Section 43 — Fair Work Act 2009: Amendments about flexible unpaid parental leave

Application provision (1) The amendments of Division 5 of Part 2-2 made by Schedule 2 to the amending Act apply in relation to a child if the child’s date of birth, or day of placement, is on or after the Schedule 2 commencement day. Transitional provision—giving notice of taking flexible unpaid parental leave (2) If: (a) before the Schedule 2 commencement day, an employee gives notice to an employer in accordance with subsection 74(1) of the taking of a period (the initial leave period) of unpaid parental leave under section 71 or 72 in relation to a child; and (b) the child’s date of birth or day of placement is on or after the Schedule 2 commencement day; then the employee may, during the 1-month period starting on the Schedule 2 commencement day, give the employer written notice of the taking of flexible unpaid parental leave. (3) The notice under subclause (2) must specify the number of days of flexible unpaid parental leave that the employee intends to take in relation to the child. (4) The employee may, in the notice under subclause (2), advise the employer of a change to the end date of the initial leave period, but only if the change is necessary to allow the employee to take the flexible unpaid parental leave for the number of days referred to in subclause (3). (5) If the employee gives notice in accordance with subclauses (2) and (3), then: (a) the notice is taken to be a notice given under subsection 74(1) in relation to the taking of flexible unpaid parental leave; and (b) subsections 74(3A) and (3B) are taken to have been complied with in relation to the giving of that notice; and (c) if the notice contains advice as referred to in subclause (4)—the employee is taken to have complied with subsection 74(4) in relation to the initial leave period. (6) The employee cannot take flexible unpaid parental leave before the end of 4 weeks starting on the day the notice under subclause (2) is given, despite subsection 74(4B).