Maternity Leave Act review report

Foreword

I acknowledge the work of former Commissioner Peter Woolcott AO in undertaking and completing the first substantial review of the Maternity Leave (Commonwealth Employees) Act 1973 (the Act) in over 40 years (the Review).

With a focus on health, equality and flexibility, the Review has explored parental leave eligibility and entitlements, the health needs of birth mothers, flexibility for all parents, superannuation issues and ease of administration.

The Review has underlined the need for the Act's entitlements to be competitive to ensure that the Commonwealth remains an employer of choice, supports all new parents to transition into and succeed in family life, protects and advances women's economic equality, provides employee parents and their employing agencies with greater flexibility and eases the administrative burden currently associated with the Act's entitlements.

The Review received nearly 190 public submissions from Commonwealth agencies, individuals, academics, employee networks, unions and peak bodies.

Submissions overwhelmingly advocated for changes to the Act to ensure that the Commonwealth as an employer remains competitive, attracts the best people and joins employers in other jurisdictions and the private sector in providing entitlements for all new parents. In particular, submissions called for equal provisions for all parents, greater flexibility, the payment of superannuation on all parental leave, and more modern and inclusive language. The Review's 26 recommendations address these issues, and provides a framework for change that can be progressively introduced over time.

The Review was also informed by an Expert Advisory Group of representatives from the following Commonwealth agencies, contributing either specialist expertise or knowledge through HR experience. Their contribution is appreciated.

Attorney-General's Department

Australia Post

Australian Bureau of Statistics

Australian Defence Force

Australian Public Service Commission

Australian Signals Directorate

Department of Defence

Department of Employment and Workplace Relations (formerly Department of Education, Skills and Employment)

Department of Finance

Department of Health and Aged Care

Department of the Treasury

The Office for Women

Workplace Gender Equality Agency

The assistance of the Australian Competition and Consumer Commission (ACCC) and the Attorney-General's Department in contributing staffing resources to the Review is acknowledged with appreciation.
 

Dr Gordon de Brouwer PSM

Australian Public Service Commissioner

Terms of Reference

Review of the Maternity Leave (Commonwealth Employees) Act 1973

The Review will consider:

Reducing administrative burden

1. How to draft terms in plain, modern language.

2. How to reduce unnecessary prescription, process and complexity.

Provision of appropriate support to new parents

3. Whether current entitlements are consistent with Government Policy.

4. How current entitlements compare to those offered by private sector employers, state and territory public services.

5. Whether to take a holistic approach in providing other parental leave entitlements and arrangements, such as:

   1. provisions for parents other than birth mothers - such as adoptive parents, long-term foster parents, supporting partners and other permanent carers;
   2. consideration of enterprise agreement terms which impact on people on parental leave, or preparing to go on parental leave, including arrangements for salary increments and availability of leave for obstetric appointments; and
   3. payment of superannuation during maternity or parental leave.

Promotion of gender equality and inclusion

6. How to provide parents with more choice in dividing their caregiving roles.

7. How to balance women's economic empowerment and choice with considerations around maternal and child health.

Providing flexibility

8. How to facilitate flexible interaction of entitlements provided by the Maternity Leave (Commonwealth Employees) Act 1973 with agency industrial instruments, the National Employment Standards, the Paid Parental Leave scheme and other relevant legislation.

9. How to provide agencies with greater discretion to apply entitlements in individual circumstances, including situations of miscarriage, stillbirth, premature birth and other circumstances of serious neonatal health concerns.

10. How eligibility criteria for Commonwealth employee entitlements interact with part-time and casual work and periods of leave without pay.

11. Whether steps could be taken to make using leave more flexible, including to whether leave could be used to facilitate part-time work arrangements, or taken in broken periods over a longer period than 52 weeks.

Executive summary

The Maternity Leave (Commonwealth Employees) Act 1973 (the Act) has been reviewed for the first time in more than 40 years. While the Act was ground-breaking for its time by recognising that working women should not lose their employment once becoming pregnant and becoming a mother, community standards and expectations have evolved.

This report provides evidence that the Act no longer meets the needs of today's employees as they establish families and maintain careers in Commonwealth employment. Today, women are looking to advance their career while having a family and partners are seeking to more equally share in the care of their children, with this opportunity being made available immediately on becoming parents. The Act is not aligned with Government and community expectations for gender equitable outcomes in work and care.

In a competitive marketplace, a growing number of employers are seeing the benefits of recognising the role that all parents take in caring for children. Employers are increasingly choosing to provide equal access to parental leave to all employees who become parents, regardless of their gender.

The Review has found that for the Australian Public Service (APS) to remain an employer of choice, a new Act is required.

Appropriate support to parents

Leave for pregnancy

The Review recognises the importance of safeguarding the health of pregnant employees in the later stages of their pregnancy, by recommending the introduction of paid Pregnancy Leave. This new leave type would be available from 6 weeks before the estimated date of birth. Parental Leave would then available to the pregnant employee once the child is born.

The Review suggests that support for parents who experience a premature birth be provided through the introduction of Premature Birth Leave. This leave would be payable from the date of the premature birth until what would have been 37 weeks' gestation.

As with the Act's current provisions, paid and unpaid leave for pregnant employees who experience the loss of a child at 20 weeks' or more gestation would continue, and be provided as Parental Leave. The Review recommends the definition for stillbirth be consistent with the Fair Work Act 2009 (Fair Work Act) to include births of less than 20 weeks' gestation where the child weighs more than 400 grams. An employee whose partner has given birth to a stillborn child would also be eligible for Parental Leave, although the paid leave would be limited to two weeks. Both parents would continue to be eligible for two days' paid compassionate leave for stillbirth under the Fair Work Act.

Paid leave for pregnancy loss is also recommended, where a miscarriage occurs between 12 weeks' gestation and the end of 19 weeks' gestation, where not a stillbirth. One week of paid Pregnancy Loss Leave would be provided to both parents and this would be in addition to paid compassionate leave for miscarriage under the Fair Work Act. The Fair Work Act's two days' paid compassionate leave for miscarriage continues to be available to both parents for miscarriages of less than 12 weeks' gestation.

Leave for parenting

The Review recommends that parents have access to a separate and equal entitlement to Parental Leave, available from the date of birth of the child. Parental Leave would be 18 weeks' paid leave, with any remaining leave period to 24 months after the child's birth as unpaid leave. New parents would be able to use the leave flexibly to best suit their family's needs, whether taken in blocks or for shorter periods, whether at the same time as their partner or at a different time. This gives parents more choice in dividing their care-giving roles. The qualifying service period will be removed to access paid leave.

Further, the Review recommends that Parental Leave be extended to include adoptive parents on the same basis as birth parents, from the date of placement of the child.

Gender equality and inclusion

The Review advances gender equality by recognising the caring responsibilities for all parents for birth and adoption and recommending a separate and equal entitlement to paid leave. This approach supports the Commonwealth public sector to be a leader in gender equality and encourages parents of all genders to access Parental Leave and be actively involved in caring for children.

Setting up shared caring of children from the beginning increases the opportunity for longer term benefits for the family as the shared caring continues into the child's school years, and with domestic duties more likely to be equally shared. This shared approach may also result in sharing of part-time work between parents.

There are other measures the Review recommends to minimise the financial impact of taking Parental Leave that have disproportionately affected women. These measures will provide a positive contribution towards addressing the gender pay gap. The Review recommends that Parental Leave - paid and unpaid - would count for incremental advancement of salary, and also for employer superannuation payments.

The Review recommends the use of language that is inclusive of all parents and families that make up the Commonwealth workforce.

Providing flexibility

The Review recommends that Parental Leave be flexible enough to allow families to use it in a way that best suits their needs. This could be in one block, in multiple smaller blocks, or even for a full-time employee to use a day or so each week to achieve part-time hours.

The flexibility would also extend to allowing parents to choose when they take their leave in the

24 months after the child's birth or placement, whether at the same time or at different times. Paid Parental Leave would be available at half pay, with the entirety of the doubled leave period counting as service for the accrual of other benefits.

This recommended flexibility will also allow parents to plan around meeting separate eligibility requirements that may apply for the Fair Work Act's Parental Leave and for the Government's Paid Parental Leave Scheme.

Reducing administrative burden

The Review recommends that the language used in the Act be simplified, so it can be understood by those who use, and those who administer, its entitlements.

Issues for future consideration

The Review recognises the importance of Kinship care, and recommends further consultation be undertaken to co-design an approach to Parental Leave for kinship care that is culturally sensitive.

Surrogacy is still an evolving area of law which makes providing leave for intended parents via legislation at the Commonwealth level difficult. The Review recommends agencies view cases with empathy, and consider using discretionary leave in the agency's enterprise agreement, based on the circumstances of each case. Leave for surrogacy should continue to be reviewed in line with legislative developments, state and territory arrangements, and broader community expectations.

The Review recognises that there are other family and household compositions that are not covered by the Review's recommendations, such as for sole parents and grandparents. These are areas open to further review once a revised Act is established, and as the recommendations from the Review are implemented over time.

Recommendations

No recommendations in chapters 1-3.

Chapter 4 - Leave Entitlements

Recommendation 1: Provide Pregnancy Leave

1.1   A pregnant employee is to be entitled to paid Pregnancy Leave to manage their health and the health of their unborn child.

1. Pregnancy Leave to be available from 6 weeks before the pregnant employee's expected date of birth, and finishes on the child's date of birth.
2. Evidence of the estimated date of birth can include from a registered midwife.
3. Where a pregnant employee chooses to remain at work closer to the expected date of birth, the agency may request a certificate from a medical practitioner if there are concerns regarding the employee's continued fitness to work.

1.2   Pregnancy Leave is only available during pregnancy from 34 weeks' gestation and cannot be transferred to a period after the birth of a child.

Recommendation 2: Provide Parental Leave

2.1   Provide up to 24 months of Parental Leave to new parents, to be used within 24 months from the date of the child's birth.

1. 18 weeks of Parental Leave is with pay, and the remainder without pay.
2. Parental Leave is to be provided as a separate and equal entitlement to new parents, so there is an equal opportunity to care for the child.
3. For employees who give birth, Parental Leave is in addition to Pregnancy Leave. The employee may not return to work within 2 weeks after giving birth. An employee who wishes to return to work within 2-6 weeks after giving birth must provide a medical certificate certifying fitness to work.

Recommendation 3: Extend Parental Leave to include adoption

3.1   Parental Leave under the Act is to be available to both parents of a child who is adopted from the day of placement of the child, provided that the child:

1. is under 16 as at the day of placement, or the expected day of placement;
2. has not lived continuously with the employee for a period of 6 months or more as at the day of placement, or the expected day of placement; and
3. is not (otherwise than because of the adoption) a child of the employee or the employee's spouse or de facto partner.

3.2   Paid leave for a parent of a child under a long-term foster care arrangement may be considered for inclusion in an agency's industrial instrument or workplace arrangement, such as an enterprise agreement.

Recommendation 4: Undertake extensive engagement on extending Parental Leave to incorporate First Nations kinship care practices

4.1   Undertake engagement to inform future proposals to extend Parental Leave to include kinship care that takes into account traditional First Nations adoption, foster and kinship practices.

4.2   This should include significant national engagement and co-design with First Nations peak bodies and communities to ensure Parental Leave provisions are cultural appropriate and promote healing based, trauma informed, culturally safe and appropriate kinship practices, in accordance with the National Agreement on Closing the Gap.

Recommendation 5: Undertake research on extending Parental Leave entitlements to legal surrogacy arrangements

5.1   Research how Parental Leave could be extended to include the intended parents of a child born through a surrogacy arrangement that meets the requirements of applicable state or territory law, including the evidence that would be appropriate for such arrangements.

5.2   In approving leave applications, agencies to take steps to ensure the surrogacy arrangement is compliant with jurisdictional legislation, and may wish to seek legal advice given the complexity of this area.

Recommendation 6: Extend stillbirth entitlement to partners and broaden definition

6.1   Pregnant employees to retain entitlement to Parental Leave in the event of stillbirth.

6.2   Expand the Act's current provisions allowing pregnant employees to retain full entitlement to Parental Leave if their pregnancy ends other than by a live birth from 20 weeks' gestation, to include births of less than 20 weeks gestation where a child weighs at least 400 grams at delivery (consistent with the Fair Work Act and Paid Parental Leave Act).

6.3   An employee whose partner gives birth to a stillborn child remains entitled to Parental Leave, with the paid leave component to be limited to 2 weeks.

Recommendation 7: Provide paid Pregnancy Loss Leave

7.1   An employee who experiences pregnancy loss between 12 weeks' gestation and the end of 19 weeks' gestation that is not a still birth is to be entitled to one week (5 days) of paid Pregnancy Loss Leave.

7.2   Pregnancy Loss Leave is to be provided as a separate and equal entitlement to both parents.

7.3   Pregnancy Loss Leave must be taken in one continuous period and is in addition to entitlements to compassionate leave for miscarriage provided under the Fair Work Act.

Recommendation 8: Provide paid Premature Birth Leave

8.1   In circumstances of a live birth before 37 weeks' gestation, both parents are entitled to paid Premature Birth Leave from the date of the child's birth up to the end of what would have been 36 weeks' gestation. Parental Leave is then available from what would have been 37 weeks' gestation.

Chapter 5 - Other entitlements

Recommendation 9: Continued access to other accrued leave while on unpaid Parental Leave

9.1   Employees to continue to have the option to use their accrued paid leave entitlements while on unpaid Parental Leave.

Recommendation 10: Pregnancy Leave and Parental Leave (paid and unpaid) to count towards salary progression

10.1   All Parental Leave and pregnancy-related leave is to count towards the employee qualifying for their next salary increment, where the employee would otherwise be eligible for a salary increment.

Recommendation 11: Support agencies to establish practices so part-time flexible work arrangements are not ceased early simply for leave to be paid based on full-time hours.

11.1   Guidance or policy should support the intention that employees on a part-time flexible work arrangement about to commence parental and pregnancy-related leave do not seek to cease the arrangement early simply to access paid leave based on full-time hours.

11.2   Where there are reasonable business needs (balanced against the rights of employees to request flexible work arrangements under the NES), or an existing flexible work arrangement is expiring prior to the expected date of delivery, or other appropriate circumstance for moving from part-time to full-time hours prior to commencing leave, agencies may make a decision to change ordinary hours in agreement with an employee.

Recommendation 12: Improve agency communication to employees about Parental Leave policies

12.1   Agencies are to make available a policy guide that is comprehensive and easily accessible about the Parental Leave entitlements available in the agency, including how these interact with the Australian Government Paid Parental Leave scheme administered by Services Australia. Timely and accurate responses must be provided to Parental Leave queries from employees.

12.2   Agencies are to ensure managers understand their role in supporting employees who are pregnant or on Parental Leave, including with regard to transitioning to parental leave, keeping in touch days, transitioning back to work, flexible work arrangements on return, and support for breastfeeding.

12.3   Employees on Parental Leave are to be provided with employment verification or similar documents if requested, for example to confirm ongoing employment and salary to financial institutions.

Recommendation 13: Employee access to Fair Work Act Parental Leave entitlements

13.1   Employees entitled to paid or unpaid leave under the Act are to have access to the Fair Work Act's Parental Leave-related entitlements, including Unpaid Special Maternity Leave, Keeping in Touch days, extending unpaid Parental Leave, Flexible Unpaid Parental Leave, paid No Safe Job leave, right to request a return to work when a child is hospitalised, and unpaid pre-adoption leave. This includes any future additions or adjustments made to the Fair Work Act or the National Employment Standards (NES).

Recommendation 14: Facilitate access to the Government's Paid Parental Leave Scheme for all eligible parents

14.1   Agencies should support employees who wish to make a claim under the Australian Government Paid Parental Leave Scheme administered by Services Australia, or to meet other future Scheme requirements.

Chapter 6 - Superannuation

Recommendation 15: Superannuation be paid on all forms of Parental Leave

15.1   The employer component of superannuation is to be paid on all forms of paid or unpaid pregnancy and parental leave, regardless of superannuation scheme type or contribution method, to contribute to reducing the gender pay gap and improve women's long term economic equality.

Chapter 7 - Flexibility and ease of administration

Recommendation 16: Allow Parental Leave to be taken flexibly

16.1   Parental Leave may be used flexibly within 24 months after the date of birth or placement of the child, including in single days, blocks, or to facilitate a part-time working arrangement.

16.2   Parents may take Parental Leave concurrently or at separate times within this period.

Recommendation 17: Parental Leave may be taken at half pay

17.1   Parental Leave may be taken at half pay, on the basis that the leave period at half pay is twice as long. All Parental Leave taken at half pay is to count as service on the same basis as other paid leave.

Recommendation 18: Agencies encouraged to manage their budgeted Average Staffing Level (ASL) in central pool for all employees on parental-related leave

18.1   To ease the budget impact on local work teams and allow for temporary backfilling of roles, agencies to consider pooling the ASL for all employees on parental and pregnancy-related leave if not already in place.

Chapter 8 - Coverage and qualifying service

Recommendation 19: Simplify coverage under the Act

19.1   Coverage under the Act should be simplified for clarity and ease of administration. The Act is to apply to:

1. employees under the Public Service Act 1999;
2. employees under the Parliamentary Service Act 1999;
3. employees under the Members of Parliament (Staff) Act 1984;
4. Australian Federal Police (AFP) members and holders of a Commonwealth office where not remunerated by fees, allowances or commissions; and employees of other Commonwealth corporate and non-corporate entities, as defined in the Public Governance, Performance and Accountability Act 2013, unless such entities choose to not be covered.

19.2   The Act would not apply to Commonwealth companies unless staffing is under the Public Service Act 1999.

Recommendation 20: Remove the qualifying service period to access paid leave

20.1   Remove the qualifying service period for employees to access any form of paid pregnancy or parental leave under the Act.

Chapter 9 - Language and drafting

Recommendation 21: Draft the Act in plain language

21.1   The Act be drafted in clear language that allows readers to easily understand entitlements. The Act's wording may be supported by use of notes, tables, and references to other legislation that interacts with the Act.

21.2   Outdated terms such as 'confinement' be removed and replaced with modern language that reflects the sensitivities of pregnancy and pregnancy loss.

21.3   The Act include an 'objects' section to facilitate interpretation. Recommended objects may include to:

1. protect the health of pregnant employees and their children;
2. support parents to take time out of the workplace during pregnancy and to care for a child, as part of the usual course of life and work for parents; c. facilitate flexibility for parents in balancing their caregiving with work in the Commonwealth; and d. promote inclusion and gender equality .

Recommendation 22: Draft the Act using inclusive and gender neutral language

22.1   The Act be renamed the Pregnancy and Parental Leave Act.

22.2   The Act be drafted in language appropriate to employment conditions, and is inclusive and gender neutral as appropriate, including the terms:

1. Pregnancy Leave
2. Parental Leave
3. Pregnant employee
4. Parent
5. Adoptive parent.

Chapter 10 - Return to work

Recommendation 23: Paid lactation breaks and access to breastfeeding facilities

23.1   Agencies to provide appropriate and flexible paid lactation breaks to breastfeeding employees, with respect to the individual lactation needs of the employee.

23.2   Agencies to ensure employees have access to appropriate breastfeeding facilities, which includes appropriate facilities to express, in line with the APS Gender Equality Strategy 2021-2026.

23.3   Agencies encouraged to seek Breastfeeding Friendly Workplace Accreditation with the Australian Breastfeeding Association.

Recommendation 24: Improved communication with employees during Parental Leave

24.1   Agencies to ensure regular communication with employees on Parental Leave about upcoming recruitment and training opportunities, and other key agency developments.

Recommendation 25: Improved return to work support

25.1   Agencies to ensure managers are equipped to discuss and plan with employees on Parental Leave their return to work, including any additional support or workplace adjustments they may require.

Recommendation 26: Ensure all parents have access to a flexible working arrangement

26.1   Agencies to ensure managers encourage and support all parents seeking a flexible working arrangement upon return to work from Parental Leave.