Parental Leave for employees in relation to Altruistic Surrogacy and Permanent out of Home Care.
Section 52 (1) Determination No 1 of 2018: For Employees of the Public Service of NSW.
In 2015, the PSA and other unions started to approach NSW Treasury due to issues of workers not being able to access parental leave in a timely manner for surrogacy and permanent OOHC arrangements (long-term fostering).
In 2017 NSW Treasury proposed to make leave accessible for employees becoming parents through surrogacy arrangements or caring for children through out of home care arrangements.
In June 2017 Unions NSW wrote to the Executive Director of Industrial Relations NSW Treasury to endorse the new protocol for surrogacy and permanent OOHC and recommended unions should be able apply for consent variations in relevant awards to reflect this.
In the same correspondence Unions NSW informed PSIR some public sector agencies had been denying access to Maternity Leave for employees who have become parents by way of surrogacy.
The final determination was finalised in 2018 and endorsed by NSW Treasury. The Arrangements were signed off on the 6/3/18. The memo was sent out in late December 2018.
The PSA, with other public sector unions, was invited to meet with NSW Treasury’s Industrial Relations team on 30 January 2019 to review the Determination and hear any feedback from public sector unions. Laura Moss (Research Officer) and Rachel O’Shea (Industrial Officer, Women’s Unit) attended this meeting of review. Feedback from the PSA and other unions present, was that it is too early after the Christmas break (when the memo was publicised) to give any feedback or examples of our members trying to access this leave and being denied it.
The issue was then raised about the amount of documentation requested as proof (or to demonstrate) they are the parent of the child.
The requirements to apply for these entitlements are:
- Four months’ notice before the birth of the child and copy of the Agreement (under the Surrogacy Act 2010)
- When assuming the role of primary or secondary carer, a statutory declaration must be provided advising they are intending to make application for the parenting order under the same act
- A copy of the application as soon as its lodged
- A copy of the parentage order is provided after it is granted.
The other issue was that the birth parent has the right to access Maternity Leave, but may not be aware of this as it is not apparent in the Determination document.
Other rights are:
- An entitlement to 12 months’ unpaid leave for permanent caring arrangements
- Employees taking leave for altruistic surrogacy or out-of-home care can request extended parental leave and part time return to work
- The birth parent may still access Maternity Leave.
If you wish to share your experience or questions about this determination with the PSA Women’s Unit, please contact .
Rachel O’Shea
Industrial Officer (Women’s Unit)
