Parental leave and long service leave: does it count as service?

Does unpaid parental leave count in each state?

In every state, unpaid parental leave does not break your service. The difference is whether the state adds those weeks to your service. If the weeks do not count, you need to work the same amount of extra time to reach each milestone.

Examples from the regulators

NSW Industrial Relations gives the example of Luke. He had 9 years' service and took 364 days of unpaid parental leave. When he came back, he still had only 9 years' service. He needed an extra 364 days to reach 10 years.

The WA guide gives the example of Jess, who took 12 months of parental leave. Her 24 weeks on Australian Government Parental Leave Pay count as service. The other 28 weeks were unpaid, so her long service leave date moves back by 28 weeks.

In SA, the example from SafeWork SA is Sarah. She took 12 months of maternity leave for each of her two children. She must work at least 2 years past her 10-year anniversary before she qualifies.

Victoria counts up to 52 weeks

Victoria's 2018 Act changed the rule. Now, unpaid leave of up to 52 weeks counts as service, and this includes unpaid parental leave (s 13(1)(b)).

If unpaid leave is longer than 52 weeks, only the first 52 weeks count. The exceptions are in s 13(1)(c)-(d) and s 14(a). The longer absence counts if your agreement treats it as employment. It also counts if you and your employer agreed in writing before the leave. It also counts if your agreement or fair work instrument provides for the leave.

The old 1992 Act still applies to parental leave that you took before 1 November 2018, and that leave does not count. If your leave started before that date and ended after it, only the part from 1 November 2018 counts (s 57).

For casual and seasonal employees in Victoria, parental leave of up to 104 weeks does not break service (s 12(2)(d)).

Casual and seasonal employees

In WA, an absence of a casual or seasonal employee counts as service if the employee has a reasonable expectation that they will return. This expectation must come from the regular and systematic nature of the work (s 6(5), s 6A(1)(c)). The WA government says that this can include unpaid parental leave. For the other casual rules, read our guide for casual workers.

Long service leave during or after parental leave

Under the Fair Work Act, you can take other paid leave while you are on unpaid parental leave. This does not break your period of unpaid parental leave (s 79(1)). The Fair Work Ombudsman says that you can take long service leave during unpaid parental leave if your long service leave rules allow it. It also says that you can get Parental Leave Pay before, after or at the same time as long service leave. You cannot take paid personal leave while you are on unpaid parental leave (s 79(2)).

If Queensland's own parental leave rules apply to you, you can take long service leave instead of parental leave, or together with it. This rule is in the Industrial Relations Act 2016 (Qld). The total leave cannot go past the maximum parental leave period (Qld s 79(1)-(2)).

If you take long service leave straight after parental leave, the normal rules for leave apply. For example, in Victoria your employer must grant your request as soon as practicable, unless it has reasonable business grounds to refuse (s 18). In Queensland, you and your employer agree on when you take it (s 97(2)).

Long service leave is a type of paid leave, so the weeks that you take count as service. For example, this is the rule in Victoria (s 13(1)(a)), WA (s 6A(1)(a)) and the NT (s 12(5)).

Check your agreement

An enterprise agreement, contract or older industrial instrument can count parental leave as service, even if the state Act does not. NSW expressly allows this. Victoria counts longer leave if your agreement provides for it. If you are not sure, ask your state regulator. For a dispute, ask an employment lawyer.