MATERNITY LEAVE/ADOPTION LEAVE

This Circular replaces Circulars 87/98, 87/235, 97/2 and 97/133 and Section 7 in the Leave Matters Manual for Public Hospitals and Area Health Services. It should be noted that certain public hospital awards also contain provisions for Parental Leave and those provisions should be read in conjunction with this Circular. The Leave Matters Manual is currently under review and the content of this circular will be included in the revised Manual. References are also made to relevant sections of the New South Wales Industrial Relations Act 1996 for minimum entitlements.

This Circular applies to all employees of area health services, statutory health corporations and affiliated health organisations, as listed in Schedules 1, 2 & 3 of the Health Services Act 1997 which constitute the NSW Health Service and employees of the NSW Ambulance Service only.

All employees of the NSW Health Service and NSW Ambulance Service are covered by these provisions with the exception of:

• persons engaged on a short fixed term basis to carry out specific duties and/or casual and/or temporary (including relief) basis or for a specific period with less than 40 weeks continuous service;

The circular does not apply to public servants employed in the NSW Health Department.

All enquiries in relation to the contents of this Circular should be directed to the Health Service Human Resources. Only Human Resources should contact the Department directly.

SECTION ONE - POLICY

1.1 PARENTAL LEAVE

Parental Leave is an entitlement of leave taken by eligible employees to cover absences in relation to maternity, adoption or paternity. Health Services are to ensure that all eligible employees are informed of the provisions by providing access to this Circular, the Leave Matters Manual, the Industrial Relations Act 1996 and the relevant industrial instrument.

The Industrial Relations Act 1996 (Part 4, Divisions 1 and 2) outlines further provisions in respect to Parental Leave. The provisions of the Industrial Relations Act should be considered in conjunction with the provisions contained within this Circular when applications for parental leave are received.

1.2 DEFINITIONS

Adoption leave refers to leave granted to an employee in connection with the adoption of a child by the employee.

Department means the NSW Department of Health.

Expected Date of Confinement relates to the expected date of birth of the child.

Maternity leave refers to leave granted to a female employee in connection with a pregnancy or in giving birth to a child by that employee. Maternity leave consists of an unbroken period of leave.

Health Service refers to all area health services, statutory health corporations and affiliated health organisations, as listed in Schedules 1, 2 & 3 of the Health Services Act, which constitute the NSW Health Service and, the NSW Ambulance Service.

Part-time employees (ie "old" part-time) refers to employees who are in receipt of a part-time loading and are entitled to a period of up to 12 months unpaid maternity leave from the date of the birth of the child.

Paternity leave relates to leave granted to a male employee in connection with the birth of a child of the employee or of the employee's spouse.

Permanent full-time employees refers to employees who work full award hours of 140 or 152 hours per 28-day calendar cycle and who work either a maximum of 19 or 20 days within the 28-day cycle.

Permanent part-time employees (ie "new" part-time/fractional appointees) refers employees who work a specified number of hours/sessions which are less than those for a full-time employee and who are NOT in receipt of any part-time loading. (The terms 'fractional employees' and 'sessions' relate to the working arrangements prescribed in the Salaried Senior Medical Practitioners (State) Award).

Portability of Service means the recognition of service in public sector organisations for the purposes of determining eligibility of an employees' service as continuous.

SECTION TWO - MATERNITY AND ADOPTION LEAVE

2.1 ELIGIBILITY

(a) Paid Leave

In order to be eligible for paid maternity or adoption leave, an employee of the NSW Health Service and NSW Ambulance Service:

• must have been employed in either a full-time or permanent part-time capacity (including those employed on a temporary or locum/relief basis) for at least 40 continuous weeks prior to the expected date of birth.

Once the initial conditions have been met, employees will not be required to work a minimum period of continuous service to qualify for further periods of paid maternity leave, unless:

• there has been a break in service where the employee had resigned and been reappointed after resignation, medical treatment, or after services have been otherwise dispensed with; or

• 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.

(b) Unpaid Leave

Unpaid leave of not more than 12 months after the actual date of birth of the child, is available to those employees who;

• are also eligible for paid parental leave;

• are classified as "old" part-time, ie paid a part-time loading;

• have not completed 40 weeks service

2.2 ENTITLEMENT FOR PAID LEAVE

Maternity Leave

• up to nine (9) weeks at the employee's ordinary rate of pay from the date maternity leave commences, such leave may commence at any time within the nine weeks prior to the expected date of confinement.

• consists of a period of unbroken leave. Any period of paid maternity leave not taken cannot be accrued for future periods of maternity leave.

Adoption Leave

• three (3) weeks at the ordinary rate of pay, from and including the date of taking custody of the child.

29(1/99)

2.3 METHOD OF PAYMENT

Paid Maternity leave may be paid either:

• on a normal fortnightly basis following commencement of maternity leave;

• in advance in a lump sum upon commencing maternity leave;

• at the rate of half pay over a period of eighteen weeks on a regular fortnightly basis following commencement of maternity leave.

Paid Adoption leave may be paid either:

• on a normal fortnightly basis following commencement of adoption leave;

• in advance in a lump sum following commencement of adoption leave;

• at the rate of half pay over a period of six weeks on a regular fortnightly basis following commencement of adoption leave.





Important Note:

It is not necessary for an employee to be absent for the total entitlement of 9 weeks paid maternity leave prior to the expected date of confinement. However, employees who choose to work during this period must be able to satisfactorily perform the full range of normal duties or the duties arranged by the employer in accordance with to Section 5.2 - Transfer to a More Suitable Position.

Employees must be absent during the period of paid maternity leave. If an employee returns to duty earlier than the period initially advised, the employee's leave records and salary payment should be adjusted to reflect the correct dates of service and leave.

2.4 ENTITLEMENT FOR UNPAID LEAVE

• Unpaid Maternity Leave is available for up to 12 months from the date of birth of the child.

• Unpaid Adoption Leave

• where the child is under the age of 12 months - a period of not more than 12 months from the date of taking custody.

• where the child is over the age of 12 months - a period of up to 12 months, such period to be agreed upon by both the employee and the employer.

Refer to Point 4.3 - Regarding Return to Duty on Reduced Hours

2.5 OTHER LEAVE

Employees may supplement the period of unpaid parental leave with the use of annual and/or long service leave credits.

2.6 RATE OF PAY

General

All eligible employees shall be paid maternity/adoption leave based on the ordinary rate of pay as determined by their individual contract of employment (ie no more than 35 or 38 hours per week). Health services have an obligation to ensure that employees are working the correct hours and that employment records accurately reflect the hours worked for the purposes of salary and leave accrual. Employees must be informed their correct hours of work and understand the impact that a variation to their hours has on salary payments and leave accruals.

Permanent part-time employees "are those employees who are permanently appointed by a health service to work a specified number of hours which are less than those prescribed for a full-time employee." Therefore, if an employee regularly and consistently works either in excess of or less than their contract hours which essentially become the employee's true hours of work, then appropriate action should be taken to adjust those number of specified hours on a permanent basis.

Calculation Of Payment - use of Flexible Working Arrangements

Flexible work practices allow for variation of ordinary weekly hours. Where employees work less than the ordinary contract hours ie those on part-time leave without pay, the following will apply:

Employees who are on part-time leave without pay for a period of 40 calender weeks or less preceding maternity leave, shall be paid maternity leave at the ordinary weekly rate and where the period of part-time leave without pay preceding maternity leave exceeds 40 calender weeks, maternity leave shall be paid at the reduced rate using the formula below:

total number of hours worked during the 40 week period

worked prior to commencing leave divided by the standard hours and

then multiplying this by the normal full-time weekly rate:

ie - normal weekly rate x total P/T hours worked

Normal weekly hours (38) x 40 weeks

The following example is provided and may also be applied to permanent part-time employees:

An employee, working a standard 38 hour week and paid an award rate of $500.00per week, has approval to work 4 days/week (1 day/week LWOP). This arrangement was approved when the employee found she was pregnant and lasted 20 weeks. At 20 weeks she decreased her working week firstly to 3 days/week (2 days/week LWOP) for 10 weeks and again to 2 days/week (3 days/week LWOP) before commencing paid maternity leave.

Hence, in the 40 weeks prior to commencing maternity leave, the employee will have worked:

20 weeks @ 4 days/week = 20 x 4 x 7 = 560hrs

10 weeks @ 3 days/week = 20 x 3 x 7 = 210hrs

10 weeks @ 2 days/week = 20 x 2 x 7 = 140hrs

Total hours worked over the 40 weeks = 910 hours

Calculation of paid maternity leave: $500.00 x 910 = $299.34 per week

38 x 40weeks

3.1 ELIGIBILITY

The Industrial Relations Act 1996 contains a comprehensive section on Paternity Leave and should be read in conjunction with this Circular.

To be eligible for paternity leave (ie unpaid leave) permanent employees must have completed a minimum of 52 weeks continuous service, prior to the anticipated date of taking leave and complies with the other provisions of the Industrial Relations Act 1996.

3.2 ENTITLEMENTS

Paternity Leave consists of a period of unpaid leave not exceeding 52 weeks and may be taken as follows:

(a) an unbroken period of up to one week at the time of birth of the child or other termination of the pregnancy (short paternity leave), and

(b) a further unbroken period in order to be the primary caregiver of the child (extended paternity leave)

Other Leave:

Where an employee does not qualify for paternity leave in accordance with the above, leave without pay may be applied for in the normal manner. Furthermore the employee may supplement the period of leave without pay or unpaid paternity leave with the use of annual and/or long service leave credits.

4.1 APPLICATION AND NOTIFICATION

4.1.1 Maternity Leave

Employees intending to proceed on paid and/or unpaid maternity leave should notify the employer of such intention as early as possible, so that arrangements associated with the absence can be made. Furthermore the employee must provide the health service with written notice of not less than eight weeks prior to the commencement of the leave and submit the appropriate leave application form.

4.1.2 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 the employer as soon as possible of the intention to take adoption leave and complete the appropriate leave application form. This will allow arrangements associated with the adoption leave to be made.

4.1.3 Paternity Leave

Employees intending to proceed on paternity leave must provide the health service with written notice of their intention to take leave not less than ten weeks prior to the commencement of the leave and preferably as early as possible. Furthermore employees must submit the appropriate leave application form at least 4 weeks before intending to proceed on leave.

4.1.4 Application Form

The application form should also provide the following information:

• details of all other types and periods of leave to be taken consecutive with the period of parental leave;

• the basis on which the payments will be made (see method of payment).

• anticipated date of return to duty or

• anticipated date of return to duty on reduced hours (if applicable)

• an appropriate certificate stating the expected date of birth (medical certificate)/taking custody of the child (official form or notification).

In respect to extended paternity leave, the employee should also provide a statutory declaration, prior to commencing leave, stating:

(i) if applicable, the period of any maternity leave sought or taken by his spouse, and

(ii) that he is seeking that period of extended paternity leave to become the primary care giver of a child.

4.1.5 General

As soon as practicable after the birth of the baby, an employee shall notify the employer, in writing, of the baby's date of birth. In respect to adoption leave, the employee should notify the employer in writing if the date of taking custody of the child is other than the date provided in the application for adoption leave.

4.2 VARIATION OF PARENTAL LEAVE AFTER COMMENCEMENT OF LEAVE

Employees may vary the period of parental leave following the commencement of leave, either to shorten or extend the period; once without the consent of the employer and then only with the consent of the employer. A minimum of 14 days notice must be given, although an employer may accept less notice if convenient. (S. 64/65 Industrial Relations Act 1996)

4.3 RETURN TO DUTY ON REDUCED HOURS FROM MATERNITY/ADOPTION LEAVE

Employees may apply to return to duty on reduced hours following the period of unpaid maternity/adoption leave for a further period of up to 12 months after which the employee must return to regular (ie pre-leave) hours unless some other arrangement has been agreed to eg part-time leave without pay/permanent variation to hours etc.

It should be noted that all employees who return from maternity/adoption leave under this arrangement retain their standard hours.

Employees should be made aware that it may not be possible for them to return on reduced hours to their substantive position held prior to commencing the period of leave.





Accordingly the following principles will be applied:

• The working of reduced hours under this section is only available for a period of up to 12 months, after which regular (ie pre-leave) hours must be resumed unless some other arrangement has been agreed to, such as part-time leave without pay/permanent variation to hours etc.

• the employee should advise the health service when completing an application for leave and prior to commencing maternity/adoption leave, the period of time during which reduced hours are being sought. The number of hours to be worked are subject to agreement by the employer.

• the balance of unworked hours will be recorded as unpaid maternity/adoption leave.

• salary and other conditions of employment are to be adjusted on a pro-rata basis to the employee's standard hours of work.

4.4 RETURN TO DUTY TO SUBSTANTIVE POSITION (refer: S.66 Industrial Relations 1996)

Employees returning to duty following a period of parental leave are entitled to return to duty in the position held prior to commencing parental leave, usually their substantive position (ie, the position formally appointed to prior to commencing parental leave).

If the substantive position held prior to commencing leave was that of an acting or higher duties nature, the circumstances surrounding the return to that position would need to be addressed by the health service. The employee will not have any entitlement to that position in any permanent sense.

If the substantive position no longer exists, the employee is entitled to be placed by the health service in a position that is nearest in status (ie comparable to her/his previous position, classification, grade, qualifications and experience).

Where a female employee suffers an illness or risk associated with her pregnancy and may need to transfer to a more suitable or an alternative duties position prior to the birth of the child, (refer to Section 5.2), the employee should return to her substantive position held prior to transfer.

4.5 EFFECT OF PARENTAL LEAVE ON LEAVE ACCRUALS AND SERVICE INCREMENTS

• All periods of paid leave taken during parental leave are counted in full (pro rata for permanent part-time) for the purposes of both leave accrual and incremental progression.

• Periods of leave taken and paid at half pay are counted for leave accrual and incremental progression on a pro-rata basis.

• Paid leave includes parental/adoption leave and any combination of other leave such as annual and long service leave.

Parental Leave at full pay

- counts as full service for the accrual of Annual Leave.

- counts as full service for the accrual of Sick Leave.

- counts as full service for the accrual of Long Service Leave.

- counts for incremental progression.

Parental Leave at half pay

- counts as pro-rata (half) service for the accrual of Annual Leave.

- counts as pro-rata (half) service for the accrual of Sick Leave (sick leave to be adjusted on the anniversary date following the employees resumption to duty after parental leave)

- counts as pro-rata (half) service for the accrual of Long Service Leave.

- counts for incremental progression on a pro-rata basis.

NOTE 1:

It should be noted that parental leave at half pay is paid leave at a reduced rate for 18 weeks and is not a combination of 9 weeks full pay leave and 9 weeks leave without pay. As such, this period of parental leave at half pay should not be combined with any subsequent period of unpaid parental leave when determining the effect, if any, such period of unpaid parental leave has on the accrual of long service leave.

NOTE 2:

Permanent Part-time/Fractional Appointment employees accrue leave entitlements on a proportionate basis. For these employees, payment is to be calculated on a pro-rata basis, based on the average number of hours/sessions worked per week for the 40 weeks qualifying period for parental leave or the preceding 12 months (whichever is appropriate).

Unpaid Parental Leave

• If more than 28 calender days does not count for the accrual of Annual Leave.

• If more than 28 calender days does not count for the accrual of Sick Leave.

• If less than six months and the employee has a net service (leave without pay excluded therefrom) of ten years or more the unpaid parental leave would count for the accrual of Long Service Leave.

• If more than six months does not count for the accrual of Long Service Leave.

• If more than 28 calendar days does not count as service for incremental progression. Notwithstanding the foregoing, increments based on age must be paid on attainment of the appropriate age.

Other Paid Leave

Annual leave and long service leave taken at full or half pay accrues leave at the appropriate rate.

4.6 REPLACEMENT EMPLOYEES - STAFFING PROVISIONS (S.69 Industrial Relations Act 1996)

Persons filling positions held by employees who have proceeded on parental leave are to be employed on a temporary basis and should be provided with a letter of employment which outlines the conditions relating to temporary employment, salary and classification and anticipated period of employment.

Temporary staff employed to provide parental leave relief must also be advised that parental leave provisions allow employees on parental leave the right to vary the period of parental leave and accordingly the relief employee must be advised of the rights of the employee on parental leave to vary the date of return to work and that these employees also have the right to return to their substantive position prior to taking parental leave.

4.7 SUPERANNUATION CONTRIBUTIONS

• For employees who are contributors to the State Superannuation Scheme, personal contributions continue to be payable during paid or unpaid parental leave, although the Superannuation Administration Authority may approve a deferral of payments.

• For employees who are contributors to the State Authorities Superannuation Scheme, personal contributions continue to be payable during paid or unpaid parental leave, although the Superannuation Administration Authority may reduce contributions (to 0% in some cases) where members would have difficulty in maintaining contributions at their nominated contribution rate.

• For members of the First State Superannuation Scheme, employer-financed benefits will accrue only in respect of periods of paid parental leave, not of unpaid parental leave.

• The impact of leave in superannuation benefits varies between schemes. Employees and employers are advised to contact the Superannuation Administration Authority for further advice.

4.8 PORTABILITY OF SERVICE FOR PAID PARENTAL LEAVE

In determining a Health Service employee's eligibility to receive paid maternity leave, previous continuous service with any New South Wales public sector organisation which is included in the schedule of the Transferred Officers Extended Leave Act, 1961 or service which is recognised under the mobility provisions as outlined in Circular 93/90, as amended from time to time will be recognised, provided that:

(i) the service was on a permanent full-time or permanent part-time (as specified) basis;

(ii) service ceased with the former employer on grounds other than by reason of dismissal (such as summary or wilful misconduct etc) except retrenchment or reduction of work;

(iii) the employee commences duty with the new employer on the next working day after ceasing employment with the former employer. (There may be a break in service of up to two months prior to commencing duty with the new employer provided that the new position was accepted in writing and secured before terminating employment with the former employer. Such a break in service will not be counted as service for the purpose of calculating any prior service prerequisite for paid parental leave.)

For example, where an employee moves between a public sector department and a public health service facility, continuous service will be counted towards the service eligibility for paid parental leave.

SECTION FIVE - OTHER CONSIDERATIONS

5.1 ILLNESS ASSOCIATED WITH PREGNANCY





Employees who cease work due to an illness associated with her pregnancy and where the illness occurs prior to the commencement of the nine week maternity leave period, can elect to use any available paid leave (sick, annual and/or long service leave) or take sick leave without pay. The employee then commences maternity leave with the normal provisions applying.

Employees who are still working within the nine weeks prior to the expected date of birth and have taken the odd days during that time due to illness, are entitled to be paid in accordance with normal sick leave provisions. The period of nine weeks parental leave is not affected nor is it to be used in lieu of paid sick leave because the employee's absence occurred within the nine week period prior to the commencement of maternity leave.

Where an employee is entitled to paid maternity leave, but because of illness, proceeds on sick, annual, long service leave and/or sick leave without pay prior to the birth, such leave ceases nine weeks prior to the expected date of confinement. Maternity leave shall then commence with the normal provisions applying.

If the employee was to continue to remain on sick leave due to pregnancy and cease work earlier than planned, the normal maternity leave provisions would prevail.

5.2 TRANSFER TO A MORE SUITABLE POSITION

Where, because of an illness or risk associated with her pregnancy, an employee cannot carry out the duties of her position, the employer is obliged, as far as practicable, to provide employment in some other position that she is able to satisfactorily perform. The position to which the employee is transferred under these circumstances must be as close as possible in status and salary to her substantive position. (Section 70 Industrial Relations Act 1996).

5.3 MISCARRIAGE

In the event of a miscarriage an employee may elect to use either sick leave and/or annual leave provisions to cover the period of absence until the resumption of duty.

5.4 STILLBIRTH

In the case of a stillbirth, (as classified by the Registry of Births, Deaths and Marriages) an employee may elect to take sick leave, subject to production of a medical certificate, or maternity leave. The employee may resume duty at any time provided that the employee is certified medically fit to resume duty.

5.5 FURTHER PREGNANCY WHILE ON MATERNITY LEAVE OR WORKING REDUCED HOURS ASSOCIATED WITH MATERNITY LEAVE

Employees falling pregnant during a period of maternity leave or working reduced hours during a period of maternity leave may be granted a further period of maternity leave. This further period of maternity leave is not an extension of the initial period of maternity leave and will commence from the date of birth of the subsequent child/children.

5.6 EFFECT OF PREMATURE BIRTHS ON PAYMENT ON PARENTAL LEAVE

A premature birth is defined as a birth which occurred prior to the expected date of confinement. Health services should adopt a flexible approach in the use of the various types of leave available to the affected employee at this time and consider each case on it's own merits.

Employees may use a mix of accrued leave entitlements and leave without pay in these circumstances. Medical certificates or similar should be provided where an employee wishes to be paid sick leave to cover the period of hospitalisation.

The employee may elect to be paid maternity leave upon the birth of the child using the provisions outlined in Section 2.3 of this circular or be paid maternity leave from the date the baby is discharged from hospital.

In approving the employee's request for leave, health services should determine the date from which the twelve months maternity leave will commence based on the expiration of the nine weeks paid maternity leave.

All leave would cease in the event that the employee elects to resume duty during the period of paid leave.

FOOTNOTE

The employee is not in receipt of any part-time loading.

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