Unpaid Parental Leave: Employer Obligations Under the NES

Last reviewed: October 2026.

What is unpaid parental leave?

Unpaid parental leave is a minimum entitlement under the National Employment Standards (NES) in the Fair Work Act 2009. An eligible employee can take up to 12 months of unpaid leave when they, or their spouse or de facto partner, has a baby, or when a child is placed with them for adoption, as long as they will have responsibility for the child's care (s 70). People often call it maternity leave or paternity leave, but the law uses one gender-neutral entitlement: unpaid parental leave is available to mothers, fathers and partners alike.

Unpaid parental leave is about the right to time off and to come back to a job. It is separate from pay. Eligible parents may also receive Government-funded Parental Leave Pay, and some employers offer their own paid parental leave on top. Our guide to Paid Parental Leave and super explains how those payments work.

Who is eligible for unpaid parental leave?

An employee is eligible if, before the expected date of birth (or the date the leave starts, in other cases), they have completed at least 12 months of continuous service with you (s 67). That includes:

• full-time and part-time employees with 12 months' continuous service
• casual employees who have worked for you on a regular and systematic basis for at least 12 months and would have had a reasonable expectation of continuing work if not for the birth or adoption
• employees who converted from casual to permanent employment, whose regular casual service counts towards the 12 months

Each eligible parent has their own entitlement to 12 months. One parent's leave does not reduce the other's, and both parents can be on leave at the same time. For an adoption, the child must be under 16 and must not have lived with the employee for 6 months or more (s 68).

Notice and evidence requirements

The employee must give you written notice of their unpaid parental leave (s 74):

• at least 10 weeks before the leave starts, or as soon as practicable if that is not possible (for example, a premature birth)
• with the intended start and end dates
• then, at least 4 weeks before the start date, confirming the dates or telling you of any changes

You can ask for evidence that would satisfy a reasonable person of the date of birth or expected date of birth (or the day of placement for an adoption), such as a medical certificate. Treat that information as private and store it securely.

How unpaid parental leave can be taken

A continuous block. Most leave is taken as a single continuous period (s 71). A pregnant employee can start up to 6 weeks before the expected birth (earlier if you agree), and the leave must end within 24 months of the birth or placement.

Flexible unpaid parental leave. Up to 100 days of the 12 months can be taken flexibly, as single days or blocks, at any time in the 24 months after the birth or placement, or from 6 weeks before the expected birth for a pregnant employee (s 72A). Flexible days are available in full to part-time and casual employees. The employee tells you the total number of flexible days in their notice and gives at least 4 weeks' notice of each flexible day, unless that is not practicable.

Working close to the due date. If a pregnant employee keeps working in the 6 weeks before the expected birth, you can ask for a medical certificate stating whether they are fit for work (s 73). If a certificate says they are fit for work but it is inadvisable to continue in their current role, you must transfer them to an appropriate safe job on the same pay; if there is none, the employee may be entitled to paid no safe job leave (ss 81 and 81A).

Responding to a request to extend unpaid parental leave

An employee who takes their full 12 months can ask for up to 12 more months (s 76). The request must be in writing and made at least 4 weeks before the end of their leave. Leave can't extend beyond 24 months after the birth or placement. Since 6 June 2023, there is a set process for your response (s 76A):

1. Discuss the request with the employee.
2. Genuinely try to reach agreement, including on a shorter extension.
3. Consider the consequences of a refusal for the employee.
4. Give a written response within 21 days.
5. If you refuse, refuse only on reasonable business grounds, explain the grounds and how they apply, set out any other extension you would agree to (or say there is none), and explain the employee's right to take a dispute to the Fair Work Commission.

Reasonable business grounds can include that the extension would be too costly, that other employees' arrangements can't be changed to cover it, or that it would significantly hurt productivity or customer service. The size of your business is relevant. If the dispute isn't resolved in the workplace, the Fair Work Commission can conciliate and, if needed, arbitrate and order you to grant the extension (ss 76B and 76C).

Your obligations while the employee is on unpaid parental leave

• Consult about major changes. If you make a decision that will significantly affect the status, pay or location of the employee's pre-leave role, such as a restructure, you must take all reasonable steps to give them information about it and an opportunity to discuss it (s 83).
• Keeping in touch days. With both parties' agreement, the employee can work up to 10 keeping in touch days during their leave (10 more in an extended period) to stay connected, paid at their usual rate. They can't be in the first 14 days after the birth or placement, or the first 42 days unless the employee asked (s 79A).
• Paid leave alongside. The employee can take paid annual leave (with your agreement) or long service leave during unpaid parental leave without breaking it (s 79). Paid personal/carer's leave can't be taken during it.
• Replacement employees. Before engaging someone to cover the role, tell them in writing that the engagement is temporary and explain the absent employee's right to return (s 84A).
• No adverse action. Taking parental leave is a workplace right, and pregnancy and family or carer's responsibilities are protected attributes. You must not demote, exclude, pressure or dismiss an employee because of them (ss 340 and 351).

Returning to work after parental leave

At the end of unpaid parental leave, the employee is entitled to return to their pre-parental leave role. If that role no longer exists, they are entitled to an available position they are qualified and suited for that is nearest in status and pay to the old role (s 84). If the employee was moved to a safe job or reduced their hours because of the pregnancy, the pre-parental leave role is the one they held before that change.

Many returning parents ask for part-time hours or different start and finish times. Parents of a child of school age or younger with 12 months' service can make a written request for flexible working arrangements, and you must respond in writing within 21 days. You can refuse only after discussing it, genuinely trying to agree and considering the consequences for the employee, and only on reasonable business grounds (ss 65 and 65A).

Example: Hannah, a full-time accounts officer, gives notice 12 weeks before her due date that she will take 12 months of unpaid parental leave. Six months into her leave, the business merges two finance roles. The employer writes to Hannah, explains the change and meets her to discuss it before it is finalised. Her original role no longer exists, so on her return she is offered the combined role, which is the nearest in status and pay. She asks to work four days a week, and the employer agrees in writing within 21 days.

Stillbirth, infant death and hospitalised babies

If a child is stillborn, the employee keeps their entitlement to unpaid parental leave (s 77A). If a child is stillborn or dies within 24 months of birth, the employee can cancel leave that hasn't started, or return to work by giving at least 4 weeks' notice; you can't require them to come back early. If a baby must stay in hospital after birth, you and the employee can agree that they return to work while the baby is in hospital without losing the rest of their leave (s 78A). Employees may also be entitled to compassionate leave, and employer-funded paid parental leave generally can't be refused or cancelled because of a stillbirth or infant death (s 333X).

Unpaid parental leave checklist for employers

1. Confirm eligibility: 12 months' continuous service, or regular and systematic casual service.
2. Acknowledge the employee's written notice and diarise the 4-week confirmation date.
3. Agree any keeping in touch days, flexible days and arrangements for paid leave in writing.
4. Tell any replacement employee that the role is temporary and why.
5. Consult the employee about any significant change to their role while they are away.
6. Respond to any extension request in writing within 21 days.
7. Plan the return: the same role (or the nearest equivalent), and any flexible working request.

Parental leave raises sensitive conversations, and small mistakes can lead to discrimination or general protections claims. Our HR advice line can help you plan each step and respond to requests correctly.

Need help with your situation? Call our 24/7 HR advice line on 1300 144 002 for free initial advice.

Unpaid parental leave: frequently asked questions

Is maternity leave paid in Australia?

Under the NES, parental leave (often called maternity leave) is unpaid. Eligible parents can receive Government-funded Parental Leave Pay, and some employers offer paid parental leave through an award, agreement, contract or policy.

How much unpaid parental leave can an employee take?

Up to 12 months, and they can request up to a further 12 months. All leave must be taken within 24 months of the birth or placement.

Can both parents take unpaid parental leave at the same time?

Yes. Each eligible employee has their own 12-month entitlement, and both parents can take leave at the same time.

Can I refuse a request to extend unpaid parental leave?

Only on reasonable business grounds, after discussing the request, genuinely trying to reach agreement and considering the consequences for the employee. You must respond in writing within 21 days.

Does unpaid parental leave count as service?

It doesn't break continuous service. Unpaid leave generally doesn't count towards service for annual leave and personal leave, but it does count for notice of termination and future parental leave eligibility.

Can I make an employee redundant while they are on parental leave?

Only if the redundancy is genuine and unrelated to the leave. You must consult the employee, consider redeployment and avoid any adverse action. Read our guide to genuine redundancy before you act.