PARENTAL LEAVE ENTITLEMENTS – 1 JULY 2021 – 30 SEPT 2022
The PANSW has been working with other Public Sector unions to seek improved leave entitlements for parents. These entitlements are able to be secured on top of Award conditions that are subject to the Public Sector salary increase cap. The pursuit of these entitlements is based on direction from your conference delegates at the last four consecutive Biennial Conferences.
The PANSW has fought for the parental rights of members since its inception in 1920 – with the first form of maternity leave established in 1975 for female officers.
Recent campaigning by the Public Sector unions, including the PANSW, has resulted in the implementation of a number of significant new entitlements for parents, and parents-to-be. It is important that all members understand the availability of these entitlements. We are aware that there are still circumstances where some officers are eligible but are not made aware of the entitlements by their Command/Business Unit.
The first expanded entitlements came into effect for babies born, adopted or coming into care by way of a surrogacy or permanent out-of-home care arrangement on or after 1 July 2021 by operation of Determination No. 5 of 2021 and remain current. This determination consisted of the following leave types:
If an officer suffers the loss of a pregnancy prior to 20 weeks’ gestation, or an officer who is the partner of a person who suffers the loss of a pregnancy prior to 20 weeks’ gestation, they are entitled to access five (5) days of paid Special Miscarriage Leave.
If both officers work for NSWPF, both are entitled to take the leave. This leave does not come from any accrued leave balances and appears on the system as ‘Special Parental Leave’, offering a discreet entitlement at a difficult time.
This can provide some necessary time off work whilst one recovers from the loss of a pregnancy and/or recovers physically. It means officers do not need to access their sick leave or recreational leave balances to cover this absence.
The leave is to be taken at the time the miscarriage occurs and must be taken in a continuous block. The evidence requirements are a medical certificate or a certificate from Births, Deaths and Marriages.
Pre-Term Birth Leave
If an officer has a pre-term birth that occurs prior to 37 weeks’ gestation, they are entitled to access paid pre-term birth leave. This type of special leave can be taken up to the end of 36 weeks, where parental leave then commences.
This special leave is only available to the primary carer, however, the ‘other parent’ can commence applicable parental leave. The above entitlements still apply to any miscarriage or preterm birth after 1 July 2021
It is worth noting that we are currently in a transition phase between two sets of parental leave entitlements depending on when the birth, adoption or surrogacy (or permanent out-of-home care) occurred so advice should always be sought from the PANSW.
Birth, surrogacy or adoption arrangements
An old set of conditions under Determination No.3 of 2021 applies to birth, surrogacy or adoption arrangements that occurred after July 1 2021, but before October 1 2022.
The primary carer will receive as per previously the full 14 week entitlement, which can be taken at half pay. Additionally, an ‘other parent’ paid parental leave was introduced, which was an additional 12 weeks on top of the previously granted two weeks, making 14 weeks for the ‘other parent’ leave in total. This could only be taken in the first 12 months from the birth, surrogacy or adoption arrangements, and the ‘other parent’ had to assume primary caring responsibilities - usually meaning the primary parent returned to work or study in some capacity. The additional 12 weeks can be taken at half pay, but has to be completed before the 12-month mark.
For the first time in 2021, surrogacy leave was included and was to be treated the same as parental leave - a big win for equality for PANSW Members.
A major feature of this new ‘other parent’ leave was that it couldn’t be taken concurrently and had to satisfy that ‘primary care’ was being provided, which was defined as the person ‘meeting the child’s needs more than anybody else’.
We have seen emerging issues on what this meant for returning to part-time. If any members are having issues or questions with the granting of parental leave for births post 1 July 2021 (but before 1 Oct 2022), we encourage them to call our Information Organising Centre on 02 9265 6777.
Further changes in Oct 2022
After further advocacy, and identifying some of the shortfalls with the July 2021 entitlements, additional enhancements were made to parental leave provisions to provide even more leave and flexibility. The Public Service Commission’s website states that “the changes expand on previous parental leave provisions and provide greater access to paid parental leave to eligible public sector employees, regardless of gender. The changes are intended to support more equal sharing of parental responsibilities.”
PARENTAL LEAVE ENTITLEMENTS – AFTER 1 OCT 2022
Under the new Premier's Memorandum, eligibility for the new enhanced entitlements is subject to the birth, surrogacy or adoption arrangements occurring on and after 1 October 2022.
In summary, the improved conditions include:
- Changes to existing paid parental leave provisions to remove the primary/secondary carer distinction.
- Expansion of paid parental leave eligibility to include permanent out-of-home carers (which was previously unpaid).
- Increasing the period in which paid parental leave can be taken from 12 months to 24 months after the expected date of birth, adoption, surrogacy or permanent out-of-home care placement.
- Officers who permanently take on children in an out-of-home care arrangement now have access to the same 14 + 2 weeks of paid parental leave, previously this was only unpaid leave.
- Additional two ‘bonus’ weeks of paid parental leave where both parents (whether employed in the NSW Government Sector or elsewhere) ‘more equally share’ paid parental leave entitlements bringing the total to 16 weeks.
- Addition of five days’ paid leave per year for employees undergoing IVF fertility treatment.
Removal of Primary/Secondary distinction
Unlike in the July 2021 scheme, for birth, surrogacy or adoption arrangements on and after 1 October 2022, there is no distinction between primary and ‘other parent’, therefore the leave can be taken concurrently. Also, instead of the previous 12-month deadline for other parent leave to be used, now both sets of the parental leave need to be used within 24 months. The only exception to that is if both parents work in the same NSWPF workplace. In such circumstances, the Command would make a decision whether an extended period of concurrent parental leave is allowable based on operational requirements.
It is noted that instead of the previous 12-month deadline for other parent leave to be used, now both sets of parental leave need to be used within 24 months. Where only one parent is employed by the NSWPF parental leave (14 + 2) weeks can be applied for as a continuous period and will be granted., This is not subject to operational requirements, but rather the birth or care of the child.
All parental leave consistent with the existing Award provisions can be taken at the full rate of half pay rate.
The removal of the distinction between ‘primary’ and ‘other parent’ now means that parents can take their full leave entitlements concurrently. The full 14 weeks can be taken at the same time. By default, parents are to take the leave as a continuous period, however under clause 6 of the Premier's Memorandum, the leave can be taken flexibly with consultation with the Command and subject to operational requirements. Furthermore, under clause 5 of the new Determination, members who work at the same “NSW Government Sector workplace” are only entitled to take 4 weeks concurrently. This does not prevent it from being longer, it simply means an operational assessment has to be considered along with the personal needs of the officer.
Fertility Treatment Leave
Another new entitlement is when a member needs to be absent from the workplace to undergo fertility treatment, they are now entitled to 5 days of special fertility treatment leave per calendar year. The leave can be taken in part, single or cumulative days and is non-cumulative year to year. It is not available to the partner of the member undergoing fertility treatment.
Bonus Two Weeks Leave
Members who exhaust their parental leave entitlements within the first 24 months will now be entitled to an extra two weeks’ bonus parental leave each (if both work for NSWPF) bringing the total amount of parental leave to 16 weeks (which must be used within 24 months). It’s important to note, both parents need to exhaust their parental leave, and if a parent isn’t an employee of NSWPF, evidentiary documentation such as a letter from their employer may be required.
The sweep of new conditions are great improvements for PANSW members, and we want to make sure all members understand what they are entitled to.
If you have had a child since July 2021 and are unsure what scheme applies to you, or want to know more about what you’re entitled to, contact the PANSW on 02 9265 6777.