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www.industrialrelations.nsw.gov.au

June 2012

For further informationInformation on: Contacts

Parental leave advice your employer your union Fair Work Infoline

Unfair dismissal your union Fair Work Ombudsman Fair Work Infoline contact agencies for

discrimination (below)

Discrimination your unionbecause of pregnancy AntiDiscrimination Boardor parental leave of NSW

Human Rights and EqualOpportunity Commission

Fair Work Infoline your local community legal

centre

Superannuation while your superannuation fundon maternity leave Superannuation Helpline

Unsafe workplace your union the Occupational Health and

Safety Committee at yourworkplace

WorkCover NSW

Union membership If you are not a union memberand would like to become one,contact Unions NSW to find outwhich union covers your work

'... it is a right not a

privilege for women

in Australia to work

while pregnant.

The rights to work ...

are fundamental

human rights

enshrined within

Australian law ...'

(Report of the National Pregnancy andWork Inquiry: Pregnant and Productive,Human Rights and Equal OpportunityCommission, 1999)

Printed on recycled paper

Disclaimer The information in Maternity at Work was written using selected sections of the Commonwealths Fair Work Act 2009 (the Act). The questions and answers are intended as a guide only to the parental leave provisions of the Act and NSW workplace health and safety standards. The information in this booklet was current at the time of printing. You can check whether there have been any changes to the law before relying on information in this booklet by contacting the Fair Work Infoline on 13 13 94.

The ninth edition of Maternity at Work was produced by NSW Industrial Relations, Department of Finance and Services.

For further information about NSW Industrial Relations contact:

NSW Industrial Relations Department of Finance and Services Level 23 McKell Building 2 24 Rawson Place Sydney NSW 2000 Phone 131 628

Publications are available at the NSW Industrial Relations website www.industrialrelations.nsw.gov.au

First edition November 1998 Second edition June 2000 Third edition March 2001 Fourth edition July 2002 Fifth edition March 2004 Sixth edition January 2007 Seventh edition August 2008 Eighth edition March 2010 Ninth edition June 2012

ISBN 978 0 9752231 7 8

www.industrialrelations.nsw.gov.au

Contents

Australiasworkplacerelationssystem 2

Unpaidparental,adoptionandspecialmaternityleave 2

Employeeseligibletotakeparentalleave 3

TheAustralianGovernmentsPaidParentalLeaveSchemes 4

Unpaidparentalleaveentitlements

Parttimework

5

NSWPublicSectorEmployees 5

Othereligibilityquestions 7

Protectingyourfamilyfriendlyworkingconditions 9

Howtoapplyforparentalleave 9

Startingandfinishingparentalleave 10

Varyingthelengthofparentalleave 10

Miscarriageorifyourbabydies 11

Yourspouseandpaternityleave 12

Otherformsofleave 12

Employerresponsibilities 14

Discrimination 14

Workplacehealthandsafetyissues 17

Newworkhealthandsafetylaws 17

Breastfeedingatwork 20

BreastfeedingPolicyintheNSWPublicSector 21

Flexibleworkingarrangements 22

23

Paidemploymentwhileonparentalleave 25

Workplacerestructure 25

Resigningfromwork 26

Sampleletters 26

Listofcontacts 28

MaternityatWork 1

Australias workplace relations system On 1 January 2010, private sector NSW employers and employees previously covered by the NSW state award system moved into the national workplace relations system. All previously existing awards have been streamlined into around 120 modern awards. These modern awards set out an employees terms and conditions of employment.

The National Employment Standards (NES) also apply. The NES are set out in the Commonwealths Fair Work Act 2009 (the Act) and they prescribe the details of the following 10 minimum standards of employment:

Maximum weekly hours of work Requests for flexible working

arrangements Parental leave and related entitlements Annual leave Personal / carers leave and

compassionate leave Community service leave Long service leave Public holidays Notice of termination and redundancy

pay Provision of a Fair Work Information

Statement Together modern awards and the NES make up the minimum safety net for employees covered by the national workplace relations system.

Unpaid parental, adoption and special maternity leave This booklet is about the unpaid parental leave provisions of the Commonwealth Governments Fair Work Act 2009 (the Act) and is designed for new mothers, their partners and their employers. It contains important information about the procedures to follow to ensure you are able to take parental leave. Workplace health and safety issues about pregnancy and breastfeeding in the workplace are also included. Other types of parental leave are mentioned in the questions and answers.

The minimum entitlements to parental leave under the NES are stipulated in the Act and apply to all employees in Australia. This book will provide you with information about these minimum entitlements.

Other laws, awards, enterprise agreements and contracts of employment may provide additional entitlements to parental leave, including paid maternity leave, or may govern your entitlement to parental leave, for example if you are a NSW or Commonwealth public servant. It is important you ask your employer about workplace policies and arrangements relating to parental leave and also what options you may have upon returning to work.

Under the NES you are entitled to take unpaid parental leave for a period of up to twelve months, including 3 weeks

2 MaternityatWork

unpaid concurrent leave with your partner around the time of your childs birth or adoption. You also have the right to request a further twelve months of unpaid leave after the initial period. In addition, upon your return to work you can request flexible working hours until your child starts primary school.

Depending on how much unpaid parental leave you take, your partner may also be eligible to take a separate period of up to 12 months unpaid parental leave.

Your workplace may provide additional policies about parental leave or working on a parttime or flexible basis while you are pregnant or upon returning to work. It is important that you check with your employer or union about additional entitlements which may apply in your workplace.

There are 3 main types of parental leave in the Act. All provide for a minimum entitlement of unpaid leave. Parental leave can be:

Maternity leave, in connection with a pregnancy or the birth of a child.

Paternity or partner leave, for a worker whose partner is having a child.

Adoption leave, for parents who have adopted a child under 16 years of age.

Other forms of parental leave include:

Special unpaid maternity leave is taken by a female employee to recover from a pregnancy related illness or a miscarriage or stillbirth within 28 weeks of the expected date of birth.

Unpaid preadoption leave of up two days can be taken by adopting parents to prepare for necessary adoption interviews or exams, unless your employer requires that you take other leave available such as recreational leave or sick/carers leave.

Concurrent unpaid leave of up to three weeks can be taken by your partner at the time of birth or adoption.

Employees eligible to take parental leave Parental leave is available to both parents in a relationship, including defacto and samesex couples as well as single parents. All employees are entitled to parental leave after completing at least 12 months continuous service with an employer before the expected date of birth or adoption of the child. To be eligible for parental leave you will have or will be responsible for the care of your child.

If you are a casual worker, and have worked on a regular and systematic basis for a sequence of periods over at least 12 months with a reasonable expectation of ongoing employment, you will be entitled to parental leave. See question 9.

MaternityatWork 3

NSW IRHighlightPlease Note changes to Concurrent leave as of 1 January 2014. Both employees of an employee couple may take leave at the same time for a maximum period of 8 weeks. This leave must be taken within 12 months of the birth or adoption of a child. The concurrent leave may be taken in separate periods. Each period must be no shorter than 2 weeks unless the employer agrees.

TheAustralian GovernmentsPaid Parental Leave Schemes PaidParentalLeave

TheCommonwealthGovernments PaidParentalLeaveScheme(PPL) beganon1January2011.Itgivesnew workingparentsgreaterflexibilityto makedecisionsaboutworkandfamily responsibilitieswhentheygivebirthor adoptachild.Itisimportantto understandthatPPLisnotabout creatingaseparateoradditionalright totaketimeofffromworkitisabout therighttobepaidwhileyouareon leavefromwork,takingcareofyour newchild.

Theschemeprovidespaymentsatthe rateofthenationalminimumwage (currently$606.40perweekbefore tax)forupto18weeks.Tobeeligible anemployeemustmeetthePPLwork test, income test, and residency requirements.TheFamilyAssistanceOffice willdetermineaperson