement is being expanded over time by government reforms.

Many employers also offer their own paid parental leave as a workplace benefit for primary or secondary carers. So, while people still say “paternity leave,” what you’ll manage day-to-day is unpaid parental leave for a partner under the NES, any government PLP that may flow through payroll, and any employer-funded paid leave your business chooses to provide.

Who Can Take Partner Leave And For How Long?

Under the NES, a partner will generally be eligible for unpaid parental leave if they:

• Have at least 12 months’ continuous service with you immediately before the expected date of birth or placement of an adoptive child (regular and systematic casuals with a reasonable expectation of ongoing employment can also qualify), and
• Will have responsibility for the care of the child (they don’t have to be the primary carer).

Key features for partners include:

• Up to 12 months of unpaid parental leave, with a right to request an additional 12 months (you can only refuse a request on reasonable business grounds and must respond in writing).
• Concurrent leave of up to 8 weeks during the first 12 months after birth or placement. This can be taken in separate blocks of at least 2 weeks each (or shorter periods by agreement).
• Flexible parental leave. Partners can usually take shorter blocks or days (often called “flexible parental leave”) within the first 24 months, subject to the Fair Work framework and any applicable award or agreement.

Notice and evidence requirements apply. Employees must provide at least 10 weeks’ written notice before starting unpaid parental leave and confirm the start and end dates at least 4 weeks before leave begins. You can ask for reasonable evidence (for example, a medical certificate confirming an expected due date or adoption paperwork).

If eligibility timing is tight - for example, where the employee is in a trial period - it’s worth revisiting how leave during probation and service are assessed for parental leave.

Is Partner Leave Paid Or Unpaid - And Who Pays?

There are three possible components to consider: government-funded PLP, any employer-funded paid parental leave your business offers, and other leave entitlements (such as annual leave) that the employee may use by agreement.

1) Government-Funded Paid Parental Leave

• PLP is paid at the national minimum wage for a set number of weeks and is funded by the Commonwealth.
• Eligibility depends on income, activity and residency tests. Parents can usually share PLP.
• Depending on the employee’s circumstances and Services Australia’s instructions, you may be asked to act as the employer‑payee (processing PLP through payroll).

Superannuation is not currently mandated on PLP. Governments have announced reforms to expand PLP and related settings over time, so it’s wise to check the latest Services Australia guidance when processing payments.

2) Employer-Funded Paid Parental Leave (Optional)

• Many employers choose to offer their own paid leave for partners (for example, 2–6 weeks at full pay). This is optional and sits on top of NES rights.
• If you offer it, set clear terms in a written Parental Leave Policy and align any references in your Employment Contract templates.
• Be explicit about whether employer-funded paid parental leave counts as service and whether annual leave and personal/carer’s leave accrue during that paid period. While employers set policy terms, accruals can be affected by the NES, modern awards or enterprise agreements - so this isn’t always a pure policy choice. Check your instruments and document the position clearly.

3) Using Other Leave

• Employees may request to use paid annual leave during a parental leave period by agreement. Substituting paid annual leave does not end unpaid parental leave - it runs alongside it.
• Personal/carer’s leave is generally not available during unpaid parental leave because service does not usually accrue while an employee is on that unpaid period. Where parental leave is employer‑funded and paid, accruals and access to personal/carer’s leave may differ depending on your policy or industrial instrument.

Unpaid parental leave is a specific NES entitlement. If you’re weighing up how it interacts with other entitlements and time away from work, this overview of unpaid leave in Australian employment law is a useful refresher.

Your Obligations Before, During And After Leave

Managing partner leave well is about more than agreeing dates. You have obligations to consult, avoid discrimination, and support a safe and fair return to work.

Before Leave: Plan And Confirm

• Notice and evidence: Acknowledge receipt of the 10‑week notice, request any reasonable evidence, and diarise the 4‑week confirmation of dates.
• Concurrent and flexible leave: If the employee plans concurrent or flexible parental leave days, confirm how and when they’ll be taken, including the size of blocks.
• Handover and coverage: Agree on who will cover duties, how handover will occur, and any training needed. If an award or agreement requires consultation, follow those steps.
• Documentation: Ensure your Parental Leave Policy and related workplace policies are up to date and consistent with the NES and any applicable award or enterprise agreement.

During Leave: Communication And “Keeping In Touch” Days

• Keeping in touch (KIT) days: An employee on unpaid parental leave can usually perform up to 10 KIT days during the first 12 months of leave without ending their leave. If the leave is extended beyond 12 months, a further 10 KIT days are typically available in the extended period. KIT days are paid work days and are designed to help employees stay connected (e.g. training, planning, team days).
• Timing rules: KIT work cannot occur within the first 6 weeks after birth or placement unless the employee requests it. Make sure any KIT arrangements comply with the timing and purpose rules under the Fair Work framework. Note that Services Australia has separate rules about performing work while receiving PLP - check their instructions when relevant.
• Reasonable communication: Keep employees informed about major workplace changes (e.g. restructures or significant team movements). Good communication supports a smoother return.
• No adverse action: Don’t make decisions that disadvantage an employee because they are pregnant, on parental leave, or proposing to take parental leave. This can breach general protections under the Fair Work Act and anti-discrimination laws.

After Leave: Return-To-Work Rights And Flexibility

• Right to return: Employees are entitled to return to their pre‑parental leave position. If that role no longer exists, you must offer an available position nearest in status and pay.
• Flexible work requests: Eligible employees (including parents of school-aged or younger children) can request flexible work on return. You must respond in writing within 21 days and can only refuse on reasonable business grounds. Offering alternatives (e.g. a trial period, different days, or staged hours) can reduce risk and support retention.
• Redundancy and consultation: If redundancies are proposed, consult in line with the NES and any applicable award or agreement, and consider redeployment obligations. Where issues are complex, timely guidance from an employment lawyer can help you navigate your obligations and risk.

The Policies, Contracts And Processes To Put In Place

Clear documentation helps managers apply the rules consistently and supports positive employee experiences. As a minimum, consider the following.

• Parental Leave Policy: Set out eligibility, how to apply, evidence requirements, concurrent and flexible leave options, KIT days, any employer‑funded paid leave, and return‑to‑work steps. A tailored Parental Leave Policy reduces confusion and aligns your practice with the NES.
• Employment Contracts: Clarify how parental leave interacts with service, accruals, confidentiality, any employer-funded leave and return expectations. Keep your Employment Contract templates consistent with your policy so there’s no mixed messaging.
• Workplace Policies & Staff Handbook: Ensure your parental leave settings align with related policies (flexible work, equal opportunity, WHS). Centralise them in an up‑to‑date workplace policy suite so managers know where to look.
• Award/Agreement Compliance: Confirm any additional rights or procedures in applicable awards or enterprise agreements (e.g. notice, consultation, or roster rules that sit on top of the NES). A quick sense‑check against modern awards can prevent problems later.
• Payroll and record‑keeping: Make sure your HR/payroll system can correctly process KIT days, any employer‑funded paid leave, and (if relevant) employer‑payee obligations for PLP as instructed by Services Australia.
• Training for managers: Provide simple training on responding to leave requests, assessing flexible work requests, and avoiding discriminatory decisions. A single checklist and central process helps ensure consistency.

It’s also helpful to map a simple workflow: receive request and evidence; confirm dates; plan coverage; check PLP/award interactions; diarise KIT and return discussions; confirm position on return; and record each step.

Common Questions Employers Ask

Do annual leave or personal/carer’s leave accrue during unpaid parental leave?

Generally no. Service usually pauses during unpaid parental leave, so annual leave and personal/carer’s leave don’t accrue for that unpaid period. Long service leave accrual depends on state or territory laws and your circumstances. Where parental leave is employer‑funded and paid, accruals may apply depending on your policy and any award or enterprise agreement - document the position clearly and ensure it’s compliant.

Can a partner take unpaid parental leave during probation?

Probation doesn’t bar eligibility. The key test is 12 months’ service (including for regular and systematic casuals). If you’re unsure about timing and service, check how leave during probation operates in practice and seek advice if needed.

What evidence can we ask for?

You can request evidence that would satisfy a reasonable person (for example, a medical certificate confirming the expected due date or adoption/placement documentation) to support the entitlement and leave dates. Only request what you reasonably need and handle it in line with your privacy and HR practices.

What if we can’t approve a flexible work request on return?

You must consider the request and respond within 21 days. Any refusal must be based on reasonable business grounds and explained in writing. Offering alternatives such as a trial arrangement or adjusted hours shows good faith and helps manage legal risk.

What about unpaid time away from work outside parental leave?

Employees may sometimes request other unpaid time away from work that’s not parental leave. Your approach should be consistent with your policies and business needs; this overview of unpaid leave is a handy reference point.

Key Takeaways

• “Paternity leave” is part of Australia’s parental leave framework. Eligible partners can take up to 12 months of unpaid leave, request another 12 months, and take up to 8 weeks of concurrent leave in the first year.
• PLP is government‑funded at the national minimum wage and can be shared between parents. Employers can choose to offer their own paid parental leave - set the rules in a clear Parental Leave Policy and align your Employment Contracts.
• Accruals during employer‑funded paid parental leave aren’t always a pure policy choice - they can be affected by the NES and industrial instruments. Check your awards/agreements and document the position.
• Plan ahead: confirm notice and evidence, agree on coverage and KIT days, and keep communication open during the leave. Respect the 6‑week rule for KIT days unless the employee requests earlier.
• On return, employees have the right to their pre‑leave position (or a comparable one) and may request flexible work. Any refusal must be on reasonable business grounds and in writing.
• Put the right building blocks in place: a tailored policy, aligned workplace policies, and processes that reflect the NES and any modern awards reduce risk and support a consistent employee experience.

If you’d like a consultation on setting up or updating your parental (paternity) leave arrangements, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no‑obligations chat.