Adoption, Maternity and Parental Leave

4.2.1 General

This section should be read in conjunction with the following determinations made under the Teaching Service Act, 1980:

and the following determination made under the Government Sector Employment Act 2013:

Section 52 (1) Determination No 1 of 2018 – Parental Leave for employees in relation to Altruistic Surrogacy and Permanent Out of Home Care Arrangements

Casual teachers may also access unpaid Parental Leave under the Industrial Relations Act 1996.

In addition to the entitlements provided in this chapter, teachers may also access benefits under the Commonwealth Paid Parental Leave Scheme.

4.2.2 Definitions

“Anticipated date of birth” means a date specified by a medical practitioner to be the date on which the medical practitioner expects the teacher to give birth.

“Birth” shall include stillbirth except where otherwise stated.

“Continuous service” includes:

  • all periods of paid leave, previous adoption, parental and maternity leave without pay, sick leave without pay, school vacations, public holidays and up to a total of five days leave without pay;
  • all periods of maternity leave taken not more than 9 weeks prior to the anticipated date of birth;
  • full time and part time temporary teaching service and full time casual teaching service; and,
  • previous service with the Department, or another government department which merges with employment as a teacher.

In regards to temporary teachers, continuous service will also include:

  • paid school vacations;
  • unpaid school vacations that occur during a temporary engagement;
  • unpaid school vacations that occur between engagements where there are temporary engagements abutting the beginning and the end of the vacation;
  • the four week period prior to the anticipated date of birth regardless of whether a temporary engagement exists during this period or not.

While not included in the 40 weeks service, continuity of service will not be broken by:

  • an absence of up to 21 calendar days at the beginning of the school year for temporary or casual teachers who were in service at the end of the preceding school year and are available for employment; or
  • the period between early cessation of a temporary engagement and the end date of the original temporary engagement.

“Primary caregiver” means the person who assumes the principal role of providing care and attention to the child. This role may be undertaken by the other partner should a change in circumstances arises.

4.2.3 Adoption, maternity and altruistic surrogacy leave

4.2.3.1 Entitlement and payment

a) The paid and/or unpaid adoption, maternity and altruistic surrogacy leave entitlements of eligible teachers are outlined in the table below:

Staff category Entitlements Service Requirements for Eligibility

All permanent and temporary* teachers who will be the primary caregiver of an adopted child

All permanent and temporary teachers who are pregnant

All permanent and temporary teachers who will be the primary caregiver of a child as a result of an altruistic surrogacy.

Basic entitlement

Unpaid adoption, maternity and altruistic surrogacy leave – 52 weeks unpaid leave from the date of birth or taking custody of the child. May be taken as full time and or part time leave providing the total amount of leave does not exceed the equivalent of 12 months full time leave.

No service requirement.

All permanent and temporary teachers who will be the primary caregiver of an adopted child

All permanent and temporary teachers who are pregnant

All permanent and temporary teachers who will be the primary caregiver of a child as a result of an altruistic surrogacy.

Paid adoption, maternity and altruistic surrogacy leave – 14 weeks full pay or 28 weeks half pay, or one combination of full pay and half pay. May be paid in a lump sum or in normal fortnightly pay.

Paid leave reduces the amount of unpaid leave available.

At least 40 weeks’ continuous service prior to the anticipated date of birth or date of taking custody.

All permanent and temporary teachers who have been granted adoption, maternity or altruistic surrogacy leave.

Temporary teachers who have been granted adoption, maternity or altruistic surrogacy leave within a period of a temporary engagement.

Additional entitlements

Right to request:

· to extend the period of unpaid adoption, maternity and altruistic surrogacy leave for an additional period not exceeding 12 months;

· to return from a period of adoption, maternity and altruistic surrogacy leave on a part time basis until the child reaches school age;

· to extend the period of simultaneous adoption, maternity oraltruistic surrogacy leave up to 8 weeks when the teacher’s partner is taking parental leave.

No service requirement.

Casual teachers who become pregnant and have completed at least 40 weeks continuous service prior to the anticipated date of birth of the child.

Maternity payment – equivalent to 14 weeks’ pay at the same rate of the final week of service prior to ceasing duty for maternity purposes.

At least 40 weeks’ continuous service prior to the anticipated date of birth of the child. See 4.2.5.10 for details.

All Casual teachers who give birth or become the primary caregiver of a child through adoption or altruistic surrogacy.

Unpaid adoption, maternity and altruistic surrogacy leave – one week unpaid leave at the time of taking custody of the child.

No service requirement but must have employment at the time of taking the leave.

*Temporary teachers may only access paid and/or unpaid adoption leave, maternity or altruistic surrogacy leave within a period of a temporary engagement. If the temporary engagement ceases during paid maternity leave, the remaining portion of the paid maternity leave will be paid as a gratuity.


4.2.4 Adoption leave

4.2.4.1 Conditions

The following conditions apply in relation to adoption leave entitlements:

i) For the purpose of meeting the service requirements for paid adoption leave, the time of taking custody is on the receipt of an adoption order effected by the Supreme Court in accordance with the Adoption Act 2000.

ii) Where both parents of the adopted child are employees of the Department only one parent (the primary caregiver) is eligible for adoption leave. The other parent may be eligible for parental leave (see Sections 4.2.7 for details).

iii) A permanent teacher may extend the period of unpaid adoption leave until the end of a school term for the purpose of aligning the teacher’s return to work from unpaid adoption leave with the start of a following school term. This provision also applies to temporary teachers as long as the amended leave date is within the period of the temporary teacher engagement.

iv) During the period of paid adoption leave teachers will receive all allowances for which they are eligible except higher duties allowance and locality allowance.

v) Where the period of paid adoption leave includes a school vacation, the adoption leave will be broken around the vacation period. This means that the adoption leave will cease at the commencement of a vacation period and the teacher will be paid their vacation accrual. Debiting of the teacher’s adoption leave entitlement will recommence after the vacation period and will continue until the teacher has been paid the total of 14 weeks full pay (or 28 weeks half pay) adoption leave.

vi) When adoption leave is taken at full pay, other leave types (such as sick leave) will accrue at full pay. Adoption leave taken at full pay will also accrue full vacation pay.

vii) When adoption leave is taken at half pay, other leave types will accrue at half pay. Adoption leave taken at half pay will also only accrue vacation pay at half the normal rate.

viii) When unpaid adoption leave is taken, other leave types will not accrue. The exception to this is where a teacher has completed at least 10 years paid service and the unpaid adoption leave is less than 6 months, then extended leave will continue to accrue. Unpaid adoption leave will accrue no vacation payment.

4.2.4.2 Other leave

Subject to an entitlement existing, a teacher may apply for family and community service leave, extended leave or leave without pay to attend to the domestic, travel and residential arrangements associated with taking custody of the child. Such leave may be taken prior to the commencement of the adoption leave.

4.2.5 Maternity leave

4.2.5.1 Conditions

The following conditions apply in relation to maternity leave entitlements:

i) Maternity leave is only available to eligible female teachers. Where the other parent is also an employee of the Department of Education, they may be eligible for parental leave (see Section 4.2.7).

ii) A permanent teacher may extend the period of unpaid maternity leave until the end of a school term for the purpose of aligning the teacher’s return to work from unpaid maternity leave with the start of the following school term. This provision also applies to temporary teachers as long as the amended leave date is within the period of the temporary teacher engagement.

iii) During the period of paid maternity leave teachers will receive all allowances, except higher duties allowance and locality allowance, to which they are eligible.

iv) A teacher who is pregnant may take maternity leave for a period of up to 9 weeks prior to the anticipated date of birth. The 9 weeks is in addition to the 12 months of maternity leave to which the teacher is entitled.

v) When a temporary teacher’s engagement ends within the 9 week period prior to the anticipated date of birth, any maternity leave payment made during that period will cease upon the ending of the temporary engagement.

vi) Teachers may apply to take unpaid maternity leave earlier than 9 weeks prior to the anticipated date of birth. Such applications may be approved on a case by case basis. This section should be read with Section 4.2.9.8(d).

vii) Maternity leave will commence no later than the anticipated date of birth. Where the date of birth falls within a vacation period maternity leave will commence from the first day of the new school term. This section should be read with Section 4.2.5.9.

viii) Where the period of paid maternity leave includes a school vacation, the maternity leave will be broken around the vacation period. This means that the maternity leave will cease at the commencement of a vacation period and the teacher will be paid their vacation accrual. Debiting of the teacher’s maternity leave will recommence after the vacation period and will continue until the teacher has been paid the total of 14 weeks full pay (or 28 weeks half pay).

ix) When maternity leave is taken at full pay, other leave types (such as sick leave) will accrue at full pay. Maternity leave taken at full pay will also accrue full pay vacations.

x) When maternity leave is taken at half pay, other leave types will accrue at half pay. Maternity leave taken at half pay will also only accrue vacation pay at half the usual rate.

xi) When unpaid maternity leave is taken, other leave types will not accrue. The exception to this is where a teacher has completed at least 10 years paid service and the unpaid maternity leave is less than 6 months, then extended leave will continue to accrue. Unpaid maternity leave will accrue no vacation payment.

xii) Maternity leave is also available to a female teacher who is acting as a surrogate (the birth mother) and who has entered into a surrogacy arrangement in accordance with the provisions of the NSW Surrogacy Act 2010.

4.2.5.2 Transfer to a safe job

Where a teacher’s present work is, specifically because of pregnancy or breastfeeding, a risk to her health and safety or to that of her unborn child:

a) the teacher’s working conditions or hours of work are to be temporarily adjusted to avoid exposure to the risk; or

b) where the above adjustment is not possible or cannot reasonably be made, the teacher is to be temporarily transferred to other appropriate work that will avoid exposure to the risk and is, as nearly as possible, comparable in status and pay to that of her present work; or

c) where the above transfer is not possible or cannot reasonably be made, the teacher is to be granted:

i) unpaid maternity leave for as long as a medical practitioner certifies it to be necessary to avoid exposure to the risk. This applies regardless of whether the teacher has exhausted her unpaid maternity leave entitlement under Section 4.2.3.1; or

ii) paid sick leave as the teacher is entitled to, and for as long as a medical practitioner certifies to be necessary to avoid exposure to the risk.

Teachers seeking to access this entitlement must provide a medical certificate specifying the nature of the risk and the modifications required to control this risk.

4.2.5.3 Miscarriage

Where a teacher suffers a miscarriage she will be granted sick leave or unpaid maternity leave for as long as a medical practitioner certifies to be necessary.

4.2.5.4 Stillbirth

Where a teacher gives birth to a still born child she shall have the option of taking paid or unpaid sick leave or paid or unpaid maternity leave subject to an entitlement existing. In the case of a stillbirth, a teacher will not be eligible to request the additional options provided in section 4.2.9.3.

4.2.5.5 Premature birth

Where a teacher gives birth prior to the anticipated date of birth, maternity leave will commence on the actual date of birth if maternity leave has not already commenced. Where a teacher gives birth during the vacation period and maternity leave has not commenced, maternity leave will commence on the first day of the next school term. Where the maternity leave has already commenced the leave terms will not be varied.

4.2.5.6 Notification of birth

As soon as feasible after the birth, a teacher should send a copy of the child’s birth certificate to the Department. A teacher may elect to provide an extract of the birth certificate indicating the details of the mother and child only.

4.2.5.7 Other leave in conjunction with maternity leave

a) A teacher may use available sick leave with pay, sick leave without pay, family and community service leave or extended leave if, because of a complication associated with the pregnancy, including a history of miscarriage or other illnesses the teacher is unable to continue to work. An application made under this section must be supported with a medical certificate and will not affect right of return. (See Section 4.2.9.8)

b) Sick leave to credit may be granted until the anticipated date of birth on which date maternity leave will commence.

4.2.5.8 Absent on other leave

If a teacher is absent on leave without pay and applies for maternity leave but does not resume duty, paid maternity leave may granted as follows:

  • If the anticipated date of birth is within 40 weeks of the commencement of the full time leave without pay, maternity leave is paid at the substantive full time equivalent that applied immediately prior to taking leave.
  • If the anticipated date of birth is more than 40 weeks after the commencement of full time leave without pay the maternity leave is unpaid.
  • If the anticipated date of birth is more than 40 weeks after the commencement of part time leave without pay the maternity leave will be paid at the part time rate.

If a teacher is on leave without pay for personal reasons and the anticipated date of birth is to occur prior to the expiry date of the leave, then from the date the teacher advises of her pregnancy, the remainder of the approved leave without pay or a period of 12 months, whichever is less, will not be debited against a teacher’s total entitlement for leave without pay for personal reasons.

4.2.5.9 Subsequent pregnancy while on maternity leave

Where a female staff member becomes pregnant whilst on maternity leave, a further period of maternity leave shall be granted if requested. Whether leave will be paid or unpaid will depend on the completion of the 40 weeks qualifying period (see sections 4.2.3.1 and 4.2.9.4)

If the female staff member enters on the second period of maternity leave during the currency of the initial period of maternity leave, then any residual maternity leave from that initial entitlement ceases. In this instance, the right of return is retained for another 24 months from the date of birth – see section 4.2.9.8.

4.2.5.10 Maternity payment for casual teachers

a) Eligibility

· Casual teachers who become pregnant and have completed at least 40 weeks continuous service prior to the anticipated date of birth of the child may qualify for a maternity payment.

b) Service requirements

  • The 40 weeks’ continuous service includes the following:

- All periods of paid leave

- Unpaid adoption, maternity and parental leave

- Unpaid sick leave

- School vacations and public holidays

- Up to five days leave without pay

- Full time and part time permanent and temporary service

- Full time casual service

  • The following periods are not counted towards the 40 weeks continuous service but they do not break the continuity of service:

- Any absence from duty for a period, or periods of leave without pay, which exceeds a total accumulated period of five days.

- An absence of a casual teacher from full time service at the beginning of the school year, who was in full time employment at the end of the preceding school year, and although available for full time employment, is not employed on a full time basis before the 21st calendar day of the school year.

- A casual teacher who is not employed for a period of up to four weeks prior to the anticipated date of birth will have this period deemed as continuous service for the purpose of eligibility for maternity payments.


c) Payment

  • Eligible casual teachers will receive a maternity payment equivalent to 14 weeks’ pay at the same rate of the final week of service prior to ceasing duty for maternity purposes.
  • Casual teachers who qualify for payment in lieu of maternity leave will be paid in a lump sum.

d) Right of return to former position

  • A casual teacher does not have a right of return to any position previously occupied.

4.2.6 Altruistic surrogacy leave

Altruistic surrogacy leave is available to teachers who are able to demonstrate they are the parent of a child as follows:

  • Intended parent(s) are to notify the Department at least four (4) months before the expected birth and provide a copy of the pre-conception surrogacy agreement, as provided for under the Surrogacy Act 2010 (redacted as necessary to protect the privacy of non-employees);
  • At the time of assuming the role of primary or secondary carer the teacher is to provide a statutory declaration advising that they are now the primary or secondary carer of the child and intend to make application for a parentage order as required under the Surrogacy Act 2010;
  • A copy of the parentage order application (redacted as necessary) is provided as soon as practicable after it is lodged; and
  • A copy of the parentage order (redacted as necessary) is provided as soon as practicable after it is granted.

4.2.6.1 Conditions

The following conditions apply in relation to altruistic surrogacy leave entitlements:

i. Where both parents of the child are employees of the Department only one parent (the primary caregiver) is eligible for altruistic surrogacy leave. The other parent may be eligible for parental leave (see Sections 4.2.7 for details). A permanent teacher may extend the period of unpaid altruistic surrogacy leave until the end of a school term for the purpose of aligning the teacher’s return to work from unpaid altruistic surrogacy leave with the start of the following school term. This provision also applies to temporary teachers as long as the amended leave date is within the period of the temporary teacher engagement.

ii. During the period of paid altruistic surrogacy leave teachers will receive all allowances for which they are eligible except higher duties allowance and locality allowance.

iii. Where the period of paid altruistic surrogacy leave includes a school vacation, the altruistic surrogacy leave will be broken around the vacation period. This means that the altruistic surrogacy leave will cease at the commencement of a vacation period and the teacher will be paid their vacation accrual. Debiting of the teacher’s altruistic surrogacy leave will recommence after the vacation period and will continue until the teacher has been paid the total of 14 weeks full pay (or 28 weeks half pay) altruistic surrogacy leave.

iv. When altruistic surrogacy leave is taken at full pay, other leave types (such as sick leave) will accrue at full pay. Altruistic surrogacy leave taken at full pay will also accrue full vacations pay.

v. When altruistic surrogacy leave is taken at half pay, other leave types will accrue at half pay. Altruistic surrogacy leave taken at half pay will also only accrue vacation pay at half the usual rate.

vi. When unpaid altruistic surrogacy leave is taken, other leave types will not accrue. The exception to this is where a teacher has completed at least 10 years paid service and the unpaid altruistic surrogacy leave is less than 6 months, then extended leave will continue to accrue. Unpaid altruistic surrogacy leave will accrue no vacation payment.

4.2.6.2 Other Leave

Subject to an entitlement existing, a teacher may apply for family and community service leave, extended leave or leave without pay to attend to the domestic, travel and residential arrangements associated with taking custody of the child. Such leave may be taken prior to the commencement of the altruistic surrogacy leave.

4.2.7 Parental leave

4.2.7.1 Entitlement and payment

a) The paid and/or unpaid parental leave entitlements of eligible teachers are outlined in the table below. See Section 4.2.8 for Permanent out of home care placements.

Staff Category Entitlements Service Requirements for Eligibility

All permanent and temporary teachers who become parents following a birth, adoption or altruistic surrogacy but are not eligible for maternity, adoption or altruistic surrogacy leave.

A temporary teacher may only access paid and/or unpaid parental leave within a period of a temporary engagement.

Basic entitlement

Unpaid parental leave – A period of up to 52 weeks leave from the actual date of birth or custody. May be taken as full time and or part time leave providing the total amount of leave does not exceed the equivalent of 12 months full time leave.

No service

requirement.

All permanent and temporary teachers who become parents following a birth, adoption or altruistic surrogacy but are not eligible for maternity, adoption or altruistic surrogacy leave.

A temporary teacher may only access paid and/or unpaid parental leave within a period of a temporary engagement

Paid parental leave – One week full pay or two weeks half pay. Must be taken in a continuous block. Cannot be taken as individual days. Must be taken within the first 12 months following the date of birth or taking custody of the child.

Paid leave reduces the amount of unpaid leave available.

At least 40 weeks’ continuous service prior to the anticipated date of birth or taking custody.

All permanent teachers who have been granted parental leave.

All temporary teachers who have been granted parental leave may only access such options within a period of temporary engagement.

Additional entitlements

Right to request:

· to extend the period of unpaid parental leave for an additional period not exceeding 12 months;

· to return from a period of parental leave on a part time basis until the child reaches school age.

· to extend the period of simultaneous adoption, maternity or altruistic surrogacy leave to up to 8 weeks when the teacher’s partner is taking parental leave. .

No service

requirement.

Casual teachers who become parents following a birth, adoption or altruistic surrogacy but are not eligible for maternity, adoption or altruistic surrogacy leave.

Unpaid parental leave – one week unpaid leave at the time of the birth of the child.

No service requirement but must have employment at the time of taking the leave.

b) The following conditions apply in relation to parental leave entitlements:

i) A permanent teacher may extend the period of unpaid parental leave until the end of a school term for the purpose of aligning the teacher’s return to work from unpaid parental leave with the start of the following school term. This provision also applies to temporary teachers as long as the amended leave date is within the period of the temporary teacher engagement.

ii) During the period of paid parental leave teachers will receive all allowances to which they are eligible, except higher duties allowance and locality allowances.

iii) Where the period of paid parental leave includes a school vacation, the paid parental leave will be broken around the vacation period. This means that the paid parental leave will cease at the commencement of a vacation period and the teacher will be paid their vacation accrual. Debiting of the teacher’s paid parental leave will recommence after the vacation period and will continue until the teacher has been paid the total of 1 week full pay (or 2 weeks half pay) paid parental leave.

iv) When paid parental leave is taken at full pay, other leave types (such as sick leave) will accrue at full pay. Parental leave taken at full pay will also accrue full vacation pay.

v) When paid parental leave is taken at half pay, other leave types will accrue at half pay. Paid parental leave taken at half pay will also only accrue vacation pay at half the normal rate.

vi) Parental leave may not be taken earlier than the actual date of birth or in the case of adoption or permanent out of home care placements, the date of taking custody of the child.

vii) Unpaid parental leave applied for but not commenced will be cancelled in cases of miscarriage or stillbirth. A teacher may use available FACS leave, extended leave or leave without pay in these circumstances.

4.2.8 Permanent out of home care placements

Permanent out of home care placements provide children who cannot safely live with their parents with a stable and secure placement that promotes their safety, wellness and wellbeing. These placements can include foster care and kinship arrangements. Typically the child is placed with an individual(s) who has been deemed to be their permanent carer, with a view to adoption. It must be noted that although it is likely that adoption of the child will occur at some point in time, adoption leave is not available to a teacher until such time as an adoption order has been granted by the Supreme Court.

The provisions for permanent out of home care placements are the same as the unpaid parental leave provisions, including the right to request provisions. There is, however, no entitlement to the one (1) week full pay or two (2) weeks half pay paid parental leave when entering into a permanent out of home care arrangement.

4.2.8.1 Entitlement

a) The unpaid parental leave entitlements relating to permanent out of home care placements are outlined in the table below:

Staff category Entitlements Service Requirements for Eligibility

All permanent and temporary teachers who will be carers of a child based on the provision of a guardianship or a permanent placement order.

Temporary teachers may only access this leave within a period of a temporary engagemen

Unpaid leave for permanent caring arrangements – 52 weeks unpaid leave from the date the child is in the permanent care of the teacher. May be taken as full time and or part time leave providing the total amount of leave does not exceed the equivalent of 12 months full time leave.
Additional entitlements

Right to request:

· to extend the period of unpaid leave for an additional period not exceeding 12 months;

· to return from a period of unpaid leave on a part time basis until the child reaches school age.

No service requirement.

b) The following conditions apply in relation to the above entitlements:

i. A permanent teacher may extend the period of unpaid parental leave until the end of a school term for the purpose of aligning the teacher’s return to work from unpaid parental leave with the start of the following school term. This provision also applies to temporary teachers as long as the amended leave date is within the period of the temporary teacher engagement.

ii. Unpaid parental leave may not be taken earlier than when the teacher receives a permanent placement order.

iii. In the event that a teacher and their partner, who is also a teacher, are both named on the permanent placement order, only one teacher can access unpaid parental leave at any one time.

4.2.9 General conditions

The provisions below apply to adoption, maternity, altruistic surrogacy, parental leave and permanent out of home care placements, except as otherwise provided.

4.2.9.1 Departmental responsibilities

a) On becoming aware that a teacher or the teacher’s spouse or partner is pregnant, is entering into an altruistic surrogacy arrangement, is entering into a permanent out of home care placement or that a teacher is adopting a child, the teacher’s principal is to advise the teacher to contact EConnect HR Shared Services for advice on possible entitlements and obligations under these procedures (including the return to work provisions in Section 4.2.9.8)

b) Discrimination

No teacher can be discriminated against because:

  • the teacher or the teacher’s spouse or partner is pregnant or has given birth to a child; or
  • the teacher or the teacher’s spouse or partner has applied to adopt a child or has adopted a child; or
  • the teacher or the teacher’s spouse or partner has entered into an altruistic surrogacy arrangement; or
  • the teacher or the teacher’s spouse or partner has applied to be a permanent out of home carer or has been declared to be a permanent out of home carer; or
  • the teacher has applied for, or is absent, on adoption leave, maternity leave, altruistic surrogacy leave or parental leave.

c) Communication while on leave

Where a teacher is on adoption, maternity, altruistic surrogacy or parental leave and a definite decision has been made to introduce significant change at the workplace (for example a workplace restructure), the Department shall take reasonable steps to:

  • make information available in relation to any significant effect the change will have on the status or responsibility level of the position the teacher held before commencing leave; and
  • provide an opportunity for the teacher to discuss any significant effect the change will have on the status or responsibility level of the position the teacher held before commencing leave.

Generally, communication for school based staff will be facilitated by school principals.

4.2.9.2 Teachers’ responsibilities

a) Application for leave

At least one month (excluding school vacations) prior to the proposed first day of leave, a teacher who is intending to take adoption, maternity, altruistic surrogacy or parental leave must submit to the principal or their nominee:

i) an application via the Department’s SAP employee self service for the full period of all paid and unpaid leave to be taken;

ii) a medical certificate which includes anticipated date of birth or, documentation from the relevant authority indicating the expected date of taking custody; and

iii) where the application includes a period of paid leave and unpaid leave the teacher must specify dates of leave required at full pay, half pay and no pay, along with any other leave (eg extended leave) to be taken in conjunction with maternity or related leave via a single leave request.

iv) Where a teacher wishes to receive their paid leave as a lump sum payment in advance, a separate request for a lump sum payment must be made to EDConnect HR Shared Services after the leave request has been approved. Requests can be made by contacting EDConnect by phone or via an online query.

NB: While one month’s notice is the minimum, up to three months’ notice is advisable particularly where lump sum payment in advance is requested.

v) A teacher may wish to request additional maternity leave under section 4.2.9.3 at the time of applying for maternity leave.

b) Variation of leave

i) A teacher may vary the intended period of leave any number of times before it commences.

ii) After leave commences the period of leave may be varied once without prior approval and on any number of subsequent occasions with approval. However resumption of duty must then coincide with the commencement of a school term. In all cases, a teacher must provide at least four weeks’ notice during term time by submitting an amended leave request to the principal or their nominee.

iii) Subject to approval, a teacher who has returned to duty after leave, may, provided the teacher has a balance of adoption, maternity, altruistic surrogacy or parental leave to credit, apply to revert to full time or part time adoption, maternity, altruistic surrogacy or parental leave.

c) Communication while on leave

i) A teacher must take all reasonable steps to inform the Department about any significant matter that will affect the teacher’s decision regarding the duration of leave to be taken, whether the teacher intends to return to work and whether the teacher intends to request to return to work on a part time basis.

ii) A teacher shall also notify the Department of changes of address or other contact details which might affect the Department’s ability to comply with Section 4.2.9.1(c).

d) Resumption of duty

One month during term time prior to the date on which a teacher is due to resume duty, they must either confirm in writing that they will be resuming duty, or apply for an extension of leave, or if resigning, submit notice of separation.

4.2.9.3 Right to request

The following provisions are in addition to the basic entitlement provided in sections 4.2.3.1 and 4.2.7.1. They apply to permanent or temporary teachers who take or who are on adoption, maternity, altruistic surrogacy or parental leave. For temporary teachers, these options are only available during a temporary engagement. At the expiration of a temporary engagement future part time work arrangements will require separate negotiations with the principal.

a) A teacher entitled to adoption, maternity, altruistic surrogacy or parental leave may request the Department to allow the teacher:

i) to extend the period of simultaneous maternity, altruistic surrogacy and adoption leave use up to a maximum of eight weeks (To be read in conjunction with Determination No.8 of 2016 Parental Leave);

ii) to extend the period of unpaid adoption, maternity, altruistic surrogacy or parental leave for a further continuous period of leave not exceeding 12 months;

iii) to return from a period of adoption, maternity, altruistic surrogacy or parental leave on a part-time basis until the child reaches school age;

to assist the teacher in reconciling work and parental responsibilities.

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

c) Where a teacher wishes to make a request under this section, such a request must be made as soon as possible but no less than 7 weeks prior to the date upon which the teacher is due to return to work from leave. Teachers are encouraged to apply for access to all entitlements under this section at the time of making their original application for adoption, maternity, altruistic surrogacy or parental leave.

d) The teacher’s request should be submitted via the Department’s SAP employee self service. In certain circumstances teachers may be asked to provide details supporting their request under this provision. In such cases, the teacher’s request and the Department’s decision under this section must be recorded in writing.

e) Where a teacher has resumed duty after a period of leave, an application may be made under this section and will be subject to consideration on a case by case basis.

4.2.9.4 Determining payments

a) Subject to 4.2.9.4(b), eligible permanent and temporary teachers are paid their normal salary during paid adoption, maternity, altruistic surrogacy and parental leave.

b) Subject to the completion of 40 weeks of continuous service:

i) During the period of 24 months from the date of birth of a child, a pregnant teacher can access further paid maternity leave at their substantive pre pregnancy rate regardless of whether they are currently on full time or part time leave.

If maternity leave is extended beyond two years to the end of the next term the above provision still applies.

If a teacher takes a new period of maternity leave (ie: for a subsequent pregnancy) the right of return period starts again.

ii) Under section 2.1.3 of Determination No.7 of 2016 Maternity Leave, teachers can access maternity leave earlier than nine weeks prior to the anticipated date of birth.

iii) A pregnant teacher can access further paid maternity leave without having to return to duty even if the anticipated date of birth is outside the maternity leave.

iv) Where a teacher has taken 24 months of maternity or adoption leave, then proceeds on full time maternity leave without pay for a subsequent pregnancy or adoption during this period following the 24 months of maternity or adoption leave:

  • if the anticipated date of birth of the child or the date of taking custody falls in the period up to and including 40 weeks, following the conclusion of the initial maternity or adoption leave the subsequent maternity or adoption leave is paid at the teacher’s substantive FTE immediately prior to taking leave;
  • if the anticipated date of birth of the child or the date of taking custody falls outside 40 weeks following the conclusion of the initial maternity or adoption leave the subsequent maternity or adoption leave will be unpaid.

v) Where a teacher has taken maternity leave, then accesses their right to request a return to work on a part time basis (until the child reaches school age), for any subsequent maternity leave, the teacher is always paid at their substantive FTE immediately prior to taking the leave regardless of the duration of the part time work.

4.2.9.5 Accessing other forms of leave

a) Eligible teachers may combine adoption, maternity, altruistic surrogacy or parental leave with extended leave.

b) Teachers may not access other forms of leave during periods of full time adoption, maternity, altruistic surrogacy or parental leave.

c) See also Sections 4.2.5.3 (Miscarriage), 4.2.5.4 (Stillbirth), 4.2.5.5 (Premature Birth) and 4.2.5.7 (Other Leave in Conjunction with Maternity Leave).

4.2.9.6 Pre-natal Classes

Leave without pay or extended leave to credit may be granted to attend pre-natal classes. In exceptional circumstances, where classes are not available outside school hours, available family and community service leave may be granted.

4.2.9.7 Casual or temporary teaching while on leave

a) The provisions of section 4.11.4 –Teaching with the Department on Leave Without Pay and 4.11.5 – Other Employment while on Leave Without Pay shall apply to teachers seeking to undertake teaching while on unpaid adoption, maternity, altruistic surrogacy or parental leave.

b) Teachers on paid leave (full or half pay) are not eligible to work in any capacity.

4.2.9.8 Right of return

a) A permanent teacher’s right of return to their substantive position is retained if they resume duty 24 months (or earlier) after the actual date of birth of the child, or in the case of adoption and parental leave if the total period of adoption/parental leave and any other leave is 24 months or less.

b) If the end of the 24 month period falls during a school term, adoption, maternity, altruistic surrogacy or parental leave and any subsequent leave may be extended to the end of the next student vacation and right of return to the substantive position is retained. This provision does not apply to non school based teaching service staff, except when the staff member is returning to a school based position. E.g. A non school based teaching service staff member takes 24 months maternity leave and is due to return to their role in November. The staff member is due to finish their non school based appointment and return to their school based position from the beginning of term one. The teacher may extend their maternity to the end of the term 4 vacation period, rather than resuming their non school based role from November to January.

c) If a teacher takes a new period of maternity leave (i.e: for a subsequent pregnancy) the right of return period starts again.

d) An application to take maternity leave earlier than 9 weeks prior to the anticipated date of birth will not extend the right of return. A teacher applying to take such leave will retain a right of return to her substantive position for a total period of 24 months and 9 weeks from the date her maternity leave commences.

4.2.9.9 Superannuation

A teacher accessing the basic or additional adoption, maternity, altruistic surrogacy or parental leave entitlements, whether paid or unpaid, is not required to meet any payment of the employer’s superannuation contributions to any NSW government superannuation fund. The employer will continue to meet any payment of the employer’s superannuation contributions where applicable.

There are various options available for employee contributions while on part time maternity leave. Employees should contact their superannuation fund to discuss further. Should an employee wish to vary their own contributions they are advised to contact EDConnect prior to the commencement of the leave period

4.2.9.10 Part time adoption, maternity or parental leave

a) Eligibility

All teachers who are eligible for adoption, maternity, altruistic surrogacy or parental leave may take leave on a part time basis.

b) Application and Variation of Leave

i) An application for part time adoption, maternity, altruistic surrogacy or parental leave should be submitted at least four weeks during term time in advance of the date on which leave is to commence.

ii) Applications for part time adoption, maternity, altruistic surrogacy or parental leave for between one and four days per week may be approved over a period of up to two years subject to the leave not exceeding the maximum/basic entitlement provided in 4.2.3.1, 4.2.7.1 or as appropriate.

iii) A teacher may make application to vary the period of part time leave and/or work arrangements provided that sufficient adoption, maternity, altruistic surrogacy or parental leave is available. Such arrangements are subject to the operational requirements of the school, and should apply from the start of a school term.

iv) Subject to approval, a teacher who has returned to full time or substantive hours of duty after adoption, maternity, altruistic surrogacy or parental leave may apply to revert to part time or full time adoption, maternity, altruistic surrogacy or parental leave.

v) Similarly, a teacher who has returned to duty on a part time basis may apply to revert to full time adoption, maternity, altruistic surrogacy or parental leave and vice-versa.

c) Duration of leave

i) The maximum period of the basic entitlement to part time adoption, maternity, altruistic surrogacy or parental leave which may be taken is 24 months from the date of birth or taking custody. If this date falls during a term, leave may be extended to the end of the vacation which next occurs after the child’s second birthday. This provision does not apply to non school based teaching service staff, except when such a staff member is returning to a school based position.

ii) Subject to the maximum period stated in i) above, the actual period of part time adoption, maternity, altruistic surrogacy or parental leave that a teacher may take will be determined by:

  • the period of untaken full time adoption, maternity, altruistic surrogacy or parental leave; and
  • the number of days per week that the teacher works.

iii) Permanent teachers also have the right to request to return to work on a part time basis until the child reaches school age. See Section 4.2.9.3.

d) Right of Return

A permanent teacher on part time adoption, maternity, altruistic surrogacy or parental leave without pay will have right of return to their substantive position for the duration of the period of leave.

e) Salary

i) The salary for teachers on part time adoption, maternity, altruistic surrogacy or parental leave is calculated in accordance with the following formula:

(Appropriate annual salary ÷ 52.17857) x (Number of days worked on a part-time basis ÷ number of days worked on a full time basis) = weekly salary

ii) Allowances which are paid in recognition of duties undertaken during the part time leave arrangements are calculated in a similar manner.

iii) Teachers eligible to be paid a locality or climatic allowance shall be paid on a pro rata basis to a full time teachers’ entitlement, calculated on the number of days actually worked.

f) Leave conditions

i) Annual leave loading

Teachers on part time adoption, maternity, altruistic surrogacy or parental leave are eligible for annual leave loading on a pro rata basis.

ii) Leave without pay

Teachers on part time adoption, maternity, altruistic surrogacy or parental leave may be granted short periods of leave without pay but if a teacher requires an extended period of leave without pay the part time adoption, maternity, altruistic surrogacy or parental leave must be terminated.

iii) The following leave may be taken under normal conditions and will accrue on a pro rata basis :

  • Extended leave (See Section 4.7)
  • Sick leave (See Section 4.13)
  • Special leave (See Section 4.14)
  • Family and community service leave (See Section 4.8)

Vacation pay entitlements will continue to accrue for days worked under the part time work arrangement (see Section 4.3).

g) Other employment

A teacher on part time adoption, maternity, altruistic surrogacy or parental leave wishing to undertake outside employment, other than casual teaching in NSW government schools, must make application for approval in accordance with the Department’s Code of Conduct and Private and Secondary Employment Policy. Approval will not be granted to take up a teaching position with a NSW private or independent school.

4.2.9.11 Resignation

a) The position of a permanent teacher who submits notice of resignation when proceeding on adoption, maternity, altruistic surrogacy or paternity leave will be declared vacant. Resignation in this instance will not be accepted earlier than the last day of the paid leave and not later than the last day of approved leave.

b) Prior to submitting notice of resignation, consideration should be given to all other alternatives that may be available dependent on the teacher’s length of service and leave credits. These could include:

  • Leave without pay for personal reasons
  • Part time leave without pay
  • Part time maternity leave
  • Permanent part time work

See Chapter 11, Separation from the Service for additional information.

4.2.9.12 Service credits for adoption, maternity, altruistic surrogacy and parental leave

a) Adoption, maternity, altruistic surrogacy and parental leave does not count as part of the probationary period for confirmation of a teacher’s permanent appointment.

b) All periods of adoption, maternity, altruistic surrogacy and parental leave, both paid and unpaid, count as service for incremental purposes.

c) Adoption, maternity, altruistic surrogacy and parental leave without pay does not count as service for extended leave, except when a teacher has completed at least ten (10) years paid service, then any period of adoption, maternity, altruistic surrogacy and parental leave without pay of less than six (6) months counts for the accrual of extended leave.

d) Paid adoption, maternity, altruistic surrogacy and parental leave counts as service for annual leave loading purposes.

e) Full pay adoption, maternity, altruistic surrogacy and parental leave accrues full vacation pay and full leave entitlements. Half pay adoption, maternity, altruistic surrogacy and parental leave accrues half vacation pay and half pay entitlements. Unpaid adoption, maternity, altruistic surrogacy and parental leave will accrue no vacation pay and will accrue no leave entitlements.

f) These service credits apply equally to adoption, maternity, altruistic surrogacy and parental leave and any additional leave approved under right to request provisions.

4.2.9.13 Parental leave for casual teachers under the Industrial Relations Act 1996

The Industrial Relations Act 1996 provides an entitlement of 52 weeks unpaid parental leave to regular casual employees. Regular casual employees are those casual employees who work on a regular and systematic basis and who have a reasonable expectation of ongoing employment on that basis.

To be entitled to Parental Leave under the Industrial Relations Act 1996 casual employees must have had at least 12 months continuous service with the Department as a regular casual employee. In this case regular casual employment is defined as being work on an unbroken regular and systematic basis (including any period of authorised leave of absence). A casual teacher meeting this requirement is likely to be eligible for a maternity payment (see 4.2.3.1).

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