AP802001CRV - Victorian Independent Schools - Teachers - Award 1998
[32 substituted by PR969844 ppc 02Feb06]
Subject to the terms of this clause teachers are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.
The provisions of this clause apply to full-time and part-time but do not apply to emergency teachers.
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).
32.1 Definitions
32.1.1 For the purposes of this clause child means a child of the teacher under school age except for adoption of a child where ‘child’ means a person under school age who is placed with the teacher for the purposes of adoption, other than a child or step-child of the teacher or of the spouse of the teacher or a child who has previously lived continuously with the teacher for a period of six months or more.
32.1.2 Subject to 32.1.3, in this clause, spouse includes a de facto or former spouse.
32.1.3 In relation to 32.7, spouse includes a de facto spouse but does not include a former spouse.
32.2 Basic entitlement
32.2.1 After 12 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 males, paternity leave may be taken. Adoption leave may be taken in the case of adoption.
32.2.2 Subject to 32.5.6 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:
32.2.2(a) for maternity and paternity leave, an unbroken period of up to one week at the time of the birth of the child;
32.2.2(b) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.
32.2.3 Parental leave, other than leave taken pursuant to 32.2.2, should preferably commence on the day following the last day of a school term and conclude on the day preceding the first day of a school term. In order to facilitate such arrangements, the employer, where necessary, will extend the period of parental leave beyond the maximum prescribed entitlement should a teacher agree to return from parental leave on the commencement of the school term immediately following the maximum period of parental leave otherwise required to be afforded to the teacher.
32.3 Variation of parental leave
Where a teacher takes leave under 32.2.1 or 32.4.1(b), unless otherwise agreed between the employer and the teacher, a teacher may apply to the teacher’s employer to change the period of parental leave on one occasion. Any such change to be notified as soon as possible but no less than seven weeks prior to the commencement of the changed arrangements. Nothing in this clause detracts from the basic entitlement in 32.2 or the right to request in 32.4.
32.4 Right to request
32.4.1 A teacher entitled to parental leave pursuant to the provisions of 32.2 may request the employer to allow the teacher:
32.4.1(a) to extend the period of simultaneous unpaid parental leave provided for in 32.2.2(a) and 32.2.2(b) up to a maximum of eight weeks;
32.4.1(b) to extend the period of unpaid parental leave provided for in 32.2.1 by a further continuous period of leave not exceeding 12 months;
32.4.1(c) to return from a period of parental leave on a part-time basis until the child reaches school age;
to assist the teacher in reconciling work and parental responsibilities.
32.4.2 Request to be considered
The employer shall consider the request having regard to the teacher’s circumstances and, provided the request is genuinely based on the teacher’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.
32.4.3 Teacher’s request and employer’s decision to be in writing
The teacher’s request and the employer’s decision made under 32.4.1(b) and 32.4.1(c) must be recorded in writing.
32.4.4 Request to return to work part-time
Where a teacher wishes to make a request under 32.4.1(c), such a request must be made as soon as possible but no less than ten weeks prior to the date upon which the teacher is due to return to work from parental leave.
32.5 Maternity leave
32.5.1 A teacher must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:
32.5.1(a) of the expected date of confinement (included in a certificate from a registered medical practitioner stating that the teacher is pregnant) – at least ten weeks;
32.5.1(b) of the date on which the teacher proposes to commence maternity leave and the period of leave to be taken – at least seven weeks.
32.5.2 When the teacher gives notice under 32.5.1(a) the teacher must also provide a statutory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave she will not engage in any conduct inconsistent with her contract of employment.
32.5.3 A teacher 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.
32.5.4 Subject to 32.2.1 and unless agreed otherwise between the employer and the teacher, a teacher may commence parental leave at any time within six weeks immediately prior to the expected date of birth.
32.5.5 Where a teacher continues to work within the six week period immediately prior to the expected date of birth, or where the teacher elects to return to work within six weeks after the birth of the child, an employer may require the teacher to provide a medical certificate stating that she is fit to work on her normal duties.
32.5.6 Special maternity leave
32.5.6(a) Where the pregnancy of a teacher not then on maternity leave terminates after 28 weeks other than by the birth of a living child, then the teacher may take unpaid special maternity leave of such periods as a registered medical practitioner certifies as necessary.
32.5.6(b) Where a teacher is suffering from an illness not related to the direct consequences of the confinement, a teacher may take any paid sick leave to which she is entitled in lieu of, or in addition to, special maternity leave.
32.5.6(c) Where a teacher 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 spouse, may not exceed 52 weeks.
32.5.7 Where leave is granted under 32.5.4, during the period of leave a teacher may return to work at any time, as agreed between the employer and the teacher provided that time does not exceed seven weeks from the recommencement date desired by the teacher.
32.6 Paternity leave
32.6.1 A teacher will provide to the employer at least ten weeks prior to each proposed period of paternity leave:
32.6.1(a) a certificate from a registered medical practitioner which names his spouse, states that she is pregnant and the expected date of confinement, or states the date on which the birth took place; and
32.6.1(b) written notification of the dates on which he proposes to start and finish the period of paternity leave; and
32.6.1(c) except in relation to leave taken simultaneously with the child’s mother under 32.2.2(a), 32.2.2(b) and 32.4.1(a), a statutory declaration stating:
32.6.1(c)(i) he will take that period of paternity leave to become the primary care-giver of a child;
32.6.1(c)(ii) particulars of any period of maternity leave sought or taken by his spouse; and
32.6.1(c)(iii) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment.
32.6.2 The teacher will not be in breach of 32.6.1 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.
32.7 Adoption leave
32.7.1 The teacher 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. A teacher may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the teacher, the adoption of a child takes place earlier.
32.7.2 Before commencing adoption leave, a teacher will provide the employer with a statutory declaration stating:
32.7.2(a) the teacher is seeking adoption leave to become the primary care-giver of the child;
32.7.2(b) particulars of any period of adoption leave sought or taken by the teacher’s spouse; and
32.7.2(c) that for the period of adoption leave the teacher will not engage in any conduct inconsistent with the teacher’s contract of employment.
32.7.3 An employer may require a teacher to provide confirmation from the appropriate government authority of the placement.
32.7.4 Where the placement of a child for adoption with a teacher does not proceed or continue, the teacher will notify the employer immediately and the employer will nominate a time not exceeding seven weeks from receipt of notification for the teacher’s return to work.
32.7.5 A teacher 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 spouse, or other compelling circumstances.
32.7.6 A teacher 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 teacher and the employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the teacher is entitled to take up to two days unpaid leave. Where paid leave is available to the teacher, the employer may require the teacher to take such leave instead.
32.8 Parental leave and other entitlements
A teacher may in lieu of or in conjunction with parental leave, access any annual leave or long service leave entitlements which the teacher has accrued subject to the total amount of leave not exceeding 52 weeks or a longer period as agreed under 32.4.
32.9 Transfer to a safe job
32.9.1 Where a teacher 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 teacher make it inadvisable for the teacher to continue at her present work, the teacher 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.
32.9.2 If the transfer to a safe job is not practicable, the teacher may elect, or the employer may require the teacher to commence parental leave for such period as is certified necessary by a registered medical practitioner.
32.10 Returning to work after a period of parental leave
32.10.1 A teacher will notify of the teacher’s intention to return to work after a period of parental leave at least seven weeks prior to the expiration of the leave.
32.10.2 A teacher will be entitled to the position which the teacher held immediately before proceeding on parental leave. In the case of a teacher transferred to a safe job pursuant to 32.9, the teacher will be entitled to the position the teacher held immediately before such transfer. A part-time teacher will be entitled to the same time fraction.
32.10.3 Where such position no longer exists but there are other positions available which the teacher is qualified for and is capable of performing, the teacher will be entitled to a position as nearly comparable in status and pay to that of the teacher’s former position.
32.10.4 For the purpose of this clause, position includes a position of responsibility but does not necessarily include the same classes and/or subjects.
32.11 Replacement teachers
32.11.1 A replacement teacher is a teacher specifically engaged or temporarily promoted or transferred, as a result of a teacher proceeding on parental leave.
32.11.2 Before an employer engages a replacement teacher, the employer must inform that person of the temporary nature of the employment and of the rights of the teacher who is being replaced.
32.12 Communication during parental leave
32.12.1 Where a teacher is on parental leave and a definite decision has been made to introduce significant change at the workplace, the employer shall take reasonable steps to:
32.12.1(a) make information available in relation to any significant effect the change will have on the status or responsibility level of the position the teacher held before commencing parental leave; and
32.12.1(b) provide an opportunity for the teacher to discuss any significant effect the change will have on the status or responsibility level of the position the teacher held before commencing parental leave.
32.12.2 The teacher shall take reasonable steps to inform the employer about any significant matter that will affect the teacher’s decision regarding the duration of parental leave to be taken, whether the teacher intends to return to work and whether the teacher intends to request to return to work on a part-time basis.
32.12.3 The teacher shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with 32.12.1.
