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T3077

 

TASMANIAN INDUSTRIAL COMMISSION

Industrial Relations Act 1984
s23 application for award or variation of an award

Tasmanian Trades and Labor Council
(T3077 of 1991)

PRIVATE SECTOR AWARDS


See end of Decision for Awards Varied

 

FULL BENCH:
PRESIDENT F D WESTWOOD
DEPUTY PRESIDENT A ROBINSON
COMMISSIONER P A IMLACH

24 September 1992

Award variation - insertion of "Parental Leave" clause in lieu of "Maternity Leave" clause

REASONS FOR DECISION

This application sought to vary all private sector awards by deleting the Maternity Leave clause and substituting in its place a Parental Leave clause. The new clause was said to reflect the decision handed down by a Full Bench of the Australian Industrial Relations Commission on 26 July 1990 (Print J3596) in which that Bench commented that the matters before it constituted a test case for parental leave in federal private sector awards.

In that decision the Full Bench determined that:

"1. The entitlement of female employees to maternity leave should remain unaltered. However, maternity leave was to be reduced by any period of paternity leave taken by the employee's spouse and, except for a week at the time of the birth, was not to be taken concurrently with paternity leave.

2. After 12 months continuous service a period of up to one week unpaid paternity leave would be available to male employees at the time of confinement of their spouse in order to assist her and to care for the family.

3. An additional unbroken period of up to 51 weeks unpaid paternity leave would be available to male employees in order to become the primary care-giver of the newborn child. Paternity leave would cease on the child's first birthday.

4. The total amount of maternity and paternity leave available to a family would be 52 weeks.

5. Paternity leave would be reduced by any period of maternity leave taken by the employee's spouse and, except for the week at the time of the birth, was not to be taken concurrently with her maternity leave.

6. The entitlement to adoption leave was extended to male employees on the same basis as for female employees."

Ms Harvey addressed the provisions contained in the new clause and drew the Commission's attention to the major changes proposed encompassing provisions for Maternity Leave, Paternity Leave, and Adoption leave, all of which would be available after 12 months continuous service.

So far as Maternity Leave was concerned it was submitted that the present entitlements during pregnancy and for up to one year after confinement would remain virtually unchanged, except that the 52 weeks unpaid leave would be capable of being shared between the mother and father and it could be combined with part-time work. A redundant provision, in the standard Maternity Leave clause, paragraph (v), in the subclause dealing with Replacement Employees, would be deleted.

In relation to Paternity Leave, up to 52 weeks unpaid leave would be available, of which one week could be taken at birth of the child and up to 51 weeks, as the primary care-giver, up to the child's first birthday.

The total amount of paternity and maternity leave in respect of the same child would not exceed 52 weeks and leave could not be taken concurrently for the same child except for one week at the birth.

The Adoption Leave proposal reflected the decision of a test case conducted by the Australian Conciliation and Arbitration Commission in 1985 and extended the application of that decision to male employees. Three weeks unpaid leave would be available at the time of placement and the balance of the 52 weeks could be taken by one parent or shared by both parents. Again, leave would not be available to the adoptive parents concurrently. Ms Harvey informed the Commission that until now no attempt had been made to flow the result of the adoption leave test case into State awards.

The claim also provided for the employee to enter into an agreed arrangement with the employer to work part-time and to receive all the other benefits that would normally accrue to a part-time employee on a pro rata basis. If an employee had less than twelve months' continuous service part-time work could still be agreed upon but that employee would have no right to return to his or her former position.

Both the mother and father could, by agreement, work part-time which could extend until the child's second birthday.

In relation to the giving of notice and providing appropriate certification, the current maternity leave provisions would apply except that so far as adoption leave was concerned notification to the employer would be required as soon as the employee received the approval for adoption and no later than 14 days prior to placement. The adopting employee would be excused from the early notice requirements where placement occurred more quickly than originally planned.

Ms Harvey submitted that in deciding the parental leave matter the Full Bench of the Australian Commission considered its decision to be a package. At page 27 of its decision the Bench made the following comments:

"The draft clause we propose is attached to the decision. It will be clear from this and from what we have said that we see the benefits to be inter-related. Accordingly, they will be implemented in the form of a single, indivisible clause which sets out the entitlements to the three types of leave as well as to part-time employment. It may be necessary to tailor the provisions of the clause to fit the context of particular awards, but it is not our intention that parties to awards shall be able to apply the provisions of the clause selectively. We emphasise that we have decided upon a package and implementation of our decision will be on this basis."

Wage Fixing Principles

It was argued that the requirement that changes in conditions had to be considered in the light of their cost implications had been tested by the Australian Commission. That Full Bench had sought to minimise the cost and had determined conditions which were substantially less than those claimed by the Australian Council of Trades Unions (ACTU). Whilst the ACTU had claimed up to 2 years for parental leave, for example, the Full Bench had considered that cost and at page 16 of its decision had stated:

"The form of leave we had decided upon limits these cost increases by limiting the combined period of leave to 52 weeks."

It was submitted therefore that the cost implications had been considered and in accordance with the Principles had been minimised.

Ms Harvey also submitted that the proposal was consistent with the Structural Efficiency Principle as it (a) provided an opportunity for the employer and employee to agree on part-time working arrangements which might be an advantage to the employer, and (b) provided an opportunity for awards to remove a form of discrimination against fathers who wanted to take a more active role in the rearing of their children.

In support of the latter provision, Ms Harvey cited a decision of the South Australian Industrial Commission dated 11 March 1987 (I.14/1987) which granted adoption leave entitlements to all employees under State awards. The Commission stated that although the failure to extend adoption leave to males would not be contrary to the South Australian Equal Opportunity Act 1984, "nevertheless a provision directed solely to females may lead an employer to breach provisions of that Act, and, further, the uncontroverted evidence shows that a child may bond equally to a male as to a female". It was claimed by Ms Harvey that the foregoing decision and the decision of the Australian Commission showed that there is a general understanding in the industrial jurisdictions that fathers as well as mothers have a right to be able to provide and share care to their children and the importance of that in terms of promoting equality of opportunity.

Precedents

Ms Harvey referred to the Victorian Industrial Relations Commission decision of 6 June 1991(1) which endorsed and adopted, in principle, the Federal decision. Procedurally the Victorian Full Bench left the award making process to the relevant Conciliation and Arbitration Boards. It was pointed out that at page 9 of the Victorian decision it was stated that there was no sound reason for rejecting the application or deferring it. The Full Bench further stated, at page 7, that "no detailed information was put to us as to costs and economic conditions: in those circumstances it is inappropriate for us to make independent judgments about such matters."

As to other States, Ms Harvey indicated the Queensland Commission had just concluded hearing a test case; an application had been made to the New South Wales Commission, but no hearing date set down; the South Australian Trades and Labor Council intended to make application shortly and the Western Australian Trades and Labor Council was in negotiation with the Government of that State for a package to cover the public sector which might be applied to the private sector.

Equity

Under this heading Ms Harvey addressed the position of women in the labour market, the availability of child care and the changing role of men in child rearing.

Ms Harvey sought to demonstrate by way of a number of statistical examples that there was an increasing pressure on women to manage both work and home responsibilities. It was contended that women were being forced into the labour market for financial reasons not because they enjoyed working. There was a demand for women workers in both part-time and full-time work, with part-time work increasing at a greater rate and an increasing level of casualisation and corresponding lack of job security. Ms Harvey argued that by spreading the entitlement to leave for parenting to both parents the casualisation factor for women would be reduced.

The TTLC application would provide parents with greater flexibility in meeting their child care requirements.

It was submitted that the segregation of women into low skill and low pay areas, which was demonstrated by further statistical data, was in part due to the marginal attachment women have to the workforce because of their need to balance both their home and working lives. It was asserted that the TTLC's proposal would enable the primary care of children to be shared more equally and thus achieve a greater degree of consistency in the participation rates of men and women in the different occupational groups.

Ms Harvey contended that there was a problem with the availability and affordability of child care places in Tasmania which put an added burden on families in terms of providing care for their children. The proposed new clause would in some measure reduce that burden.

It was claimed that statistics about the growing number of men providing primary care for children demonstrated that there was a need to provide an entitlement for fathers who take on this responsibility.

It was submitted, for example, that in Australia there was a significant number of (74,300 in 1988) of males, not in the workforce, providing primary care for their children. This was made up of an estimated 42,600 single father families, and 31,700 families with the female in the workforce and the male providing the care. In this group there were approximately 13,200 males taking on the primary care responsibilities for children 4 years of age and under. Ms Harvey concluded that these figures, whilst not "huge", substantiated the claim that there was a need to provide for fathers who take on the primary care of their children.

I.L.O. Conventions

The Commission was referred to `ILO Convention 156, Workers with Family Responsibilities', ratified by the Australian Government and the associated Recommendation 165. Article 3 of the Convention, paragraph 1 states:

" 1. With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities."

Recommendation 165 at point 12 states:

" 12 All measures compatible with national conditions and possibilities should be taken to enable workers with family responsibilities to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to those responsibilities."

And further, at point 22:

" 22. (1) Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded."

It was argued that the Convention was important in that it recognised changing values and attitudes internationally and in Australia and it supported the application to flow the concept of parental leave into private sector awards.

Financial Implications

The TTLC argued that the matter of costs had been considered by the Federal Commission when it determined the matter as a test case. The AIRC had not accepted the ACTU submission that the original claim would impose minimal costs on employers and, by its decision, had minimised the cost increases "by limiting the combined period of leave to 52 weeks". Ms Harvey submitted that since the matter of costs had been tested by the AIRC, it was not a relevant consideration in this case. The TTLC preferred to address the issue of costs by reference to the advantages that would accrue to employers by providing parental leave.

Ms Harvey claimed that studies had shown that the cost benefits to employers of the sort of flexibility provided by parental leave included lower absenteeism, higher morale and the retention of highly skilled employees.

A report(2) of a survey of employees and employer experiences relating to Maternity Leave was tendered as an exhibit.

It was contended that the report showed that 60% of women who left work for child bearing purposes, whether they took maternity leave or not, were back in the workforce by the time their child was 18 months old. That trend would continue. In respect of the issue of part-time work, the report demonstrated that there was a preference for part-time work amongst women with a "pre school child".

The clause proposed by the TTLC would facilitate part-time employment for such women and for men who chose to share more fully the parenting responsibility. It would also protect their labour force status so they could return to their former jobs.

The study found that of establishments which experienced employees taking maternity leave in the period 1 January to December 1985, a crude estimate of the mean percentage of the total labour force taking maternity leave, was only 1.21%, and of the just female workforce 1.8%.

Advantages of maternity leave to the employer were that those who took maternity leave stayed at work longer and returned to work sooner. Employers were able to promote other staff into vacant positions to assess and upgrade their skills. In difficult economic times the employer could make some savings by not filling the position for the duration of the leave period.

In respect of the Adoption Leave provisions, the Bench was provided with figures relating to adoption placements in Tasmania for the three years 1988/89, 1989/90 and 1990/91 which showed there were approximately 20 locally-born children, and between 12 and 17 overseas-born children adopted each year. Ms Harvey asserted that on advice from the Department of Community Services, those figures were unlikely to vary dramatically and therefore that there would be minimal impact of employers with the introduction of adoption leave provisions.

Ms Harvey commended the package as being consistent with the public interest and the wage fixing principles of the Commission.

Mr Pearce, appearing on behalf of the Minister for Employment, Industrial Relations and Training, in accordance with Section 27 of the Act, supported the application of the Tasmanian Trades and Labor Council. The Commission was informed that the Tasmanian Government had intervened in the full bench matters before the AIRC in support of the ACTU claim. Mr Pearce submitted that confronted with wide-ranging and contrasting material, the AIRC made a decision which balanced economic considerations with equity. At the same time the Full Bench reduced the cost impact of the claim and reconciled conditions of employment with parental responsibilities. Mr Pearce informed the Bench that the Tasmanian Government had supported an application to very the Municipal Officers MTT Federal Award to insert the parental leave provision in full. Further, the Tasmanian Government had indicated to the TTLC "its desire to introduce and extend parental leave across the service in an orderly manner and had suggested that the conditions proposal of the current structural efficiency program be the appropriate means of facilitating a satisfactory and equitable outcome"(3).

On the issue of flow-on, Mr Pearce contended that the federal decision had facilitated the introduction of parental leave across awards of that Commission, touching upon industries generally and in all States. In the context of the private sector of the State, Mr Pearce submitted that it would be equitable to allow employees subject to State awards to be able to avail themselves of those provisions. To refuse the application would in the Tasmanian Government's opinion, create the situation in which one partner could access the parental leave provision under a federal award, but the other under a State award would be denied that opportunity.

Representatives of the employer organisations present requested and were granted an adjournment until 12 August 1991.

In an endeavour to pre-empt submissions from the employers which might seek to limit the application of the proposals to employers of more than 15 employees, Ms Harvey was granted leave to introduce data prepared by the Australian Bureau of Statistics which showed that 87.5% of Tasmanian employers employed less than 10 people and 94.1% employed less than 20 people. Ms Harvey argued that it would make a mockery of a test case flow-on decision if between 87.5% and 94.1% of employers were excluded from the provision.

Mr Clues, for the Tasmanian Confederation of Industries, submitted that the essence of the Confederation's was that whilst families should have the right to choose who would be the primary carer of a child, the cost of that choice should not rest with the employer. The Commission was reminded of its obligation under the Act to examine the claim in the light of the cost to employers and the impact any cost would have on the economy of the State. If the Commission was not persuaded to reject the TTLC's claim, Mr Clues submitted that there should be an exemption for small businesses employing less than 20 people in relation to paternity leave and adoption leave and that a decision be deferred for 12 months in order to review the economic circumstances.

Notwithstanding the Confederation's opposition to the claim, Mr Clues addressed a number of features in the proposed new clause which required attention to ensure that the provision was unambiguous and capable of simple administration if the Commission was disposed to grant the claim.

The first issue raised was that of the total amount of leave available under the maternity and paternity provisions. Mr Clues submitted that in total a maximum of 52 weeks was available to both parents which included the compulsory 6 weeks period of confinement and the 1 week short paternity leave. It was argued that so far as paternity leave was concerned only 46 weeks could be available, i.e. 52 weeks in relation to both parents should, it was claimed, be reduced by other available leave, such as annual leave and long service leave, standing to the credit of the employee.

In relation to the periods of notice for varying the lengths of the three forms of leave, it was argued that the consent of the employer should be required. Employees also should be required to provide sufficient notice and satisfactory evidence to support a paternity of adoption leave application with penalties to be applied if any request for leave had been falsified or misused.

The Confederation was prepared to accept the part-time work provisions.

In addressing the merit of the claim, Mr Clues argued that the private sector should not be further burdened with the costs and disruptions which would flow from this claim. It was contended that the TTLC had totally misunderstood the State Wage Fixing Principles in relation to conditions of employment and cost impact.

Mr Clues contended that the only was in which their case would be dealt with under the Principle dealing with Employment Conditions would be as a test case of this Commission which would have to consider the cost implications, both directly and through flow on to other areas. Further, it was argued that the Commission must have regard to the change in the economy between the time of Federal decision was handed down and the time this matter was being processed; a period, it was contended during which the economy had deteriorated.

A number of key indicators of the state of the Tasmanian economy were tendered and analysed.

The unemployment rate for Tasmania was said to be excessive compared with other Australian states; the level of job vacancies had fallen. It was suggested that the proposal would create part-time and fixed term opportunities which might otherwise have been available as a full-time or ongoing position if the father had elected to be the primary care giver and leave the workforce.

The fall in the consumer price index was interpreted as the result of a loss of business and community confidence; any further reduction would only be achieved at the expense of lower business profitability and investment.

The Commission was asked to have regard to the state of the economy and in particular to the level of employment as required under Section 36 of the Act. The Confederation argued that the cost effect for the State would be far greater than that imposed by the Federal Commission because of the "common rule" nature of the application. The Commission was reminded that under the Federal decision each award has to be varied by separate application, and that very few federal awards had been varied to include the parental leave claim.

The Confederation provided models which endeavoured to measure the cost of applying the parental leave claim in a retail business with 20 or more employees and a manufacturing business of more than 100 employees. In relation to the manufacturing model it was assumed that the business workforce comprised, amongst others, 78 labourers and 42 tradespersons.

It was also assumed that 10% of the workforce would be involved in child rearing at any one time. It was further assumed that 50% of those persons would like to take paternity or adoption leave. Accordingly we were told two tradespersons and four labourers would be off for that year. The costs associated with recruiting, induction and training replacement employees were itemised; as was the loss of productivity.

A similar model was introduced for a small business, a restaurant, which employed six people. The Confederation endeavoured to describe the difference in cost of a kitchen hand taking parental leave and the chef.

The Commission was asked to have regard for the small business which might have to deal with more than one employee wishing to take parental leave at the one time; or on an on-going basis. The Confederation argued that the costs were greater for small business which employed approximately 30% of the State's labour force.

Accordingly the Confederation proposed an amendment to the opening paragraph of the new clause which was as follows:

"Subject to the terms of this clause, employees are entitled to maternity leave, part-time work, and if employed by an employer employing 20 or more employees, paternity and adoption leave in connection with the birth or adoption of a child."

In support of the submission that the Commission should have regard for the significant cost implications of this provision on small businesses, the Confederation produced examples of other cases where special consideration had been given to small employers. Those matters were the termination, change and redundancy provisions contained in the Federal Metal Industry Award; trade union training leave provisions in the Federal Timber Industry (Consolidated) Award, and the Victorian Manufacturing Chemists State Award; and hours of work provisions in the Tasmanian Retail Trades Award.

Mr Clues rejected the TTLC argument that the provision of maternity leave was discriminatory against male employees and supported his contention by reference to the AIRC decision in which the Bench, at page 13, said:

"We reject at the outset the argument of the ACTU and some of the interveners that the availability of maternity leave for female employees constitutes discrimination against male employees."

The Confederation argued that the costs of choice, on the part of the mother and the father, as to who would be the primary care giver, should not be imposed on the employer in these harsh economic times.

The Confederation rejected the TTLC claim that a parental leave provision would be consistent with that part of the Wage Fixing Principles which promoted changes "ensuring that working patterns and arrangements enhance flexibility and the efficiency of the industry". It was submitted that a parental leave provision would be more flexible for employees wishing to use it, but would cause disruption and additional costs to employers.

It was argued that the TTLC was wrong in claiming that the Federal decision had been flowed into awards in the private sector by the Victorian Industrial Relations Commission. What had occurred, the Confederation asserted, was that the Victorian Full Bench had endorsed, in principle, the federal test case decision and had required separate applications to be made to the relevant Conciliation and Arbitration Boards for variations to awards. It was pointed out that the Victorian Full Bench decision referred to the fact that no detailed information was put as to costs and economic conditions, and in the absence of such information it had been told enough to endorse the federal decision.

The Confederation rejected the TTLC argument that this case should be treated as a flow-on case in a manner similar to that adopted by Mr Owen Pamplin when, as Chairman of Industrial Boards, in 1980, he determined that female employees in the private sector covered by State awards were a minority of female workers in the State and therefore should not be denied access to maternity leave. It was argued that very few employees in this State were entitled to paternity leave, so there was a clear distinction between the two circumstances.

The "casualisation" of women in the workforce which was decried by the TTLC would be transferred, in part, to men. The Confederation's concern, Mr Clues said, was not for the original employee taking paternity leave, but for the "pool of part-time work that will be created by the replacement employees who otherwise would have had the opportunity of full-time employment had the family made the choice that the males was going to be the provider". The position of the TTLC was regarded as being "against what they have traditionally held" in relation to the casualisation of the workforce.

The TTLC submissions in respect of child care facilities were challenged, and the Confederation suggested that such concerns would be addressed far better by lobbying the Government for additional child care facilities rather than imposing the cost on employers. The Confederation tendered figures on child care places and facilities which, it claimed, showed that more was available than had been depicted in the TTLC's exhibits.

The Confederation conceded that the take-up rate of paternity leave would be very low as few families could afford to be supported by a single income. Accordingly, the entitlement would be taken up by "wealthy families" and, as a result, issues raised by the TTLC as being assisted by a parental leave provision such as occupational segregation, low wages of women, and the level of part-time work amongst women, would not be affected to any marked extent.

It was contended that because the take-up rate would be so low only a minority of employers would be affected, and these would be put at a competitive disadvantage to those in the same market place who were not faced with such a claim.

As to the changing role of men, the Confederation argued that, using the TTLC's figures on men in primary care giver category, only 70 males in Tasmania were involved in caring for children in the 0 to 2 years of age bracket, a factor which further supported the Confederation's claim that only a very small minority would be affected by a paternity leave provision. Therefore there was no necessity for the provision.

The Confederation asserted that the Government's intervention in support of the TTLC was inappropriate as it had not introduced specific paternity leave provisions for its own workforce.

In summary, the Confederation believed the TTLC had failed to show there was a genuine demand for a parental leave provision; that the matter of caring for their children was essentially one of choice for the parents, and that the cost of such a choice should not be borne by private industry. The Confederation's primary position was that the Commission should reject the claim having regard to the requirements of Section 36 of the Act. As an alternative, if the Commission considered the claim had merit, there should be an exemption for small business in recognition of the special hardships the claim would create; and further, that a decision should be deferred for a period of 12 months in order to review the claim in light of the economy at that point in time.

On behalf of the Tasmanian Farmers' and Graziers' Association Industrial Association and the Retail Traders Association of Tasmania, Mr Rice, with minor variations, fully supported the submissions of the Confederation. One variation was that should the claim be allowed it should be on a case-by-case basis by way of Section 29 application, but only where there was demonstrable and compelling need. Mr Rice emphasised the difference between the situation established by the Federal decision and the Victorian decision which require separate applications for each award, and the TTLC claim which was for a common rule decision. It was submitted that the TTLC's use of the lack of child care facilities would be required for children after they reached 12 months. Mr Rice suggested that employers would tend to avoid employing people who they suspected might want to take advantage of parental leave. In the rural sector, problems would be created when the employee on parental leave was asked to vacate farm accommodation to make way for the replacement employee.

We were urged to disregard the Government's submissions and confine our attention to the submissions of the direct parties who will either grant or receive the benefit.

Mr Rice submitted that there was an anomaly in the current maternity leave system and proposed that males who had the sole responsibility for a child under 12 months of age should be able to take advantage of leave similar to that available under the Maternity Leave clause.

The Australian Mines and Metals Association also submitted that we should reject the TTLC's application; if that was not accepted the Commission was requested to defer the matter for 12 months and review the situation in the light of changed economic circumstances. As a third option, the AMMA proposed that the Commission examine the potential impact of parental provisions on a case-by-case basis. Mr Knott argued that the existing maternity leave provisions had had little impact in the mining and mineral processing industry because women made up only 5% of the workforce. However, a parental leave provision would permit the remaining 95% to take advantage of the benefits available which is a significant increase. The training schedules for employees in certain mining businesses were tendered to demonstrate the difficulty of bringing new employees up to the multi skilled levels required by employers. Finding adequately trained replacement staff was time consuming and costly. It was submitted that it would be irresponsible for this Commission to introduce, across the board, the concept of parental leave based on a Federal decision.

Mr Jeffries, for Pasminco Metals-EZ, supported the submissions put by the AMMA's representative. He informed the Commission that his company, with 986 award employees, was one of the largest private sector employers in the State. It had not been approached by any of its union representatives about parental leave which, he claimed, supported the AMMA submission that the Commission was being asked to engage in a social engineering exercise rather than to address an industrial relations issue.

Mr Jeffries said the replacement and retraining costs associated with parental leave were of extreme concern to the company. To justify these concerns Mr Jeffries endeavoured to demonstrate the cost impact the parental leave provisions would have on Pasminco Metals-EZ.

Four factors were involved:

(a) recruitment costs for replacement employees;

(b) non-productive time during initial training;

(c) wages paid to the trainer; and

(d) wages paid to the employee covering the trainer's absence.

On a take-up rate of 21%, Mr Jeffries estimated that the loss to Pasminco would be approximately $597,000 per annum. On a sliding scale of take up rates the cost would range from $284,310 per annum at 10% take-up to $852,930 per annum at 30%. It was submitted that Pasminco was involved in a major cost cutting programme to improve efficiency and productivity and any additional cost, however marginal, would be significant.

Mr Jeffries informed the Commission that the attrition rate at Pasminco Metals-EZ was 12.8% per annum and the replacement costs would be consistent with those calculated for replacing employees on parental leave. He estimated that if the parental leave take up was 1%, the cost to the company would be of the order of $25,000 per annum.

In reply Ms Harvey confirmed that the maximum amount of leave available to a family for any instance of maternity or paternity or adoption leave was 52 weeks, and there was no double counting. The Confederation's suggestion of deducting 6 weeks compulsory absence for confinement was unnecessary. Ms Harvey rejected the Confederation's proposed amendment in relation to the employee's entitlement to vary the date of return to work, arguing that the TTLC would have preferred that employees should have an unlimited right to vary the date of return, that is as many times as they and their family might need to suit their circumstances. Limiting the right to change the date to once only, with any other changes to be with consent of the employer, was, in the TTLC's opinion, a fair compromise.

The third Confederation amendment dealing with the taking of alternative forms of leave in lieu of or, in conjunction with, paternity leave was rejected as either impinging on the Long Service Leave Act or impacting on an employee's existing paid leave entitlements.

Ms Harvey submitted that the employer advocates had not been able to demonstrate that parental leave would have an adverse effect on the Tasmanian economy, or that there would be any impact on unemployment levels. It was contended that the Federal and Victorian decisions had to be made on an award-by-award basis as those jurisdictions had been constrained by their own Acts. Both decisions had made it clear that the insertion of the provisions in awards would be an automatic process on application.

Ms Harvey argued that the employers' support for parents being able to choose who should be the primary care giver was meaningless if in electing to be the primary care giver the father was forced to resign from his employment. In Ms Harvey's words:

"That is not what I would call a free choice".
(Transcript, p 200)

Ms Harvey re-asserted the TTLC's claim that the lack of a provision to allow fathers to leave work to provide primary care to their children does constitute discrimination in operation, because it reduces the opportunity for men to play that role.

This Commission, Ms Harvey submitted, should consider this case to be a flow on of a test case conducted federally; the issue of cost therefore did not assume the same level of importance as it had in the federal matter. The matter of parental leave was not a social issue, but was an industrial matter and that had been confirmed in the Federal decision.

The TTLC claimed that the hypotheses developed by the employers to demonstrate the negative effects of a parental leave provision were not objective.

Using estimates of cost submitted by Pasminco Metals-EZ, and the fact that authoritative studies have shown that only 1.2% of the total workforce was on maternity leave at any time, Ms Harvey argued that the cost to Pasminco would be $34,000 per annum, not $597,000 as was calculated by Mr Jeffries using a take up rate of 21% of the workforce. Ms Harvey went further to make the assumption that no more than half of those families would involve the father as the primary care giver, making a hypothetical cost, per annum, to Pasminco Metals-EZ, approximately $17,000.

Ms Harvey contended that employment rates for women had not dropped following the introduction of maternity leave provisions. Therefore, Mr Rice's suggestion that employers would be more selective when recruiting had little substance.

Ms Harvey disputed the Confederation's interpretation that casualisation was a factor in this matter. That term related to a situation where the employees' hours of work were not fixed and were irregular. Employees replacing individuals on parental leave presumably would have fixed hours and would be informed of the period over which they would be employed.

On the issue of child care facilities, Ms Harvey contested the view that the figures were irrelevant because the claim only covered the first 12 months of the child's life. It was pointed out that because of the part-time provisions it covers the first two years of the child's life and that has the potential of cutting in half the cost of child care over the first four years.

Ms Harvey contended that the employers had failed to justify why small businesses should be excluded from parental leave provisions, and argued that the examples of exclusion in the Metal Industry Award in relation to the Termination Change and Redundancy case were required to be dealt with on an individual employer basis. The Tasmanian Commission's major reasons for taking a case-by-case approach in the Termination, Change and Redundancy matter were said to be: (i) that no detailed argument had been put on the state of the Tasmanian economy, and (ii) that any award provision prohibiting harsh, unjust or unreasonable dismissals would preclude the Commission dealing with such matters as disputes. Ms Harvey claimed therefore that reference to that particular matter as a precedent for taking a case-by-case approach was not appropriate.

Ms Harvey submitted that the AMMA and Pasminco Metals-EZ were arguing an incapacity to pay case which should be processed under the appropriate wage fixing principle if and when an award was made.

FINDING

The TTLC's application for the insertion of a new and comprehensive Parental Leave clause to replace the existing Maternity Leave clause in all private sector awards of this Commission is approved.

We are satisfied for reasons which are set out later in this decision that an extension of the availability of unpaid leave to fathers of newly born children and to parents adopting children under 5 years of age is equitable and in the public interest.

Maternity leave will continue to be available to female employees on the existing basis, but can have offset against it periods of unpaid paternity leave and also be adjusted by agreed part-time work arrangements.

Unpaid paternity leave of one week will be available to male employees at the birth of their child. That week is to be deducted from the 52 weeks' unpaid maternity leave available in respect of any one birth.

Long paternity leave, unpaid, also will be available for the balance of the 52 weeks after maternity leave and short paternity leave had been taken.

Either, or both parents will be able to enter into part-time work arrangements, by agreement with their employer, and in so doing will be able to extend the period over which leave is available, as a maximum, until the child's second birthday.

Parental leave, unless part-time work is involved, will cease on the child's first birthday.

Adoptive parents (either singly or on a shared basis) will be able to avail themselves of up to 52 weeks unpaid leave from the date of adoption.

Apart from short paternity leave, unpaid parental leave may not be utilised by both parents at the same time.

In all cases employees taking advantage of unpaid parental leave must have completed 12 months continuous service with their employer.

The TTLC argued that the Commission was not required to have regard for the cost implication of the claim because the claim was for a flow-on of a test case which had been conducted in the Federal jurisdiction. That part of the State Wage Fixing Principles which the TTLC referred to is headed Conditions of Employment. It provides that -

"Except for the flow-on of test case provisions, applications for changes in conditions other than those provided elsewhere in the principles will be considered in the light of their cost implications both directly and through flow-on."

This provision refers to test cases in the Tasmanian jurisdiction in the event that a decision is not made on an across-the-board basis. It requires the Commission to have regard for the cost implications of such a case whether direct or by flow-on. We therefore reject the TTLC's argument. In the circumstances we must consider the cost implications of the claim.

We understand that some areas of industry, particularly those areas where the great majority of the workforce is male, such as the mining industry, will be faced for the first time with the possibility that some of their employees will want to avail themselves of the right to take unpaid paternity leave. However, we are confident that the costs involved will be minimal and capable of being accommodated within the existing recruitment and training programmes conducted by those companies.

In our view the estimated costs of the claim to Pasminco Metals-EZ, as hypothesised by Mr Jeffries, were grossly exaggerated and not consistent with the authoritative data put to us by the TTLC. The hypotheses were developed, it seems, from a misreading or misunderstanding of the same data. The Confederation conceded that the take-up rate, of both short and long paternity leave, would be very low. The cost impact of adoption leave also would be minimal given the very small numbers of adoptions occurring in this State each year.

So far as small business is concerned there could well be some cost although it is possible that some employers will endeavour to cover the loss of an employee by means other than full-time replacement. Recruitment costs and inconvenience caused, if any, for the small numbers involved are not regarded as being sufficient to warrant the special arrangements proposed by the Confederation for businesses with less than 20 employees. We consider any limitation based on numbers of employees would be inequitable and we dismiss such a proposition. The more flexible work patterns, including part-time work, which become available when an individual is on parental leave, have the potential to offset some of the disadvantage caused by such an absence.

Taking the broad view, the overall number of employees on parental leave at any one time will differ little from the number of employees who, under the old provision, would have been on maternity leave.

In the circumstances we consider that the additional costs imposed by this decision are negligible and there will be no flow-on effect.

We accept the TTLC submission that the application is consistent with the Structural Efficiency Principle in that it provides further scope for part-time work - we note that the employers also recognised this feature, the opportunity to reduce absenteeism, retain, in the long term, highly skilled personnel and increase workplace morale.

The employer's submission that the introduction of parental leave will have a deleterious effect on the economy of the State in our view is not sustainable; the costs involved in providing unpaid leave for approximately 1.21% of the workforce is minimal and as previously indicated could well be offset by efficiencies and the flexibility that such absences or indeed part-time work can generate.

We reject the employer's submission that parental leave should be available, in the first instance, only be consent of the employer. Such leave is a reasonable entitlement which should be accessible to those who meet the criteria and who wish to avail themselves of unpaid leave.

The proposal that any part of annual or long service leave standing to the credit of the employee should be available to be utilised by the employer if requested, is noted.

We note the possibility of confusion and inconvenience in circumstances where the employer provides residential accommodation to an employee who might wish to take parental leave and we would not expect the employer to provide such accommodation in excess of six weeks for women and on week for men.

The employers argued that the costs of the proposals should not be imposed on employers in such difficult economic times. We repeat that we regard the likely costs as being negligible and we add that by sharing the cost amongst employers the impost will be spread more equitably and there are some gains to be made in the part-time work provisions. We acknowledge the fact that the economy is not robust, but we are satisfied that the effect of this decision will not be significant in that context,

It was put to the Commission that the common rule approach of this application was inappropriate and that the matter should be considered by way of a separate application in each award in light of circumstances existing in each area. We do not accept this contention; we consider, both on precedent and merit, there is no justification for doing anything other than applying this decision to all awards as a common rule.

A model clause setting out the new conditions is attached as an Appendix.

Variations to awards to reflect this decision will commence to operate no earlier than 1 January 1993. Awards will be varied in accordance with this decision by individual Commission members.

 

Appearances:
Mr R Harvey with Ms P Walker for the Tasmanian Trades and Labor Council
Mrs H J Dowd for the Federated Clerks Union of Australia, Tasmanian Branch
Mr S Clues with Mr T J Edwards for the Tasmanian Confederation of Industries
Mr S P Knott for the Australian Mines and Metals Association Incorporated, Tasmanian Branch
Mr A Pearce for the Minister for Industrial Relations intervening pursuant to Section 27 of the Act
Mr K J Rice for the TFGA Industrial Association and the Retail Traders Association of Tasmania

Dates and place of hearing:
1991
Hobart
July 25
August 12
September 2

APPENDIX

MODEL CLAUSE

PARENTAL LEAVE

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.

PART A - MATERNITY LEAVE

(a)    Nature of Leave

Maternity Leave

(b)    Definitions

For the purpose of this part:

(i) `Employee' includes a part-time employee but does not include an employee engaged upon casual or seasonal work.

(ii) `Paternity leave' means leave' means leave of the type provided for in Part B - Paternity Leave.

(iii) `Child' means a child of the employee under the age of one year.

(iv) `Spouse' includes a de facto or a former spouse.

(v) `Continuous service' means service under an unbroken contract of employment and includes:

(A) any period of leave taken in accordance with this clause;

(B) any period of part-time employment worked in accordance with this clause; or

(C) any period of leave or absence authorised by the employer of by the award.

(c)    Eligibility for maternity leave

(i) An employee who becomes pregnant, upon production to her employer of the certificate required by subclause (d) hereof, shall be entitled to a period of up to 52 weeks maternity leave provided that such leave shall not extend beyond the child's first birthday. This entitlement shall be reduced by any period of paternity leave taken by the employee's spouse in relation to the same child and apart from paternity leave of up to one week at the time of confinement shall not be taken concurrently with paternity leave.

(ii) Subject to subclauses (f) and (i) hereof the period of maternity leave shall be unbroken and shall, immediately following confinement, include a period of six weeks compulsory leave.

(iii) The employee must have had at least 12 months continuous service with that employer immediately preceding the date upon which she proceeds upon such leave.

(d)    Certificate

At the time specified in subclause (e) hereof the employee must produce to her employer;

(i) a certificate from a registered medical practitioner stating that she is pregnant and the expected date of confinement;

(ii) a satisfactory declaration stating particulars of any period of paternity leave sought or taken by her spouse and that for the period of maternity leave shall not engage in any conduct inconsistent with her contract of employment.

(e)    Notice Requirements

(i) An employee shall, not less than ten weeks prior to the presumed date of confinement, produce to her employer the certificate referred to in paragraph (d)(i).

(ii) An employee shall give not less than four weeks notice in writing to her employer of the date upon which she proposes to commence maternity leave stating the period of leave to be taken and shall, at the same time, produce to her employer the statutory declaration referred to in paragraph (d)(ii).

(iii) An employer by not less than 14 days notice in writing to the employee may require her to commence maternity leave at any time within the six weeks immediately prior to her presumed date of confinement.

(iv) An employee shall not be in breach of this clause as a consequence of failure to give the stipulated period of notice in accordance with paragraph (ii) hereof if such failure is occasioned by the confinement occurring earlier than the presumed date.

(f)    Transfer to a safe job

Where 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 shall, if the employer deems it practicable, be transferred to a safe job at the rate and on the conditions attaching to the job until the commencement of maternity leave.

If the transfer to a safe job is not practicable, the employee may, or the employer may require the employee to, take leave for such period as is certified necessary by a registered medical practitioner. Such leave shall be treated as maternity leave for the purposes of subclauses (j), (k), (l) and (m) hereof.

(g)    Variation of Period of Maternity Leave

(i) Provided the maximum period of maternity leave does not exceed the period to which the employee is entitled under subclause (c) hereof:

(A) the period of maternity leave may be lengthened once only by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be lengthened;

(B) the period may be further lengthened by agreement between the employer and the employee.

(ii) The period of maternity leave may, with the consent of the employer, be shortened by the employee giving not less than 14 days' notice in writing stating the period by which the leave is to be shortened.

(h)    Cancellation of Maternity Leave

(i) Maternity leave, applied for but not commenced, shall be cancelled when the pregnancy of an employee terminates other than by the birth of a living child.

(ii) Where the pregnancy of an employee then on maternity leave terminates other than by the birth of a living child, it shall be the right of the employee to resume work at a time nominated by the employer which shall not exceed 4 weeks from the date of notice in writing by the employee to the employer that she desires to resume work.

(i)    Special Maternity Leave and Sick Leave

(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:

(A) she shall be entitled to such period of unpaid leave (to be known as special maternity leave) as a registered medical practitioner certifies as necessary before her return to work; or

(b) for illness other than the normal consequences of confinement she shall be entitled, either in lieu of or in addition to special maternity leave, to such paid sick leave as to which she is then entitled and which a registered medical practitioner certifies as necessary before her return to work.

(ii) Where an employee not then on maternity leave suffers illness related to her pregnancy, she may take such paid sick leave as to which she is then entitled and such further unpaid leave (to be known as special maternity leave) as a registered medical practitioner certifies as necessary before her return to work, provided that the aggregate of paid sick leave, special maternity leave and maternity leave shall not exceed the period to which the employee is entitled under subclause (c) hereof.

(iii) For the purposes of subclauses (j), (k) and (l) hereof, maternity leave shall include special maternity leave.

(iv) An employee returning to work after the completion of a period of leave taken pursuant to this subclause shall be entitled to the position which she held immediately before proceeding on such leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (f) hereof, to the position she held immediately before such transfer.

Where such position no longer exists but there are other positions available, which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and pay to that of her former position.

(j)    Maternity Leave and Other Leave Entitlements

(i) Provided the aggregate of any leave including leave taken under this part, does not exceed the period to which the employee is entitled under subclause (c) hereof, an employee may, in lieu of or in conjunction with maternity leave, take any annual leave or long service leave or any part thereof to which she is entitled.

(ii) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave), shall not be available to an employee during her absence on maternity leave.

(k)    Effect of Maternity Leave on Employment

Subject to this part, notwithstanding any award or other provision to the contrary, absence on maternity leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of any relevant award or agreement.

(l)    Termination of Employment

(i) An employee on maternity leave may terminate her employment at any time during the period of leave by notice given in accordance with this award.

(ii) An employer shall not terminate the employment of an employee on the ground of her pregnancy or of her absence on maternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(m)    Return to Work After Maternity Leave

(i) An employee shall confirm her intention of returning to work by notice in writing to the employer given not less than four (4) weeks prior to the expiration of her period of maternity leave.

(ii) An employee, upon returning to work after maternity leave or the expiration of the notice required by paragraph (i) hereof, shall be entitled to the position which she held immediately before proceeding on maternity leave or, in the case of an employee who was transferred to a safe job pursuant to subclause (f) hereof, to the position which she held immediately before such transfer or in relation to an employee who has worked part-time during the pregnancy the position she held immediately before commencing such part-time work.

Where such position no longer exists but there are other positions available for which the employee is qualified and the duties of which she is capable of performing, she shall be entitled to a position as nearly comparable in status and pay to that of her former position.

(n)    Replacement Employees

(i) A replacement employee is an employee specifically engaged as a result of an employee proceeding on maternity leave.

(ii) Before an employer engages a replacement employee the employer shall inform that person of the temporary nature of the employment of the rights of the employee who is being replaced.

(iii) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising her rights under this part, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(iv) Nothing in this part shall be construed as requiring an employer to engage a replacement employee.

PART B - PATERNITY LEAVE

(a)    Nature of leave

Paternity leave is unpaid leave.

(b)    Definitions

For the purpose of this part:

(i) `Employee' includes a part-time employee but does not include an employee engaged upon casual or seasonal work.

(ii) `Maternity leave' means leave of the type provided for in Part A - Maternity Leave (and includes special maternity leave).

(iii) `Child' means a child of the employee or the employee's spouse under the age of one year.

(iv) `Spouse' includes a de facto or a former spouse.

(v) `Primary care-giver' means a person who assumes the principal role of providing care and attention to a child.

(vi) `Continuous service' means service under an unbroken contract of employment and includes:

(A) any period of leave taken in accordance with this clause;

(B) any period of part-time employment worked in accordance with this clause; or

(C) any period of leave or absence authorised by the employer or by the award.

(c)    Eligibility for Paternity Leave

A male employee, upon production to this employer of the certificate required by subclause (d) - Certification shall be entitled to one or two periods of paternity leave, the total of which shall not exceed 52 weeks, in the following circumstances;

(i) an unbroken period of up to one week at the time of confinement of his spouse;

(ii) a further unbroken period of up to 51 weeks in order to be the primary care-giver of a child provided that such leave shall not extend beyond the child's first birthday. This entitlement shall be reduced by any period of maternity leave taken by the employee's spouse and shall not be taken concurrently with that maternity leave.

The employee must have had at least 12 months continuous service with that employer immediately preceding the date upon which he proceeds upon either period of leave.

(d)    Certification

At the time specified in subclause (e) the employee must produce to his employer;

(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 of which the birth took place;

(ii) in relation to any period to be taken under paragraph (c)(ii) hereof; a statutory declaration stating:

(A) he will take that period of paternity leave to become the primary care-giver of the child;

(B) particulars of any period of maternity leave sought or taken by his spouse; and

(C) for the period of paternity leave he will not engage in any conduct inconsistent with his contract of employment.

(e)    Notice Requirements

(i) The employee shall, not less than ten weeks prior to each proposed period of leave, give the employer notice in writing stating the dates on which he proposes to start and finish the period or periods of leave and produce the certificate and statutory declaration required in subclause (d) hereof.

(ii) The employee shall not be in breach of this subclause as a consequence of failure to give the notice required in paragraph (i) hereof if such failure is due to:

(A) the birth occurring earlier than the expected date; or

(B) the death of the mother or the child; or

(C) other compelling circumstances.

(iii) The employee shall immediately notify his employer of any change in the information provided pursuant to subclause (d) hereof.

(f)    Variation of Period of Paternity Leave

(i) Provided the maximum period of paternity leave does not exceed the period to which the employee is entitled under subclause (c) hereof:

(A) the period of paternity leave provided by paragraph (c)(ii) may be lengthened once only by the employee giving not less than 14 days notice in writing stating the period by which the leave is to be lengthened;

(B) the period may be further lengthened by agreement between the employer and the employee.

(ii) The period of paternity leave taken under paragraph (c)(ii) hereof may, with the consent of the employer, be shortened by the employee giving not less than 14 days notice in writing stating the period by which the leave is to be shortened.

(g)    Cancellation of Paternity Leave

Paternity leave, applied for under paragraph (c)(ii) hereof but not commenced, shall be cancelled when the pregnancy of the employee's spouse terminates other than by the birth of a living child.

(h)    Paternity Leave and Other Leave Entitlements

(i) Provided the aggregate of any leave, including leave taken under this part, does not exceed the period to which the employee is entitled under subclause (c) hereof, an employee may, in lieu of or in conjunction with paternity leave , taken any annual leave or long service leave or any part thereof to which he is entitled.

(ii) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave) shall not be available to an employee during his absence on paternity leave.

(i)    Effect of Paternity Leave on Employment

Subject to this part, notwithstanding any award or other provision to the contrary, absence on paternity leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of any relevant award or agreement.

(j)    Termination of Employment

(i) An employee on paternity leave may terminate his employment at any time during the period of leave by notice given in accordance with this award.

(ii) An employer shall not terminate the employment of an employee on the ground of his absence on paternity leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(k)    Return to Work after Paternity Leave

(i) An employee shall confirm his intention of returning to work by notice in writing to the employer given not less than four weeks prior to the expiration of the period of paternity leave provided by paragraph (c)(ii) hereof.

(ii) An employee, upon returning to work after paternity leave or the expiration of the notice required by paragraph (i) hereof, shall be entitled to the position which he held immediately before proceeding on paternity leave, or in relation to an employee who has worked part-time under this clause to the position he held immediately before commencing such part-time work.

Where such position no longer exists but there are other positions available which the employee is qualified for an is capable of performing; he shall be entitled to a position as nearly comparable in status and pay to that of his former position.

(l)    Replacement Employees

(i) A replacement employee is an employee specifically engaged as a result of an employee proceeding on paternity leave.

(ii) Before an employer engages a replacement employee the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replace.

(iii) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising his rights under this part, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(iv) Nothing in this part shall be construed as requiring an employer to engage a replacement employee.

PART C - ADOPTION LEAVE

(a)    Nature of Leave

Adoption leave is unpaid leave.

(b)    Definitions

For the purpose of this part:

(i) `Employee' includes a part-time employee but does not include an employee upon casual or seasonal work.

(ii) `Child' means a person under the age of five years 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.

(iii) `Relative adoption' occurs where a child, as defined, is adopted by a grandparent, brother, sister, aunt or uncle (whether of the whole blood or half blood or by marriage).

(iv) `Primary care-giver' means a person who assumes the principal role of providing care and attention to a child.

(v) `Spouse' includes a de facto spouse.

(vi) `Continuous service' means service under an unbroken contract of employment and includes:

(A) any period of leave taken in accordance with this clause;

(B) any period of part-time employment worked in accordance with this clause; or

(C) any period of leave or absence authorised by the employer or by the award.

(c)    Eligibility

An employee, upon production to the employer of the documentation required by subclause (d) hereof shall be entitled to one or two periods of adoption leave, the total of which shall not exceed 52 weeks, in the following circumstances:

(i) an unbroken period of up to three weeks at the time of the placement of the child;

(ii) an unbroken period of up to 52 weeks from the time of the child's placement in order to be the primary care-giver of the child. This leave shall not extend beyond one year after the placement of the child and shall not be taken concurrently with adoption leave taken by the employee's spouse in relation to the same child. This entitlement of up to 52 weeks shall be reduced by:

(A) any period of leave taken pursuant to paragraph (i) hereof; and

(B) the aggregate of any periods of adoption leave taken or to be taken by the employee's spouse;

The employee must have had at least 12 months continuous service with that employer immediately preceding the date upon which he or she proceeds upon such leave in either case.

(d)    Certification

Before taking adoption leave the employee must produce to the employer:

(i) (A) A statement from an adoption agency or other appropriate body of the presumed date of placement of the child with the employee for adoption purposes; or

(B) a statement from the appropriate government authority confirming that the employee is to have custody of the child pending application for an adoption order.

(ii) In relation to any period to be taken under paragraph (c)(ii) hereof, a statutory declaration stating:

(A) the employee is seeking adoption leave to become the primary care-giver of the child;

(B) particulars of any period of adoption leave sought or taken by the employee's spouse; and

(C) for the period of adoption leave the employee will not engage in any conduct inconsistent with his or her contract of employment.

(e)    Notice Requirements

(i) Upon receiving notice of approval for adoption purposes, an employee shall notify the employer of such approval and within two months of such approval, shall further notify the employer of the period or periods of adoption leave the employee proposes to take. In the case of a relative adoption the employee shall notify as aforesaid upon deciding to take a child into custody pending an application for an adoption order.

(ii) An employee who commences employment with an employer after the date of approval for adoption purposes shall notify the employer thereof upon commencing employment and of the period or periods of adoption leave which the employee proposes to take. Provided that such employee shall not be entitled to adoption leave unless the employee has not less than 12 months continuous service with that employer immediately preceding the date upon which he or she proceeds upon such leave.

(iii) An employee shall, as soon as the employee is aware of the presumed date of placement of a child for adoption purposes but no later than 14 days before such placement, give notice in writing to the employer of such date, and of the date of the commencement of any period of leave to be taken under paragraph (c)(i) hereof.

(iv) An employee shall, ten weeks before the proposed date of commencing any leave to be taken under paragraph (c)(ii) hereof give notice in writing to the employer of the date of commencing leave and the period of leave to be taken.

(v) An employee shall not be in breach of this part as a consequence of failure to give the stipulated period of notice in accordance with paragraphs (iii) and (iv) hereof if such failure is occasioned by the requirement of an adoption agency to accept earlier or later placement of a child, the death of the spouse or other compelling circumstances.

(f)    Variation of Period of Adoption Leave

(i) Provided the maximum period of adoption leave does not exceed the period to which the employee is entitled under subclause (c) hereof:

(A) the period of leave taken under paragraph (c)(ii) hereof may be lengthened once only by the employee giving not less than 14 days notice in writing stating the period by which the leave is to be lengthened;

(B) the period may be further lengthened by agreement between the employer and employee.

(ii) The period of adoption leave taken under paragraph (c)(ii) hereof may, with the consent of the employer, be shortened by the employee giving not less than 14 days notice in writing stating the period by which the leave is to be shortened.

(g)    Cancellation of Adoption Leave

(i) Adoption leave, applied for but not commenced, shall be cancelled should the placement of the child not proceed.

(ii) Where the placement of a child for adoption purposes with an employee then on adoption leave does not proceed or continue, the employee shall notify the employer forthwith and the employer shall nominate a time not exceeding four weeks from receipt of notification for the employee's resumption of work.

(h)    Special Leave

The employer shall grant to any employee who is seeking to adopt a child, such unpaid leave not exceeding two days, as is required by the employee to attend any compulsory interviews or examinations as are necessary as part of the adoption procedure. Where paid leave is available to the employee the employer may require the employee to take such leave in lieu of special leave.

(i)    Adoption Leave and Other Entitlements

(i) Provided the aggregate of any leave, including leave taken under this part, does not exceed the period to which the employee is entitled under subclause (c) hereof, an employee may, in lieu of or in conjunction with adoption leave, take any annual leave or long service leave or any part thereof to which he or she is entitled.

(ii) Paid sick leave or other paid authorised award absences (excluding annual leave or long service leave), shall not be available to an employee during the employee's absence on adoption leave.

(j)    Effect of Adoption Leave on Employment

Subject to this part, notwithstanding any award or other provision to the contrary, absence on adoption leave shall not break the continuity of service of an employee but shall not be taken into account in calculating the period of service for any purpose of any relevant award or agreement.

(k)    Termination of Employment

(i) An employee on adoption leave may terminate the employment at any time during the period of leave by notice given in accordance with this award.

(ii) An employer shall not terminate the employment of an employee on the ground of the employee's application to adopt a child or absence on adoption leave, but otherwise the rights of an employer in relation to termination of employment are not hereby affected.

(l)    Return to Work After Adoption Leave

(i) An employee shall confirm the intention of returning to work by notice in writing to the employer given not less than four weeks prior to the expiration of the period of adoption leave provided by paragraph (c)(ii) hereof.

(ii) An employee, upon returning to work after adoption leave, shall be entitled to the position held immediately before proceeding on such leave or in relation to an employee who has worked part-time under this clause the position held immediately before commencing such part-time work.

Where such position no longer exists but there are other positions available which the employee is qualified for an is capable of performing, the employee shall be entitled to a position as nearly comparable in status and pay to that of the employee's former position.

(m)    Replacement Employees

(i) A replacement employee is an employee specifically engaged as a result of an employee proceeding on adoption leave.

(ii) Before an employer engages a replacement employee the employer shall inform that person of the temporary nature of the employment and of the rights of the employee who is being replaced.

(iii) Before an employer engages a person to replace an employee temporarily promoted or transferred in order to replace an employee exercising rights under this part, the employer shall inform that person of the temporary nature of the promotion or transfer and of the rights of the employee who is being replaced.

(iv) Nothing in this part shall be construed as requiring an employer to engage a replacement employee.

PART D - PART-TIME WORK

(a)    Definitions

For the purposes of this part:

(i) `Male employee' means an employed male who is caring for a child born of his spouse or a child placed with the employee for adoption purposes.

(ii) `Female employee' means an employed female who is pregnant or is caring for a child she has borne or a child who has been placed with her for adoption purposes.

(iii) `Spouse' includes a de facto spouse.

(iv) `Former position' means the position held by a female or male employee immediately before proceeding on leave or part-time employment under this part whichever first occurs or, if such position no longer exists but there are other positions available for which the employee is qualified and the duties of which he or she is capable of performing a position as nearly comparable in status and pay to that of the position first mentioned in this definition.

(v) `Continuous service' means service under an unbroken contract of employment and includes:

(A) any period of leave taken in accordance with this clause;

(B) any period of part-time employment worked in accordance with this clause; or

(c) any period of leave or absence authorised by the employer or by the award.

(b)    Entitlement

With the agreement of the employer:

(i) A male employee may work part-time in one or more periods at any time from the date of birth of the child until its second birthday or, in relation to adoption, from the date of placement of the child until the second anniversary of the placement.

(ii) A female employee may work part-time in one or more periods while she is pregnant where part-time employment is, because of the pregnancy, necessary or desirable.

(iii) A female employee may work part-time in one or more periods at any time from the seventh week after the date of birth of the child until its second birthday.

(iv) In relation to adoption a female employee may work part-time in one or more periods at any time from the date of the placement of the child until the second anniversary of that date.

(c)    Return to Former Position

(i) An employee who has had at least 12 months continuous service with an employer immediately before commencing part-time employment after the birth or placement of a child has, at the expiration of the period of such part-time employment or the first period, if there is more than one, the right to return to his or her former position.

(ii) Nothing in paragraph (i) hereof shall prevent the employer from permitting the employee to return to his or her former position after a second or subsequent period of part-time employment.

(d)    Effect of Part-time Employment on Continuous Service

Commencement on part-time work under this clause, and return from part-time work to full-time work under this clause, shall not break the continuity of service or employment.

(e)    Pro Rata Entitlement

Subject to the provisions of this part and the matters agreed to in accordance with subclause (h) hereof, part-time employment shall be in accordance with the provisions of this award which shall apply pro rata.

(f)    Transitional Arrangements - Annual Leave

(i) An employee working part-time under this part shall be paid for and take any leave accrued in respect of a period of full-time employment, in such periods and manner as specified in the annual leave provisions of this award, as if the employee were working full-time in the class of work the employee was performing as a full-time employee immediately before commencing part-time work under this part.

(ii) (A) a full-time employee shall be paid for and take any annual leave accrued in respect of a period of part-time employment under this part, in such periods and manner as specified in this award, as if the employee were working part-time in the class of work the employee was performing as a part-time employee immediately before resuming full-time work.

(B) Provided that, by agreement between the employer and the employee, the period over which the leave is taken may be shortened to the extent necessary for the employee to receive pay at the employee's current full-time rate.

(g)    Transitional Arrangements - Sick Leave

An employee working part-time under this part shall have sick leave entitlements which have accrued under this award (including any entitlements accrued in respect of previous full-time employment) converted into hours. When this entitlement is used, whether as a part-time employee or as a full-time employee, it shall be debited for the ordinary hours that the employee would have worked during the period of absence.

(h)    Part-time Work Agreement

(i) Before commencing a period of part-time employment under this part the employee and the employer shall agree:

(A) that the employee may work part-time;

(b) upon the hours to be worked by the employee, the days upon which they will be worked and commencing times for the work;

(C) upon the classification applying to the work to be performed; and

(D) upon the period of part-time employment

(ii) The terms of this agreement may be varied by consent.

(iii) The terms of this agreement or any variation to it shall be reduced to writing and retained by the employer. A copy of the agreement and any variation to it shall be provided to the employee by the employer.

(iv) The terms of this agreement shall apply to the part-time employment.

(i)    Termination of Employment

(i) The employment of a part-time employee under this clause, may be terminated in accordance with the provisions of this award but may not be terminated by the employer because the employee has exercised or proposes to exercise any rights arising under this clause or has enjoyed or proposes to enjoy any benefits arising under this clause.

(ii) Any termination entitlements payable to an employee whose employment is terminated while working part-time under this clause, or while working full-time after transferring from part-time work under this clause, shall be calculated by reference to the full-time rate of pay at the time of termination by regarding all service as a full-time employee as qualifying for a termination entitlement based on the period of full-time employment and all service as a part-time employee on a pro rata basis.

(j)    Extension of Hours of Work

An employer may request, but not require, an employee working part-time under this clause to work outside or in excess of the employee's ordinary hours of duty provided for in accordance with subclause (h).

(k)    Nature of Part-time Work

The work to be performed part-time need not be the work performed by the employee in his or her former position but shall be work otherwise performed under this award.

(l)    Inconsistent Award Provisions

An employee may work part-time under this clause notwithstanding any other provisions of this award which limits or restricts the circumstances in which part-time employment may be worked or the terms upon which it may be worked including provisions:

(i) limiting the number of employees who may work part-time;

(ii) establishing quotas as to the ratio of part-time to full-time employees;

(iii) prescribing a minimum or maximum number of hours a part-time employee may work; or

(iv) requiring consultation with, consent of or monitoring by a union;

and such provisions do not apply to part-time work under this clause.

(m)    Replacement Employees

(i) A replacement employee is an employee specifically engaged as a result of an employee working part-time under this part.

(1) D91/0218
(2) Maternity Leave in Australia, Australian Institute of Family Studies Monograph: No.7, 1988
(3) Transcript, pp. 47, 48

Awards Varied:
Aerated Waters
Architects (Private Industry)
Australian Cement Holdings Enterprise
Automotive Industries and Correction Order
Barristers and Solicitors
Bootmakers
Broadcasting and Television
Building and Construction Industry
Building Trades
Butter and Cheesemakers
Carriers
Catholic Education
Chemists
Child Care and Childrens Services
Clay and Mud Products
Cleaning and Property Services
Clerical and Administrative Employees (Private Sector)
Clothing Makers
Concrete Products
Dairy Processing
Dentists
Draughting and Technical Officers (Private Industry)
Electrical Engineers
Electrolytic Zinc
Entertainment
Estate Agents
Farming and Fruit Growing
Fibreglass and Plastics
Fish, Aquaculture and Marine Products
Fuel Merchants
Furnishing Trades
Hairdressers
Health and Fitness Centres
Horticulturists
Hospitals
Hotels, Resorts, Hospitality and Motels and Correction Order
Ice Cream Makers
Independent Schools (Non-Teaching) Staff
Independent Schools (Teachers) Tasmania
Insurance
Laundry and Dry Cleaning
Leather, Canvas and Sheet Plastic Fabrication
Licensed Clubs
Meat Trades
Medical Practitioners (Private Sector)
Metal and Engineering Industry
Metal and Engineering On-Site Construction Industry
Miscellaneous Workers
Monumental Masons
Musicians
Nursing Homes
Optical Industries
Pasminco Rosebery (Mining)
Plant Nurseries
Plumbers
Printers
Produce
Professional Engineers & Scientists (Private Industry)
Public Accountants
Public Vehicles
Quarrymens
Restaurant Keepers
Retail Trades
Rubber Trades
Security Industry
Shellfish Industry
Shipbuilders
Shipping
Surveyors (Private Industry)
Textile
Timber Merchants
Totalizator Agency
Transport Workers General
Veterinary Services
Welfare & Voluntary Agencies and Correction Order
Wholesale Trades
Wireworking