1. Paid Parental Leave – Parent with Primary Responsibility for care of child at the time of birth, adoption or surrogacy

1. An Employee who has, or will have completed not less than 40 weeks continuous service (at the time of the birth, adoption or surrogacy) is entitled to up to 14 weeks Paid Parental Leave if the leave is associated with:
   1. the birth of a child (or children from a multiple birth) of the Employee, the Employee’s Spouse or the Employee’s legal surrogate, or the adoption of a child (or children) by the Employee or the Employee’s Spouse; and
   2. the Employee has or will have Primary Responsibility for the care of the child at the time of the birth, adoption or surrogacy.
2. Paid Parental Leave must be taken within the first 12 months from the date of birth, adoption or surrogacy. For birth-related leave, Paid Parental Leave may commence prior to the time of birth as provided in the industrial instrument which applies to the Employee.

2. Paid Parental Leave – Other Parent

1. An Employee who has, or will have, completed not less than 40 weeks continuous service (at the time of the birth, adoption or surrogacy) and who will not have Primary Responsibility for the care of their child at the time of the birth, adoption or surrogacy is entitled to, within the first 12 months from the date of birth, adoption or surrogacy:
   1. up to 2 weeks Paid Parental Leave at the time of the birth, adoption or surrogacy; and
   2. up to 12 weeks additional Paid Parental Leave, subject to the conditions in clause 3.

3. Additional Paid Parental Leave for Other Parent

1. An Employee who will not have Primary Responsibility for their child at the time of the birth, adoption or surrogacy is entitled to up to an additional 12 weeks paid leave within the first 12 months from the date of birth, adoption or surrogacy provided that:
   1. the Employee assumes Primary Responsibility for the care of the child during the 12 week period; and
   2. the Employee’s Spouse is not concurrently (apart from the leave that is able to be taken concurrently under clause 6) taking Primary Responsibility for the care of the child, including receiving Paid Parental Leave or a similar entitlement from their employer.
2. To access additional Paid Parental Leave, the Employee must have been eligible for the leave at the time of birth, adoption or surrogacy, irrespective of when the Employee elects to take the paid leave under this clause.
3. Additional Paid Parental Leave will commence on the date the Employee takes Primary Responsibility for the care of the child.

4. Notice Requirements

1. To access Paid Parental Leave, the Employee must provide notice in accordance with the industrial instrument which applies to the Employee, stating: 
   1. the period of leave being sought, including anticipated date of return to duty; and
   2. that the Employee will have Primary Responsibility for the care of their child for the period during which they are seeking the Paid Parental Leave.
2. To access Paid Parental Leave under clause 3, Additional Paid Parental Leave for Other Parent, the Employee may be required to provide a statutory declaration or other notification acceptable to the Employer stating:
   1. whether the Employee’s Spouse is employed (and if so their employment status throughout the period of leave e.g. full-time, part-time or other and the entity to which they are employed), or studying (e.g. on a full-time or part-time basis); 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’s Spouse (whether or not the Employee’s Spouse is employed in the NSW Government Sector).
3. The Employee must notify the Employer as soon as possible of any changes to their circumstances that will or is likely to affect their eligibility for Paid Parental Leave prior, or throughout the period of payment.

5. Evidence Requirements

1. To access Paid Parental Leave, the Employee must provide evidence of the birth, adoption or surrogacy: 
   1. for birth-related leave: a medical certificate or birth certificate showing the expected or birth date of the child; or
   2. for adoption-related leave: an integrated birth certificate, or certificate of adoption; or
   3. for surrogacy-related leave: evidence as provided in Determination 2018-01 Leave for Employees engaged in Altruistic Surrogacy and Permanent Out of Home Care Arrangements.
2. To access Paid Parental Leave under clause 3, Additional Paid Parental Leave for Other Parent, the Employee may be required to provide evidence which would satisfy the Employer:
   1. of the employment or education status of the Employee’s Spouse and the length of parental leave taken or proposed to be taken by them (including without limitation, an employment certificate or letter from the employer or education institution).
   2. of the Employee’s Spousal status (including without limitation a statutory declaration or marriage certificate).

6. Concurrency of Paid Parental Leave

1. With the exception of two weeks Paid Other Parent Leave which employees may take concurrently with each other, Paid Parental Leave is only available to the Employee who has Primary Responsibility for the child during the period of leave sought.
2. Concurrent leave must be taken in one block of leave and must commence at the time of the birth, adoption or surrogacy.

7. Flexibility for Taking Paid Parental Leave 

1. While an Employee’s eligibility for Paid Parental Leave is determined at the time of birth, adoption or surrogacy, the Employee and Employer may agree to permit the Employee to use Paid Parental Leave entitlements at any time within the first 12 months from the date of birth, adoption or surrogacy.
2. An Employee may request to use their Paid Parental Leave entitlement in a manner other than a single continuous period. The Employer will consider their operational requirements and the Employee’s personal and family circumstances in considering requests for Paid Parental Leave in more than one continuous period, and may refuse the request on reasonable business grounds related to the impact on the Employer’s workplace including but not limited to excessive cost, lack of adequate replacement staff, loss of productivity or impact on service delivery. The Employer will provide their response to the Employee’s request within 21 days.
3. Should the Employer agree to Paid Parental Leave in a manner other than a single continuous period, the period of leave must not extend beyond the first 12 months from the date of birth, adoption or surrogacy, and will not be extended by any periods of public holidays that fall within the Paid Parental Leave period.

8. Other Rights

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

9. Definition of “Spouse”

For the purposes of this Memorandum, “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.

10. Definition of “Primary Responsibility”

For the purposes of this Memorandum, “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 child or children.

Application

For public servants, the leave provisions are provided for in Industrial Relations Secretary Determination No. 3 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.

It is intended that a maximum of two Employees (if both are working in the NSW Government Sector) can access Paid Parental Leave per birth, adoption or surrogacy.

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 babies born on or after 1 July 2021 (regardless of the expected date of birth). In the event of adoption, the above arrangements will apply where the date of the adoption order is on or after 1 July 2021.