AN120012 – Aged Care Industry (Broken Hill) Award
(a) All employees are entitled to paternity leave in accordance with the provisions of the Industrial Relations Act 1996.
(b)
(i) Full-time employees, permanent part-time employees are eligible for paid maternity leave and paid adoption leave in accordance with the following provisions:
(1) Full-time employees are eligible for paid maternity leave and paid adoption leave when they have completed at least 40 weeks continuous service of not less than 31 1/4 hours per week prior to the expected date of birth or prior to the date of taking custody of the child.
(2) Permanent part-time employees are eligible for paid maternity leave and paid adoption leave when they have completed at least 40 weeks continuous service.
(ii) Employees who are eligible for paid maternity leave and paid adoption leave are entitled to maternity leave and adoption leave as follows:
(1) Paid Leave-
(A) Paid Maternity Leave - an eligible employee is entitled to nine weeks paid maternity leave at the ordinary rate of pay from the date the maternity leave commences.
Maternity leave may commence up to nine weeks prior to the expected date of birth. It is not compulsory for an employee to take this period off work. However, if an employee decides to work during this period, it is subject to the employee being able to satisfactorily perform the full range of normal duties.
(B) Paid Adoption Leave - an eligible employee is entitled to paid adoption leave of three weeks from and including the date of taking custody of the child.
Paid maternity leave and adoption leave may be paid:
1. on a normal fortnightly basis;
2. in advance in a lump sum;
3. at the rate of half pay over a period of 18 weeks on a regular fortnightly basis for maternity leave and at the rate of half pay over a period of six weeks on a regular fortnightly basis for adoption leave.
Annual and/or long service leave credits can be combined with periods of maternity leave or adoption leave on half pay to enable an employee to remain on full pay for that period.
(2) Unpaid Leave-
(A) Unpaid Maternity Leave - An employee is entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth of the child.
(B) Unpaid Adoption Leave - An employee is entitled to unpaid adoption leave as follows:
1. where the child is under the age of 12 months - a period of not more that 12 months from the date of taking custody;
2. where the child is over the age of 12 months - a period of up to 12 months, such period to be agreed upon by the employee and the employer.
(c) An employee who has once met the conditions for paid maternity leave and paid adoption leave will not be required to again work the 40 weeks continuous service in order to qualify for a further period of maternity leave or adoption leave, unless:
(i) there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement or after his/her services have been otherwise dispensed with; or
(ii) the employee has completed a period of leave without pay of more than 40 weeks. In this context, leave without pay does not include sick leave without pay, maternity leave without pay, or leave without pay associated with an illness or injury compensable under the Workers' Compensation Act.
(d) An employee who intends to proceed on maternity leave should formally notify her employer of such `intention as early as possible, so that arrangements associated with her absence can be made. Written notice of not less than eight weeks prior to the commencement of the leave should accordingly be given. This notice must include a medical certificate stating the expected date of birth and should also indicate the period of leave desired.
(e) In the case of notification of intention to take adoption leave, due to the fact that an employee may be given little notice of the date of taking custody of a child, employees who believe that, in the reasonably near future, they will take custody of a child, should formally notify their employer as early as practicable of the intention to take adoption leave. This will allow arrangements associated with the adoption leave to be made.
(f) After commencing maternity leave or adoption leave, an employee may vary the period of her maternity leave or adoption leave, once, without the consent of the employer and otherwise, with the consent of the employer. A minimum of four weeks notice must be given, although an employer may accept less notice if convenient.
(g) Any person who occupies the position of an employee on maternity leave or adoption leave must be informed that the employee has the right to return to his/her previous position. Additionally, since an employee also has the right to vary the period of her maternity leave or his/her adoption leave, offers of temporary employment should be in writing, stating clearly the temporary nature of the contract of employment. The duration of employment should also be set down clearly, to a fixed date or until the employee elects to return to duty, whichever occurs first.
(h) When an employee has resumed duties, any period of full pay leave is counted in full for the accrual of annual and long service leave and any period of maternity leave or adoption leave on half pay is taken into account to the extent of one half thereof when determining the accrual of annual and long service leave.
(i) Except in the case of employees who have completed ten years service the period of maternity leave or adoption leave without pay does not count as service for long service leave purposes. Where the employee has completed ten years service the period of maternity leave or adoption leave without pay shall count as service for long service leave purposes provided such leave does not exceed six months.
(j) Maternity leave or adoption leave without pay does not count as service for incremental purposes. Periods of maternity leave or adoption leave on full pay and at half pay are to be regarded as service for incremental progression on a pro-rata basis.
(k) Where public holidays occur during a period of paid maternity leave or adoption leave, payment is at the rate of maternity leave or adoption leave received, that is the public holidays occurring in a period of full pay maternity leave or adoption leave are paid at the full rate and those occurring during a period of half pay leave are paid at the half rate.
(l) If because of an illness associated with her pregnancy an employee is unable to continue to work then she can elect to use any available paid leave (sick, annual and/or long service leave) or to take sick leave without pay.
(m) Where an employee is entitled to paid maternity leave, but because of illness, is on sick, recreation, long service leave, or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of the birth. The employee then commences maternity leave with the normal provisions applying.
(n) Where, because of an illness or risk associated with her pregnancy, an employee cannot carry out the duties of her position, an employer is obliged, as far as practicable, to provide employment in some other position that she is able to satisfactorily perform. A position to which an employee is transferred under these circumstances must be as close as possible in status and salary to her substantive position.
(o) In the event of a miscarriage any absence from work is to be covered by the current sick leave provisions.
(p) In the case of stillbirth, an employee may elect to take sick leave, subject to the production of a medical certificate, or maternity leave. She may resume duty at any time provided she produces a doctor's certificate as to her fitness.
(q) An employee who gives birth prematurely, and prior to proceeding on maternity leave shall be treated as being on maternity leave from the date leave is commenced to have a child. Should an employee return to duty during the period of paid maternity leave, such paid leave ceases from the date duties are resumed.
(r) An employee returning from maternity leave or adoption leave has the right to resume her former position. Where this position no longer exists the employee is entitled to be placed in a position nearest in status and salary to that of her former position and for which the employee is capable or qualified.
(s) Employees may make application to their employer to return to duty for less than the full-time hours they previously worked by taking weekly leave without pay. Such return to work is to be according to the following principles:
(i) the period is to be limited to twelve months after which the full-time duties must be resumed;
(ii) the employee is to make an application for leave without pay to reduce her full-time weekly hours of work. This application should be made as early as possible to enable the employer to make suitable staffing arrangements. At least four weeks' notice must be given;
(iii) the quantum of leave without pay to be granted to individual employees is to be at the absolute discretion and convenience of the employer;
(iv) salary and conditions of employment are to be adjusted on a basis proportionate to the employee's full-time hours of work, that is for long service leave the period of service is to be converted to the full-time equivalent and credited accordingly;
(v) Full-time employees who return to work under this arrangement remain full-time employees.
(t) Where an employee becomes pregnant whilst on maternity leave, a further period of maternity leave may be granted. Should this second period of maternity leave commence during the currency of the existing period of maternity leave, then any residual maternity leave from the existing employment lapses.
