WORKPLACE RELATIONS ACT 1996 - SECT 268 Transfer to a safe job

This legislation has been repealed.

WORKPLACE RELATIONS ACT 1996 - SECT 268

             (1)  This section applies to an employee if:

                     (a)  she is entitled to ordinary maternity leave; and

                     (b)  she has already complied with the documentation requirements under sections 270 and 271; and

                     (c)  the employee gives her employer a medical certificate from a medical practitioner containing a statement to the effect that, in the medical practitioner's opinion, the employee is fit to work, but that it is inadvisable for her to continue in her present position for a stated period because of:

                              (i)  illness, or risks, arising out of her pregnancy; or

                             (ii)  hazards connected with that position.

             (2)  If this section applies to an employee:

                     (a)  if the employee's employer thinks it to be reasonably practicable to transfer the employee to a safe job--the employer must transfer the employee to the safe job, with no other change to the employee's terms and conditions of employment; or

                     (b)  if the employee's employer does not think it to be reasonably practicable to transfer the employee to a safe job:

                              (i)  the employee may take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b); or

                             (ii)  the employer may require the employee to take paid leave immediately for a period ending at the time mentioned in paragraph (4)(b).

Note:          An employer may ask an employee to give the employer a statement from a medical practitioner as to the employee's fitness to work (see subsections 274(2) and (2A)).

             (3)  If the employee takes paid leave under subparagraph (2)(b)(i) or (ii) during a period, the employee must be paid a rate for each hour (pro‑rated for part hours) of paid leave taken that is no less than the rate that, immediately before the period begins, is the employee's basic periodic rate of pay (expressed as an hourly rate).

             (4)  If the employee takes paid leave under subparagraph (2)(b)(i) or (ii):

                     (a)  the entitlement to leave is in addition to any other leave entitlement she has; and

                     (b)  the period of leave ends at the earliest of whichever of the following times is applicable:

                              (i)  the end of the period stated in the medical certificate;

                             (ii)  if the employee's pregnancy results in the birth of a living child--the end of the day before the date of birth;

                            (iii)  if the employee's pregnancy ends otherwise than with the birth of a living child--the end of the day before the end of the pregnancy.

             (5)  To avoid doubt, this section applies whether the employee gives the medical certificate to the employer because of a request under subsection 274(2) or otherwise.