Know Your Rights: Maternity, Adoption and Parental Leave - Medical Officers

02-Jun-2017

 

 

Maternity, Adoption and Parental Leave - Medical Officers

In last week’s edition of Know Your Rights, we looked specifically at maternity leave entitlements for Staff Specialists.

Following the article, we received feedback from several junior medical officers who wanted to know more about whether they have the same or similar rights to leave and flexible work arrangements.

In this article, we outline the rights and entitlements of medical officers under the Public Hospital (Medical Officers) Award (‘the Award’).

Maternity Leave

When is a JMO eligible for maternity leave?

To be eligible for paid maternity leave a full time or permanent part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth.

When is a JMO eligible for further maternity leave?

If a JMO has met the conditions for paid maternity leave once, they will not be required to again work the 40 weeks continuous service in order to qualify for a further period of paid maternity leave, unless- (a) there has been a break in service where the employee has been re-employed or re-appointed after a resignation, medical retirement, or after her services have been otherwise dispensed with: or (b) the employee has completed a period of leave without pay of more than 40 weeks.

Is a JMO eligible for maternity leave even if they have rotated/worked at more than one hospital?

Yes. The Award clearly provides for recognition of service in government sector agencies and public hospitals. If you move between a public service department and a public hospital, previous continuous service will be counted towards the service prerequisite for paid maternity leave.

However, there may be a break in service of up to two months before commencing duty with the new employer. However, such a break in service will not be counted as service for the purpose of calculating any prior service prerequisite for paid maternity leave.

How many weeks of maternity leave are paid?

An eligible employee is entitled to fourteen weeks at the ordinary rate of pay from the date maternity leave commences.

Paid maternity leave may be paid: - on a normal fortnightly basis; or - in advance in a lump sum; or - at the rate of half pay over a period of twenty-eight weeks on a regular fortnightly basis.

JMOs are entitled to the full 14 weeks paid maternity leave regardless of their contract ending if they have met the requisite 40 weeks of service. For example if your contract ends 4 weeks into taking your maternity leave JMOs should still be paid the full entitlement.

Can other entitlements be combined with paid maternity leave?

Yes. Annual and/or long service leave credits can be combined with periods of maternity leave on half pay to enable an employee to remain on full pay for that period.

How much time can a JMO take as unpaid maternity leave?

Full time and permanent part time employees who are entitled to paid maternity leave are entitled to a further period of unpaid maternity leave of not more than 12 months after the actual date of birth.

Full time and permanent part time employees who are not eligible for paid maternity leave are entitled to unpaid maternity leave of not more than 12 months. JMOs who are on a college training program should ensure that they have sought a break from training with their respective colleges.

Does a JMO accrue leave while on maternity leave?

When the employee has returned to work, any period of full pay leave is counted in full for the accrual of annual leave, sick leave and long service leave and any period of maternity leave on half pay is taken into account to the extent of one half thereof when determining the accrual of annual leave, sick leave and long service leave.

NB: Except in the case of employees who have completed ten years' service the period of maternity leave without pay does not count as service for long service leave purposes. Where the employee has completed ten years' service the period of maternity leave without pay shall count as service provided such leave does not exceed six months.

What happens if a public holiday occurs during the paid maternity leave?

Where public holidays occur during the period of paid maternity leave, payment is at the rate of maternity leave received i.e., public holidays occurring in a period of full pay maternity leave are paid at full rate and those occurring during a period of half pay leave are paid at half rate.

Do you have a right to return to your previous position after maternity leave?

Yes. You have a right to return to your previous position. In circumstances of a redundancy, you are entitled to be placed in a position nearest in status and salary to that of her former position and to which the employee is capable or qualified.

What if I am an intern and take a period of maternity leave during?

If an intern takes a period of maternity leave during their internship, an extension of contract should be requested prior to going on maternity leave in order to complete the internship as this is not an automatic entitlement.

Parental Leave

When is a JMO eligible for parental leave?

Under the Award, to be eligible for parental leave, a full time or permanent part-time employee must have completed at least 40 weeks continuous service prior to the expected date of birth or to the date of taking custody of the child.

NB the same conditions apply for portability of service and further periods of parental leave as above.

What is the entitlement to parental leave?

Eligible employees whose spouse or partner (including a same sex partner) is pregnant or is taking custody of a child, are entitled to a period of leave not exceeding 52 weeks. One week only is paid leave, and may be taken as follows:
  1. an unbroken period of up to one week at the time of the birth of the child, taking custody of the child or other termination of the pregnancy (short parental leave), and
  2. a further unbroken period in order to be the primary caregiver of the child (extended parental leave).
  3. The entitlement of one week’s paid leave may be taken at anytime within the 52 week period and shall be paid: - at the employees ordinary rate of pay for a period not exceeding one week on full pay, or - two weeks at half pay or the period of parental leave taken, whichever is the lesser period.

When is a JMO entitled to extended parental leave?

To be eligible for extended parental leave, the employee must, before the start of leave, provide a statutory declaration by the employee stating:
  1. if applicable, the period of any maternity leave sought or taken by his spouse, and
  2. that they are seeking the period of extended parental leave to become the primary care giver of the child.
Extended parental leave can only be taken, by way of request, at the same time as the employee’s spouse or partner is on maternity or adoption leave for a maximum of 8 weeks under Part D of the Award.

The employee must, before the start of extended parental leave, provide a certificate from a medical practitioner confirming that their spouse or partner is pregnant and the expected date of birth, or in the case of an adoption, an official form or notification on taking custody of the child

Flexible work arrangements

Can a JMO request an extension of maternity/ parental leave?

Yes. Under the Award, an employee entitled to maternity, adoption or parental leave may request the employer to allow the employee:
  1. to extend the period of simultaneous maternity, adoption or parental leave use up to a maximum of eight weeks;
  2. to extend the period of unpaid maternity, adoption or extended parental leave for a further continuous period of leave not exceeding 12 months;

Can a JMO request flexible work arrangements such as reducing hours to part time when returning to work?

Yes. An employee can request to return from a period of maternity, adoption or parental leave on a part time basis until the child reaches school age; to assist the employee in reconciling work and parental responsibilities.

Can the request be refused?

Under the Award, the employer shall consider the request having regard to the employee’s circumstances and, provided the request is genuinely based on the employee’s parental responsibilities, may only refuse the request on reasonable grounds related to the effect on the workplace or the employer’s business. Such grounds might include cost, lack of adequate replacement staff, loss of efficiency and the impact on customer service.

Should your employer unreasonably refuse request for flexible work arrangements, you should contact ASMOF for assistance.

Training contracts and maternity, adoption and parental leave

ASMOF strongly advocates for members to ensure that their training contracts are not compromised through the taking of maternity, adoption or parental leave. ASMOF will advocate to ensure that the length of the contract, for example, should be extended to cover the period of the leave taken, with approval from the relevant College also not being unreasonably withheld.

Given the specifics of training contract industrial issues, we encourage you to contact our office to discuss such as situation.

How do the above Award entitlements compare to the OECD average?

Currently the Award maternity leave provisions allow for 14 weeks paid maternity leave for eligible employees and only one week paid leave for the primary carer (including same sex partner).

The Award entitlements to paid leave (which are representative of the NSW public sector Awards) fall well short of the OECD average where mothers are entitled to just less than 18 weeks of paid maternity leave. Furthermore, on average OECD countries offer just over eight weeks of paid father specific leave, either through paid paternity leave or paid father-specific parental or home care leaves.[1]

ASMOF strongly supports the strengthening of entitlements and flexible work arrangements within the Award. This is an issue that is deeply felt by many of our members and one that ASMOF will continue to pursue on their behalf at both an individual level and during Award negotiations.

NB: This article provides general information only. If you are a medical officer/doctor in training, please contact our office so we can help you understand your rights, and help you through any difficulties you may experience in respect of your maternity, adoption and parental leave claim.

 

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