AP789529CRV - Metal, Engineering and Associated Industries Award 1998
[Pt I:Pt 7:7.4 varied by Q2704; substituted by PR909399; PR964989 ppc 11Nov05]
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.
The provisions of this clause apply to full time, part time and eligible casual employees, but do not apply to other casual employees.
An eligible casual employee means a casual employee:
(a) 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
(b) who has, but for the pregnancy or the decision to adopt, a reasonable expectation of ongoing employment.
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).
An employer must not fail to re-engage a casual employee because:
(a) the employee or employee's spouse is pregnant; or
(b) the employee is or has been immediately absent on parental leave.
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.
An eligible casual employee employed by their current employer, on or prior to 1 January 1998, shall be entitled to parental leave under the term of the award as of 20 September 2001.
An eligible casual employee employed on or after 4 July 2001 shall be entitled to parental leave under the term of the award as of 4 July 2002.
7.4.1(a) For the purpose of this clause child means a child of the employee under school age or a child under school age who is placed with the employee for the purposes of adoption, other than a child or step-child of the employee or of the spouse of the employee or a child who has previously lived continuously with the employee for a period of six months or more.
7.4.1(b) Subject to 7.4.1(c), in this clause, spouse includes a de facto or former spouse.
7.4.1(c) In relation to 7.4.7, spouse includes a de facto spouse but does not include a former spouse.
7.4.2(a) After twelve 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.
7.4.2(b) Subject to 7.4.5(f), 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:
7.4.2(b)(i) for maternity and paternity leave, an unbroken period of up to one week at the time of the birth of the child;
7.4.2(b)(ii) for adoption leave, an unbroken period of up to three weeks at the time of placement of the child.
7.4.3 Variation of period of parental leave
Where an employee takes leave under 7.4.2(a) or 7.4.4(a)(ii), unless otherwise agreed 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 as soon as possible but no less than four weeks prior to the commencement of the changed arrangements. Nothing in this clause detracts from the basic entitlement in 7.4.2(a) or 7.4.4(a)(ii).
7.4.4(a) An employee entitled to parental leave pursuant to the provisions of 7.4.2 may request the employer to allow the employee:
7.4.4(a)(i) to extend the period of simultaneous unpaid parental leave provided for in 7.4.2(b) up to a maximum of eight weeks;
7.4.4(a)(ii) to extend the period of unpaid parental leave provided for in 7.4.2(a) by a further continuous period of leave not exceeding 12 months;
7.4.4(a)(iii) to return from a period of parental leave on a part-time basis until the child reaches school age;
to assist the employee in reconciling work and parental responsibilities.
7.4.4(b) The employer shall consider the request having regard to the employee’s circumstances and, provided the request is genuinely based on the employee’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.
7.4.4(c) Employee’s request and the employer’s decision to be in writing
The employee’s request and the employer’s decision made under 7.4.4(a)(ii) and 7.4.4(a)(iii) must be recorded in writing.
7.4.4(d) Request to return to work part-time
Where an employee wishes to make a request under 7.4.4(a)(iii), such a request must be made as soon as possible but no less than seven weeks prior to the date upon which the employee is due to return to work from parental leave.
7.4.5(a) An employee must provide notice to the employer in advance of the expected date of commencement of parental leave. The notice requirements are:
7.4.5(a)(i) of the expected date of confinement (included in a certificate from a registered medical practitioner stating that the employee is pregnant) - at least 10 weeks;
7.4.5(a)(ii) of the date on which the employee proposes to commence maternity leave and the period of leave to be taken - at least 4 weeks.
7.4.5(b) When the employee gives notice under 7.4.5(a)(i) the employee 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.
7.4.5(c) An employee 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.
7.4.5(d) Subject to 7.4.2(a) and unless agreed otherwise between the employer and employee, an employee may commence parental leave at any time within six weeks immediately prior to the expected date of birth.
7.4.5(e) 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.
7.4.5(f) Special maternity leave
7.4.5(f)(i) 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.
7.4.5(f)(ii) 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.
7.4.5(f)(iii) 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.
7.4.5(g) Where leave is granted under 7.4.5(d), during the period of leave an employee may return to work at any time, as agreed between the employer and the employee provided that time does not exceed four weeks from the recommencement date desired by the employee.
7.4.6(a) An employee will provide to the employer at least ten weeks prior to each proposed period of paternity leave, with:
7.4.6(a)(i) 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
7.4.6(a)(ii) written notification of the dates on which he proposes to start and finish the period of paternity leave; and
7.4.6(a)(iii) except in relation to leave taken simultaneously with the child’s mother under 7.4.2(b) and 7.4.4(a)(i) a statutory declaration stating:
7.4.6(a)(iii)(A) he will take that period of paternity leave to become the primary care-giver of a child;
7.4.6(a)(iii)(B) particulars of any period of maternity leave sought or taken by his spouse; and
7.4.6(a)(iii)(C) that for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment.
7.4.6(b) The employee will not be in breach of 7.4.6(a) 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.
7.4.7(a) The employee 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. An employee may commence adoption leave prior to providing such notice, where through circumstances beyond the control of the employee, the adoption of a child takes place earlier.
7.4.7(b) Before commencing adoption leave, an employee will provide the employer with a statutory declaration stating:
7.4.7(b)(i) the employee is seeking adoption leave to become the primary care-giver of the child;
7.4.7(b)(ii) particulars of any period of adoption leave sought or taken by the employee's spouse; and
7.4.7(b)(iii) that for the period of adoption leave the employee will not engage in any conduct inconsistent with their contract of employment.
7.4.7(c) An employer may require an employee to provide confirmation from the appropriate government authority of the placement.
7.4.7(d) Where the placement of child for adoption with an employee does not proceed or continue, the employee will notify the employer immediately and the employer will nominate a time not exceeding four weeks from receipt of notification for the employee's return to work.
7.4.7(e) An employee 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.
7.4.7(f) An employee 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 employee and the employer should agree on the length of the unpaid leave. Where agreement cannot be reached, the employee is entitled to take up to two days unpaid leave. Where paid leave is available to the employee, the employer may require the employee to take such leave instead.
7.4.8 Parental leave and other entitlements
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 or longer as agreed under 7.4.4.
7.4.9(a) 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.
7.4.9(b) 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.
7.4.10 Returning to work after a period of parental leave
7.4.10(a) 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.
7.4.10(b) Subject to 7.4.10(d), 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 7.4.9, the employee will be entitled to return to the position they held immediately before such transfer.
7.4.10(c) 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.
7.4.10(d) An eligible casual employee who is employed by a labour hire company who performs work for a client of the labour hire company will be entitled to the position which they held immediately before proceeding on parental leave.
7.4.10(e) Where such a position in no longer available, but there are other positions available that the employee is qualified for and is capable of performing, the employer shall make all reasonable attempts to return the employee to a position comparable in status and pay to that of the employee's former position.
7.4.11(a) A replacement employee is an employee specifically engaged or temporarily promoted or transferred, as a result of an employee proceeding on parental leave.
7.4.11(b) 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.
7.4.12 Communication during parental leave
7.4.12(a) Where an employee 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:
7.4.12(a)(i) make information available in relation to any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave; and
7.4.12(a)(ii) provide an opportunity for the employee to discuss any significant effect the change will have on the status or responsibility level of the position the employee held before commencing parental leave.
7.4.12(b) The employee shall take reasonable steps to inform the employer about any significant matter that will affect the employee’s decision regarding the duration of parental leave to be taken, whether the employee intends to return to work and whether the employee intends to request to return to work on a part-time basis.
7.4.12(c) The employee shall also notify the employer of changes of address or other contact details which might affect the employer’s capacity to comply with 7.4.12(a).
