Paid No Safe Job leave entitlements arise in circumstances where a pregnant employee is unable to perform their usual duties due to risks or hazards; and an alternative and appropriate safe job is unavailable.

Chapter 2, Part 2-2, Division 5, Section 81A of the Fair Work Act 2009 (Fair Work Act) provides for paid No Safe Job Leave for the risk period where:

• a pregnant employee is fit for work;

• it is unadvisable for them to continue in their current role due to illness, risks, or hazards; and

• an appropriate safe job role is not available.

The risk period under s 81 of the Fair Work Act refers to the time a pregnant employee who is fit for work but should not continue in their current role is entitled to a transfer to a safe job. 

Application of Fair Work Act provisions to NSW public sector employees

Chapter 3, Part 6-3 of the Fair Work Act contains Divisions that extend some National Employment Standards entitlements to non‑national system employees.

Section 744 of the Fair Work Act provides that the unpaid parental leave and related entitlements provisions and the extended parental leave provisions under Division 5 of Part 2-2 of the Fair Work Act apply to non-national system employees and employers. This includes the NSW Public Sector workforce except to the extent that state laws or instruments (such as awards or agreements) provide entitlements that are more beneficial than the entitlements under the extended parental leave provisions.

Transfer to appropriate safe job

Where there is an appropriate safe job available, the employee must be transferred to that job for the risk period (until it is safe to go back to their normal job or until they give birth), with no other change to the employee’s terms and conditions of employment. Reference should be made to the relevant industrial instrument for further details on transfer to an appropriate safe job.

Eligibility

An employee is eligible for paid no safe job leave if they meet the following criteria: 

• they are entitled to unpaid parental leave; and

• they have complied with the notice and evidence requirements for taking unpaid parental leave.

If there is no appropriate safe job available and the employee is entitled to unpaid parental leave, they are entitled to paid no safe job leave for the risk period.

If there is no appropriate safe job available and the employee is not entitled to unpaid parental leave, they are entitled to unpaid No Safe Job Leave for the risk period.

The No Safe Job leave ends when the period of unpaid parental leave starts.

Evidentiary requirements

The employee must provide evidence that provides that they are fit for work, but it is not advisable for them to continue in their present position due to illness or risks arising out of the pregnancy, or hazards connected with that position. This is to be provided within 7 days of the request by an Agency.

Advice to agencies

Agencies should refer to the provisions in applicable industrial instruments.

Each public sector agency will need to ensure that they are aware of these obligations and ensure that Paid No Safe Job leave entitlements which align with the requirements set out in the Fair Work Act are included in industrial instruments.

Simon Draper

Secretary