AN150038 – Clerks (Retail Industry) Award
CLAUSE 7.4 PARENTAL LEAVE
OPDATE 15:07:2002 on and from
7.4.1 Definitions
In this clause, unless the contrary intention appears:
7.4.1.1 Adoption includes the placement of a child with a person in anticipation of, or for the purposes of adoption.
7.4.1.2 Adoption Leave means adoption leave provided under 7.4.3.4.
7.4.1.3 Child means a child of the employee or the employees spouse under the age of one year; or
means a child under the age of five years who is placed with an employee for the purposes of adoption, other than a child or step-child of the employee, or of the spouse of the employee, who has previously lived with the employee for a continuous period of at least six months.
7.4.1.4 Extended Adoption Leave means adoption leave provided under 7.4.3.4(2).
7.4.1.5 Extended Paternity Leave means paternity leave provided under 7.4.3.3(2).
7.4.1.6 Government Authority means a person or agency prescribed as a government authority for the purposes of this definition.
7.4.1.7 Maternity Leave means maternity leave provided under 7.4.3.2.
7.4.1.8 Medical Certificate means a certificate as prescribed in 7.4.5.1.
7.4.1.9 Parental Leave means adoption leave, maternity leave, paternity leave, extended adoption leave or extended paternity leave as appropriate, and is unpaid leave.
7.4.1.10 Paternity Leave means paternity leave provided under 7.4.3.3.
7.4.1.11 Primary Care-Giver means a person who assumes the principal role of providing care and attention to a child.
7.4.1.12 Relative Adoption means the adoption of a child by a parent, a spouse of a parent or another relative, being a grandparent, brother, sister, aunt or uncle (whether of the whole blood or half blood or by marriage).
7.4.1.13 Short Adoption Leave means adoption leave provided under 7.4.3.4(1).
7.4.1.14 Special Adoption Leave means adoption leave provided under 7.4.10.
7.4.1.15 Special Maternity Leave means maternity leave provided under 7.4.9.1.
7.4.1.16 Spouse includes a defacto spouse or a former spouse.
7.4.1.17 Eligible casual employee means a casual employee employed by an employer during a period of at least 12 months, either
(a) on a regular and systematic basis for several periods of employment; or
(b) on a regular and systematic basis for an ongoing period of employment;
and who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
7.4.2 Employers responsibility to inform
7.4.2.1 On becoming aware that:
(a) an employee is pregnant; or
(b) an employees spouse is pregnant; or
(c) an employee is adopting a child;
7.4.2.2 an employer must inform the employee of:
(a) the employees entitlements under this clause; and
(b) the employees responsibility to provide various notices under this clause.
7.4.3 Eligibility for and entitlement to parental leave
7.4.3.1 Subject to the qualifications in subclause 7.4.4, an employee is entitled to parental leave in accordance with this subclause.
7.4.3.2 An employee who becomes pregnant is, on production of the required medical certificate, entitled to up to 52 weeks of maternity leave.
7.4.3.3 A male employee is, on production of the required medical certificate, entitled to one or two periods of paternity leave, the total of which must not exceed 52 weeks, as follows:
7.4.3.3(a) An unbroken period of up to one week at the time of the birth of the child.
7.4.3.3(b) A further unbroken period of up to 51 weeks in order to be the primary care-giver of the child (to be known as extended paternity leave).
7.4.3.4 An employee is entitled to one or two periods of adoption leave, the total of which must not exceed 52 weeks, as follows:
7.4.3.4(a) An unbroken period of up to three weeks at the time of the placement of the child (to be known as short adoption leave).
7.4.3.4(b) A further unbroken period of up to 49 weeks in order to be the primary care-giver of the child (to be known as extended adoption leave).
7.4.3.5 The provisions of this clause apply to full time, part time and eligible casual employees, but do not apply to other casual employees.
For the purposes of this clause, continuous service is work for an employer on a regular and systematic basis (including any period of authorised leave or absence).
An employer must not fail to re-engage a casual employee because:
(a) the employee or employees spouse is pregnant; or
(b) the employee is or has been immediately absent on parental leave.
The rights of an employer in relation to engagement and re-engagement of casual employees are not affected, other than in accordance with this clause.
An eligible casual employee employed by their current employer, on or prior to 1 July 1998, shall be entitled to parental leave under the terms of the Award as of 15 July 2002.
As of 15 July 2003 all other eligible casual employees will be entitled to parental leave under the terms of this Award.
7.4.4 Qualifications on entitlements and eligibility
7.4.4.1 An employee engaged upon seasonal work is not entitled to parental leave.
7.4.4.2 An entitlement to parental leave is subject to the employee having at least 12 months of continuous service with the employer immediately preceding:
(a) in the case of maternity leave, the expected day of birth; or otherwise,
(b) the date of which the leave is due to commence.
7.4.4.3 The entitlement to parental leave is reduced:
7.4.4.3(a) In the case of maternity leave, by any period of extended paternity leave taken by the employees spouse and/or by any period of special maternity leave taken by the employee.
7.4.4.3(b) In the case of extended paternity leave, by any period of maternity leave taken by the employees spouse.
7.4.4.3(c) In the case of extended adoption leave, by any period of extended adoption leave taken by the employees spouse.
7.4.5 Certification required
7.4.5.1 An employee must, when applying for maternity leave or paternity leave, provide the employer with a medical certificate which:
(a) names the employee or the employees spouse as appropriate;
(b) states that the employee or the employees spouse is pregnant; and
(c) states:
whichever is appropriate.
7.4.5.2 At the request of the employer, an employee must, in respect of the conferral of parental leave, produce to the employer within a reasonable time a statutory declaration which states:
7.4.5.2(a) Parental leave
(i) The particulars of any period of parental leave sought or taken by the employees spouse, and where appropriate;
(ii) that the employee is seeking the leave to become the primary care-giver of a child.
7.4.5.2(b) Adoption leave
(i) In the case of adoption leave, a statement from a Government authority giving details of the date, or presumed date, of adoption; and
(ii) that for the period of the leave the employee will not engage in any conduct inconsistent with the employees contract of employment.
7.4.6 Notice requirements
7.4.6.1 Maternity Leave
7.4.6.1(a) An employee must:
(i) not less than 10 weeks before the expected date of birth of the child, give notice in writing to her employer stating the expected date of birth; and
(ii) give not less than four weeks notice in writing to her employer of the date of which she proposes to commence maternity leave stating the period of leave to be taken; and
(iii) notify the employer of any change in the information provided pursuant to 7.4.5 within two weeks after the change takes place.
7.4.6.1(b) An employer may, by not less than 14 days notice in writing to the employee, require her to commence maternity leave at any time within six weeks immediately before the expected date of birth. Such a notice may be given only if the employee has not given her employer the required notice.
7.4.6.2 Paternity leave
7.4.6.2(a) An employee must, not less than 10 weeks prior to each proposed period of paternity leave, give the employer notice in writing stating the dates on which he proposes to start and finish the period(s) of paternity leave.
7.4.6.2(b) The employee must notify the employer of any change in the information provided pursuant to 7.4.5 within two weeks after the change takes place.
7.4.6.3 Adoption leave
An employee must:
7.4.6.3(a) on receiving notice of approval for adoption purposes, notify the employer of the approval, and within two months of the approval, further notify the employer of the period(s) of adoption leave the employee proposes to take.
7.4.6.3(b) in the case of a relative adoption, so notify the employer on deciding to take a child into custody pending an application for adoption.
7.4.6.3(c) as soon as the employee is aware of the expected date of placement of a child for adoption purposes, but not later than 14 days before the expected date of placement, give notice in writing to the employer of that date, and of the date of commencement of any period of short adoption leave to be taken.
7.4.6.3(d) at least 10 weeks before the proposed date of commencing any extended adoption leave, give notice in writing to the employer of the date of commencing leave and the period of leave to be taken.
7.4.6.4 Unforeseen circumstances
An employee is not in breach of any of these notice requirements if the employees failure to comply is caused by unforeseen or other compelling circumstances, including:
(a) the birth occurring earlier than the expected date; or
(b) the death of the mother of the child; or
(c) the death of the employees spouse; or
(d) the requirement that the employee accept earlier or later placement of the child;
so long as, where a living child is born, the notice is given not later than two weeks after the birth.
7.4.7 Taking of parental leave
7.4.7.1 No employee may take parental leave concurrently with such leave taken by the employees spouse, apart from paternity leave of up to one week at the time of the birth of the child or adoption leave of up to 3 weeks at the time of the placement of the child.
7.4.7.2 Subject to complying with any relevant provision as to the taking of annual leave or long service leave, an employee may, instead of or in conjunction with parental leave, take any annual leave or long service leave to which the employee is entitled.
7.4.7.3 Paid sick leave or other paid absences are not available to an employee during the employees absence on parental leave.
7.4.7.4 A period of maternity leave must be taken as one continuous period and must include, immediately following the birth of the child, a period of 6 weeks compulsory leave.
7.4.7.5 Maternity leave and paternity leave cannot extend beyond the childs first birthday.
7.4.7.6 Adoption leave cannot extend beyond the childs fifth birthday.
7.4.7.7 Extended adoption leave cannot extend beyond the first anniversary of the initial placement of the child.
7.4.8 Variation and cancellation of parental leave
7.4.8.1 Without extending an entitlement beyond the limit set by 7.4.3, parental leave may be varied as follows:
7.4.8.1(a) The leave may be lengthened once by the employee giving the employer at least 14 days notice in writing stating the period by which the employee requires the leave to be lengthened.
7.4.8.1(b) The leave may be lengthened or shortened by agreement between the employer and the employee.
7.4.8.2 Parental leave, if applied for but not commenced, is cancelled:
7.4.8.2(a) should the pregnancy terminate otherwise than by birth of a living child; or
7.4.8.2(b) should the placement of a child proposed for adoption not proceed;
as the case may be.
7.4.8.3 If, after the commencement of any parental leave:
7.4.8.3(a) the pregnancy is terminated otherwise than by the birth of a living child, or in the case of adoption leave, the placement of the child ceases; and
7.4.8.3(b) the employee gives the employer notice in writing stating that the employee desires to resume work;
the employer must allow the employee to resume work within four weeks of receipt of the notice.
7.4.8.4 Parental leave may be cancelled by agreement between the employer and the employee.
7.4.9 Special maternity leave and sick leave
7.4.9.1 If:
(a) an employee not then on maternity leave suffers illness related to her pregnancy; or
(b) the pregnancy of an employee not then on maternity leave terminates after 28 weeks otherwise than by the birth of a living child;
she may take such paid sick leave as she is entitled to and such further unpaid leave (to be known as special maternity leave) as a legally qualified medical practitioner certifies to be necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave must not exceed the period to which the employee is entitled under 7.4.3.2.
7.4.9.2 An employee who returns to work after the completion of a period of such leave is entitled to the position which she held immediately before commencing such leave, or in the case of an employee who was transferred to a safe job, to the position she held immediately before such transfer.
7.4.9.3 If that position no longer exists, but there are other positions available which the employee is qualified for and is capable of performing, she is entitled to a position, as nearly as possible, comparable in status and pay as that of her former position.
7.4.10 Special Adoption Leave
7.4.10.1 An employee who has received approval to adopt a child who is overseas is entitled to such unpaid leave as is reasonably required by the employee to obtain custody of the child.
7.4.10.2 An employee who is seeking to adopt a child is entitled to such unpaid leave not exceeding five days as is required by the employee to attend such interviews, workshops, court attendances or examinations as are necessary as part of the adoption procedure.
7.4.10.3 The leave under this subclause is to be known as special adoption leave and does not affect any entitlements under clause 7.4.3.
7.4.10.4 Special adoption leave may be taken concurrently by an employee and the employees spouse.
7.4.10.5 Where paid leave is available to the employee, the employer may require the employee to take such leave instead of special adoption leave.
7.4.11 Transfer to a safe job: maternity leave
7.4.11.1 If, in the opinion of a legally qualified medical practitioner:
(a) illness or risks arising out of the pregnancy; or
(b) hazards connected with the work assigned to the employee;
make it inadvisable for the employee to continue her present work, the employee must, if the employer considers that it is practicable to do so, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.
7.4.11.2 If the transfer to a safe job is not considered practicable, the employee is entitled, or the employer may require the employee, to take leave for such period as is certified necessary by a legally qualified medical practitioner.
7.4.11.3 Leave under this subclause will be treated as maternity leave.
7.4.12 Return to part-time work
7.4.12.1 In this Part, unless the contrary intention appears:
7.4.12.1(a) Former Position means:
7.4.12.1(a)(i) the position held by the employee immediately before commencing leave or part-time employment under this clause, whichever first occurs; or,
7.4.12.1(a)(ii) if such position no longer exists but there are other positions available for which the employee is qualified and the duties of which the employee is capable of performing a position, as nearly as possible, comparable in status and pay to that of the position first mentioned in this definition.
7.4.12.1(b) Part-Time Work means work of lesser number of hours that constitutes full-time work under the award, but does not include casual or temporary work.
7.4.12.2 Entitlement
7.4.12.2(a) Entitlement, in the case of a female employee, may occur as follows:
7.4.12.2(a)(i) Working part-time in one or more periods while she is pregnant where part-time employment is, because of the pregnancy, necessary or desirable.
7.4.12.2(a)(ii) Working part-time in one or more periods at any time from the seventh week after she has given birth to a child until the child's second birthday.
7.4.12.2(a)(iii) Working part-time in one or more periods at any time from the date of the placement of a child with the employee for adoption until the second anniversary of that date.
7.4.12.2(b) Entitlement, in the case of a male employee, may occur as follows:
7.4.12.2(b)(i) Working part-time in one or more periods at any time after his spouse has given birth to a child until the child's second birthday.
7.4.12.2(b)(ii) Working part-time in one or more periods at any time from the date of the placement of a child with the employee for adoption until the second anniversary date.
7.4.12.3 Effect of part-time work on employment
Despite any other provisions of this Award, part-time work under this part does not break the continuity of service of an employee.
7.4.12.4 Annual leave - transitional arrangements
7.4.12.4(a) An employee working part-time under this Part is to be paid for and take any annual leave accrued in respect of a period of full-time employment, as if the employee were working full-time in the class of work the employee was performing as a full-time employee immediately before commencing part-time employment under this clause.
7.4.12.4(b) A full-time employee is to be paid for and take any annual leave accrued in respect of a period of part-time employment under this Part as if the employee were working part-time in the class of work the employee was performing as a part-time employee immediately before resuming full-time work.
7.4.12.4(c) By agreement between the employer and employee, the period over which leave is taken may be shortened to the extent necessary for the employee to receive pay at the employee's current full-time rate.
7.4.12.5 Sick leave - transitional arrangements
7.4.12.5(a) An employee working part-time under this Part is to have sick leave entitlements which are applicable to the work concerned (including any entitlement accrued in respect of previous full-time employment) converted into hours.
7.4.12.5(b) When any such sick leave entitlement is taken, whether as a part-time employee or as a full-time employee, it is to be debited on the basis of the ordinary hours that the employee would have worked during the period of absence.
7.4.12.6 Part-Time Work Agreement
7.4.12.6(a) Before commencing part-time under this Part the employer and the employee must agree:
7.4.12.6(b) The agreement may also stipulate the period of part-time employment.
7.4.12.6(c) The terms of the agreement may be varied by consent.
7.4.12.6(d) The terms of the agreement or any variation must be reduced to writing and retained by the employer.
7.4.12.6(e) A copy of the agreement and any variation must be provided to the employee by the employer.
7.4.12.7 Overtime
An employer may request, but not require, an employee working part-time under this Part to work overtime.
7.4.12.8 Nature of part-time work
The work to be performed part-time need not be the work performed by the employee in their former position but must be work otherwise performed under the award or contract.
7.4.12.9 Pro rata entitlements
Subject to provisions of this Part and the matters agreed in the part-time work agreement, part-time work is to be in accordance with the provisions of the award, which are to apply pro rata.
7.4.12.10 Return to former position
If the employee is currently employed by the employer on a full-time basis, the part-time work agreement may provide that the employee has a right to return to that full-time position.
7.4.12.11 Termination of employment
The employment of a part-time employee under this Part may be terminated in accordance with the provisions of this Part but must not be terminated by the employer because the employee has exercised or proposes to exercise any rights arising under this Part or has enjoyed or proposes to enjoy any benefits arising under this Part.
7.4.13 Return to work after parental Leave
7.4.13.1 An employee must confirm the employees intention to return to work, by notice in writing, to the employer given at least four weeks before the end of the period of parental leave.
7.4.13.2 On returning to work after parental leave an employee is entitled:
7.4.13.2(a) to the position which the employee held immediately before commencing parental leave; or
7.4.13.2(b) in the case of an employee who was transferred to a safe job, to the position which she held immediately before the transfer.
7.4.13.3 If the employees previous position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee is entitled to a position as nearly as comparable in status and pay to that of the employees former position.
7.4.14 Termination of employment
7.4.14.1 An employee on parental leave may terminate the employees employment at any time during the period of leave by giving the required notice.
7.4.14.2 An employer must not terminate the employment of an employee on the ground of her pregnancy or an employees absence on parental leave. Otherwise the rights of an employer in relation to termination of employment are not affected by this clause.
