6.3.21 How to Treat Maternity and Other Types of Leave

6.3.21.1   Maternity leave

If incapacity payments would have continued were it not for the pregnancy/maternity leave then they should still continue during the period that is generally considered to be the period of "confinement" i.e. six weeks either side of the expected/actual birth date.  Compensation over and above any established top up rate is not payable beyond the 12 week period.

During the 12 weeks period of "confinement" the number of hours worked for the purposes of the "adjustment percentage” in s131 should be the percentage that would have applied were it not for the pregnancy/maternity leave (ie treated similarly to a period of paid recreation leave or long service leave (LSL).  Outside the 12 week period of "confinement" the number of hours worked for the purposes of the "adjustment percentage” in s113 should be the percentage based on the hours the person actually worked in the week.

If at the end of the confinement the person chooses not to return to work, presuming the level of incapacity would have continued, we would continue to pay a similar level of top up into the future as if the person had returned to work.  The fact the person decides to not return to work does not in itself alter the underlying incapacity.  What we should pay after the 12 weeks period (if the person does not return to work) is the s131 percentage of NE (75%) (and only 75% as she is not actually working) less any income she continues to earn or would have earned (deemed) if she had returned to work.

Unless not returning to work materially affects our ability to provide additional return to work assistance, aimed at increasing her AE, or we can point to some other material effect on the compensation we would otherwise have paid her, then it is the percentage of NE less AE that applies. Further issues to consider which may affect the level of compensation are:

Are we satisfied with our current level of medical and other evidence concerning the person's full work potential (i.e. is our deemed AE at an appropriate level)?  This should be reviewed at the end of the 12 weeks and then periodically.

Does the choice to leave the workforce materially affect our ability to provide rehabilitation support aimed at increasing the AE?  Would we realistically be looking at providing additional rehabilitation?  If so, is the person able and prepared to comply with our attempts to provide that rehabilitation?

Notes

In some cases the person may take other paid leave such as LSL and recreation leave in conjunction with the maternity leave. The other paid leave should be treated similarly to maternity leave.

The new paid parental leave (PPL) scheme will provide for 18 weeks pay at the national minimum wage from 1 January 2011.  Payments under this scheme are not earnings derived from employment and cannot be considered as actual earnings and therefore have no direct impact on the level of incapacity payments.  However MRCA policy is that we will only allow exemption from participation in the workforce or rehabilitation for the 12 week period as discussed above.

6.3.21.2   Other types of leave – annual leave

Compensation is not payable for annual leave not accrued while the person is incapacitated.  For example a person who started work with his employer on 1 July 2009 is normally entitled to four weeks holiday leave per year. His employer shuts between Christmas and New Year and employees are expected to use their holiday pay for this period (otherwise it is unpaid leave).  The person was injured in Reserve service and has been on unpaid sick leave thus has not accrued any holiday leave.  He will therefore have to take unpaid leave for the Christmas break.  In this case, unless the employee is incapacitated for work as a result of a compensable injury/disease during the holiday period, then no compensation can be awarded for the time off work.

6.3.21.3   Other types of leave – sick leave taken

What we require before paying incapacity is evidence of a loss.  If a person has taken paid sick leave from his employer, a pay slip or confirmation from the employer that the person has been off work and as a result suffered a loss of salary, provides that evidence.  Using personal sick leave entitlements from employment not connected to the ADF for the purposes of an ADF caused incapacity is a loss (a loss of sick leave entitlements that would otherwise be available for personal reasons).  Once we have that evidence we do not require anything further, such as evidence that the sick leave has been bought back.  (See also 6.4.2)