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Are employees allowed to work whilst they are on parental leave? |
There is quite a bit of flexibility in relation to parental leave. This type of leave covers any maternity leave, paternity leave and adoption leave. The extent of the leave may be changed by agreement between the parties however certain minimum requirements apply as the requirements differ between the states and territory. |
It is important to keep in mind that your NSW employees have the option to take up to 12 months leave. If you enter into an arrangement for the employee to return to work for you at a reduced level of hours or remuneration compared to before they went on leave that is an enforceable arrangement. In this type of situation both parties may agree to increase the amount of leave to be taken beyond 12 months to take into account the time worked. |
As with any arrangement it is important to keep records of any changes made to one of your employees taking parental leave. Make sure everything is recorded in writing including details such as the amount of hours to be worked and the level of pay. Also include the length of time that this arrangement will last for and in what circumstances the employee may return to parental leave. Also ensure that you stipulate in writing whether the fact your employee is coming to work means they will receive an extension to the amount of time they are able to stay on leave beyond the twelve months. |
Employers should also be aware that whilst employees are on parental leave they may be able to work for other employers subject to some important qualifications. In these circumstances the employees must ensure that they do not compromise your position in any way. For example, as they are still an employee they must adhere to their obligations under their employment contract to ensure confidentiality. |
There are some restrictions on the type of employers employees can work for whilst on leave. For example, they will not be able to work for your competitors. It is the employee's responsibility to ensure that they keep you informed of their intention to work for someone else during their parental leave. |
Employers are not able to prevent employees from working for others whilst on leave per se however they are able to put limitations on the work they will provide. A method through which an employer is able to do so is to require an employee to provide an written undertaking or to sign a statutory declaration that they will not harm the employers business in any way through their employment during their parental leave. |
Peter McNamara |
peter.mcnamara@cml.com.au
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