AP824076 - Australian Government Employment – Conditions and Salaries Award 2003
[New 21 inserted by PR933442 ppc 02Jun03; corrected by PR935260 ppc 02Jun03; PR936989 ppc 02Jun03]
The provisions of this clause apply to full-time, part-time and eligible casual employees, but do not apply to other casual employees.
Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth or adoption of a child.
21.1.1 Subject to clause 21.1.2, in this clause, spouse includes a de facto or former spouse.
21.1.2 In relation to clause 21.5.1, spouse includes a de facto spouse but does not include a former spouse.
21.1.3 An eligible casual employee means a casual employee 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 that the employee has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
21.1.4 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).
21.2.1 Subject to clause 21.3.1, 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.
21.2.2 Subject to 21.3.4, 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:
21.2.2(a) for maternity and paternity leave, an unbroken period of up to one week at the time of the birth of the child;
21.2.2(b) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.
21.3.1 An employee may be entitled to Maternity Leave in accordance with the Maternity Leave (Australian Government Employees) Act 1973. To avid doubt, nothing in this clause number 21, is intended to affect that entitlement or the operation of that Act. Where that Act is inconsistent with a provision of this clause the Act shall prevail.
21.3.2 Where an employee is not entitled to leave under the Maternity Leave (Australian Government Employees) Act 1973, the employee is entitled to 52 weeks leave without pay with respect to the birth of a child. An employee may commence leave at any time within six weeks immediately prior to the expected date of birth.
21.3.3 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.
21.3.4 Special maternity leave
21.3.4(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.
21.3.4(b) 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.
21.3.4(c) 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 spouse, may not exceed 52 weeks.
21.4.1 After 12 months continuous service an employee is entitled to leave without pay for up to 52 weeks after the birth of a child of a spouse.
21.5.1 An employee who has adopted a child is entitled to leave without pay for up to 52 weeks after the employee has taken custody of the child.
21.6.1 The granting of leave under this clause is subject to the employee providing the appropriate notice of leave in accordance with arrangements agreed between the parties.
21.7 Variation of period of parental leave
21.7.1 Unless agreed otherwise between the employer and employee, an employee may apply to their 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.
21.7.2 During a period of parental 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 recommencement date desired by the employee.
21.8 Parental leave and other entitlements
21.8.1 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.
21.9.1 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.
21.9.2 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.
21.10 Returning to work after a period of parental leave
21.10.1 An employee will notify of their intention to return to work after a period of parental leave at least four weeks prior to the expiration of the leave.
21.10.2 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 clause 21.9, the employee will be entitled to return to the position they held immediately before such transfer.
21.10.3 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 their former position.
21.10.4 An employer must not fail to re-engage a casual employee because:
21.10.4(a) the employee or the employee’s spouse is pregnant; or
21.10.4(b) the employee is or has been immediately absent on parental leave.
21.10.5 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.
21.11.1 A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.
21.11.2 Before an employer engages a replacement employee the employer must inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.
