6Absence from duty in relation to childbirth

6 Absence from duty in relation to childbirth

(1) A female employee who has become pregnant (whether before or after being employed by the Commonwealth or a prescribed authority): (a) shall, on application made to a leave officer before she is confined, be granted by the leave officer permission to absent herself from duty during a period not exceeding 52 weeks commencing on the date of commencement of the period during which she is required, in accordance with paragraph (b), to absent herself from duty; (b) shall, subject to section 7, whether or not she has been granted permission under paragraph (a), absent herself from duty during a period that: (i) if she is still pregnant 6 weeks before the expected date of birth of her child—commences 6 weeks before the expected date of birth of her child and continues until the expiration of a period of 6 weeks commencing on the date of her confinement; or (ii) if she is confined earlier than 6 weeks before the expected date of birth of her child—commences on the date of her confinement and continues for 6 weeks; and (c) shall, on application made to a leave officer: (i) while she is, or after she has been, absent from duty in accordance with permission granted under paragraph (a) or under this paragraph; or (ii) if no such permission has been granted—while she is, or after she has been, absent from duty in pursuance of paragraph (b); be granted by the leave officer permission to absent herself from duty during a further period ending on or before the expiration of a period of 52 weeks commencing on the date of commencement of the period during which she is or was required, in accordance with paragraph (b), to absent herself from duty. (2) Where the pregnancy of a female employee terminates other than by way of a confinement: (a) she shall not, after that termination, be granted permission to be absent from duty in accordance with this section in respect of that pregnancy; and (b) if, before that termination, she has been granted permission to be absent from duty in accordance with this section, that grant shall be cancelled. (3) Subject to subsections (4), (4C) and (4F), an employee who has been confined and who has been absent from duty for a period or periods in accordance with this section is entitled to pay: (a) in a case where the period of absence, or the sum of the periods of absence, exceeds 12 weeks—for the first 12 weeks of that absence; and (b) in any other case—for the whole of that absence. (4) An employee is not entitled, under subsection (3), to pay in respect of any absence that occurs before the day on which the continuous period, or the last continuous period, during which she is, by virtue of subsection (4A), to be taken to be a person to whom this subsection applies first exceeds 12 months. (4A) A person shall be taken to be a person to whom subsection (4) applies by virtue of this subsection: (a) while she is a person to and in relation to whom this Act applies; or (b) while she is employed by a body corporate (not being an incorporated company, society or association), or an unincorporated body, established for a public purpose by a law of the Commonwealth or of a Territory other than the Northern Territory but is not a person to and in relation to whom this Act applies. (4B) A person shall not be taken to be a person to whom subsection (4) applies by virtue of subsection (4A) during any period during which, by virtue of subsection 5(3), this Act does not apply to or in relation to her. (4C) Where an employee is absent from duty on unauthorized absence immediately before the commencement of the period during which, but for the operation of paragraph (a) of this subsection, the employee would be required by paragraph (1)(b) to absent herself from duty in connection with her expected confinement, or with her confinement, as the case may be, unless the Agency Head determines that the unauthorized absence occurs in extenuating circumstances: (a) the other provisions of this Act do not apply to her in connection with her expected confinement, or with her confinement, as the case may be; (b) she shall absent herself from duty during that first‑mentioned period, but, subject to subsection (4D), is not entitled to pay in respect of the period while she is so absent; and (c) if, upon the expiration of that first‑mentioned period, she remains absent from duty on unauthorized absence, her unauthorized absence before the commencement of that period shall be deemed to be continuous with her unauthorized absence after the expiration of that period. (4D) Subsection (4C) does not affect an employee’s entitlement to pay for any period of long service leave or leave of absence for recreation or on account of illness that is granted to her. (4E) Where a female employee who is granted leave of absence without pay has become pregnant before, or becomes pregnant after, the commencement of that leave, her absence from duty in accordance with the grant during any part of the period of 52 weeks commencing 6 weeks before the expected birth of her child or, if she is confined earlier than 6 weeks before the expected birth of her child, commencing on the date of her confinement, shall be deemed, for the purposes of paragraph (1)(c) and subsection (3), to be absence from duty in accordance with a permission granted under paragraph (1)(a). (4F) Notwithstanding subsection (4E), where a female employee who is granted leave of absence from her employment without pay for a period (in this subsection referred to as the relevant period), being a period exceeding 6 weeks, has become pregnant before, or becomes pregnant after, the commencement of that leave, unless the Agency Head otherwise determines: (a) subsection (1) does not authorize a leave officer to grant her permission to absent herself from duty under this Act at any time while she is absent from duty in accordance with that grant; and (b) she is not entitled to pay under subsection (3) in respect of that employment for any part of the relevant period. (4G) Subsection (4F) applies to and in relation to an employee who has been granted leave of absence without pay for a period whether or not she ceases to be absent from duty on leave without pay before the expiration of that period, but does not apply to such an employee unless she is absent on leave without pay in accordance with the grant for a continuous period exceeding 6 weeks. (5) Where, under subsection (3), an employee is entitled to pay in respect of a period, the pay that the employee is to receive shall be the pay, salary, wage or other payment that the employee would have received if, for that period, she had been granted leave of absence on full pay on account of illness. (7) Where: (a) an employee has, under paragraph (1)(a) or (1)(c), been granted permission to be absent from duty for a period; and (b) the employee applies for leave of absence of any kind with pay in respect of the whole or any part of that period, excluding a period in respect of which pay is payable under subsection (3); that application shall, if the employee is eligible for the leave to which the application relates, be granted. (8) The grant of leave of absence of any kind with pay in respect of a period in respect of which pay is payable under subsection (3) is of no effect. (9) This section does not relate to absence from duty before the commencement of this Act.