Return to Work Rights

Note: see Awards and EBA for additional benefits.

There is a right to return to work at same position and salary. women often want to return on a part time basis. This can be difficult. See Reddy v International Cargo Express [2004] NSWADT 218 - discrimination, no part time work, constructive dismissal.

Parental Leave does not break continuity, but does not allow accrual of annual leave etc.

Effect of Award or EBA

Awards, EBAs and AWAs may grant paid leave and other benefits eg to return part time.

It is critical to read Awards and Agreements that cover employee.

WORKPLACE RELATIONS ACT 1996
Workplace Relations Act

- SCHEDULE 14 - Parental leave

Section 170KB

Part 1--Preliminary

1 Basic Principles

(1) Under this Schedule, an employee who gives birth to a child, and that employee's spouse, are entitled to unpaid parental leave totaling 52 weeks to care for the newborn child.

(2) However, an employee's entitlement to leave under this Schedule is reduced by his or her other parental leave entitlements (for example, under an award or under a State law).

(3) To obtain parental leave under this Schedule, an employee must satisfy requirements relating to:
(a) length of service;
(b) notice periods;
(c) information and documentation.

(4) Except for a period of one week at the time of the birth, an employee and his or her spouse must take parental leave at different times.

(5) An employee may take other leave (for example, annual leave) in conjunction with parental leave, but this will reduce the amount of parental leave he or she may take.

(6) Parental leave may be varied in certain circumstances. In general, if a variation is foreseeable, an employee must give notice of it, but if a variation is not foreseeable notice is not required (for example, in the case of a premature birth).

(7) Cancellation of parental leave by the employer is limited to situations where the employee will not become, or ceases to be, the child's primary care-giver, or where there has been a mistake in calculating the amount of leave to which the employee is entitled.

(8) An employee who takes parental leave is, in most circumstances, entitled to return to the position which he or she held before the leave was taken.

(9) Parental leave does not break an employee's continuity of service.

2 Definitions

In this Schedule:

"employee" includes a part-time employee, but not a casual or seasonal employee.

"continuous service" means service (otherwise than as a casual or seasonal employee) under an unbroken contract of employment, and includes a period of leave, or a period of absence, authorised:
(a) by the employer; or
(b) by an award or order of a court or tribunal that has power to fix wages and other terms and conditions of employment, or a workplace agreement certified by such a body; or
(c) by a contract of employment; or
(d) by this Schedule or another law of the Commonwealth or of a State or a Territory.

"law" includes an unwritten law.

"long paternity leave" means Schedule 14 long paternity leave or any other leave (however described):
(a) to which an employee is entitled, or that has been applied for by or granted to an employee, in respect of the birth of a child of his spouse, otherwise than under this Schedule (for example, under another law of the Commonwealth or of a State or Territory, or under an award, order or agreement); and
(b) that is of a kind analogous to Schedule 14 long paternity leave, or would be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) differences in the rules governing eligibility for it;
(iii) differences in the period or periods for which it can be taken.

"maternity leave" means Schedule 14 maternity leave or any other leave (however described):
(a) to which an employee is entitled, or that has been applied for by or granted to an employee, in respect of her pregnancy or the birth of her child, otherwise than under this Schedule (for example, under another law of the Commonwealth or of a State or Territory, or under an award, order or agreement); and
(b) that is of a kind analogous to Schedule 14 maternity leave, or would be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) it can begin before the estimated date of birth;
(iii) differences in the rules governing eligibility for it;
(iv) differences in the period or periods for which it can be taken.

"medical certificate" means a certificate signed by a registered medical practitioner.

"parental leave" means maternity leave or paternity leave.

"paternity leave" means short paternity leave or long paternity leave.

"short paternity leave" means Schedule 14 short paternity leave or any other leave (however described):
(a) to which an employee is entitled, or that has been applied for by or granted to an employee, in respect of the birth of a child of his spouse, otherwise than under this Schedule (for example, under another law of the Commonwealth or of a State or Territory, or under an award, order or agreement); and
(b) that is of a kind analogous to Schedule 14 short paternity leave, or would be of such a kind but for one or more of the following:
(i) it is paid leave;
(ii) differences in the rules governing eligibility for it;
(iii) differences in the period or periods for which it can be taken.
Schedule 14 long paternity leave has the meaning given by clause 13.
Schedule 14 maternity leave has the meaning given by subclause 3 (1).
Schedule 14 short paternity leave has the meaning given by clause 13.

"spouse", in relation to an employee, includes a person of the opposite sex to the employee who lives with the employee in a marriage-like relationship, although not legally married to the employee.

Part 2--Maternity leave

3 Entitlement to maternity leave

(1) Subject to this Schedule, an employee who becomes pregnant is entitled to a single period of unpaid leave (Schedule 14 maternity leave) in respect of the birth of the child.

(2) An employer must grant Schedule 14 maternity leave to an employee in accordance with clause 4 if:
(a) at least 10 weeks before the estimated date of birth, she notifies the employer in writing of that date; and
(b) she applies in writing for the leave; and
(c) the application specifies the first and last days of the period of leave; and
(d) the first day of the period of leave is the estimated date of birth or a later day; and
(e) she submits the application at least 4 weeks before the first day of the period of leave; and
(f) she submits with the application a medical certificate that:
(i) states that she is pregnant and specifies the estimated date of birth; or
(ii) states that she has given birth to a living child and specifies the date of birth;
as the case requires; and
(g) she submits with the application a statutory declaration specifying:
(i) any period of short paternity leave for which her spouse intends to apply, or has applied, in respect of the birth of the child; and
(ii) the first and last days of any period of long paternity leave for which her spouse intends to apply, or has applied, in respect of the birth of the child; and
(iii) the first and last days of each period of annual leave, or long service leave, for which her spouse intends to apply, or has applied, instead of, or in conjunction with, such paternity leave;
and stating:
(iv) that she will be the child's primary care-giver throughout the period of maternity leave; and
(v) that she will not engage in any conduct inconsistent with her contract of employment while on maternity leave; and
(h) it is reasonable to expect that she will complete, or she had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the date notified under paragraph (a).

(3) Paragraphs (2)(a) and (h) do not apply if:
(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to comply with paragraph (2)(a); and
(b) if it was reasonably practicable for the employee to give to the employer, before the actual date of birth, written notice of the estimated date of birth--she did so as soon as reasonably practicable; and
(c) otherwise--the medical certificate submitted under paragraph (2)(f) also specifies the date that, as at the 70th day before the actual date of birth, was the estimated date of birth; and
(d) it is reasonable to expect that the employee will complete, or the employee had completed, as the case requires, 12 months continuous service with the employer on the day before the date notified under paragraph (b), or specified under paragraph (c), of this subclause.

(4) Paragraph (2)(e) does not apply if:
(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to comply with that paragraph; and
(b) the employee submits the application as soon as reasonably practicable before, on or after the first day of the period of leave; and
(c) if the child is born before the employee submits the application--the first day of the period of leave is the date of the child's birth or a later day.
If paragraph (c) of this subclause applies, paragraph (2)(d) does not apply.

(5) If, because of paragraph (4)(c), the first day of the period of leave is earlier than the date notified under paragraph (2)(a) or (3)(b) or specified under paragraph (3)(c), a reference in paragraph (2)(h) or (3)(d) or clause 9 to 12 months continuous service is taken to be a reference to a period of continuous service equal to 12 months reduced by the period beginning on the first day of the period of leave and ending on that date.

(6) If an employee applies under subclause (2) for maternity leave (the substitute leave) to be taken instead of maternity leave (the original leave) for which she has already applied under that subclause, then:
(a) if a document submitted with the application for the original leave complies with paragraph (2)(f) or (g) as applying in relation to the application for the substitute leave, the document is taken to have also been submitted with the latter application; and
(b) if the employer grants the substitute leave, the employer:
(i) must cancel the original leave if it has already been granted; or
(ii) must not grant it if it has not already been granted.

4 What maternity leave must the employer grant?

(1) The period of Schedule 14 maternity leave that clause 3 requires an employer to grant to an employee:
(a) if the child has not yet been born--must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the estimated date of birth;
and must not extend beyond the first anniversary of the estimated date of birth; and
(b) otherwise--must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the child's date of birth;
and must not extend beyond the child's first birthday; and
(c) must not overlap with a period of leave (other than short paternity leave) specified in the relevant statutory declaration; and
(d) subject to the preceding paragraphs, must be a continuous period equal to the shorter of:
(i) the period applied for;
(ii) the period of entitlement.

(2) The period of entitlement is 52 weeks less the total of:
(a) each period of unpaid leave, or paid sick leave, other than maternity leave, that the employer has already granted to the employee in respect of the same pregnancy; and
(b) each period of annual leave, or long service leave, that the employee has applied for instead of, or in conjunction with, maternity leave in respect of the pregnancy; and
(c) each period of leave specified in the relevant statutory declaration.

5 Entitlement under clauses 3 and 4 to be reduced by other maternity leave available to employee

(1) This section applies if, had this Schedule not been enacted:
(a) an employee could have applied, in respect of her pregnancy or the birth of her child, for maternity leave to which paragraphs (a) and (b) of the definition of maternity leave in clause 2 applies; and
(b) if she had so applied in accordance with the rules governing that maternity leave, she would have a legally enforceable right to a period of such leave;
whether or not she has in fact so applied.

(2) The period of leave referred to in paragraph (1)(b) is called the period of alternative leave.

(3) The period (if any) of Schedule 14 maternity leave that clauses 3 and 4 would, but for this clause, require the employer to grant to the employee in respect of the birth of the child is called the unadjusted period of maternity leave.

(4) If the period of alternative leave is as long as, or longer than, the unadjusted period of maternity leave, the employer must not grant maternity leave to the employee under clauses 3 and 4 in respect of the birth.

(5) Otherwise, the employer must grant to the employee, instead of the unadjusted period of maternity leave, a period of maternity leave that:
(a) equals the difference between the unadjusted period of maternity leave and the period of alternative leave; and
(b) begins immediately after the period of alternative leave if the employer grants it; and
(c) in other respects complies with clause 4.
Note: This clause assumes that an employee will make a single application for a composite period of parental leave to which she is entitled, and that the application will be made in accordance with both this Schedule and the rules governing the other kind of parental leave for which the employee is applying.

6 Taking annual leave or long service leave instead of, or in conjunction with, maternity leave

If an employee (the mother) applies to take annual leave, or long service leave, instead of, or in conjunction with, Schedule 14 maternity leave, the employer must grant the annual leave or long service leave if:
(a) had this Schedule not been enacted, the employer would have been obliged to grant it (for example, because of some other law of the Commonwealth or of a State or Territory); or
(b) the total of the following does not exceed 52 weeks:
(i) the period of annual leave or long service leave;
(ii) each period of annual leave, or long service leave, that the employer has already granted to the mother instead of, or in conjunction with, the maternity leave;
(iii) the period of maternity leave;
(iv) each period of unpaid leave, or paid sick leave, other than maternity leave, that the employer has already granted to the mother in respect of the same pregnancy;
(v) each period of leave specified under paragraph 3(2)(g) in the relevant statutory declaration.

7 Extension of maternity leave

(1) An employee may apply in writing for an extension of Schedule 14 maternity leave granted to her.

(2) The employer must grant the application if:
(a) it is given to the employer at least 14 days before the last day of the period of leave; and
(b) it specifies the first or last day of the extended period of leave, as the case requires; and
(c) unless the matters referred to in subparagraphs 3(2)(g)(i), (ii) and (iii) are still as stated in the relevant statutory declaration--the employee submits with the application for the extension a statutory declaration stating the matters referred to in those subparagraphs; and
(d) the period of leave, if extended in accordance with the application, would not exceed the period of entitlement under clause 4, calculated as at the time of granting the application for the extension.

(3) The period of maternity leave may be extended again only by agreement between the employer and the employee.

8 Shortening of maternity leave

(1) An employee may apply in writing to shorten the period of Schedule 14 maternity leave granted to her.

(2) The employer may grant the application if it specifies the last day of the shortened period of leave.

9 Effect on maternity leave of failure to complete 12 months continuous service

If Schedule 14 maternity leave has been granted on the basis that it is reasonable to expect that the employee will complete a period of at least 12 months continuous service with the employer on a particular day, the employer may cancel the leave if the employee does not complete such a period on that day.

10 Effect on maternity leave if pregnancy terminates or child dies

(1) This clause applies if an employer has granted Schedule 14 maternity leave to an employee and:
(a) the pregnancy terminates otherwise than by the birth of a living child; or
(b) the employee gives birth to a living child but the child later dies.

(2) The employer may cancel the maternity leave at any time before it begins.

(3) If the maternity leave has begun, the employee may notify the employer in writing that she wishes to return to work.

(4) If she does so, the employer must notify her in writing of the day on which she is to return to work. That day must be within 4 weeks after the employer received the notice under subclause (3).

(5) If the maternity leave has begun, the employer may notify the employee in writing that she must return to work on a specified day that is not less than 4 weeks after the notice is given.

(6) If the employee returns to work, the employer must cancel the rest of the maternity leave.

11 Effect on maternity leave if mother ceases to be the primary care-giver

(1) This clause applies if:
(a) during a substantial period beginning on or after the beginning of an employee's Schedule 14 maternity leave, the employee is not the child's primary care-giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child's primary care-giver within a reasonable period.

(2) The employer may notify the employee in writing that she must return to work on a specified day that is not less than 4 weeks after the notice is given.

(3) If the employee returns to work, the employer must cancel the rest of the maternity leave.

12 Return to work after maternity leave

(1) This clause applies when an employee returns to work after a period of Schedule 14 maternity leave.

(2) The employer must employ her in the position she held:
(a) if she was transferred to a safe job because of her pregnancy--immediately before the transfer; or
(b) if she began working part-time because of the pregnancy--immediately before she so began; or
(c) otherwise--immediately before she began maternity leave.

(3) If that position no longer exists but she is qualified for, and can perform the duties of, other positions in the employer's employment, the employer must employ her in whichever of those positions is nearest in status and remuneration to the position referred to in subclause (2).

Part 3--Paternity leave

13 Entitlement to paternity leave

Subject to this Schedule, an employee is entitled, in respect of the birth of a child of his spouse, to each of the following:
(a) a period of unpaid paternity leave (Schedule 14 short paternity leave) beginning on the child's date of birth and lasting not more than one week;
(b) a period of unpaid paternity leave (Schedule 14 long paternity leave) in order to be the child's primary care-giver.

14 Short paternity leave

(1) An employer must grant Schedule 14 short paternity leave to an employee if:
(a) at least 10 weeks before the estimated date of birth, he gives to the employer:
(i) a written notice stating his intention to apply for the leave and specifying how long the leave is to last, being a period of not more than one week; and
(ii) a medical certificate that names his spouse, states that she is pregnant and specifies the estimated date of birth; and
(b) he applies in writing for the leave; and
(c) the application specifies the first and last days of the period of leave; and
(d) he submits the application as soon as reasonably practicable on or after the first day of the period of leave; and
(e) the period of leave does not exceed the period specified under paragraph (a); and
(f) unless the first day of the period of leave is the same as the date specified under subparagraph (a)(ii):
(i) he submits with the application a medical certificate that names his spouse and specifies the actual date of birth; and
(ii) the first day of the period of leave is that day; and
(g) it is reasonable to expect that he will complete, or he had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the date specified under subparagraph (a)(ii).

(2) Paragraphs (1)(a) and (g) do not apply if:
(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to comply with paragraph (1)(a); and
(b) if it was reasonably practicable for the employee to give to the employer, before the actual date of birth, the notice and certificate referred to in that paragraph--he did so as soon as reasonably practicable; and
(c) otherwise--the medical certificate submitted under subparagraph (1)(f)(i) also specifies the date that, as at the 70th day before the actual date of birth, was the estimated date of birth; and
(d) it is reasonable to expect that the employee will complete, or the employee had completed, as the case requires, 12 months continuous service with the employer on the day before the estimated date of birth specified in the certificate given under paragraph (b), or specified under paragraph (c), of this subclause.

15 Long paternity leave

(1) An employer must grant Schedule 14 long paternity leave to an employee if:
(a) he applies in writing for the leave; and
(b) the application specifies the first and last days of the period of leave; and
(c) he submits the application at least 10 weeks before the first day of the period of leave; and
(d) he submits with the application a medical certificate that names his spouse and:
(i) states that she is pregnant and specifies the estimated date of birth; or
(ii) states that she has given birth to a living child and specifies the date of birth;
as the case requires; and
(e) he submits with the application a statutory declaration specifying the first and last days of:
(i) each period of unpaid leave, or paid sick leave, other than maternity leave, for which the spouse intends to apply, or has applied, in respect of the pregnancy; and
(ii) any period of maternity leave for which the spouse intends to apply, or has applied, in respect of the birth of the child; and
(iii) each period of annual leave, or long service leave, for which the spouse intends to apply, or has applied, instead of, or in conjunction with, maternity leave;
and stating:
(iv) that he will be the child's primary care-giver throughout the period of paternity leave; and
(v) that he will not engage in any conduct inconsistent with his contract of employment while on paternity leave; and
(f) it is reasonable to expect that he will complete, or he had completed, as the case requires, a period of at least 12 months continuous service with the employer on the day before the first day of the period of leave.

(2) Paragraph (1)(c) does not apply if:
(a) because the child was premature, or for some other compelling reason, it was not reasonably practicable for the employee to submit the application at least 10 weeks before the first day of the period of leave; and
(b) the employee submits the application as soon as reasonably practicable before, on or after that day.

(3) The period of Schedule 14 long paternity leave:
(a) if the child has not yet been born--must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the estimated date of birth;
and must not extend beyond the first anniversary of the estimated date of birth; and
(b) otherwise--must begin on the later of:
(i) the day specified in the application as the first day of the period of leave; or
(ii) the child's date of birth;
and must not extend beyond the child's first birthday; and
(c) must not overlap with a period of leave specified in the relevant statutory declaration; and
(d) subject to the preceding paragraphs, must be a continuous period equal to the shorter of:
(i) the period applied for;
(ii) the period of entitlement.

(4) The period of entitlement is 52 weeks less the total of:
(a) if the employee has given the employer notice of his intention to apply for a period of short paternity leave in respect of the birth of the child--that period; and
(b) each period of annual leave, or long service leave, that the employee has applied to take instead of, or in conjunction with, long paternity leave in respect of the birth of the child; and
(c) each period of leave specified in the relevant statutory declaration.

16 Entitlement under clause 14 or 15 to be reduced by other paternity leave available to employee

(1) This clause applies if, had this Schedule not been enacted:
(a) an employee could have applied, in respect of the birth of a child of his spouse, for short paternity leave or long paternity leave to which paragraphs (a) and (b) of the definition of short paternity leave or long paternity leave, as the case may be, in clause 2 apply; and
(b) if he had so applied in accordance with the rules governing that paternity leave, he would have a legally enforceable right to a period of such leave;
whether or not he has in fact so applied.

(2) The period of leave referred to in paragraph (1)(b) is called the period of alternative leave.

(3) The period of Schedule 14 short paternity leave or Schedule 14 long paternity leave, as the case may be, that clause 14 or 15 would, but for this clause, require the employer to grant to the employee in respect of the birth of the child is called the unadjusted period of paternity leave.

(4) If the period of alternative leave is as long as, or longer than, the unadjusted period of paternity leave, the employer must not grant leave under clause 14 or 15, as the case may be, in respect of the birth.

(5) Otherwise, the employer must grant to the employee, instead of the unadjusted period of paternity leave, a period of short paternity leave, or long paternity leave, as the case may be, that:
(a) equals the difference between the unadjusted period of paternity leave and the period of alternative leave; and
(b) begins immediately after the period of alternative leave if the employer grants it; and
(c) in other respects complies with clause 14 or 15, as the case may be.
Note: This clause assumes that an employee will make a single application for a composite period of parental leave to which he is entitled, and that the application will be made in accordance with both this Schedule and the rules governing the other kind of parental leave for which the employee is applying.

17 Taking annual leave or long service leave instead of, or in conjunction with, paternity leave

If an employee applies to take annual leave, or long service leave, instead of, or in conjunction with, Schedule 14 short paternity leave or Schedule 14 long paternity leave in respect of the birth of a child of the employee's spouse, the employer must grant the annual leave or long service leave if:
(a) had this Schedule not been enacted, the employer would have been obliged to grant it (for example, because of some other law of the Commonwealth or of a State or a Territory); or
(b) the total of the following does not exceed 52 weeks:
(i) the period of annual leave or long service leave;
(ii) each period of annual leave, or long service leave, that the employer has already granted to the employee instead of, or in conjunction with, the paternity leave;
(iii) each period of paternity leave that the employer has already granted to the employee in respect of the birth;
(iv) each period of leave specified under paragraph 15(1)(e) in the relevant statutory declaration.

18 Extension of long paternity leave

(1) An employee may apply in writing for an extension of Schedule 14 long paternity leave granted to him.

(2) The employer must grant the application if:
(a) it is given to the employer at least 14 days before the last day of the period of leave; and
(b) it specifies the last day of the extended period of leave; and
(c) unless the matters referred to in subparagraphs 15(1)(e)(i), (ii) and (iii) are still as stated in the statutory declaration submitted with the application for the leave--the employee submits with the application for the extension a statutory declaration stating the matters referred to in those subparagraphs; and
(d) the period of leave, if extended in accordance with the application, would not exceed the period of entitlement under subclause 15(4), calculated as at the time of granting the application for the extension.

(3) The period of paternity leave may be extended again only by agreement between the employer and the employee.

19 Shortening of paternity leave

(1) An employee may apply in writing to shorten the period of Schedule 14 paternity leave granted to him.

(2) The employer may grant the application if it specifies the last day of the shortened period of leave.

20 Effect on long paternity leave of failure to complete 12 months continuous service

If Schedule 14 long paternity leave has been granted on the basis that it is reasonable to expect that the employee will complete a period of at least 12 months continuous service with the employer on a particular day, the employer may cancel the leave if the employee does not complete such a period on that day.

21 Effect on long paternity leave if pregnancy terminates or child dies

(1) This clause applies if an employer has granted Schedule 14 long paternity leave to an employee and:
(a) the employee's spouse's pregnancy terminates otherwise than by the birth of a living child; or
(b) the employee's spouse gives birth to a living child but the child later dies.

(2) The employer may cancel the leave at any time before it begins.

(3) If the leave has begun, the employee may notify the employer in writing that he wishes to return to work.

(4) If he does so, the employer must notify him in writing of the day on which he is to return to work. That day must be within 4 weeks after the employer received the notice under subclause (3).

(5) If the leave has begun, the employer may notify the employee in writing that he must return to work on a specified day that is not less than 4 weeks after the notice is given.

(6) If the employee returns to work, the employer must cancel the rest of the leave.

22 Effect on paternity leave of ceasing to be the primary care-giver

(1) This clause applies if:
(a) during a substantial period beginning on or after the beginning of an employee's Schedule 14 long paternity leave, the employee is not the child's primary care-giver; and
(b) having regard to the length of that period and to any other relevant circumstances, it is reasonable to expect that the employee will not again become the child's primary care-giver within a reasonable period.

(2) The employer may notify the employee in writing that he must return to work on a specified day that is not less than 4 weeks after the notice is given.

(3) If the employee returns to work, the employer must cancel the rest of the leave.

23 Return to work after paternity leave

(1) This clause applies when an employee returns to work after a period of Schedule 14 long paternity leave.

(2) The employer must employ him in the position he held immediately before that period.

(3) If that position no longer exists but he is qualified for, and can perform the duties of, other positions in the employer's employment, the employer must employ him in whichever of those positions is nearest in status and remuneration to the position referred to in subclause (2).

Part 4--General

24 Employee's duty if excessive leave granted or if maternity leave and paternity leave overlap

(1) This clause applies if the total of the following exceeds 52 weeks:
(a) any period of maternity leave granted by an employer to an employee (the mother) in respect of a pregnancy;
(b) each period of annual leave or long service leave granted by the employer to the mother instead of, or in conjunction with, such maternity leave;
(c) each period of unpaid leave, or paid sick leave, other than maternity leave, granted by the employer to the mother in respect of the same pregnancy;
(d) each period of paternity leave granted by an employer to the mother's spouse in respect of the birth of the child;
(e) each period of annual leave or long service leave granted, by the employer referred to in paragraph (e), to the mother's spouse instead of, or in conjunction with, such paternity leave.

(2) This clause also applies if a period of leave of a kind referred to in paragraph (1)(a), (b) or (c) overlaps with a period of leave of a kind referred to in paragraph (1)(d) or (e).

(3) The mother must give to her employer a written notice that:
(a) if subclause (1) applies--states that the total exceeds 52 weeks and specifies the amount of the excess; and
(b) if subclause (2) applies--specifies the period of overlap; and
(c) sets out how she suggests the employer vary or cancel leave granted to her (except in so far as she has already taken it) so as to reduce or remove the excess or overlap; and
(d) unless the variations and cancellations suggested under paragraph (c) will remove the excess or overlap--sets out the suggestions her spouse has made or will make under paragraph (4)(c).

(4) The mother's spouse must give to his employer a written notice that:
(a) if subclause (1) applies--states that the total exceeds 52 weeks and specifies the amount of the excess; and
(b) if subclause (2) applies--specifies the period of overlap; and
(c) sets out how he suggests the employer vary or cancel leave granted to him (except in so far as he has already taken the leave) so as to remove the excess or overlap; and
(d) unless the variations or cancellations suggested under paragraph (c) will remove the excess or overlap--specifies the suggestions that the mother has made or will make under paragraph (3)(c).

(5) The variations and cancellations suggested under this clause must be such that, if they are all made, the excess or overlap will be removed.

(6) An employer who receives a notice under subclause (3) or (4) may vary or cancel periods of leave as suggested in the notice, or as agreed with the mother or her spouse, as the case may be.

25 Employer to warn replacement employee that employment is only temporary

An employer must not employ a person:
(a) to replace an employee while he or she is on parental leave; or
(b) to replace an employee who, while another employee is on parental leave, is to perform the duties of the position held by the other employee;
unless the employer has informed the person:
(c) that his or her employment is only temporary; and
(d) about the rights of the employee who is on parental leave.

26 Parental leave and continuity of service

A period of parental leave does not break an employee's continuity of service, but does not otherwise count as service except:
(a) for the purpose of determining the employee's entitlement to a later period of parental leave; or
(b) as expressly provided in a law of the Commonwealth or of a State or Territory, or in an award, order, agreement or instrument; or
(c) as prescribed by the regulations.

27 Effect of Schedule on other laws

To avoid doubt, this Schedule has effect despite:
(a) a law of a State or Territory; or
(b) an award, order, agreement or instrument;
but is not intended to exclude or limit the operation of such a law, or of an award, order, agreement or instrument, in so far as that law, award, order, agreement or instrument can operate concurrently with this Schedule.