1      Paid Leave for Ongoing and Temporary Employees in the event of a miscarriage, pre-term birth or when undergoing fertility treatment

Leave in the event of a miscarriage

• Where an employee or the partner 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 at full pay. Paid special miscarriage leave must not be taken concurrently with any other form of leave available to the employee.

Leave in the event of a pre-term birth

• Where an employee or the partner of an employee gives birth to a pre-term child (prior to 37 weeks), the parent with the 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 will be in accordance with Premier’s Memorandum M2022-08 Paid Parental Leave - Parent with responsibility for care associated with the birth, adoption, altruistic surrogacy or permanent out-of-home care placement of a child.

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. Where employees are in a couple, only one parent may access paid special pre-term birth leave.

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

 In the event of a death of a pre-term child (or children) during a period of paid special pre-term parental leave, the remaining portion of that leave ceases and paid parental leave in accordance with Premier’s Memorandum M2022-08 Paid Parental Leave - Parent with responsibility for care associated with the birth, adoption, altruistic surrogacy or permanent out-of-home care placement of a child will commence.

Leave for employees undergoing fertility treatment

• Where an employee is absent from work to undergo fertility treatment, the employee is entitled to up to five days paid special fertility treatment leave per calendar year.

Leave as defined above is non-cumulative and can be taken in part-days, single days, or consecutive days. Paid special fertility treatment leave must not be taken concurrently with any other form of leave. Paid special fertility treatment leave is not available to a partner of a person undergoing fertility treatment.

 2      Notice Requirements

(a)  When accessing paid special miscarriage leave or paid special fertility treatment leave, the employee must provide notice as soon as reasonably practicable stating:

(i)            the period of leave being sought; and

(ii)           the anticipated date of return to duty.

 (b)  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:

(i)            the period of paid special pre-term parental leave being sought up to the end of 36 weeks; and

(ii)           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

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

 (i)            a medical certificate; or

(ii)           early loss certificate issued by NSW Registry of Births, Deaths & Marriages.

 (b)    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:

 (i)                  a medical certificate showing the expected due date; and

(ii)                a statutory declaration or medical certificate confirming caring responsibility; and

(iii)               a medical certificate showing the actual date of birth of the child; or

(iv)               birth certificate showing the date of birth of the child.

 (c)     To access paid special fertility treatment leave, the employee may be required to provide a medical certificate confirming the fertility treatment.

 4      Other rights

 An employee should refer to the industrial instrument, legislation and policies which apply to their employment for all other provisions relating to special leave and parental leave. Where an industrial instrument provides more generous provisions than contained in this Determination, the provisions in the industrial instrument shall apply.

5      Definitions

 For the purposes of this Memorandum:

(i)            “Partner” includes a spouse, de facto partner, former partner or former de facto partner. The Employee’s de facto partner means a person who is the employee’s partner, who lives with the employee on a bona fide domestic basis, although not legally married to the Employee.

 (ii)           “Miscarriage” means a pregnancy that ceases prior to 20 weeks gestation or, where the number of weeks is unknown, the baby weighed less than 400g.

 (iii)          “Pre-Term Birth” means the birth of a live child prior to 37 weeks gestation.

 (iv)          "Full-Term Birth” means the birth of a live child at 37 weeks onwards.

 (v)           “Fertility Treatment” means the following assisted reproductive treatments: Intrauterine insemination (IUI), In vitro fertilisation (IVF) and Intracytoplasmic sperm injection (ICSI).

Application

For public servants, the leave provisions are provided for in Industrial Relations Secretary Determination No. 3 of 2022 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 do not apply in respect of the birth of a child of the employee’s legal surrogate or the adoption of a child or children by the employee or the employee’s partner.

Date of Effect

The above arrangements shall take effect on and from 1 October 2022 and shall remain in force until varied or replaced.

The arrangements will apply to miscarriages and pre-term births (regardless of the expected date of birth), and fertility treatments that occur on or after 1 October 2022.