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Circular 2013/01: Changes to the Fair Work Act 2009 in relation to Parental leave

This circular is to inform Australian Government employers of their obligations to employees on their return to duty following periods of parental or maternity leave as a result of the inclusion of Section 84A (Replacement employees) to the Fair Work Act 2009 (FW Act). These changes came into effect on 23 July 2012.

Section 84A should be read in conjunction with section 84. Both Section 84 and 84A apply to employees on maternity leave under the Maternity Leave (Commonwealth Employees) Act 1973.

Return to work guarantee

In accordance with Section 84 of the FW Act, employees returning to work following a period of unpaid parental leave are entitled to resume their pre-parental leave position or, if that position no longer exists, a position for which they are qualified and suited nearest in status and pay to their pre-parental leave position. The position is considered to exist even if someone else is performing the duties of the employee's pre-parental leave position.

Replacement employees

Section 84A of the FW Act further details the provisions for replacement employees who are engaged to perform the duties of the employee who is going to take, or is taking, unpaid parental leave. Prior to the engagement of replacement employees, the employer must notify the prospective employee that:

  • that their engagement is temporary;
  • the rights of the person who is on unpaid parental leave, including their right to return to work (subsections 77A(4) to (6), section 84 and section 78); and
  • the rights of the employer to cancel the parental leave in some circumstances (77A(2),(3) and section 78).

Dad and Partner Pay

As part of the recent changes to the Paid Parental Leave Act 2010, a one-off payment called Dad and Partner Pay (DAPP) was implemented on 1 January 2013. This entitles eligible working fathers and partners, including parents who are adopting a child and same-sex couples, to receive up to 2 weeks government-funded DAPP at the rate of the National Minimum Wage for the purposes of caring for a child born or adopted from 1 January 2013. Claims for and payments to eligible fathers and partners of DAPP are made through the Department of Human Services.

Agencies should note that DAPP is only available where an employee is on unpaid leave or not working during the DAPP period.

Detailed information on Dad and Partner Pay can be accessed on the Dad and Partner Pay section of the Department of Human Services website.

Further information

The Fair Work Act 2009 and the Paid Parental Leave Act 2010 as amended are available online at the Commonwealth Law website. Additional information on returning to work from unpaid parental leave can be found in the Parental leave – Returning to work section of the Fair Work Ombudsman website and the Fair Work Ombudsman factsheet on Parental leave and related entitlements and the National Employment Standards.

For further information or assistance please contact the Workplace Relations Conditions Policy Team on (02) 6202 3948.

Marco Spaccavento
Group Manager
Workplace Relations Group
11 January 2013

Last reviewed: 
29 August 2018