1. Paid Leave for in the event of a miscarriage or pre-term birth

Leave in the event of a miscarriage

• Where an employee or the spouse of an employee miscarries, the employee is entitled to five days paid special miscarriage leave on each occasion a pregnancy ceases by way of miscarriage up to 20 weeks’ gestation.

• Leave as defined above will commence from the date the miscarriage occurs and is to be taken in one continuous block of leave. Paid special miscarriage leave must not be taken with any other form of leave available to the employee.

Leave in the event of a pre-term birth

• Where an employee or the spouse of an employee gives birth to a pre-term child (prior to 37 weeks), the parent with the primary caring responsibility is entitled to paid special pre-term parental leave from the date of birth of the child (or children from a multiple birth) up to the end of 36 weeks.

• Immediately following the period of paid special pre-term parental leave and at the commencement of 37 weeks, paid parental leave of up to 14 weeks in accordance with the relevant industrial instrument will apply to the parent with the primary caring responsibility.

• In accordance with Determination No. 3 of 2021, an employee who will not have primary responsibility for their child at the time of birth is entitled to:

  • up to two weeks paid parental leave to be taken at the time of the birth of the child; and

  • up to 12 weeks additional paid parental leave within the first 12 months from the date of birth provided that the employee assumes primary responsibility for the care of the child during the 12-week period.

Eligible employees are those who have or would have, if not for the pre-term birth, completed 40 weeks continuous service at the expected due date.

Leave as defined above will commence from the date the pre-term birth occurs and must be taken in one continuous block of leave up to the end of 36 weeks. Paid special pre-term parental leave must not be taken with any other form of leave available to the employee.

2. Notice Requirements

1. When accessing paid special miscarriage leave, the employee must provide notice as soon as reasonably practicable stating:

   1. the period of leave being sought; and

   2. the anticipated date of return to duty.

2. When accessing paid special pre-term parental leave in the event of a pre-term birth, the employee must provide notice as soon as reasonably practicable stating:

   1. the period of paid special pre-term parental leave being sought up to the end of 36 weeks; and

   2. the details of all other types of leave (paid or unpaid) to be taken or proposed to be taken or applied for by the employee following the period of paid special pre-term parental leave including Parental Leave.

3. Evidence Requirements

1. To access paid special miscarriage leave, the agency head needs to be satisfied that a miscarriage has occurred and may require evidence such as:

   1. a medical certificate; or

   2. early loss certificate issued by NSW Registry of Births, Deaths & Marriages.

2. To access paid special pre-term parental leave in the event of a pre-term birth, the Employee may be required to provide evidence such as:

   1. a medical certificate showing the expected due date; and

   2. a statutory declaration or medical certificate confirming primary caring responsibility; and

   3. a medical certificate showing the actual date of birth of the child; or

   4. birth certificate showing the date of birth of the child.

4. Other rights

An Employee should refer to the industrial instrument which applies to their employment for all other provisions relating to special leave and parental leave.

5. Definitions

For the purposes of this Memorandum:

1. “Spouse” includes a de facto spouse, former spouse or former de facto spouse. The Employee’s de facto spouse means a person who is the Employee’s husband, wife, or same sex partner on a bona fide domestic basis, whether or not legally married to the Employee.

2. “Primary Responsibility” means the person who meets the child’s physical needs more than anyone else, including feeding, dressing, bathing and otherwise supervising the child.

Only one person at a time can have primary responsibility for the care of the child (or children in the case of a multiple birth)

Application

For public servants, the leave provisions are provided for in Industrial Relations Secretary Determination No. 5 of 2021 made under s.52 of the Government Sector Employment Act 2013.

These leave provisions are to be adopted by all Public Service departments and agencies, and other Government Sector agencies and State-Owned Corporations are strongly encouraged to provide the same leave provision to their employees.

These provisions to not apply in respect to the birth of a child of the employee’s legal surrogate or an adoption of a child or children by the employee or the employee’s spouse.

Date of Effect

The above arrangements shall take effect on and from 1 July 2021 and shall remain in force until varied or rescinded.

The above arrangements will apply to miscarriages and pre-term births that occur on or after 1 July 2021 (regardless of the expected date of birth).