as the employee’s present position; or
(b) a different number of ordinary hours agreed to by the employee.
Payment to employee if transferred to appropriate safe job
(5) Without limiting paragraph (3)(a), if the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee’s full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.
Payment to employee if on paid no safe job leave
(6) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the risk period.
Risk period ends if pregnancy ends
(7) If the employee’s pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.
82 Employee on paid no safe job leave may be asked to provide a further medical certificate
Employer may ask employee to provide a medical certificate
(1) If an employee is on paid no safe job leave during the 6 week period before the expected date of birth of the child, the employer may ask the employee to give the employer a medical certificate stating whether the employee is fit for work.
Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988.
Employer may require employee to take unpaid parental leave
(2) The employer may require the employee to take a period of unpaid parental leave (the period of leave) as soon as practicable if:
(a) the employee does not give the employer the requested certificate within 7 days after the request; or
(b) within 7 days after the request, the employee gives the employer a certificate stating that the employee is not fit for work.
Entitlement to paid no safe job leave ends
(3) When the period of leave starts, the employee’s entitlement to paid no safe job leave ends.
When the period of leave must end etc.
(4) Subsections 73(3), (4) and (5) apply to the period of leave.
83 Consultation with employee on unpaid parental leave
(1) If:
(a) an employee is on unpaid parental leave; and
(b) the employee’s employer makes a decision that will have a significant effect on the status, pay or location of the employee’s pre-parental leave position;
the employer must take all reasonable steps to give the employee information about, and an opportunity to discuss, the effect of the decision on that position.
(2) The employee’s pre-parental leave position is:
(a) unless paragraph (b) applies, the position the employee held before starting the unpaid parental leave; or
(b) if, before starting the unpaid parental leave, the employee:
(i) was transferred to a safe job because of her pregnancy; or
(ii) reduced her working hours due to her pregnancy;
the position the employee held immediately before that transfer or reduction.
84 Return to work guarantee
On ending unpaid parental leave, an employee is entitled to return to:
(a) the employee’s pre-parental leave position; or
(b) if that position no longer exists — an available position for which the employee is qualified and suited nearest in status and pay to the pre-parental leave position.
85 Unpaid pre-adoption leave
Entitlement to unpaid pre-adoption leave
(1) An employee is entitled to up to 2 days of unpaid pre-adoption leave to attend any interviews or examinations required in order to obtain approval for the employee’s adoption of a child.
Note: Entitlement is also affected by section 68 (which deals with the age etc. of the adopted child).
(2) However, an employee is not entitled to take a period of unpaid pre-adoption leave if:
(a) the employee could instead take some other form of leave; and
(b) the employer directs the employee to take that other form of leave.
(3) An employee who is entitled to a period of unpaid pre-adoption leave is entitled to take the leave as:
(a) a single continuous period of up to 2 days; or
(b) any separate periods to which the employee and the employer agree.
Notice and evidence
(4) An employee must give his or her employer notice of the taking of unpaid pre-adoption leave by the employee.
(5) The notice:
(a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(b) must advise the employer of the period, or expected period, of the leave.
(6) An employee who has given his or her employer notice of the taking of unpaid pre-adoption leave must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken to attend an interview or examination as referred to in subsection (1).
(7) An employee is not entitled to take unpaid pre-adoption leave unless the employee complies with subsections (4) to (6).
Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988.
Division 6—Annual leave
86 Division applies to employees other than casual employees
This Division applies to employees, other than casual employees.
87 Entitlement to annual leave
Amount of leave
(1) For each year of service with his or her employer, an employee is entitled to:
(a) 4 weeks of paid annual leave; or
(b) 5 weeks of paid annual leave, if:
(i) a modern award applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(ii) an enterprise agreement applies to the employee and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards; or
(iii) the employee qualifies for the shiftworker annual leave entitlement under subsection (3) (this relates to award/agreement free employees).
Note: Section 196 affects whether FWA may approve an enterprise agreement covering an employee, if the employee is covered by a modern award that is in operation and defines or describes the employee as a shiftworker for the purposes of the National Employment Standards.
Accrual of leave
(2) An employee’s entitlement to paid annual leave accrues progressively during a year of service according to the employee’s ordinary hours of work, and accumulates from year to year.
Note: If an employee’s employment ends during what would otherwise have been a year of service, the employee accrues paid annual leave up to when the employment ends.
Award/agreement free employees who qualify for the shiftworker entitlement