Queensland: Industrial Relations Act 2016 (Qld)

Industrial Relations Act 2016 An Act relating to industrial relations in Queensland Chapter 1 Preliminary Part 1 Introduction 1 Short title This Act may be cited as the Industrial Relations Act 2016. 2 Commencement (1) Chapter 19, part 8, other than the following provisions, commences on assent— (a) sections 1118 to 1124; (b) sections 1126 to 1128; (c) section 1151; (d) section 1152, to the extent it inserts new section 289. (2) The remaining provisions of this Act commence on a day to be fixed by proclamation. 3 Main purpose of Act The main purpose of this Act is to provide for a framework for cooperative industrial relations that— (a) is fair and balanced; and (b) supports the delivery of high quality services, economic prosperity and social justice for Queenslanders. 4 How main purpose is primarily achieved The main purpose of this Act is to be achieved primarily by— (a) supporting a productive, competitive and inclusive economy, with strong economic growth, high employment, employment security, improved living standards and low inflation; and (b) promoting high-performing, apolitical State government and local government sectors that are responsive to democratically-decided priorities and focused on the delivery of public services in a professional and non-partisan way; and (c) promoting and facilitating security in employment and consultation about employment matters, technological change and organisational change; and (d) providing for a fair and equitable framework of employment standards, awards, determinations, orders and agreements; and (e) promoting productive and cooperative workplace relations including by recognising mutual obligations of trust and confidence in the employment relationship; and (f) providing for a guaranteed safety net of fair, relevant and enforceable minimum employment conditions through the Queensland Employment Standards; and (g) ensuring wages and employment conditions provide fair standards in relation to living standards prevailing in the community; and (h) promoting collective bargaining, including by— (i) providing for good faith bargaining; and (ii) establishing the primacy of collective agreements over individual agreements; and (i) preventing and eliminating sexual harassment, sex or gender-based harassment, discrimination, bullying and other unfair treatment in employment; and (j) ensuring equal remuneration for work of equal or comparable value; and (k) promoting diversity and inclusion in the workforce, including by providing a right for employees to request flexible working arrangements to help balance their work and family responsibilities; and (l) supporting employees experiencing domestic and family violence by conferring leave entitlements and protection from discrimination; and (m) encouraging fairness and representation at work, and the prevention of discrimination, by recognising the right to freedom of association, the right to organise and the right to be represented; and (n) encouraging representation of employees and employers by organisations that are registered under this Act; and (o) being responsive to emerging labour market trends and work patterns; and (p) providing for effective, responsive and accessible mechanisms to support negotiations and resolve industrial disputes; and (q) establishing an independent court and tribunal to facilitate fair, balanced and productive industrial relations; and (r) assisting in giving effect to Australia's international obligations in relation to labour standards. Examples of ILO conventions ratified by Australia— • the Freedom of Association and Protection of the Right to Organise Convention, 1948, No. 87 • the Right to Organise and Collective Bargaining Convention, 1949, No. 98 • the Equal Remuneration Convention, 1951, No. 100 • the Discrimination (Employment and Occupation) Convention, 1958, No. 111 • the Employment Policy Convention, 1964, No. 122 • the Termination of Employment Convention, 1982, No. 158 • the Part-Time Work Convention, 1994, No. 175 5 Act binds all persons (1) This Act binds all persons, including the State. (2) Nothing in this Act makes the State liable to be prosecuted for an offence. Part 2 Interpretation 6 Definitions The dictionary in schedule 5 defines particular words used in this Act. 7 Who is an employer (1) An employer is a person who— (a) is not a national system employer within the meaning of the Commonwealth Fair Work Act; and (b) employs, or usually employs, 1 or more individuals. (2) Also, employer includes the following persons— (a) for chapter 2, part 3, divisions 9, 11 and 12, a national system employer within the meaning of the Commonwealth Fair Work Act, section 14, including a national system employer mentioned in section 30N of that Act; (b) a person for whose calling or business an outworker works; (c) for a proceeding for an offence or for payment or recovery of amounts—a former employer; (d) a person declared to be an employer under section 465. 8 Who is an employee (1) An employee is an individual who is employed, or usually employed, by an employer. (2) Also, employee includes the following persons— (a) for chapter 2, part 3, divisions 9, 11 and 12, a national system employee within the meaning of the Commonwealth Fair Work Act, section 13, including a national system employee mentioned in section 30M of that Act; (b) for chapter 7, a worker under the Work Health and Safety Act 2011, section 7, other than a worker under the Commonwealth Fair Work Act who may apply for an order under chapter 6, part 6-4B of that Act in relation to the bullying; (c) a person who is a member of a class of persons declared to be employees under section 465; (d) for a proceeding for an offence or for payment or recovery of amounts—a former employee; (e) an outworker; (f) an apprentice; (g) a trainee. 9 What is an industrial matter (1) An industrial matter is a matter that affects or relates to— (a) work done or to be done; or (b) the privileges, rights or functions of— (i) employers or employees; or (ii) persons who have been, or propose to be, or who may become, employers or employees; or (c) a matter the court or commission considers has been, is, or may be a cause or contributory cause of an industrial action or industrial dispute. (2) However, a matter is not an industrial matter if it is the subject of a proceeding for— (a) an indictable offence; or (b) a public service appeal. (3) Without limiting subsection (1) or affecting subsection (2), a matter is an industrial matter if it relates to a matter mentioned in schedule 1. Part 3 General overview of scope of Act 10 Purpose of part (1) This part gives an overview of the scope of this Act. (2) Without limiting subsection (1), it is declared that this part does not confer entitlements or impose liabilities. 11 Definition for part In this part— Queensland referral Act means the Fair Work (Commonwealth Powers) and Other Provisions Act 2009. 12 Who this Act applies to generally (1) Generally speaking— (a) the Commonwealth Fair Work Act applies to many employers and employees in Queensland; and (b) this Act applies to employers and employees only to the extent the Commonwealth Fair Work Act does not apply to them. Note— The Commonwealth Fair Work Act applies to the following employers and their employees— • employers who are trading or financial corporations (see paragraph 51(xx) of the Commonwealth Constitution) • other private sector employers in relation to whom the State has referred its legislative power over industrial relations matters to the Commonwealth (see the Queensland referral Act). (2) The following are examples of entities to whom this Act generally applies— (a) the State government, and entities related to the State government, and their employees; Examples— • departments • public service entities mentioned in the Public Sector Act 2022, section 9(b) • other statutory bodies established under Queensland law for a public purpose, such as a parents and citizens association established under the Education (General Provisions) Act 2006 Note— For more detail, see the definition public sector employer in the Queensland referral Act, section 3(1). (b) local governments, and entities established under local government legislation, and their employees. Note— For more detail, see the definition local government sector employer in the Queensland referral Act, section 3(1). (3) Also, this Act generally applies to other employers, and their employees, if— (a) the employers are declared by Queensland law not to be national system employers for the Commonwealth Fair Work Act; and (b) the declaration is endorsed by the Minister under the Commonwealth Fair Work Act. Note— See also chapter 16 and the Commonwealth Fair Work Act, section 14(2). 13 Who this Act applies to—particular provisions (1) The provisions of the Queensland Employment Standards about long service leave, jury service leave and emergency service leave may apply to employers and employees who are generally covered by the Commonwealth Fair Work Act. Note— See also— • the Commonwealth Fair Work Act, section 27(2) • the Queensland referral Act, section 3(1), definition excluded subject matter. (2) Provisions of chapter 11, part 3, division 4 about civil remedies under the Fair Work Act 2009 (Cwlth), chapter 4, part 4-1 apply to employers and employees who are generally covered by that Act. Chapter 2 Modern employment conditions Part 1 Preliminary 14 Definitions for chapter In this chapter— applicable industrial instrument means any of the following— (a) a modern award; (b) a certified agreement or bargaining award; (c) an arbitration determination. long term casual employee see section 15. ordinary hours of work, for an employee, means— (a) the employee's ordinary hours of work as provided for under an applicable industrial instrument that applies to the employee; or (b) if paragraph (a) does not apply—the hours agreed by the employee and the employee's employer as the employee's ordinary hours of work. relevant industrial instrument, in relation to an employee, means an applicable industrial instrument that applies to the employee. short term casual employee means a casual employee, other than a long term casual employee. 15 Meaning of long term casual employee (1) For this chapter, a long term casual employee is a casual employee engaged by a particular employer, on a regular and systematic basis, for 1 or more periods of employment during the 1 year immediately before the employee seeks to access an entitlement under this chapter. (2) The periods of employment mentioned in subsection (1) include periods before and after the commencement of this section. Part 2 Interaction of elements of industrial relations system 16 What part is about This part explains— (a) how elements of the industrial relations system interact with each other; and (b) how particular elements of the industrial relations system prevail over other elements. 17 Relationship between Queensland Employment Standards and other laws The Queensland Employment Standards have effect despite an inconsistency with another law of the State, unless the other law provides an employee with a benefit that is at least as favourable for the employee as the Queensland Employment Standards. 18 Relationship between Queensland Employment Standards and industrial instruments (1) An industrial instrument may not include a provision that displaces, or is otherwise inconsistent with, the Queensland Employment Standards, unless the provision is at least as favourable for an employee as the Queensland Employment Standards. (2) The Queensland Employment Standards have effect subject to provisions included in an industrial instrument mentioned in subsection (1). 19 Relationship of modern award with certified agreement (1) A modern award may apply to an employee in relation to particular employment at the same time as a certified agreement applies to the employee in relation to the employment. (2) If both a modern award and certified agreement apply to an employee in relation to particular employment, the certified agreement prevails to the extent of any inconsistency. (3) While a project agreement operates, it operates to the exclusion of any certified agreement. 20 Relationship of modern award with contract of employment (1) A modern award prevails over a relevant contract to the extent of any inconsistency. (2) The contract must be interpreted, and takes effect, as if it were amended to the extent necessary to make the contract consistent with the modern award. (3) However, there is no inconsistency only because the contract provides for employment conditions at least as favourable for the employee as the modern award. (4) In this section— relevant contract means a contract of employment that is— (a) in force when the modern award comes into operation; or (b) made while the modern award is in operation. Part 3 Queensland Employment Standards Division 1 Preliminary 21 Meaning of Queensland Employment Standards (1) This part provides for minimum standards of employment of employees that apply to employees and which can not be displaced except under this chapter. (2) The minimum standards relate to the following matters— (a) minimum wage—division 2; (b) maximum weekly hours—division 3; (c) a right to request flexible working arrangements—division 4; (d) annual leave—division 5; (e) personal leave, including sick leave, carer's leave, bereavement leave, compassionate leave and cultural leave—division 6; (f) domestic and family violence leave—division 7; (g) parental leave—division 8; (h) long service leave—division 9; (i) public holidays—division 10; (j) emergency service leave—division 11; (k) jury service leave—division 12; (l) notice of termination and redundancy pay—division 13; (m) superannuation contributions—division 13A; (n) information statements—division 14. (3) Divisions 2 to 14 are the Queensland Employment Standards. Division 2 Minimum wage 22 Entitlement to minimum wage (1) An employee is entitled to a wage that is not less than the Queensland minimum wage. (2) This section does not apply to an employee who is excluded under section 459(2) from the operation of the full bench's general ruling declaring the Queensland minimum wage. Division 3 Maximum weekly hours 23 Maximum weekly hours (1) An employer must not ask or require an employee to work more than the following number of hours in a week— (a) for a full-time employee—38 hours; (b) for an employee who is not a full-time employee—the lesser of— (i) 38 hours; or (ii) the employee's ordinary hours of work. (2) However, the employer may ask or require an employee to work additional hours if the hours are reasonable under section 26. (3) The employee may refuse to work additional hours beyond the number of hours mentioned in subsection (1)(a) or (b) if working the additional hours is not reasonable under section 26. (4) The hours an employee works in a week under subsection (1)(a) or (b) are taken to include any hours of leave, or absence, whether paid or unpaid, that the employee takes in the week and that are authorised— (a) by the employee's employer; or (b) under a term or condition of the employee's employment; or (c) under a law of the State or an industrial instrument. 24 Applicable industrial instruments may provide for averaging of hours of work (1) An applicable industrial instrument may include terms providing for the averaging of hours of work over a stated period. (2) However, the average weekly hours over the period stated in the applicable industrial instrument must not exceed— (a) for a full-time employee—38 hours; or (b) for an employee who is not a full-time employee—the lesser of— (i) 38 hours; or (ii) the employee's ordinary hours of work. (3) An applicable industrial instrument may provide for average weekly hours that exceed the hours mentioned in subsection (2)(a) or (b) only if the excess hours are reasonable under section 26. (4) If an employee works hours in a week in excess of the hours mentioned in subsection (2)(a) or (b)— (a) the hours are additional hours under section 23; and (b) the employee may only work the additional hours under section 23. Note— In deciding whether the employee may work the additional hours under section 23, regard must be had to the averaging terms under section 26(i). 25 Averaging of hours of work for employees not covered by applicable industrial instruments (1) An employer and an employee who are not covered by an applicable industrial instrument may agree in writing to an averaging arrangement under which hours of work over a stated period of not more than 26 weeks are averaged. (2) However, the average weekly hours over the period stated in the arrangement must not exceed— (a) for an employee employed on a full-time basis—38 hours; or (b) for an employee employed on a part-time or casual basis—the lesser of— (i) 38 hours; or (ii) the employee's ordinary hours of work. (3) The arrangement may provide for average weekly hours in excess of the hours mentioned in subsection (2)(a) or (b) only if the excess hours are reasonable under section 26. (4) If an employee works hours in a week in excess of the hours mentioned in subsection (2)(a) or (b)— (a) the hours are additional hours under section 23; and (b) the employee may only work the additional hours under section 23. Note— In deciding whether the employee may work the additional hours under section 23, regard must be had to an averaging arrangement under section 26(i). 26 Deciding whether additional hours are reasonable In deciding whether additional hours are reasonable or not reasonable, the following matters must be taken into account— (a) any risk to the employee's health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of the employee's intention to refuse to work the additional hours; (g) the usual patterns of work in the calling in which the employee works; (h) the nature of the employee's role, and the employee's level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 24 in an applicable industrial instrument that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 25; (j) any other relevant matter. Division 4 Flexible working arrangements 27 Request for flexible working arrangements (1) An employee may ask the employee's employer for a change in the way the employee works, including— (a) the employee's ordinary hours of work; and (b) the place where the employee works; and (c) a change to the way the employee works, for example, the use of different equipment as a result of a disability, illness or injury. (2) The request must— (a) be in writing; and (b) state the change in the way the employee works in sufficient detail to allow the employer to make a decision about the request; and (c) state the reasons for the change. 28 Decision about request for flexible working arrangements (1) The employer may decide to— (a) grant the request; or (b) grant the request in part or subject to conditions; or (c) refuse the request. (2) The employer may grant the request in part or subject to conditions, or refuse the request, only on reasonable grounds. (3) The employer must give the employee written notice about its decision within 21 days after receiving the request. (4) If the employer decides to grant the request in part or subject to conditions or to refuse the request, the written notice about the decision must state— (a) the written reasons for the decision, outlining the reasonable grounds for granting the request in part or subject to conditions or for the refusal; and (b) that the commission has jurisdiction to hear and decide a dispute over the request under chapter 6. 29 Deemed refusal of request for flexible working arrangements If the employer does not give the written notice about the employer's decision within 21 days after receiving the request, the employer is taken to have decided to refuse the request. Note— The commission has jurisdiction to hear and decide a dispute over the request under chapter 6. Division 5 Annual leave Subdivision 1 Entitlement to annual leave 30 Application of subdivision This subdivision does not apply to— (a) casual employees; or (b) pieceworkers; or (c) school-based apprentices or trainees. 31 Entitlement (1) For each completed year of employment with an employer, an employee is entitled to— (a) if the employee is not a shift worker—at least 4 weeks annual leave; or (b) if the employee is a shift worker—at least 5 weeks annual leave. (2) Annual leave is exclusive of a public holiday that falls during the leave. (3) However, if an employee is entitled to additional annual leave as compensation for working on a particular public holiday, annual leave is inclusive of the particular public holiday. (4) Annual leave accumulates. (5) This section does not confer an entitlement or an additional entitlement in relation to employment before 4 June 1999. (6) In this section— shift worker means an employee who— (a) is employed in a calling in which shifts are worked 24 hours a day, 7 days a week; and (b) works a rotating roster that includes each of the shifts. 32 Working out completed year of employment (1) This section applies for working out a completed year of employment for section 31. (2) The following periods when an employee is absent without pay are not to be taken into account— (a) a period of more than 3 months when an employee is absent with the employer's approval; (b) a period when an employee is absent without the employer's approval, unless the employee is absent for not more than 3 months because of illness or injury that is certified by a doctor. Subdivision 2 Taking annual leave 33 When annual leave may be taken (1) An employee and employer may agree when the employee is to take annual leave. (2) The employer must not unreasonably refuse to agree when the employee is to take the leave. (3) If the employee and employer can not agree, the employer— (a) may decide when the employee is to take leave; and (b) must give the employee at least 8 weeks written notice of the starting date of the leave. (4) An employee and employer may agree that the employee take all or any part of the employee's annual leave before becoming entitled to it. (5) If the employee takes leave before becoming entitled to it, the employee is only entitled, at the end of the completed year of employment, to the balance of the leave that would be due at the end of the year. 34 Terms that may be included in applicable industrial instruments An applicable industrial instrument may include the following— (a) terms requiring an employee to take annual leave in particular circumstances, but only if the requirement is reasonable; (b) terms otherwise dealing with the taking of annual leave. Subdivision 3 Payment for annual leave 35 Payment for annual leave (1) Unless an employee and employer otherwise agree, the employer must pay the employee for annual leave in advance. (2) The employer must pay for the leave— (a) at the ordinary rate being paid to the employee immediately before the leave is taken; or (b) if, immediately before taking the leave, the employee is being paid at a higher rate than the ordinary rate—at the higher rate. (3) If an employee is entitled to receive an amount representing commission in the employee's annual leave payment, the employer must pay the default average commission unless— (a) a relevant industrial instrument, or a contract between the employer and employee, otherwise provides; or (b) the commission, on application, considers the default average commission would not represent a fair amount in the circumstances. (4) If, on application under subsection (3)(b), the commission considers the default average commission would not represent a fair amount in the circumstances, the commission may make the order it considers appropriate in the circumstances. (5) In this section— default average commission means the amount worked out by the following formula— where— dac means the default average commission. c means the lesser of the following total commissions— (a) total commissions payable to the employee in the 1 year before the leave is taken; (b) total commissions payable to the employee during the employee's period of employment. d means the lesser of the following— (a) 365.25; (b) the number of days in the employee's period of employment. ld means the number of days in the period starting on the day the leave starts and ending on the day before the employee is to return to work. 36 Annual leave loading (1) In addition to the employee's annual leave entitlement under this division, the employee is entitled to receive a further amount of at least 17½% of the amount payable under section 35(2)(a). (2) However, if the employee's employer pays the employee a prescribed additional amount and the amount— (a) is less than 17½% of the amount payable under section 35(2)(a)—the employee is entitled to receive a further amount so the employee receives the amount the employee is entitled to under subsection (1); or (b) is at least 17½% of the amount payable under section 35(2)(a)—the employee is not entitled to receive an amount under subsection (1). (3) In this section— prescribed additional amount means an amount, however described, in addition to the employee's annual leave entitlement under this division. Example of how a prescribed additional amount might be described— annual leave bonus, annual leave loading Subdivision 4 Cashing out annual leave 37 Requirements for cashing out annual leave (1) Annual leave may not be cashed out except under this section. (2) An employer and an employee may agree to the employee cashing out a particular amount of the employee's annual leave. (3) The employer and employee must not agree to the employee cashing out an amount of annual leave if the cashing out would result in the employee's accrued annual leave entitlement being less than 4 weeks. (4) Each cashing out of a particular amount of annual leave must be by a separate agreement in writing. (5) The employer must pay the employee at least the full amount that would have been payable to the employee had the employee taken the annual leave that has been forgone. Subdivision 5 Payment on termination of employment 38 Payment for annual leave on termination of employment (1) This section applies if an employee's employment is terminated by the employee or employer. (2) If the employee has not taken all the annual leave the employee is entitled to, the employee is presumed to have taken the leave from the day the termination takes effect (the termination day). (3) The employer must pay the employee for the annual leave not taken, including— (a) any public holiday during the period the employee is presumed to have taken the leave; and (b) any annual leave loading the employee is entitled to under section 36. (4) If the employee has worked part of a year, the employer must pay the employee the proportionate annual leave for the part of the year the employee worked, including any annual leave loading the employee is entitled to under section 36. (5) The employer must pay the employee at least the ordinary rate being paid to the employee immediately before the termination day, unless an applicable industrial instrument states otherwise. Division 6 Personal leave Subdivision 1 Sick leave 39 Application of subdivision This subdivision does not apply to— (a) casual employees; or (b) pieceworkers; or (c) school-based apprentices or trainees. 40 Entitlement to sick leave (1) An employee is entitled to at least 10 days sick leave on full pay for each completed year of employment with an employer. (2) An employee's entitlement to paid sick leave accumulates— (a) progressively during a year of employment according to the employee's ordinary hours of work; and (b) from year to year. (3) Sick leave may be taken for part of a day. Notes— 1 An employee is ordinarily required to work for 7.6 hours on a particular day and on that day becomes sick after working 3 hours. The employee may take sick leave for the remaining 4.6 hours that the employee is unable to work because of the sickness. 2 An employee is ordinarily required to perform work for 38 hours a week over 5 days, but has come to an arrangement with the employer to work 9.5 hours a day for 4 days a week. If the employee is unable to work because of sickness on a day, the employee may take 9.5 hours sick leave, which equates to 11/4 days sick leave. (4) Sick leave is exclusive of a public holiday that falls during the leave. (5) This section does not confer an entitlement or an additional entitlement in relation to employment before the commencement of this section. (6) In this section— day, for an employee who is paid on the basis of the number of hours worked, means— (a) for an employee for whom an applicable industrial instrument provides sick leave—a day within the meaning of the instrument to the extent it relates to sick leave; or (b) otherwise—one-fifth of the number of the employee's ordinary hours of work for a week, averaged over each completed 6 weeks of employment with the employer. 41 Requirement for employee to give notice etc. (1) An employee's entitlement under section 40 is conditional on— (a) the employee promptly notifying the employer of— (i) any illness that will cause the employee to be absent from work; and (ii) the approximate period for which the employee will be absent; and (b) if the employee is absent for more than 2 days and the employer requires evidence of the illness—the employee giving the employer sufficient evidence of the illness to satisfy a reasonable person. (2) This section does not apply if— (a) an applicable industrial instrument provides otherwise; or (b) the employee and employer agree otherwise. Subdivision 2 Carer's leave 42 Entitlement—employees other than casual employees (1) This section does not apply to a casual employee. (2) An employee may take up to 10 days of sick leave each year on full pay (carer's leave) to care for or support— (a) a person who is a member of the employee's immediate family or household— (i) when the person is ill; or (ii) because an unexpected emergency arises in relation to the person; or (b) a person who has experienced domestic violence. (3) If the employee has exhausted the entitlement under subsection (2), the employee may take up to an additional 2 days unpaid carer's leave each time the employee needs to take the leave. (4) The employee may take additional unpaid carer's leave with the employer's agreement. (5) Carer's leave may be taken for part of a day. (6) In this section— sick leave includes sick leave accrued before the commencement of this section. 43 Entitlement—long term casual employees (1) This section applies to a long term casual employee. (2) The employee is entitled to 10 days of leave (also carer's leave) in each year to care for or support— (a) a person who is a member of the employee's immediate family or household— (i) when the person is ill; or (ii) because an unexpected emergency arises in relation to the person; or (b) a person who has experienced domestic violence. (3) The employee may take additional carer's leave if the employer agrees. (4) Carer's leave may be taken for part of a day. (5) The employer must not fail to re-engage the employee only because the employee has taken carer's leave under this section. (6) Leave taken under this section is unpaid. 44 Entitlement—short term casual employees (1) This section applies to a short term casual employee. (2) The employee is entitled to leave work or to be unavailable to attend work for up to 2 days (also carer's leave) each time the employee needs to care for or support— (a) a person who is a member of the employee's immediate family or household— (i) when the person is ill; or (ii) because an unexpected emergency arises in relation to the person; or (b) a person who has experienced domestic violence; or (c) members of the employee's immediate family or household because of the birth of a child. (3) The employee may leave work or be unavailable to attend work to take carer's leave for additional periods if the employer agrees. (4) Carer's leave may be taken for part of a day. (5) The employer must not fail to re-engage the employee only because the employee has taken carer's leave under this section. (6) However, the rights of an employer not to re-engage the employee are not otherwise affected. 45 Employee to provide evidence to employer (1) If an employee takes carer's leave to care for or support a person who is ill for more than 2 consecutive days, the employee must, if required by the employer, give the employer sufficient evidence to satisfy a reasonable person that the person is ill with an illness requiring care or support by another person. (2) If an employee takes carer's leave to care for or support a person who has experienced domestic violence, the employee must, if required by the employer, give the employer— (a) a statutory declaration evidencing that the leave is necessary; or (b) evidence mentioned in section 45(3)(a) to (d). (3) The employee must give the employer— (a) notice of the intention to take carer's leave; and (b) the name of the person requiring care and the person's relationship to the employee; and (c) the reason for taking the leave; and (d) the period the employee estimates the employee will be absent; and (e) if the reason for taking the leave is because an unexpected emergency has arisen—the nature of the emergency. (4) The information mentioned in subsection (3)(a) to (e) must be given to the employer— (a) if practicable, before the employee takes the leave; or (b) otherwise, at the first reasonable opportunity. (5) An employer who receives evidence under this section about a person who has experienced domestic and family violence must not disclose the evidence to someone else unless the disclosure is required or permitted under an Act. Subdivision 3 Bereavement and compassionate leave 46 Application of subdivision This subdivision does not apply to pieceworkers. 47 Entitlement—employees other than casual employees (1) This section applies to an employee, other than a casual employee. (2) The employee is entitled to— (a) at least 2 days bereavement leave on full pay on each occasion when— (i) a member of the employee's immediate family or household dies; or (ii) the employee, or the employee's spouse, is pregnant and the pregnancy ends other than by the birth of a living child; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (3) Also, the employee is entitled to 2 days compassionate leave on full pay on each occasion when a member of the employee's immediate family or household— (a) contracts or develops a personal illness that poses a serious threat to the person's life; or (b) sustains a personal injury that poses a serious threat to the person's life. 48 Entitlement—casual employees (1) A long term casual employee is entitled to— (a) at least 2 days unpaid bereavement leave on each occasion when— (i) a member of the employee's immediate family or household dies; or (ii) the employee, or the employee's spouse, is pregnant and the pregnancy ends other than by the birth of a living child; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (2) A short term casual employee is entitled to be unavailable to attend work for— (a) at least 2 days on unpaid bereavement leave on each occasion when— (i) a member of the employee's immediate family or household dies; or (ii) the employee, or the employee's spouse, is pregnant and the pregnancy ends other than by the birth of a living child; and (b) if the employee reasonably requires extra time to travel to and from the funeral or other ceremony for the death—an amount of unpaid bereavement leave equal to the time reasonably required for the travel. (3) Also, a casual employee is entitled to 2 days unpaid compassionate leave on each occasion when a member of the employee's immediate family or household— (a) contracts or develops a personal illness that poses a serious threat to the person's life; or (b) sustains a personal injury that poses a serious threat to the person's life. (4) The employer must not fail to re-engage a casual employee only because the employee has taken bereavement leave or compassionate leave under this section. (5) However, the rights of an employer not to re-engage a casual employee are not otherwise affected. 49 Evidence to be provided by employee (1) An employee who takes bereavement leave must give the employer a copy of the funeral notice or other evidence of the death the employer reasonably requires. (2) An employee who takes compassionate leave must give the employer sufficient evidence to satisfy a reasonable person that the employee was taking compassionate leave because a member of the employee's family or household's life was threatened by personal illness or personal injury. 50 Additional leave An employee may take additional leave as unpaid bereavement leave or compassionate leave if the employer agrees. Subdivision 4 Cultural leave 51 Entitlement (1) This section applies to an employee who is required by Aboriginal tradition or Island custom to attend an Aboriginal or Torres Strait Islander ceremony. (2) The employee may take up to 5 days unpaid cultural leave in each year, if the employer agrees. (3) The employer must not unreasonably refuse the leave. (4) In considering the employee's request for leave, the employer must consider at least the following— (a) the employer's capacity to reorganise work arrangements to accommodate the employee's request; (b) the impact of the employee's absence on the delivery of customer service; (c) the particular circumstances of the employee; (d) the impact of a refusal on the employee, including the employee's ability to balance work and family responsibilities. (5) The employee must, if practicable, give the employer— (a) reasonable notice of the intention to take cultural leave before taking the leave; and (b) the reason for taking the leave; and (c) the period that the employee estimates the employee will be absent. (6) If it is not practicable for the employee to give the notice before taking the leave, the employee must give the employer notice of the matters in subsection (5)(b) and (c) at the first opportunity. (7) It is declared that leave provided under this section is a welfare measure for the purposes of the Anti-Discrimination Act 1991, section 104. Division 7 Domestic and family violence leave 52 Entitlement to domestic and family violence leave (1) An employee, including a casual employee, is entitled to 10 days of domestic and family violence leave on full pay in a year if— (a) the employee has experienced domestic violence; and (b) the employee needs to take domestic and family violence leave as a result of the domestic violence. (2) Without limiting subsection (1), the employee may need to take domestic and family violence leave if the employee is— (a) recovering from an injury caused by the violence; or (b) attending an appointment related to the violence, including an appointment to attend counselling, to obtain legal advice, for medical treatment or with police officers; or (c) preparing for a court appearance related to the violence; or (d) attending court for a proceeding related to the violence; or (e) finding housing that is necessary because of the violence; or (f) organising child care or the education of a child that is necessary because of the violence. (3) If an employee has exhausted the entitlement under subsection (1) the employee may, with the employer's agreement, take additional days of unpaid domestic and family violence leave. (4) Domestic and family violence leave may be taken for part of a day. (5) An employee's entitlement to domestic and family violence leave under subsection (1) does not accumulate from year to year. (6) The employer must not fail to re-engage a casual employee only because the employee has taken domestic and family violence leave. (7) In this section— day, for an employee mentioned in subsection (1) who is paid on the basis of the number of hours worked, means one-fifth of the number of the employee's ordinary hours of work for a week, averaged over each completed 6 weeks of employment with the employer. 53 Requirement for employee to give notice (1) An employee's entitlement to domestic and family violence leave is conditional on the employee giving the employer notice of— (a) the employee's absence from work; and (b) if it is possible to notify the employer before the leave is taken—the approximate period the employee will be absent. (2) The employee must give the employer notice under subsection (1)— (a) before or on the day the employee is to take the leave; or (b) if it is not possible to notify the employer before the leave is taken—during the leave or as soon as possible after the leave ends. 54 Employer may request evidence (1) An employer may ask an employee to give the employer evidence that the employee has experienced domestic violence and needs to take leave as a result. (2) The employee must comply with the request. (3) Without limiting subsection (2), the employee may comply with the request by giving the employer— (a) evidence from the police; or (b) evidence of a legal proceeding or a court report; or (c) evidence from a doctor or other health practitioner; or (d) a report from a counsellor; or (e) written advice or a statutory declaration from the employee. (4) An employer who receives evidence under this section must not disclose the evidence to someone else unless the disclosure is required or permitted under an Act. Division 8 Parental and related leave Subdivision 1 Preliminary 55 Application of division This division does not apply to— (a) short term casual employees; or (b) seasonal employees; or (c) pieceworkers. 56 Explanation of types of parental leave (1) This division provides for parental leave. (2) The types of parental leave are as follows— (a) birth-related leave, for— (i) an employee who is pregnant; or (ii) an employee whose spouse gives birth; Notes— 1 Birth-related leave for a pregnant employee may be taken by a pregnant employee in connection with the child's birth or to enable the employee to be responsible for the care of the child. 2 Birth-related leave for an employee whose spouse gives birth may be short (in connection with the child's birth) or long (to enable the employee to be responsible for the care of the child). (b) adoption leave, for an employee who adopts a child; Note— Adoption leave may be short (in connection with the child's adoption) or long (to enable the employee to be responsible for the care of the child). (c) surrogacy leave, for an employee who is an intended parent under a surrogacy arrangement; Note— Surrogacy leave may be short (when the child born as a result of the surrogacy arrangement starts residing with the employee) or long (to enable the employee to be responsible for the care of the child). (d) cultural parent leave, for an employee who is a cultural parent under a cultural recognition order under the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020. Note— Cultural parent leave may be short (in connection with the transfer of parentage to the cultural parent) or long (to enable the employee to be responsible for the care of the child). 57 Definitions for division In this division— adoption leave means short adoption leave or long adoption leave. birth-related leave means short birth-related leave or long birth-related leave. child means— (a) for adoption leave—a child who is under the age of 16 years, but does not include a child who, immediately before the child was adopted by the employee— (i) had been living with the employee for a continuous period of at least 6 months; or (ii) was the employee's stepchild or the child or stepchild of the employee's spouse; or (b) for surrogacy leave—a child born as a result of a surrogacy arrangement; or (c) for cultural parent leave—a child who is under the age of 16 years, but does not include a child who, immediately before the child's parentage was transferred to the employee, had been living with the employee for a continuous period of at least 6 months. cultural parent see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, section 10. cultural parent leave means short cultural parent leave or long cultural parent leave. cultural recognition order see the Meriba Omasker Kaziw Kazipa (Torres Strait Islander Traditional Child Rearing Practice) Act 2020, schedule 1. intended cultural parent means a cultural parent whose application for a cultural recognition order has not been decided. intended parent, for a surrogacy arrangement, see the Surrogacy Act 2010, section 9. long adoption leave means leave taken by an employee to enable the employee to be responsible for the care of a child adopted by the employee. long birth-related leave means— (a) leave taken by a pregnant employee— (i) for the birth of the employee's child; or (ii) to enable the employee to be responsible for the care of the child; or (b) leave taken by an employee whose spouse has given birth to a child to enable the employee to be responsible for the care of the employee's child. long cultural parent leave means leave taken by an employee to enable the employee to be responsible for the care of a child whose parentage is transferred to the employee under a cultural recognition order. long parental leave means— (a) long birth-related leave; or (b) long adoption leave; or (c) long surrogacy leave; or (d) long cultural parent leave. long surrogacy leave means leave taken by an employee to enable the employee to be responsible for the care of the employee's surrogate child. parental leave means long parental leave or short parental leave. short adoption leave means leave taken by an employee who is responsible for the care of an adopted child after the child is adopted by the employee. short birth-related leave means leave taken by an employee who is responsible for the care of a child in connection with the birth of the child of the employee's spouse— (a) after the birth of the child; or (b) at the time the pregnancy ends other than by the birth of a living child or stillborn child. short cultural parent leave means leave taken by an employee who is responsible for the care of a child after the child's parentage is transferred to the employee under a cultural recognition order. short parental leave means— (a) short birth-related leave; or (b) short adoption leave; or (c) short surrogacy leave; or (d) short cultural parent leave. short surrogacy leave means leave taken by an employee who is responsible for the care of the employee's surrogate child after the child starts residing with the employee. stillborn child means a child— (a) who has shown no sign of respiration or heartbeat, or other sign of life, after delivery of the child has been completed; and (b) who— (i) has been gestated for 20 weeks or more; or (ii) weighs 400g or more. surrogacy arrangement see the Surrogacy Act 2010, section 7. surrogacy leave means long surrogacy leave or short surrogacy leave. surrogate child, of an employee, means a child born as a result of a surrogacy arrangement in which the employee has agreed to become permanently responsible for the custody and guardianship of the child. Subdivision 2 Parental leave entitlement 58 Application of subdivision (1) This subdivision applies to— (a) an employee, other than a long term casual employee, who has had at least 12 months continuous service with the employer; and (b) a long term casual employee. (2) Also, this subdivision applies subject to section 87B. Note— Section 87B ends an employee's entitlement to parental leave under this subdivision when the employee takes unpaid flexible parental leave under that section. (3) In this section— continuous service means service, including a period of authorised leave or absence, under an unbroken contract of employment. 59 Entitlement to birth-related leave (1) A pregnant employee is entitled to an unbroken period of up to 52 weeks unpaid birth-related leave. (2) For the birth of a child of an employee's spouse, the employee is entitled to— (a) a total of 8 weeks unpaid short birth-related leave; or (b) an unbroken period of up to 52 weeks unpaid long birth-related leave. (3) The employee's short birth-related leave— (a) if the employee's spouse gave birth to a child and is taking long birth-related leave—may be taken concurrently with the employee's spouse's long birth-related leave; and (b) may be taken in an unbroken period or broken periods; and (c) if the employee takes short birth-related leave other than immediately after the birth of the child—must be for a minimum 2-week period. 60 Entitlement to adoption leave (1) For the adoption of a child, an employee is entitled to— (a) a total of 8 weeks unpaid short adoption leave; or (b) an unbroken period of up to 52 weeks unpaid long adoption leave. (2) The employee's short adoption leave— (a) if the employee's spouse is taking long adoption leave—may be taken concurrently with the employee's spouse's long adoption leave; and (b) may be taken in an unbroken period or broken periods; and (c) if the employee takes short adoption leave other than immediately after the adoption of the child—must be taken for a minimum 2-week period. 61 Entitlement to surrogacy leave (1) An employee who is an intended parent under a surrogacy arrangement is entitled to— (a) a total 8 weeks unpaid short surrogacy leave; or (b) an unbroken period of up to 52 weeks unpaid long surrogacy leave. (2) The employee's short surrogacy leave— (a) if the employee's spouse is taking long surrogacy leave—may be taken concurrently with the employee's spouse's long surrogacy leave; and (b) may be taken in an unbroken period or broken periods; and (c) if the employee takes short surrogacy leave other than immediately after the employee's surrogate child starts residing with the employee—must be for a minimum 2-week period. 61A Entitlement to cultural parent leave (1) An employee who is a cultural parent under a cultural recognition order is entitled to— (a) a total of 8 weeks unpaid short cultural parent leave; or (b) an unbroken period of up to 52 weeks unpaid long cultural parent leave. (2) The employee's short cultural parent leave— (a) if the employee's spouse is taking long cultural parent leave—may be taken concurrently with the employee's spouse's long cultural parent leave; and (b) may be taken in an unbroken period or broken periods; and (c) if the employee takes short cultural parent leave other than immediately after the transfer of the child's parentage to the employee—must be taken for a minimum 2-week period. 62 Maximum period of parental leave (1) Parental leave must not extend— (a) beyond 52 weeks after— (i) the child was born; or (ii) the child was adopted; or (iii) the child started residing with the employee under the surrogacy arrangement; or (iv) the child's parentage was transferred to the employee under a cultural recognition order; or (b) if an application for an extension of parental leave under section 73 is agreed to—beyond 104 weeks after— (i) the child was born; or (ii) the child was adopted; or (iii) the child started residing with the employee under the surrogacy arrangement; or (iv) the child's parentage was transferred to the employee under a cultural recognition order. (2) However, if an employee takes long parental leave and the employee's spouse takes short parental leave concurrently with the employee, the parental leave the employee is allowed to take under subsection (1) is reduced by the amount of leave concurrently taken by the employee's spouse. (3) The maximum period of parental leave allowed under subsection (1) or (2) is the maximum period of parental leave. (4) This section applies despite sections 59 to 61. Subdivision 3 Notices and information 63 Employee notice—intention of pregnant employee to take birth-related leave (1) This section applies if a pregnant employee wants to take birth-related leave. (2) The employee must give the employer— (a) at least 10 weeks written notice of intention to take the leave; and (b) at least 4 weeks written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer— (a) if required by the employer—sufficient evidence to satisfy a reasonable person that the employee is pregnant and the expected date of birth; and (b) a statutory declaration by the employee stating the period of any parental leave sought by the employee's spouse. (4) Without limiting subsection (3)(a), the employer may require the evidence to be a health practitioner's certificate confirming the matters mentioned in that subsection. 64 Employee notice—intention of pregnant employee's spouse to take birth-related leave (1) This section applies if an employee whose spouse is pregnant or has given birth to a child wants to take birth-related leave. (2) The employee must give the employer— (a) for long birth-related leave—at least 10 weeks written notice of intention to take the leave; and (b) at least 4 weeks written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer— (a) if required by the employer—sufficient evidence to satisfy a reasonable person that the employee's spouse is pregnant and the expected date of birth; and (b) for long birth-related leave—a statutory declaration by the employee stating— (i) the period of any birth-related leave sought by the employee's spouse; and (ii) that the employee is seeking the leave because the employee is to be responsible for the care of the child. (4) Without limiting subsection (3)(a), the employer may require the evidence to be a health practitioner's certificate confirming the matters mentioned in that subsection. 65 Employee notice—intention to take adoption leave (1) This section applies if an employee wants to take adoption leave. (2) The employee must give the employer— (a) for long adoption leave—written notice of any approval to adopt a child at least 10 weeks before the expected date of adoption (the expected adoption date); and (b) written notice of the dates on which the employee wants to start and end the leave, as soon as practicable after the employee is notified of the expected adoption date but, in any case, at least 14 days before starting the leave. (3) The employee must, before starting the leave, give the employer— (a) a statement from an adoption agency of the expected adoption date; and (b) for long adoption leave—a statutory declaration by the employee stating— (i) the period of any adoption leave sought by the employee's spouse; and (ii) that the employee is seeking the leave because the employee is to be responsible for the care of the child. (4) In this section— adoption agency means an agency, body, office or court, authorised by a Commonwealth law or State law to perform functions about adoption. 66 Employee notice—intention to take surrogacy leave (1) This section applies if an employee wants to take surrogacy leave. (2) The employee must give the employer— (a) for long surrogacy leave—written notice of intention to take the leave at least 10 weeks before the expected date when the employee's surrogate child is to start residing with the employee under the surrogacy arrangement (the expected residence date); and (b) at least 4 weeks written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer a statutory declaration by the employee stating— (a) the employee is an intended parent under a surrogacy arrangement; and (b) the expected residence date; and (c) for long surrogacy leave— (i) the period of leave sought by the employee; and (ii) the period of any surrogacy leave sought by the employee's spouse; and (iii) that the employee is seeking the leave because the employee is to be responsible for the care of the child. 66A Employee notice—intention to take cultural parent leave (1) This section applies if an employee wants to take cultural parent leave. (2) The employee must give the employer— (a) for long cultural parent leave—written notice of intention to take the leave at least 10 weeks before the expected date when a cultural recognition order will be made transferring a child's parentage to the employee (the expected parental transfer date); and (b) at least 4 weeks written notice of the dates on which the employee wants to start and end the leave. (3) The employee must, before starting the leave, give the employer a statutory declaration by the employee stating— (a) the employee is an intended cultural parent; and (b) the expected parental transfer date; and (c) for long cultural parent leave— (i) the period of leave sought by the employee; and (ii) the period of any cultural parent leave sought by the employee's spouse; and (iii) that the employee is seeking the leave because the employee is to be responsible for the care of the child. 67 Reasons not to give notice or documents (1) An employee does not fail to comply with section 63, 64, 65 or 66 if the failure was caused by— (a) the child being born, or the pregnancy otherwise terminating, before the expected date of birth; or (b) the child's adoption before the expected adoption date; or (c) the child starting to reside with the employee before