Circular 2023/5 - Release of the Maternity Leave (Commonwealth Employees) Act 1973 Review

Purpose

This circular is to advise agencies that the Review of the Maternity Leave (Commonwealth Employees) Act 1973 (the Maternity Leave Act) has been released.
The Review was undertaken by the Australian Public Service Commission. The full report is available here.

Summary

The Review is the result of extensive stakeholder consultation, receiving nearly 190 public submissions from Commonwealth agencies, individuals, academics, employee networks, unions and peak bodies. The Review was also informed by an Expert Advisory Group of representatives from various Commonwealth agencies providing either specialist or HR expertise.
The Review proposes 26 outcomes aimed increasing support to new parents to transition into and succeed in family life, and to protect and advance women’s economic equality. It also aims to provide employee parents and their employing agencies with greater flexibility and ease the administrative burden associated with the current legislation.
- Appropriate support to parents - The Review recommends both parents have a separate and equal entitlement to Parental Leave, so care can be shared more equally. The importance of safeguarding the health of pregnant employees in the later stages of their pregnancy is recognised with the introduction of paid Pregnancy Leave. Paid leave is also recommended for parents who experience a premature birth, stillbirth or pregnancy loss.
- Gender equality and inclusion - The Review advances gender equality by recognising the caring responsibilities of all parents for birth and adoption, in recommending a separate and equal entitlement to Parental Leave.
- Providing flexibility - The Review recommends that Parental Leave be flexible enough to allow families to use it in a way that best suits their needs. This could be in one block, in multiple smaller blocks, or even for a full-time employee to use a day or so each week to achieve part-time hours on full salary.
- Reducing administrative burden - The Review recommends that a new Act be written in plain English so it can be easily understood by those who use, and those who administer, its entitlements.
- Issues for future consideration - The Review recognises the importance of kinship care, and recommends further consultation be undertaken to co-design an approach to Parental Leave for kinship care that is culturally sensitive. Surrogacy is also an evolving area of law, with the Review recommending agencies view cases of leave for intended parents with empathy, and consider using discretionary leave in the agency’s enterprise agreement based on the circumstances of each case.

Will there be a new Act?

The Review recommends that a new Act be made. The Government will consider the Review, and any changes to legislation or other recommended entitlements will be subject to future decisions.
In the meantime, entitlements under the Maternity Leave Act continue to be available to eligible employees, as well as any benefits provided in individual agency enterprise agreements.

What about APS bargaining?

As an interim step, there is an opportunity for some parental leave recommendations from the Review to be considered as a proposed common condition in the APS Bargaining currently underway.

What agencies can do now

The Review noted the varied availability of information to employees and their managers when planning a parental leave absence, and the timeliness in responding to queries related to parental leave. Agencies can take the opportunity to review their policies and other supporting information to ensure they are comprehensive, easily accessible and can be understood by all. This includes information available to employees who have commenced parental leave, and the supports available when returning to work.
Agencies can also take the opportunity to review their breastfeeding facilities including whether there are appropriate facilities to express, in line with the APS Gender Equality Strategy 2021-2026.