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Understanding your parental leave entitlements
AMA Victoria is aware that the pending birth of a child can add stresses and that some hospitals may struggle with what the new parental leave entitlements are. For those members seeking to establish a family, AMA Victoria will prioritise resolving any problems that may arise with their hospital. Members can find out more in the AMA DIT Agreement 2008 booklet (available online here) - see Summary Section "Parental Responsibilities (Leave, Flexible Work Arrangements and Protections)".
The AMA DIT Agreement 2008 provides for ten weeks paid leave after the birth of a child for the primary care giver, and up to another 42 weeks unpaid leave (where the DiT has a one year contract). For the secondary care giver, one week paid leave is available. A DiT's minimum notice requirement of an intention to take parental leave is ten weeks from the expected date of confinement.
It is unlikely that a hospital would seek to withdraw an employment offer if a DiT advises in advance of ‘signing on’ that confinement will occur during the contract period. Not only are hospitals typically fair-minded and respectful in these circumstances, prima facie, serious breach of discrimination and workplace law may arise. This being the case, AMA Victoria encourages DiTs to engage in professional dialogue with their hospital to enable planning for the absence. AMA Victoria is available in advance of any discussion to satisfy concerns a DiT member may have.
There are some key issues that DiTs accessing this entitlement need to be aware of:
Entitlement to paid and unpaid leave
Eligibility for the paid leave entitlement first requires at least 12 months DiT experience working for a Victorian public hospital. As the AMA Agreement deems all hospitals to be the same entity for the purposes of this entitlement, a DiT can work for multiple hospitals, with the contemporary employing hospital becoming responsible for providing the paid / unpaid leave.
A DiT's right to the full compliment of ten weeks paid leave exists only while a contract continues to operate. For example, if confinement occurs on 6 January and the contract expires 6 February, the DiT is only eligible for four weeks paid leave. Once the employment relationship ends, eligibility for all employment entitlements ends. Note that in this or similar examples, the AMA Agreement protects the DiT's long service leave accrual balance (as at the time of contract expiry) for up to 12 months absence from working as a public hospital doctor.
From 1 January 2011, for eligible DiTs (and all other eligible Australian employees), the Federal Government introduces a new benefit of 18 weeks paid leave (paid at the national minimum wage). Noting there is a 12 month service requirement, a DiT can access their AMA Agreement paid ten weeks and then be paid for up to 18 weeks via the Government’s national minimum wage benefit while on AMA Agreement unpaid leave.
If an illness arises during confinement, or prior to accessing the paid leave entitlement, the AMA Agreement’s personal (sick) leave is legitimately available. If after birth there are complications, access to personal leave may also be available for "the care and support" of the DiT's "immediate family".
How to maximise paid leave
To maximise the entitlement to paid leave release after the birth of a child, a DiT may request unpaid leave release from the end of the guaranteed ten paid weeks. The DiT has the opportunity to maintain income continuity for an extended period as follows:
In the best case, the unpaid leave request should equal the sum of the 18 week government benefit and the DiT’s total available annual leave. This then provides the DiT with a total of 33 paid weeks for child responsibility (i.e. ten weeks ordinary pay as paternity leave, plus the 18 weeks minimum wage benefit, plus five weeks ordinary pay as annual leave).
The above is possible because once the unpaid parental leave is granted, the DiT can activate sub clause 45.2.2 of the AMA Agreement where it states: "annual leave must not be unreasonably withheld". Once the hospital grants unpaid leave release it is then difficult for it to be argued that 'operational requirements' prevent the DiT's access to their annual leave balance. Put another way, as the DiT is already on leave, it may be unreasonable for the hospital to refuse 'tacking on' annual leave to paid parental leave entitlement.
Members can contact the Workplace & Advocacy Unit on (03) 9280 8722 for advice and assistance for workplace, training or registration issues.
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