Parental leave policies, a clause-by-clause guide for Australian employers

You are sitting down to write a parental leave policy, probably with a template open in one tab and the Fair Work Ombudsman's website in another. The template gives you headings; the real work is deciding what each clause should actually say, which of the statutory minimums sit underneath it, and where the wording can quietly create problems for you later.

A parental leave policy is an internal document that sets out how your business will handle parental leave requests from start to finish. It does not create new legal entitlements by itself, and it must never promise less than the National Employment Standards (NES) in the Fair Work Act 2009 (Cth), which apply to every employee in the national system regardless of award, agreement or contract. What it does is turn those minimums into a process you can follow consistently: who qualifies, what notice is needed, how leave is approved, what happens to the role while someone is away, and how they come back. It sits alongside employment contracts and any applicable modern award, and it should be drafted so the three documents never contradict each other.

The clauses every parental leave policy needs

There is no mandated structure, but the policies that cause the least trouble all cover the same ground. Here is the clause-by-clause anatomy, in roughly the order the document should run.

Who the policy covers

Open with a short purpose statement. State that the policy covers parental leave associated with the birth of a child, and with the placement of a child for adoption, which are the two situations the NES entitlement attaches to. If you want to extend the policy by choice to other arrangements, such as surrogacy, say so expressly, and be aware you are going beyond the statutory minimum and into territory you are free to define.

Then state who it applies to. This matters more than it looks:

Full-time and part-time employees: covered by the NES entitlement, subject to the service requirements below.
Casual employees: can be eligible, but only once they meet the regular-and-systematic service test set out in the next clause.
Contractors: not employees, and generally not entitled to statutory parental leave. Say in the policy that it does not apply to contractors, so the line is never blurred in a dispute.

Getting the definitions right

Every term you use in the rest of the document should be defined once, near the top, in plain language that tracks the way the Fair Work Act uses the words. Common definitions include:

Parental leave: the unpaid leave an eligible employee can take for a birth or adoption, plus any paid parental leave your business chooses to offer on top.
Primary and secondary carer: only if you actually use these labels. The NES does not divide parents into primary and secondary carers; every eligible parent gets up to 12 months in their own right, so introducing the labels without thinking can create entitlements you did not intend.
Continuous service: how you will count the 12 months of service that eligibility depends on, including how breaks in service are treated.
Return to work: the point at which the employee resumes work after leave, which drives the notice and handover obligations below.

How an employee qualifies

Eligibility is the clause where employers most often get the law subtly wrong, so it is worth drafting against the statutory test. Under s 67 of the Fair Work Act 2009 (Cth), an employee other than a casual must have completed at least 12 months of continuous service with you immediately before the expected date of birth or the day of placement for adoption. A casual employee qualifies only if they have been employed on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing work on that basis, had it not been for the birth or adoption, as the Fair Work Ombudsman's parental leave fact sheet summarises.

The same clause should set out what evidence you may request. The NES allows you to ask for evidence that would satisfy a reasonable person of the expected date of birth, such as a medical certificate, or of the expected day of placement for adoption. Draft the evidence requirement proportionately, and say in the policy that you will only ask for what you need to confirm eligibility and plan staffing.

The notice and application steps

The NES prescribes a notice sequence, and your policy should restate it as a process. Under s 74 of the Fair Work Act 2009 (Cth), the employee must give written notice at least 10 weeks before the leave starts, or as soon as practicable if that is not possible, and the notice must specify the intended start and end dates. At least 4 weeks before the intended start date, they must confirm those dates and advise of any changes.

Your clause should also cover the practical side:

Who the employee notifies: their direct manager, your HR person, or you as the owner. Name the person so there is no doubt.
What the notice must contain: proposed start date, proposed end date, and whether any of the leave will be taken flexibly.
How you confirm approval: in writing, with the agreed dates recorded. This record is what you rely on later if dates change or a dispute arises.
Why notice matters: add a sentence on handover and replacement planning, so the employee understands the business reason behind the timing.

How long the leave runs, and how it can be extended

The core entitlement under s 70 of the Fair Work Act 2009 (Cth) is 12 months of unpaid parental leave for each eligible parent. Both parents are each entitled to their own 12 months, and the leave must end within 24 months of the birth or placement. Part of the 12 months can be taken flexibly, in blocks or single days, at any time within that 24-month window; the number of flexible days has been increasing in steps, starting at 100 days and rising for children born from 1 July 2024 onward.

Two further points belong in this clause:

Extensions: an employee can request a further period of up to 12 months. The request must be in writing and given to you at least 4 weeks before the end of the initial leave period. You must respond in writing within 21 days, and you can only refuse on reasonable business grounds after discussing the request and genuinely trying to reach agreement with the employee.
Other leave in the same period: an employee can take paid leave, such as annual leave, at the same time as unpaid parental leave. State in the policy that these requests will be considered in line with the NES, any applicable award, and your other leave policies.

Draft this clause to describe the process, not to promise outcomes. Avoid wording that commits you to always approving extensions; the policy should say you will assess each request fairly against the statutory test and respond in writing within the 21-day window.

Paid parental leave, if you offer it

The NES does not require paid parental leave, so this clause only exists if your business chooses to offer it. If you do, the drafting choices are all yours, and the clause should be explicit about each one:

How many weeks are paid: state whether the payment is at the base rate or includes loadings and allowances.
Who is eligible: the paid component may be narrower than the statutory unpaid entitlement, but the test should be stated clearly.
Whether leave can be taken at half-pay: say how that is calculated if you allow it.
How it interacts with the government scheme: make sure employees understand the two payments are separate.

If you do not offer paid parental leave, say so in one line: your business follows the NES minimums for unpaid leave, and government payments are a separate matter. The government's Parental Leave Pay is administered by Services Australia and is paid at a rate based on the national minimum wage; the number of weeks has been increasing each year, reaching 24 weeks for children born or adopted from 1 July 2025 and 26 weeks for those from 1 July 2026, with a superannuation contribution paid by the ATO for births from 1 July 2025. Your policy should make clear that you are not the administrator of that scheme.

Keeping in touch during leave

Most employees on parental leave appreciate occasional contact, and most employers need some. The NES provides a structure for this in the form of keeping in touch days, under s 79A of the Fair Work Act 2009 (Cth). An employee can perform work for you on up to 10 keeping in touch days during the leave, but only if both sides consent, the work is done to keep the employee connected to the job so a return is easier, and the days fall outside the protected period immediately after the birth or placement (14 days if the employee asked to work, 42 days otherwise). Work performed on a keeping in touch day is paid work, and it does not extend the leave period.

Your clause should say that these days are optional, that they happen by agreement only, and that they will never be used to pressure an employee back early. The drafting aim is to avoid both silence and pressure: a sentence on how you will communicate during leave, and who the employee should contact with questions, gives everyone a default.

What happens to the role while they are away

This is the clause that protects you during a restructure. While an employee is on unpaid parental leave, the NES imposes a consultation duty under s 83 of the Fair Work Act 2009 (Cth): if you make a decision that will significantly affect the status, pay or location of their pre-parental-leave position, you must take all reasonable steps to give them information about it and an opportunity to discuss it.

The policy should commit you to that consultation in practice, and to documenting it. If you restructure while someone is on leave, the question of what happened to their position is decided later on the strength of your records. A clause that says you will notify the employee of significant changes, discuss the impact, and keep a written record of the decision and the consultation is the difference between a defensible restructure and an adverse action or general protections claim.

Returning to work

The return to work guarantee in s 84 of the Fair Work Act 2009 (Cth) is the other half of the same protection: on ending a period of unpaid parental leave, the employee is entitled to return to their pre-parental-leave position, or, if that position no longer exists, to an available position for which they are qualified and suited that is nearest in status and pay to the old one.

The clause should set out the process around that guarantee:

Confirming the return date: the same 4-week confirmation requirement applies to changes in the agreed dates, so build the step into your process.
Handover and re-onboarding: who will brief the returning employee on what changed while they were away, and what training or updates they will receive.
Performance expectations: a reasonable re-onboarding period is sensible, but say so gently so the policy does not read as a promise that no performance issues will ever be raised.

Flexible work requests on return

A large share of parental leave disputes happen at the return-to-work stage, when an employee asks to come back part-time or with changed hours. The NES gives parents of children of school age or younger a right to request flexible working arrangements under s 65 of the Fair Work Act 2009 (Cth), and s 65A sets the rules for responding.

Your policy should restate those rules because they are procedural, and tribunals look at whether you followed them:

Respond in writing within 21 days: the clock starts from the day the request is made.
Discuss the request and genuinely try to reach agreement: do this before you decide anything.
Only refuse on reasonable business grounds: cost, impracticality, or a significant negative impact on productivity or customer service can qualify, but you must also have considered the consequences of refusal for the employee.
If you refuse, explain why: the written response must set out your particular business grounds, how they apply to the request, and any alternative arrangements you would accept, and it must tell the employee about the dispute resolution process, which can end at the Fair Work Commission.

Draft this clause as a commitment to the process, not to any particular outcome. It should promise a fair assessment within the statutory timeframe, which is both legally safer and more useful to you than a policy that promises flexibility in every case.

Privacy and confidentiality

Pregnancy, adoption plans and health information are sensitive personal information. When an employee gives you a medical certificate or tells you about an adoption, you are handling information that the Privacy Act 1988 (Cth) treats specially, and that employees reasonably expect you to keep confidential. A short clause committing the business to confidentiality, to limiting access to those who need the information to manage the leave, and to secure record-keeping is cheap insurance. Make sure the clause matches what your business actually does: if your privacy policy promises one thing and your email practices deliver another, the mismatch is the problem.

Optional clauses worth considering

These clauses only earn their place in particular circumstances, but when the trigger exists, they are worth including:

The six-week check-in before the due date: under s 73 of the Fair Work Act 2009 (Cth), if a pregnant employee wants to keep working in the six weeks before the expected birth, you may ask for a medical certificate confirming fitness for work, and in some circumstances require the leave to start. Worth a clause if you employ people in roles where working close to term raises genuine safety questions.
No safe job leave: the NES gives a pregnant employee who cannot work because of a hazard in her role a right to be transferred to a safe job, or to take paid no safe job leave if no safe job is available. Include it if your workplace has physical or hazardous roles.
Unpaid pre-adoption leave: under s 85 of the Fair Work Act 2009 (Cth), an employee is entitled to up to two days of unpaid leave to attend interviews or examinations required for an adoption. Worth stating if any of your team are on an adoption pathway.
Concurrent leave for partners: if both parents work for you, the NES allows them to take parental leave at the same time. A clause setting out how you will handle concurrent requests avoids surprises.
Review and variation: the NES and the government scheme change regularly, as the last few years have shown. A line saying the policy will be reviewed annually, and that changes will be communicated in writing, keeps the document honest.

How an Artificer Legal practitioner would review your parental leave policy

This is a document where the drafting errors are usually small and expensive. When we review a parental leave policy, we work through a fairly fixed list: which modern award or enterprise agreement actually covers each of your employees and what it adds on top of the NES; whether the policy promises more than you can deliver, which is the most common template mistake; whether the refusal language tracks the statutory tests in sections 65A and 76, so your decisions survive a dispute; how keeping in touch days are paid and recorded; whether the policy, your employment contracts and your handbook contradict each other; and whether the documentation practices around leave decisions, especially during a restructure, would stand up to scrutiny.

We also look at the clauses you have left out. A policy that says nothing about flexible work requests, or nothing about what happens to the role during leave, leaves you making those decisions ad hoc, which is exactly how inconsistent treatment and discrimination complaints start. If you are about to put a policy in place, or you have one that has grown out of date, a review against the current law and your actual workforce is a relatively quick exercise, and it is the moment to fix wording that a tribunal would later read against you.

The drafting choice that decides whether the policy holds up

If one clause decides whether this document works, it is the one governing how you assess and refuse discretionary requests: extensions, flexible work, and changes to agreed dates. The policies that fail are not the ones that understate the NES, though that happens; they are the ones that promise outcomes in one breath and reserve discretion in the next, or that say nothing about how requests will be assessed. Draft that clause as a commitment to process, written responses within 21 days, reasons grounded in the reasonable business grounds tests, and a written record of every decision, and the rest of the policy has somewhere to attach. Then keep the promises small enough to keep, align the policy with your contracts and your other leave documents, and review it when the law moves.

The essential shape, in summary: a parental leave policy restates the NES minimums as a workable process, covering eligibility and evidence, notice and application steps, the 12-month entitlement and its extension, paid parental leave if you offer it, keeping in touch days, the return to work guarantee and consultation duties, flexible work requests, and privacy. It binds you to consistency, not to generosity, and the decisions it forces you to make in writing are the ones that protect you later.