Part 4Division 1 Parental leave generally
53 Employees to whom Part applies
(1) This Part applies to all employees, including part-time employees or regular casual employees, but does not apply to other casual or seasonal employees.(2) For the purposes of this Part, a regular casual employee is a casual employee who works for an employer on a regular and systematic basis and who has a reasonable expectation of on-going employment on that basis.
54 Entitlement to unpaid parental leave
(1) An employee is entitled to a total of 52 weeks unpaid parental leave in connection with the birth or adoption of a child, as provided by this Part.(2) Parental leave is not to extend beyond 1 year after the child was born or adopted.Note. See also Part 5 relating to entitlements to part-time work agreements.
(1) For the purposes of this Part, parental leave is maternity leave, paternity or partner leave or adoption leave.(2) Maternity leave is leave taken by a female employee in connection with the pregnancy, or the birth of a child following the pregnancy, of the employee. Maternity leave consists of an unbroken period of leave.(3) Paternity or partner leave is leave taken by an employee in connection with the birth of a child of the employee or a child of the employee’s spouse (being a child born as a result of the pregnancy of that spouse). Paternity or partner leave consists of:(a) an unbroken period of up to one week at the time of the birth of the child or other termination of the pregnancy (short paternity or partner leave), and(b) a further unbroken period in order to be the primary care-giver of the child (extended paternity or partner leave).(4) Adoption leave is leave taken by a female or male employee in connection with the adoption by the employee of a child under the age of 18 years (other than a child who has previously lived continuously with the employee for a period of at least 6 months or who is a child or step-child of the employee or of the employee’s spouse). Adoption leave consists of:(a) an unbroken period of up to 3 weeks at the time of the placement of the child with the employee (short adoption leave), and(b) a further unbroken period in order to be the primary care-giver of the child (extended adoption leave).(5) For the purposes of this Part, spouse includes a de facto partner.Note. Employees are also entitled to special maternity leave for recovery from a termination of pregnancy or illness related to pregnancy (section 71) and to special adoption leave up to 2 days to attend interviews or examinations for the purposes of adoption (section 72). The requirement of unbroken periods of leave is subject to section 63 (Employee and employer may agree to interruption of parental leave by return to work).
56 This Part provides minimum entitlements
(1) This Part sets out the minimum entitlements of employees to parental leave.(2) The provisions of an industrial instrument, contract of employment or other agreement (whether made or entered into before or after the commencement of this Part) do not have effect to the extent that they provide an employee with a benefit that is less favourable to the employee than the benefit to which the employee is entitled under this Part.
57 Length of service for eligibility
(1) An employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer.(2) Continuous service is service under one or more unbroken contracts of employment, including:(a) any period of authorised leave or absence, and(b) any period of part-time work.(3) However, in the case of a casual employee:(a) the employee is entitled to parental leave only if the employee has had at least 12 months of continuous service with the employer as a regular casual employee (or partly as a regular casual employee and partly as a full-time or part-time employee), and(b) continuous service is work for an employer on an unbroken regular and systematic basis (including any period of authorised leave or absence).Note. Under Part 8 of this Chapter a period of service in the business of a former employer counts as service with a new employer to whom the business concerned has been transferred.
58 Notices and documents required to be given to employer
(1) Maternity leave
The notices and documents to be given to the employer for the purposes of taking maternity leave are as follows:(a) The employee should give at least 10 weeks’ written notice of the intention to take the leave.(b) The employee must, at least 4 weeks’ before proceeding on leave, give written notice of the dates on which she proposes to start and end the period of leave.(c) The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that she is pregnant and the expected date of birth.(d) The employee must, before the start of leave, provide a statutory declaration by the employee stating, if applicable, the period of any paternity or partner leave sought or taken by her spouse.(2) Paternity or partner leave
The notices and documents to be given to the employer for the purposes of taking paternity or partner leave are as follows:(a) In the case of extended paternity or partner leave, the employee should give at least 10 weeks’ written notice of the intention to take the leave.(b) The employee must, at least 4 weeks before proceeding on leave, give written notice of the dates on which the employee proposes to start and end the period of leave.(c) The employee must, before the start of leave, provide a certificate from a medical practitioner confirming that the employee’s spouse is pregnant and the expected date of birth.(d) In the case of extended paternity or partner leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:(i) if applicable, the period of any maternity leave sought or taken by the employee’s spouse, and(ii) that the employee is seeking that period of extended paternity or partner leave to become the primary care-giver of a child.(3) Adoption leave
The notices and documents to be given to the employer for the purposes of taking adoption leave are as follows:(a) In the case of extended adoption leave, the employee should give written notice of any approval or other decision to adopt a child at least 10 weeks’ before the expected date of placement.(b) The employee must give written notice of the dates on which the employee proposes to start and end the period of leave, as soon as practicable after the employee is notified of the expected date of placement of the child but at least 14 days before proceeding on leave.(c) The employee must, before the start of leave, provide a statement from an adoption agency or another appropriate body of the expected date of placement of the child with the employee for adoption purposes.(d) In the case of extended adoption leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:(i) if applicable, the period of any adoption leave sought or taken by his or her spouse, and(ii) that the employee is seeking that period of extended adoption leave to become the primary care-giver of a child.(4) An employee does not fail to comply with this section if the failure was caused by:(a) the child being born (or the pregnancy otherwise terminating) before the expected date of birth, or(b) the child being placed for adoption before the expected date of placement,or if it was not otherwise reasonably practicable to comply in the circumstances.In the case of the birth of a living child, notice of the period of leave is to be given within 2 weeks after the birth and the certificate of the medical practitioner is to state that the child was born and the date of birth. In the case of the adoption of a child, notice of the period of leave is to be given within 2 weeks after the placement of the child.
(5) An employee must notify the employer of any change in the information provided under this section within 2 weeks after the change.(6) If required by the employer, an employee who applies for parental leave is to give the employer a statutory declaration, or enter into an agreement with the employer, that for the period of the leave the employee will not engage in any conduct inconsistent with the employee’s contract of employment.
(1) Parental leave does not break an employee’s continuity of service, but is not to be taken into account in calculating an employee’s period of service for any purpose.(2) However, parental leave counts as service for any purpose authorised by law or by any industrial instrument or contract of employment.
60 Parents not to take parental leave at the same time
(1) An employee is not entitled to parental leave at the same time as his or her spouse is on parental leave under this Part.(2) If this section is contravened the period of parental leave to which the employee is entitled under this Part is reduced by the period of leave taken by his or her spouse.(3) This section does not apply to short paternity or partner leave or short adoption leave.
61 Cancellation of parental leave
(1) Before starting leave
Parental leave applied for but not commenced is automatically cancelled if:(a) the employee withdraws the application for leave by written notice to the employer, or(b) the pregnancy concerned terminates other than by the birth of a living child or the placement of the child concerned does not proceed.(2) After starting leave
If:(a) the pregnancy of an employee or an employee’s spouse terminates other than by the birth of a living child while the employee or spouse is on parental leave, or(b) the child in respect of whom an employee is then on parental leave dies, or(c) the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue,the employee is entitled to resume work at a time nominated by his or her employer within 2 weeks after the date on which the employee gives his or her employer a notice in writing stating that the employee intends to resume work and the reason for the intended resumption.(3) Special leave not affected
This section does not affect an employee’s entitlement to special maternity leave under section 71.
62 Parental leave and other leave
(1) An employee may take any annual leave or long service leave (or any part of it) to which the employee is entitled instead of or in conjunction with parental leave.(2) However, the total period of leave cannot be so extended beyond the maximum period of parental leave authorised by this Part.(3) Any paid sick leave or other paid absence authorised by law or by an industrial instrument or contract of employment is not available to an employee on parental leave, except if the paid absence is annual leave or long service leave or with the agreement of the employer.
63 Employee and employer may agree to interruption of parental leave by return to work
(1) An employee on parental leave may, with the agreement of the employer, break the period of leave by returning to work for the employer, whether on a full-time, part-time or casual basis.(2) The period of leave cannot be extended by such a return to work beyond the maximum period of leave authorised by this Part.(3) Nothing in this section affects any other work undertaken by the employee during parental leave.Note. Section 58 (6) requires the employee when taking parental leave to provide the employer with a statutory declaration, or enter into an agreement with the employer, that the employee will not engage during leave in any conduct inconsistent with the employee’s contract.
64 Extension of period of parental leave
(1) An employee may extend the period of parental leave once only by giving the employer notice in writing of the extended period at least 14 days before the start of the extended period. The period of leave cannot be extended by such a notice beyond the maximum period of leave authorised by this Part.(2) An employee may extend the period of parental leave at any time with the agreement of the employer. The period of leave can be extended by such an agreement beyond the maximum period of leave authorised by this Part.(3) This section applies to an extension of leave while the employee is on leave or before the employee commences leave.
65 Shortening of period of parental leave
An employee may shorten the period of parental leave with the agreement of the employer and by giving the employer notice in writing of the shortened period at least 14 days before the leave is to come to an end.
66 Return to work after parental leave
(1) An employee returning to work after a period of parental leave is entitled to be employed in:(a) the position held by the employee immediately before proceeding on that leave, or(b) if the employee worked part-time or on a less regular casual basis because of the pregnancy before proceeding on maternity leave—the position held immediately before commencing that part-time work or less regular casual work, or(c) if the employee was transferred to a safe job under section 70 before proceeding on maternity leave—the position held immediately before the transfer.(2) If the position no longer exists but there are other positions available that the employee is qualified for and is capable of performing, the employee is entitled to be employed in a position as nearly as possible comparable in status and pay to that of the employee’s former position.(3) This section extends to a female employee returning to work after a period of leave under section 71 (Special maternity leave and sick leave).(4) An employer who does not make available to an employee a position to which the employee is entitled under this section is guilty of an offence.Maximum penalty: 100 penalty units.
(5) In this section, a reference to employment in a position includes, in the case of a casual employee, a reference to work for an employer on a regular and systematic basis.Note. An employee returning to work after parental leave may also have an entitlement to work part-time under an industrial instrument or a part-time work agreement under Part 5.
Division 2 Miscellaneous provisions
(1) Information to employees
On becoming aware that an employee (or an employee’s spouse) is pregnant, or that an employee is adopting a child, an employer must inform the employee of:(a) the employee’s entitlements to parental leave under this Part, and(b) the employee’s obligations to notify the employer of any matter under this Part.An employer cannot rely on an employee’s failure to give a notice or other document required by this Part unless the employer establishes that this subsection has been complied with in relation to the employee.
(2) Records
An employer must keep, for at least 6 years, a record of parental leave granted under this Part to employees and all notices and documents given under this Part by employees or the employer.Maximum penalty: 20 penalty units.
68 Termination of employment because of pregnancy or parental leave
(1) An employer must not terminate the employment of an employee because:(a) the employee or employee’s spouse is pregnant or has applied to adopt a child, or(b) the employee or employee’s spouse has given birth to a child or has adopted a child, or(c) the employee has applied for, or is absent on, parental leave,but otherwise the rights of an employer in relation to termination of employment are not affected by this Part.Maximum penalty: 100 penalty units.
(2) For the purposes of establishing such a termination of employment, it is sufficient if it is established that the alleged reason for termination was one of two or more reasons for termination.(3) This section does not affect any other rights of a dismissed employee under this or any other Act or under any industrial instrument or contract of employment, or the rights of an industrial organisation representing such an employee.Note. A dismissed employee may also make a claim under Part 6 (Unfair dismissals).
(1) A replacement employee is a person who is specifically employed as a result of an employee proceeding on parental leave (including as a replacement for an employee who has been temporarily promoted or transferred in order to replace the employee proceeding on parental leave).(2) Before a replacement employee is employed, the employer must inform the person of the temporary nature of the employment and of the rights of the employee on parental leave to return to work.Maximum penalty: 50 penalty units.
(3) A reference in this section to an employee proceeding on parental leave includes a reference to a pregnant employee exercising a right under section 70 to be transferred to a safe job.
(1) This section applies whenever the present work of a female employee is, because of her pregnancy or breastfeeding, a risk to the health or safety of the employee or of her unborn or new born child. The assessment of such a risk is to be made on the basis of a medical certificate supplied by the employee and of the obligations of the employer under the Occupational Health and Safety Act 2000.(2) The employer is to temporarily adjust the employee’s working conditions or hours of work to avoid exposure to that risk.(3) If such an adjustment is not feasible or cannot reasonably be required to be made, the employer is to transfer the employee to other appropriate work that:(a) will not expose her to that risk, and(b) is as nearly as possible comparable in status and pay to that of her present work.(4) If such a transfer is not feasible or cannot reasonably be required to be made, the employer is to grant the employee maternity leave under this Part (or any available paid sick leave) for as long as is necessary to avoid exposure to that risk, as certified by a medical practitioner.(5) An employer who does not comply with any obligation imposed on the employer by this section is guilty of an offence.Maximum penalty (subsection (5)): 50 penalty units.
71 Special maternity leave and sick leave
If the pregnancy of an employee terminates before the expected date of birth (other than by the birth of a living child), or she suffers illness related to her pregnancy, and she is not then on maternity leave:(a) the employee is entitled to such period of unpaid leave (to be known as special maternity leave) as a medical practitioner certifies to be necessary before her return to work, or(b) the employee is entitled to such paid sick leave (either instead of or in addition to special maternity leave) as she is then entitled to and as a medical practitioner certifies to be necessary for her return to work.
An employee who is seeking to adopt a child is entitled to up to 2 days unpaid leave if the employee requires that leave to attend compulsory interviews or examinations as part of the adoption procedure.