Chapter 8: Coverage and qualifying service

This chapter examines the Act's complexities in defining agencies and office holders covered, with a recommendation made for a more simplified framework. The employment category of employees is also examined, as is the continued relevance of a 12 month qualifying service period to access paid leave.

Commonwealth agencies covered

The Act applies to Commonwealth employees where employed under the Public Service Act 1999 (PS Act), as well as a number of additional agencies and some office holders as defined in the Act and the relevant regulations.[212]

The Act does not apply to Members of Parliament, Ministers of State, and judges. Members of the Defence Force, employees engaged locally for employment outside of Australia only, and employees remunerated by fees, allowances or commission are also not covered.[213]

Determining coverage under the Act can be complex and often time consuming. The relevant sections of the Act are difficult to interpret and require readers to consult criteria and lists in both the Act and the Regulations.[214]

It is unclear why some Commonwealth agencies are captured and others are not. Employees in around 135 Commonwealth agencies are currently covered by the Act, as well as staff employed under the Members of Parliament (Staff) Act 1984 (MoPS Act) and office holders where not remunerated by fees, allowances or commissions.

Table 8.1 - Coverage under the Act

^{* specified in Maternity Leave (Commonwealth Employees) Regulations 2017, regulations 6-7
** specified in Maternity Leave (Commonwealth Employees) Regulations 2017, paragraph 9(d) and Schedule 1}

Simplifying coverage under the Act will provide greater clarity for agencies and employees in understanding who the Act applies to.

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
5. 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.

Employment category

Employees in the Commonwealth are generally engaged on an ongoing (i.e. permanent), non‑ongoing (i.e. temporary) or irregular/intermittent (i.e. casual) basis.

Ongoing employees

Ongoing employees are eligible for all entitlements under the Act, regardless of whether the hours worked are full-time or part-time. The qualifying service requirement applies for paid maternity leave.

Non-ongoing employees

Non-ongoing employees, other than casual employees, are eligible for all entitlements under the Act, until the date the employee's engagement ceases. The eligibility applies regardless of whether the hours worked are full-time or part-time. The qualifying service requirement applies for paid maternity leave.

Casual employees

The Act expressly states that it does not apply to employees who are not entitled to sick leave with pay.[215] Casual employees do not accrue paid sick leave, so are not covered by the Act. Casual employees are required to refer to the National Employment Standards (NES) for parental leave coverage.

Under the NES, it is noted casual employees are eligible for up to 12 months of unpaid parental leave with a right to request an additional 12 months of leave.

To access this leave, the casual employee must have worked for their employer on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing work with the employer on a regular and systematic basis.[216]

Additionally, casual conversion arrangements in the Fair Work Act allow casual employees to convert to permanent employment in some circumstances.[217] Once in ongoing employment in the Commonwealth, the employee becomes eligible for all entitlements under the Act.

The Review acknowledges the issue regarding casuals is evolving and may require further work in the future. At this point, the Review is not recommending the extension of coverage in the Act to casual employees in the Commonwealth given the availability of parental leave to casuals in the NES and the Fair Work Act's casual conversion provisions.

Qualifying service period

To be eligible for the paid component of maternity leave under the Act, an employee must have 12 months of continuous Commonwealth service. The first 12 weeks of maternity leave may count towards this qualifying period, but leave will only be paid on the balance of the 12 weeks from the date the employee reaches 12 months of service.[218]

Service must be strictly continuous, with no breaks between ceasing and commencing any employment covered by the Act. Consequently, if an APS employee has a break in service of one week or even one working day before moving to another Commonwealth employer, any existing entitlement to paid maternity leave will be lost.

Prior service within state or territory government bodies is not recognised for the purposes of continuous service, with the exception of employment within the ACT public service or that of a territory other than the Northern Territory.[219]

Calculating whether an employee has met the qualifying service period for paid maternity leave can be complex, creating further administrative burden and cost for agencies. Some submissions to the Review shared experiences of not being able to access paid maternity leave due to the operation of the qualifying service period, which caused stress and health risks including the financial pressure to work closer to the child's expected date of birth and return to work earlier than intended after giving birth because of the lack of access to paid leave.

Agency and individual submissions highlighted how this issue is exacerbated by lengthy recruitment and security vetting processes for new recruits to the APS. The 2019 Independent Review of the Australian Public Service notes a pilot study using a sample of advertised APS positions over two years indicated that the median time to start (from job advertisement to commencement) is 144 days, ranging from 37 to 235 days between agencies.[220]

"The recruitment which saw me join the public service ran for a period of 5 months in total, and by the time my offer was received, and commencement occurred, I was unexpectedly pregnant. I had 7 years' service with my private sector employer and for the first time in my adult life, became financially dependent on others and was required to have unpaid leave to bond with my child.

The lack of employer financial support was tough and made me question joining the public service - something that as a career I had aspired to, and continue to be inspired by every day. I faced significant mental health challenges directly due to the financial implications of the period of service requirements, and had a significant reduction in income (including superannuation) which had flow on effects for myself and my husband for years."

- Individual submission[221]

Submissions also raised the issue of service in the Australian Defence Force (ADF) not being recognised for the purposes of maternity leave qualifying service when members leave the ADF to take up employment with a Commonwealth entity. In contrast, previous ADF service is recognised for long service leave purposes under the Long Service Leave Act.

Attracting talent

Submissions considered that the current 12 month qualifying service period may limit the ability of the APS and the Commonwealth more broadly to attract and recruit talent.

Best practice parental leave policies from private sector employers contain no minimum service period for permanent employees to access entitlements, or require only that employees have completed their probation period before taking paid parental leave.[222]

The 2022-24 eligibility criteria for the WGEA Employer of Choice for Gender Equality citation also requires that an employer's parental leave policy should not require an eligibility period for employees to access employer-funded paid parental leave.[223]

The current qualifying service period may discourage employees who are considering having children from joining the APS, particularly if their current employer offers paid parental leave. Reducing this service period is a way the APS can continue to attract and retain talent in a highly competitive labour market.

"The requirement for 12 months tenure before being eligible for paid parental leave works against the APS's interests, by discouraging top talent from moving to the APS if they are even considering having children."

- Individual submission[224]

"This qualifying period might have a significant impact on the APS' ability to attract quality candidates to join and while it may serve as a way to retain staff for 12 months, it may well detract quality, motivated talent"

- Agency submission[225]

"...for a worker in the private sector to enter the APS, there can be a significant period between applying for a position and commencing (perhaps owing to recruitment or security clearance processes). In combination with the 12 months of service that must be performed following commencement, there could be a period of 18 months or two years between a worker successfully applying for an APS position and being eligible for maternity leave. Consideration should be given to whether the qualifying period discourages participation in the APS from the private sector and else[where]."

- Agency submission[226]

Women's economic equality

The issue of career mobility also has implications for women's economic equality. Women who may be considering having children may not pursue career opportunities in order to ensure they will qualify for parental leave.[227]

"The practice of requiring 12 months service before entitlements accrue has a very real impact on women of childbearing age, whether they are pregnant, contemplating pregnancy, or otherwise, from considering joining the public service, or taking offers made -- or, if they do, places significant financial burden on them and their families. It slows women's career progression and prevents the Commonwealth from attracting a wider population of candidates."

- Individual submission[228]

Additionally, while estimates vary, studies suggest that approximately one quarter of pregnancies in Australia are unplanned.[229] Parents may also experience fertility challenges or other issues that reduce control of timing or options to plan pregnancy. These employees may be unable to access paid leave despite having the same health and caring needs arising from the pregnancy, and the current structure of entitlements means this financial impact disproportionately affects women.

State/territory public sector

Most state/territory public sectors also require a 12 month qualifying service period, however the Victorian public service only requires employees to have three months of continuous service.[230] The NSW public service requires 40 weeks of continuous service at the time of the child's birth, adoption or surrogacy.[231]

The interpretation of 'continuous service' under the Act is also inconsistent with the equivalent policy for long service leave eligibility. Periods of service in a state or territory government or authority may be recognised as prior service for the purposes of long service leave in the Commonwealth.[232] However, the same service does not count towards eligibility for paid maternity leave, creating a disincentive for talent to join the APS from other state or territory public sectors.

"I had only accrued seven months continuous service in my current role when I had my first baby. Therefore, I was not entitled to paid maternity leave under the Act even though I had previously been a Commonwealth employee for eight years and a NSW State government employee for three years. In contrast, my eligibility for long service leave was carried over from my State government service."

- Individual submission[233]

The SA public sector currently calculates continuous service for the purposes of parental leave on the same basis as effective service for long service leave.[234] Prior APS service may therefore be recognised when determining eligibility for parental leave in the SA public sector, but the equivalent service would not be recognised if an employee sought to move to the APS.

Removing the qualifying service period would strengthen the ability of the APS and the Commonwealth to attract talent from the private sector and other public service bodies. It would also improve ease of administration by dispensing with the need to gain evidence of prior service that may qualify or to performing calculations regarding any relevant service period. The need to maintain a list of prior service entities would also be removed, and would simplify interpretation of the Act.

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.