Adoption leave in Australia: What employers need to know

For many people across Australia, adopting a child is the realisation of a lifelong dream.

As an employer, it’s important to understand your legal obligations when an employee finalises an adoption. Under Australian employment law, eligible employees are entitled to adoption-related leave and pay, which allows them time to bond with their child and adjust to their new family situation.

Failing to meet these obligations can lead to breaches of the Fair Work Act and potential legal or financial consequences. In this guide, we’ll explain what adoption leave is, outline your employees’ entitlements, and clarify the key regulations that Australian employers need to follow.

What is Adoption Leave?

Adoption leave is paid time off from work your employees are entitled to help the child settle into the family home.

This time off is a legal requirement in Australia - so it's crucial you understand the rules and regulations surrounding adoption leave. You have a duty of care to help your employees take this important step in their lives.

Not providing adoption leave could be unfair treatment or discrimination and may lead to an employment tribunal, so you it's something to get right.

How much Statutory Adoption Leave are employees entitled to?

Eligible employees can access unpaid parental leave when adopting a child, as set out under the Fair Work Act 2009. Eligible employees are entitled to up to 12 months of unpaid adoption leave, with the possibility of requesting an additional 12 months of unpaid leave from their employer.

You must allow employees to return to their former position or provide a suitable alternative role if their original role is no longer available once their leave ends.

To be eligible for adoption leave, employees must:

• Be classified as a permanent employee (full-time, part-time, or eligible long-term casual).

• Have completed at least 12 months of continuous service with your organisation.

• Be the primary caregiver of a newly adopted child or a child under 16 years old.

• Provide documentation confirming the adoption, such as an adoption order or certificate.

It’s also important to note that agency or casual workers may have different entitlements. While casuals who meet the eligibility criteria may access unpaid adoption leave, some may not qualify for government-funded adoption pay. Employers should check eligibility carefully to ensure compliance.

How much is Statutory Adoption Pay?

Statutory adoption pay is provided through the Parental Leave Pay scheme funded by the government, rather than directly by employers (unless your business offers additional paid adoption leave). Eligible employees can receive:

• Up to 18 weeks of pay at the national minimum wage if they are the primary caregiver of a child under 16.

• Payment is administered through Services Australia, and employers are generally responsible for allowing the leave and coordinating any payments if they choose to supplement it.

Do all employees qualify for Adoption Leave and Pay in Australia?

Not every employee is automatically entitled to adoption-related leave or government-funded Parental Leave Pay. Employees may not qualify if the adoption does not meet certain criteria, such as:

• Arrangements that are private or informal, rather than through a recognised adoption authority.

• Adopting a stepchild or other family member.

• Becoming a legal guardian without formal adoption.

Employees who are not eligible for government-funded Parental Leave Pay may still be able to access other forms of support, such as:

• Family Tax Benefit through Services Australia.

• State or territory-specific adoption or parenting allowances.

As an employer, it’s important to understand the rules for all types of adoption, including surrogacy, to ensure your policies are inclusive and compliant with Australian law.

Do employees receive leave for a surrogacy arrangement?

Employees who are becoming parents through a surrogacy arrangement may be entitled to unpaid adoption or parental leave, provided they meet eligibility criteria. To qualify:

• The employee must become the legal parent of the child. In most states and territories, this requires applying for a parental order or adoption order through the relevant court after the child’s birth.

• They must be the primary caregiver of the child.

• They must have completed at least 12 months of continuous service with their employer before the expected birth of the child.

Leave entitlements for surrogacy are treated similarly to other adoption or parental leave arrangements, ensuring that employees have the opportunity to bond with their child while maintaining their job security.

Can employees receive Parental Leave for an adoption?

When a child is adopted jointly, only one parent needs to be recognised as the primary caregiver for the purposes of unpaid adoption or parental leave. The parents can decide between themselves who will take adoption leave and who may take other forms of leave, such as annual leave, to spend time with the child.

Eligible employees may access government-funded Parental Leave Pay if they are the primary caregiver of the adopted child. Employees must have completed at least 12 months of continuous service with their employer to access unpaid adoption leave.

Employers should also be aware that employees may choose to take shared leave arrangements with their partner to balance caregiving responsibilities. Additionally, employees can use annual leave or other accrued entitlements to extend the time they spend with their adopted child.

What is shared Parental Leave?

In Australia, employees can coordinate parental and adoption leave arrangements with their partner to share caregiving responsibilities. Eligible employees can take unpaid adoption or parental leave as the primary caregiver, while their partner may also take parental leave if they meet the eligibility requirements.

Employees can also use annual leave or other accrued leave entitlements to extend the time they spend caring for the adopted child, allowing both parents to share caregiving duties. While government-funded Parental Leave Pay is only available to the primary caregiver, parents can plan leave arrangements between themselves to balance time with the child.

Do foster parents receive Adoption Leave?

Foster parents who are transitioning to adopt a child—often called “fostering to adopt”—have specific eligibility requirements for adoption or parental leave. Not all foster parents automatically qualify for government-funded Parental Leave Pay, but they can access unpaid adoption leave once the child is legally placed with them for adoption.

It’s important for employers to respect that the timing of leave is determined by the employee and the adoption process, which may occur weeks or months after the child is initially placed. Employers should never pressure or encourage an employee to take leave at a time that suits the business rather than the family.

What happens to Adoption Leave if the child is no longer placed?

If an adoption placement ends during an employee’s adoption or parental leave, the employee may still be entitled to continue their leave for a short transitional period, depending on the circumstances and their employment agreement. After this period, the employee is generally expected to return to work.

Employers should handle these situations sensitively and in line with Fair Work obligations, providing support and clear communication to the employee.

What Are the Employment Rights for Overseas Adoptions?

If an employee is adopting a child from overseas, they may be eligible for adoption or parental leave in Australia, provided they meet the usual eligibility requirements. These include having completed at least 12 months of continuous service with their employer and being recognised as the primary caregiver of the child.

The employee should provide evidence of the overseas adoption, such as official documentation confirming the expected arrival of the child in Australia, so that the leave can be scheduled appropriately and they can return to work on the correct date.

Employers should ensure they apply the same leave entitlements and support as for domestic adoptions, while also being mindful of additional complexities that may arise with international adoptions.

Do you receive Adoption Leave if you're self-Employed?

Self-employed workers are not entitled to unpaid adoption leave through an employer. However, they may be able to access government-funded Parental Leave Pay if they meet the eligibility requirements set by Services Australia.

Can employers provide their own Paid Adoption Leave?

Employers in Australia can offer their own paid adoption leave schemes in addition to the government-funded Parental Leave Pay. Offering a generous adoption leave policy can make your business more attractive to potential employees.

While it is not a legal requirement to provide paid adoption leave beyond the government scheme, any commitments made in employment contracts must be honoured. Failure to provide promised leave could result in disputes or grievances.

To reduce the risk of misunderstandings, make adoption leave entitlements clear in employment contracts and provide a transparent process for employees to raise concerns if they believe their rights have not been met.

Receive expert advice on Adoption Leave with BrightHR

As an employer, you have a legal duty to provide your staff with statutory adoption pay, but it can be hard to keep up with exactly what applies and when.

Failure to provide your staff with their adoption leave rights is a breach of employment law and could lead to a tribunal.

Remain compliant and receive quality advice on adoption leave with our Bright Advice helpline.

Book a free product demo or give our friendly and helpful team a call on 1 300 029 198.