Chapter 2: The current state

This chapter examines the entitlements provided by the Act, and the supplementation to those entitlements in agencies' enterprise agreements. Also examined is the interaction of these entitlements with other legislated benefits in the Fair Work Act and the Paid Parental Leave scheme.

The Maternity Leave Act

The Act, originally known as the Maternity Leave (Australian Government Employees) Act 1973, was legislated as a ground-breaking development for parents working in the Commonwealth public service, particularly women seeking to become mothers and maintain their employment. The first legislation of its kind in Australia, the Act provided women with 52 weeks of leave to have and care for a child, 12 weeks of which would be paid.

The Act also provided men with one week of paid paternity leave to care for the mother or newborn child.[30] Following the 1966 removal of the marriage bar, which prevented married women from being permanently employed as Commonwealth public servants, the introduction of paid maternity leave paved the way for women to enjoy careers in the public service while caring for their families.

The Act's introduction coincided with Australia signing the International Covenant on Economic, Social and Cultural Rights, which includes the right for working mothers to access paid leave or social security benefits during a reasonable period before and after childbirth.[31] The treaty came into force for Australia on 10 March 1976, and remains in force.[32]

The Act has only been reviewed once in the nearly 50 years since its introduction in 1973. A review in 1977 resulted in the Act being amended to remove the entitlement to one week of paternity leave for fathers, and to introduce a 12 month qualifying period for paid maternity leave.[33]

Today, working mothers in Commonwealth employment are covered by identical entitlements as mothers working in the 1970s. As a result, entitlements are for birth mothers only, provided in an inflexible manner and uses dated language that is out of step with contemporary discussions around pregnancy and parental leave, using terms such as 'confinement' and 'confined'.

Current entitlements under the Act

The Act provides for 52 weeks of maternity leave, of which up to 12 weeks is paid where a pregnant employee has 12 months of continuous service. The 'required absence period' generally commences six weeks prior to the expected date of birth, and continues until six weeks after the actual date of birth. Work is only permitted during this period if the employee provides a medical certificate confirming fitness for duty. Leave commences when the employee reaches the required absence period or, if the required absence period has not yet begun, when the employee gives birth. Maternity leave is generally provided in one continuous block, with limited flexibility in the event of premature birth.

Mothers who experience stillbirth from 20 weeks' gestation or the death of the infant while on maternity leave are entitled under the Act to the entire paid and unpaid maternity leave entitlement.[34] The Act does not provide for entitlements in the event of pregnancy loss before 20 weeks' gestation.

The Act covers all agencies in the APS, but only provides coverage for a handful of other Commonwealth agencies. Casual employees are excluded. Coverage under the Act is further discussed in Chapter 8.

Entitlements in the APS beyond the Act

Since agency-based enterprise bargaining was introduced in the late 1990s,[35] agencies have introduced differing parental leave entitlements in their enterprise agreements to supplement the Act, resulting in inconsistency across the Commonwealth for the length of paid leave and whether non-birth parents are covered. In the APS, all agencies provide additional paid maternity leave as well as leave for employees whose partners have given birth, adoption and long-term foster care leave.

The average paid leave available to birth mothers in the APS is currently 16.9 weeks[36], including the 12-week entitlement under the Act. APS enterprise agreements provide additional paid leave of anywhere between two to 14 weeks leave[37], with the most common additional leave being two weeks. For employees whose partners have given birth, the average paid leave available is 3.2 weeks.[38]

Adoption and foster care provisions in agency enterprise agreements generally mirror the entitlements in the Act provided for birth mothers to primary carers of the child. All except two APS agencies provide the same paid leave for primary adoptive and long-term foster carers as for birth mothers. For supporting partner leave for adoption and long-term foster care, all except one APS agency provide identical arrangements to employees whose partner has given birth.[39]

A small number of APS agencies provide equivalent paid primary carer's leave under their enterprise agreements to employees who will be the child's primary carer immediately following the birth, but who are otherwise ineligible for paid maternity, adoption or foster care leave. This may allow an employee whose partner is pregnant to access leave to be the child's primary carer. Such terms may also cover pregnant employees who have not met the minimum service requirement for access to paid leave under the Act. Discretionary leave in enterprise agreements (such as Miscellaneous leave) or individual flexibility arrangements (IFAs) are other options agencies may use to provide additional paid or unpaid leave on a case-by-case basis. Further information on Miscellaneous leave and IFAs is available in Chapter 5.

The Act does not currently provide for paid maternity leave to be taken at half pay. Some agencies allow for an administrative arrangement to spread the leave payment over an unpaid period of leave at half or a quarter of an employee's normal salary. This is an administrative change to payment rather than a legislated entitlement. While this approach offers flexibility to the employee, it also adds complexity as the Act does not allow the entire leave period at reduced pay to count as service for accruing other benefits.

Other legislated entitlements

Parental leave entitlements for most employees in Australia are regulated through the Fair Work Act in addition to the community-based scheme provided in the Paid Parental Leave Act. While these entitlements also apply to APS employees, they raise a number of inconsistencies with the Act which are discussed throughout this report. These inconsistencies particularly relate to adoptive parents and flexibility in how leave is taken.

Fair Work Act - National Employment Standards

The National Employment Standards (NES) in the Fair Work Act provide the minimum standard for parental leave for most employees in Australia. The NES currently provides 12 months of job protected unpaid parental leave to permanent employees and regular and systematic casual employees with 12 months of continuous service.[40] The first employee parent to take leave has a right to request a further 12 months of job protected leave, with a maximum of two years' leave between a family. Parents may take up to eight weeks of this leave concurrently.

Birth-related leave must generally commence no later than the child's date of birth, and if a partner takes a block of unpaid parental leave this must be continuous from the end of the first parent's leave.[41] Similar to the Act, a pregnant employee may be required to commence leave six weeks before the expected date of birth if they are unfit for work, however the onus is on the employer rather than the employee to gauge fitness for work.[42] Each parent may also request up to 30 days of flexible unpaid parental leave, which may be used after any block of leave but must be taken before the child's second birthday.[43]

In circumstances where a child is hospitalised immediately after birth, a parent may return to work for the duration of the hospitalisation and recommence their unpaid leave upon discharge.[44] This pauses the leave and does not break its continuity.

In the event of a miscarriage or a stillbirth, under the NES the mother and her partner are entitled to two days of paid compassionate leave. If the pregnancy ends after 12 weeks' gestation the mother may be entitled to Unpaid Special Maternity Leave if she is unable to work.[45] In the case of a stillbirth or infant death, if a parent has already commenced their unpaid parental leave or has leave planned related to the birth or care of the child, the parent is entitled to the remainder of their unpaid leave and this cannot be cancelled by their employer.[46]

With respect to adoption, the NES provides 12 months of unpaid adoption-related leave where the child is under 16 years old. This leave must generally commence on the date of placement with any block of leave taken by a partner required to be continuous from the end of the first parent's leave.[47] Flexible unpaid parental leave is also available until the second anniversary of the adoption. Additionally, employees are entitled to up to two days of unpaid pre-adoption leave to attend required interviews or examinations, regardless of prior service.[48] There is no entitlement to parental leave under the NES for foster or kinship carers.

Further information on NES parental leave entitlements is provided in Figure 2.1.

Figure 2.1 - Unpaid parental leave under the Fair Work Act

Paid Parental Leave scheme

The Paid Parental Leave scheme provides eligible birth parents with up to 18 weeks of pay at the national minimum wage, split between 12 weeks of Parental Leave Pay and six weeks of Flexible Parental Leave Pay to use flexibly before the child's second birthday.[49] The scheme also provides for two weeks of Dad and Partner Pay at the national minimum wage. Equivalent payments are available for the primary carer of an adopted child and the primary carer's partner.

Parental Leave Pay may be transferred to a secondary claimant in part or full, but one individual cannot claim more than 18 weeks of payments.[50] Payments are means tested, and generally the birth mother or primary carer must have worked for at least 10 of the 13 months prior to the birth or adoption for at least one day per week.[51] However, exemptions may be available for premature births, pregnancy related illness and other exceptional circumstances.

Similarly to the Fair Work Act, under the Paid Parental Leave scheme a birth mother eligible for Parental Leave Pay who experiences a stillbirth remains entitled to payment. In the event a child is hospitalised immediately after birth, the mother may also return to work from 14 days after the birth without compromising eligibility for Parental Leave Pay.[52]

Further information on the Paid Parental Leave scheme is provided in Figure 2.2.

The Women's Budget Statement October 2022-23 announced the Government's intention to 'modernise the Paid Parental Leave scheme and promote a more equal distribution of paid and unpaid work within households'.[53] From 1 July 2023, paid Parental Leave and Dad and Partner Pay will be combined to a total of 20 weeks paid leave to be shared between both parents, with increased flexibility on when the leave can be used. A portion of the paid leave will apply to each parent on a 'use it or lose it' basis. Sole parents will be able to access the full 20 weeks paid leave. From 1 July 2024, payment under the Paid Parental Leave scheme is to progressively increase by two weeks a year to reach 26 weeks.[54]

Figure 2.2 - Paid Parental Leave scheme

Flexible Parental Leave

Since 2020, Flexible Parental Leave Pay under the Paid Parental Leave Act and flexible unpaid leave under the Fair Work Act have allowed employees to portion off up to 30 days of leave to use flexibly before the child's second birthday, or within two years of the date of adoption. This provides employees with flexibility to care for their child while balancing returning to work.[55]

Further information on flexible parental leave is provided in Figure 2.3.

Figure 2.3 - Flexible parental leave entitlements