Maternity, Adoption and Primary Care-Giver Leave

Your Conditions – Parental Leave

The CPSU is seeking

There shall be no reduction to existing parental leave entitlements. Employees shall be entitled to paid maternity leave, adoption leave and primary care-giver leave of 26 weeks. Employees shall be entitled to paid supporting partner leave of 6 weeks. Parents shall be able to access unpaid parental leave of up to 5 years. These entitlements shall be in addition to the Government scheme and employees shall not be disadvantaged by the introduction of any future parental leave scheme.

Purpose of the claim

The CPSU claim seeks to retain existing parental leave entitlements. Where existing parental leave entitlements are inferior to those in the CPSU claim, the CPSU seeks to improve parental leave entitlements. Existing clauses refer to the Maternity Leave (Commonwealth Employees) Act 1973 (“the Act”)to establish parental leave entitlements and eligibility.The CPSU is now seeking to establish a stand alone entitlement in enterprise agreements that do not rely on the Act.

Maternity, adoption and primary care-giver leave

APS agreements provide for a minimum of 14 weeks maternity leave. A number of agreements provide more generous entitlements. These include:

• 2 agreements provide 26 weeks paid maternity leave (AIFS and AFMA)
• 1 agreement provides 22 weeks paid maternity leave (ARPANSA)
• 5 agreements provide 18 weeks paid maternity leave (AHRC, DIT, MRT/RRT, DBCDE and AusAID)
• 1 agreement provides 17 weeks paid maternity leave (EOWA)
• 22 agreements provide 16 weeks paid maternity leave (SWA, AIC, AOFM, FWO, PC, Treasury, NCA, OPC, DOFD, ACCC, APSC, OAIC, Austrac, PSR, MDBA, ATO, ABS, AHL, FWA, ACMA, ASQA and AIHW)
• 8 agreements provide 15 weeks paid maternity leave (ARC, NNTT, DVA, ANAO, NMA, ASADA, RAM and NFSA).

The CPSU claim for 26 weeks maternity leave is supported by medical research. Research conducted by the World Health Organisation and the National Health and Medical Research Council show that it is important for mothers to breastfeed for 6 months and that this provides significant health benefits for both mother and child.

The CPSU seeks comparable entitlements for adoption and primary care-giver leave. In APS enterprise agreements, adoption leave entitlements are commonly set at the same quantum as maternity leave entitlements.

Primary caregiver leave is for employees who have primary responsibility for providing care to a child after its birth during normal business hours. It is appropriate that this form of leave be recognised by APS agencies and equivalent paid time off be provided off for new parents with primary caring responsibilities. Leave of this kind reflects the changing dynamics within families and how they address their family caring responsibilities.

Paid supporting partner leave

The CPSU is seeking six weeks paid supporting partner leave for APS employees for the birth of the employee’s child or the employee’s partner’s child. Supporting partner leave differs from primary care-giver leave, as in this circumstance the employee is not the primary care-giver for the new-born in normal business hours.

Paid supporting leave entitlements currently differ across APS agency enterprise agreements:

• 9 agreements provide 6 weeks paid supporting partner leave (MDBA, Geoscience, AFMA, ATSB, OAIC, ARPANSA, NHMRC, AIATSIS, and AHRC)
• 1 agreement provides 5 weeks paid supporting partner leave (NFSA)
• 26 agreements provide 4 weeks paid supporting partner leave (DRALGS, DBCDE, ACIAR, OPC, DOFD, FWO, AOTA, Defence, FAHCSIA, DIAC, DOHA, ASADA, FWA, MRT/RRT, NMA, ACMA, AWM, APVMA, FSANZ, AIFS, SWA, PHIO, SSAT, AIHW, ANPHA and IHPA)
• 12 agreements provide 3 weeks paid supporting partner leave (NAA, ACCC, NNTT, APSC, Screen Australia, PM&C, AusAID, EOWA, PSR, ASADA, TEQSA and AIC)
• 53 agreements provide 2 weeks paid supporting partner leave, and
• 2 do not reference an entitlement to any paid supporting partner leave in their enterprise agreement.

Unpaid parental leave

The National Employment Standards in the Fair Work Act guarantee all employees a minimum 52 weeks of unpaid parental leave. This is provided in the case of the birth or adoption of a child that the employee has or will have a responsibility to care for. The Act also provides all employees the option to apply for a further 12 months however an employer may refuse this request in writing on reasonable business grounds. The period of unpaid leave generally includes any paid leave taken.

There are currently a large number of APS agreements that guarantee up to two years of unpaid leave following paid parental leave.

The CPSU seeks to build on this entitlement, establishing the right to five years of unpaid parental leave. Increasing this entitlement to five years would allow parents greater choice in raising their children and provide an incentive for employees to remain with their agency and in the APS rather than leaving to raise their child. This will remove the risk of the agency losing skilled and experienced employees and assist with attracting employees from outside the APS.

Where the agreement references requests for additional unpaid parental leave (as under the NES), the clause must also clearly state that the employer may refuse this request in writing on reasonable business grounds. The dispute settlement procedures of the agreement must also state that the Fair Work Commission is empowered to deal with disputes on this matter (see the “Your Rights – Dispute Resolution” fact sheet for bargaining teams). This is necessary to ensure that employees/the union are able to raise a dispute through the dispute settlement procedures of the agreement and seek the assistance of the Fair Work Commission where the dispute is about whether the employer did have reasonable business grounds to refuse the request. Unless the dispute term explicitly allows the Fair Work Commission to deal with such a dispute, s 739 of the Fair Work Act prevents the Fair Work Commission from doing so.

Interaction with current and future parental leave schemes

The CPSU seeks that the entitlement sought above is in addition to the existing Government scheme. The Government has introduced the Fairer Paid Parental Leave Bill 2015 into parliament, which seeks to reduce or remove a new mother’s entitlement to the government paid parental leave payment where the employer has a legal obligation to provide paid parental leave. This includes Commonwealth employees who are provided maternity leave in accordance with the Maternity Leave (Commonwealth Employees) Act 1973 and enterprise agreements.Commonwealth employees will continue to access the government paid parental leave payment until the Bill will pass into law.

At this stage, the Commonwealth has not indicated that it will seek to directly amend the Maternity Leave (Commonwealth Employees) Act. The CPSU nevertheless seeks to establish entitlements and eligibility to entitlements that are independent of any legislation.

The recommended clause below is adapted from the Australian Public Service Enterprise Award 2015. Because the clause is not dependent on the Maternity Leave (Commonwealth Employees) Act 1973, in similar terms to the Award, the clause links to the National Employment Standards for detailed matters including when the leave commences, how the leave is taken, and notice and evidence requirements.

Recommended clause

These provisions supplement the parental leave entitlements that are provided for in the National Employment Standards, Maternity Leave (Commonwealth Employees) Act 1973 and the Australian Public Service Enterprise Award 2015.

A pregnant employee who has, or will have, completed at least 12 months of continuous service with the employer immediately before the date of birth, or the expected date of birth, of the child is entitled to no less than 26 weeks paid parental leave.

The period of leave may start:

(a) up to 6 weeks before the expected date of birth of the child; or

(b) earlier, if the employer and employee so agree;

but must not start later than the date of birth of the child.

A casual employee is not entitled to paid parental leave unless:

(a)the employee is, or will be, a long term casual employee of the employer immediately before the date the date of birth, or the expected date of birth, of the child; and

(b)but for the birth or expected birth of the child,the employee would have a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

A pregnant employee who has not completed 12 months continuous service but attains 12 months continuous service during the first 26 weeks of unpaid parental leave is entitled to paid parental leavefor the remainder of that 26 week period.

Periods of paid and unpaid leave during parental leave will count as service for all purposes where an employee is eligible for that leave.

Obligations under the National Employment Standards in respect of employees on unpaid parental leave will apply to employees on paid parental leave as if the employee was on unpaid parental leave.

The amount of paid parental leave provided to an employee under this agreementwill be reduced by any period of paid maternity leave that an employee is granted under theMaternity Leave (Commonwealth Employees) Act 1973.

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