AN160068 – Clerks (Unions and Labor Movement) Award 2004
(1) (a) The provisions of this clause apply to full-time, part-time and eligible casual employees, but do not apply to other casual employees.
(b) Subject to the terms of this clause employees are entitled to parental leave such as maternity leave, parental leave for spouses and partners and adoption leave and to work part-time in connection with the birth and adoption of a child.
(c) An “eligible casual employee” means a casual employee:
(i) employed by an employer on a regular and systematic basis for several periods of employment or on a regular and systematic basis for an ongoing period of employment during a period of at least 12 months; and
(ii) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
(d) 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).
(e) An employer must not fail to re-engage a casual employee because:
(i) the employee or employee’s spouse is pregnant; of
(ii) the employee is or has been immediately absent on parental leave.
(f) 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.
(2) Definitions
(a) For the purpose of this clause “child” means a child of the employee under the age of one year except for adoption of a child where “child” means a person under the age of five years who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.
(b) Subject to paragraph (c) of this subclause, in this clause “partner” includes a de facto partner or former spouse.
(c) In relation to subclause (7) of this clause, “partner” includes a de facto partner but does not include a former partner.
(3) Basic entitlement
(a) After twelve months-continuous service, parents are entitled to a combined total of 52 weeks unpaid parental leave on a shared basis in relation to the birth or adoption of their child. For females, maternity leave may be taken and for spouses or partners, parental leave may be taken. Adoption leave may be taken in the case of adoption.
(b) Subject to subclause (5) of this clause parental leave is to be available to only one parent at a time, in a single unbroken period, except that both parents may simultaneously take:
(i) For maternity and parental leave, an unbroken period of up to one week at the time of the birth of the child;
(ii) For adoption leave, an unbroken period of up to three weeks at the time of placement of the child.
(4) Maternity leave
(a) An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:
(i) Of the expected date of confinement (included in a certificate from a registered medical practitioner stating that the employee is pregnant) – at least ten weeks;
(ii) Of the date on which the employee proposes to commence maternity leave and the period of leave to be taken - at least four weeks.
(b) When the employee gives notice under subparagraph (i) of paragraph (a) of this subclause, the employee must also provide a statutory declaration stating particulars of any period of parental leave sought or taken by her partner and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment.
(c) An employee will not be in breach of this clause if failure to give the stipulated notice is occasioned by confinement occurring earlier than the presumed date.
(d) Subject to paragraph (a) of subclause (3) of this clause, and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.
(e) Where an employee continues to work within the six week period immediately prior to the expected date of birth, or where the employee elects to return to work within six weeks after the birth of the child, an employer may require the employee to provide a medical certificate stating that she is fit to work on her normal duties.
(5) Special maternity leave
(a) Where the pregnancy of an employee not then on maternity leave terminates after 28 weeks other than by the birth of a living child, then the employee may take unpaid special maternity leave of such periods as a registered medical practitioner certifies as necessary.
(i) Where an employee is suffering from an illness not related to the direct consequences of the confinement, an employee may take any paid sick leave to which she is entitled in lieu of, or in addition to, special maternity leave.
(ii) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take any paid sick leave to which she is then entitled and such further unpaid special maternity leave as a registered medical practitioner certifies as necessary before her return to work. The aggregate of paid sick leave, special maternity leave and parental leave, including parental leave taken by a partner, may not exceed 52 weeks.
(b) Where leave is granted under paragraph (d) of subclause (4) of this clause, during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that the time does not exceed four weeks from the re-commencement date desired by the employee.
(6) Parental leave for spouses or partners
(a) An employee, whose is the spouse or partner of the mother, will provide to the employer at least ten weeks prior to each proposed period of parental leave:
(i) A certificate from a registered medical practitioner which names his or her partner, that states that she is pregnant and the expected date of confinement, or states the date on which the birth took place;
(ii) Written notification of the dates on which he or she proposes to start and finish the period of parental leave; and
(iii) A statutory declaration stating:
(aa) He or she will take that period of parental leave to become the primary care-giver of a child;
(bb) Particulars of any period of maternity leave sought or taken by his or her partner; and
(cc) That for the period of parental leave he or she will not engage in any conduct inconsistent with his or her contract of employment.
(b) The employee will not be in breach of paragraph (a) if the failure to give the required period of notice is because of the birth occurring earlier than expected, the death of the mother of the child, or other compelling circumstances.
(7) Adoption leave
(a) The employee will notify the employer at least ten weeks in advance of the date of commencement of adoption leave and the period of leave to be taken. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier.
(b) Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:
(i) The employee is seeking adoption leave to become the primary care-giver of the child;
(ii) Particulars of any period of adoption leave sought or taken by the employee’s partner; and
(iii) That for the period of adoption leave the employee will not engage in any conduct inconsistent with his/her contract of employment.
(c) An employer may require an employee to provide confirmation from the appropriate government authority of the placement.
(d) Where the placement of a child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee’s return to work.
(e) An employee will not be in breach of this clause as a consequence of failure to give the stipulated periods of notice if such failure results from a requirement of an adoption agency to accept earlier or later placement of a child, the death of a partner, or other compelling circumstances.
(f) An employee seeking to adopt a child is entitled to unpaid leave for the purpose of attending any compulsory interviews or examinations as are necessary as part of the adoption procedure. The employee and the employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the employee is entitled to take up to two days unpaid leave. Where paid leave is available to the employee, the employer may require the employee to take such leave instead.
(8) Variation of period of parental leave
Unless agreed otherwise between the employer and employee, an employee may apply to the employer to change the period of parental leave on one occasion. Any such change to be notified at least four weeks prior to the commencement of the changed arrangements.
(9) Parental leave and other entitlements
An employee may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements which they have accrued subject to the total amount of leave not exceeding 52 weeks.
(10) Transfer to a safe job
(a) Where an employee is pregnant and, in the opinion of a registered medical practitioner, illness or risks arising out of the pregnancy or hazards connected with the work assigned to the employee make it inadvisable for the employee to continue at her present work, the employee will, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to that job until the commencement of maternity leave.
(b) If the transfer to a safe job is not practicable, the employee may elect, or the employer may require, the employee to commence parental leave for such period as is certified necessary by a registered medical practitioner.
(11) Returning to work after a period of parental leave
(a) An employee will notify of his/her intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.
(b) An employee will be entitled to the position which they held immediately before proceeding on parental leave. In the case of an employee transferred to a safe job pursuant to subclause (10), the employee will be entitled to return to the position they held immediately before such transfer.
(c) Where such position no longer exists but there are other positions available which the employee is qualified for and is capable of performing, the employee will be entitled to a position as nearly comparable in status and pay to that of his/her former position.
(12) Effect of parental leave on employment.
Notwithstanding any award or other provision to the contrary, absence on any form of parental leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of the award.
(13) Termination of employment.
(a) An employee on parental leave may terminate his/her employment at any time during the period of leave by notice given in accordance with this award.
(b) An employer shall not terminate the employment of an employee on the ground of her pregnancy or of his/her absence on parental leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.
(c) A replacement employee is an employee specifically engaged as a result of an employee proceeding on parental leave.
(d) Before an employer engages a replacement employee under this subclause, the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.
(e) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising his/her rights under this clause, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.
(f) Provided that nothing in this subclause shall be construed as requiring an employer to engage a replacement employee.
(g) A replacement employee shall not be entitled to any of the rights conferred by this clause except where his/her employment continues beyond the twelve months qualifying period.
