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2010-2011-2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
PAID PARENTAL LEAVE AND OTHER LEGISLATION AMENDMENT
(DAD AND PARTNER PAY AND OTHER MEASURES) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP)
PAID PARENTAL LEAVE AND OTHER LEGISLATION AMENDMENT
(DAD AND PARTNER PAY AND OTHER MEASURES) BILL 2012
OUTLINE
The Bill contains the measures set out below.
Dad and partner pay
This measure delivers on the Government's 2010 election commitment to
extend the Paid Parental Leave scheme by introducing a two-week paternity
leave payment. The new payment will be implemented from 1 January 2013.
The Government's Paid Parental Leave scheme will now be extended by
introducing a new payment, called dad and partner pay, for eligible working
fathers and partners. The new payment will be added to the Paid Parental
Leave Act 2010 by this Bill.
Dad and partner pay will be available to eligible fathers and partners,
including adopting parents and parents in same-sex couples, who are caring
for a child born or adopted from 1 January 2013. Eligible fathers and partners
will be able to receive two weeks' dad and partner pay at the rate of the
national minimum wage, the same weekly rate as for the existing parental
leave pay - currently, $590 a week before tax.
Other amendments
Amendments originally introduced on 3 November 2011 in the Paid Parental
Leave and Other Legislation Amendment (Consolidation) Bill 2011 are being
reintroduced as part of this Bill to streamline the consideration of current
amendments to the legislation underpinning the Paid Parental Leave scheme.
Parental leave pay amendments
The Bill makes minor refinements to the Paid Parental Leave Act 2010 to
improve clarity and consistency. The amendments include refining the
provisions which permit `keeping in touch days', and clarifying the operation of
a number of provisions, including debt recovery provisions, notice provisions,
and the provisions relating to delegation of the Secretary's powers under
the Act.
Fair work amendments
The Bill also amends the Fair Work Act 2009 to clarify unpaid parental leave
arrangements where there is a stillborn or infant death, to enable early
commencement of unpaid parental leave, and to enable employees who are
on unpaid parental leave to perform permissible paid work for short periods
for the purposes of `keeping in touch'.
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Financial impact statement
Dad and partner pay
Dad and partner pay has a net cost to Government of $188.5 million over five
years.
Net cost
2010-11 2011-12 2012-13 2013-14 2014-15
$0.1m $2.9m $38.2m $74.7m $72.6m
Other amendments
These amendments are part of the legislation for the Paid Parental Leave
scheme and have no additional financial impact.
Regulation impact statement
The regulation impact statement for the Paid Parental Leave scheme appears
at the end of the explanatory memorandum for the Paid Parental Leave
Bill 2010.
Statement of compatibility with human rights
The statement of compatibility with human rights for this Bill appears at the
end of this explanatory memorandum.
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PAID PARENTAL LEAVE AND OTHER LEGISLATION AMENDMENT (DAD AND
PARTNER PAY AND OTHER MEASURES) BILL 2012
NOTES ON CLAUSES
Abbreviations used in this explanatory memorandum
· Data-matching Act means the Data-matching Program (Assistance and Tax)
Act 1990
· Fair Work Act means the Fair Work Act 2009
· Income Tax Assessment Act means the Income Tax Assessment Act 1997
· Legislative Instruments Act means the Legislative Instruments Act 2003
· Paid Parental Leave Act means the Paid Parental Leave Act 2010
· PPL Rules means the Paid Parental Leave Rules 2010
· Social Security Act means the Social Security Act 1991
· Taxation Administration Act means the Taxation Administration Act 1953
· Veterans' Entitlements Act means the Veterans' Entitlements Act 1986
Clause 1 sets out how the new Act is to be cited, that is, as the Paid Parental Leave
and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Act
2012.
Clause 2 provides a table that sets out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule.
1
Schedule 1 - Dad and partner pay
Summary
This Schedule extends the Paid Parental Leave scheme by introducing a new
payment, called dad and partner pay, for eligible working fathers and partners,
including adopting parents and parents in same-sex couples, who are caring for a
child born or adopted from 1 January 2013.
Eligible fathers and partners will be able to receive two weeks' dad and partner pay
at the rate of the national minimum wage, the same weekly rate as for the existing
parental leave pay - currently, $590 a week before tax. Claims for dad and partner
pay will be able to be lodged with the Department of Human Services from
1 October 2012, with payments to commence from 1 January 2013.
Background
Extending the Paid Parental Leave scheme
The Paid Parental Leave scheme commenced on 1 January 2011 and provides
eligible primary carers (usually the mother) of children born or adopted from
1 January 2011 with up to 18 weeks' parental leave pay at the rate of the national
minimum wage.
This Schedule extends the Paid Parental Leave scheme to introduce a new
payment, called dad and partner pay, for eligible fathers and partners, including
adopting parents and parents in same-sex couples, who are caring for a child born or
adopted from 1 January 2013.
Dad and partner pay is based on the paid paternity leave payment recommended by
the Productivity Commission in its 2009 inquiry report, Paid Parental Leave: Support
for Parents with Newborn Children.
Overview of dad and partner pay
This Schedule amends the Paid Parental Leave Act to add dad and partner pay to
the Paid Parental Leave scheme. To be eligible for dad and partner pay, a claimant
will need to satisfy the same income test, work test and residency requirements as
apply to parental leave pay. Claims for dad and partner pay will be able to be made
through the Department of Human Services, which will deliver payments to eligible
claimants. Employers will not make dad and partner pay payments.
Dad and partner pay will be available during the first 12 months after the birth or
adoption of the child, and will give fathers and partners financial assistance to take
more time off work to support new mothers and primary carers in their caring role. It
will also help fathers and partners to spend more time bonding with their child and be
involved in their child's care at an early age.
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Eligible fathers and partners must be caring for the child (whether this be primary
care or joint care) and must not be on paid leave or at work during the period they
receive dad and partner pay.
Who can claim dad and partner pay
The following people can make a claim for dad and partner pay for a child:
· the biological father of the child;
· the partner of the child's birth mother (including same-sex partner);
· an adoptive parent of the child;
· a person who satisfies circumstances prescribed by the PPL Rules.
Birth mothers will not be able to claim dad and partner pay. A person can only make
a claim for dad and partner pay for a child who was born or adopted on or after 1
January 2013.
Eligibility for dad and partner pay
To be eligible for dad and partner pay, a person will need to:
· satisfy the `work test' - the person must:
- have worked continuously for at least 10 of the 13 months prior to
their nominated start date for dad and partner pay, with a break of
no more than eight weeks between any two consecutive work days;
and
- have undertaken at least 330 hours of paid work during the
10-month period (an average of around one day of paid work a
week);
· satisfy the `income test' - the person must have income of $150,000 or less,
based on the dad or partner's adjusted taxable income in the previous
financial year before the nominated start date for dad and partner pay or the
date of claim, whichever is the earlier; and
· satisfy the `Australian residency test' - the person must be an Australian
resident; and
· be providing care (whether this be primary care or joint care) for a child born
or adopted on or after 1 January 2013; and
· not be working during the period the person receives the payment.
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Dad and partner pay will be available to eligible full-time, part-time, casual, seasonal,
contract and self-employed workers. The payment will be available in addition to any
employer-funded paid leave, or unpaid leave, but cannot be taken at the same time
as paid leave.
Dad and partner pay will be available to fathers and partners who meet the eligibility
requirements, regardless of whether the mother or primary carer has been in paid
work or at home before the birth or adoption. A father may be eligible for dad and
partner pay even if a mother is not receiving parental leave pay. However, dad and
partner pay cannot be transferred to the mother.
Dad and partner pay will not be payable to a person for a child if it is already payable
for the child in relation to a different claim or another person (that is, a partner or
former partner).
In the case of a multiple birth or adoption, dad and partner pay will only be payable
to the person in relation to one child of that multiple birth or adoption.
Similarly, a person cannot claim dad and partner pay for two children at the same
time, even where those children were not born or adopted as part of the same birth
or adoption.
A person may become eligible for dad and partner pay in other exceptional
circumstances prescribed by the PPL Rules.
Payment of dad and partner pay
Eligible fathers and partners will be able to receive two weeks' dad and partner pay
at the rate of the national minimum wage, the same weekly rate as for the existing
parental leave pay - currently, $590 a week before tax.
A person claiming dad and partner pay will need to nominate the date they want their
payment to start. The earliest day for which dad and partner pay can be paid is the
date of birth of the child or the date of placement of an adopted child. The
nominated start date for dad and partner pay must be before the child's first birthday.
Payment will be made from the nominated start date where all claim requirements
have been met.
Claims for dad and partner pay will be able to be lodged from 1 October 2012, and
eligible fathers and partners will receive payments from the Department of Human
Services from 1 January 2013.
Eligible claimants will be able to receive dad and partner pay in addition to any
unused parental leave pay transferred to them by the primary carer. However, both
payments cannot be taken at the same time.
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Families will be able to receive a maximum of 20 weeks' payment under the scheme.
To maintain equity with the maximum parental leave pay entitlement for birth
mothers, a father or partner will only be eligible to receive a maximum of 18 weeks'
combined parental leave pay and dad and partner pay, should the mother transfer
some or all of her payment to the father.
Families eligible for dad and partner pay may also continue to receive other family
assistance payments, such as baby bonus and family tax benefit.
Consistency with parental leave pay
Provisions relating to compliance, enforcement and review of decisions for dad and
partner pay will be consistent with those for parental leave pay. On this basis, the
amendments made to Chapter 4 (Compliance and enforcement), Chapter 5 (Review
of decisions) and Chapter 6 (Miscellaneous) of the Paid Parental Leave Act are
minimal. However, references to employers and employees in these Chapters will
not apply to dad and partner pay, as employers will have no role in providing dad
and partner pay to their employees.
Consequential amendments
This Schedule also makes consequential amendments to the Data-matching Act, the
Income Tax Assessment Act, the Social Security Act, the Taxation Administration
Act, and the Veterans' Entitlements Act to allow dad and partner pay to operate in
these Acts in the same way as parental leave pay.
This Schedule will commence on 1 October 2012, to allow claims for dad and partner
pay to be lodged from this date and for payments to commence from
1 January 2013.
Explanation of the changes
Part 1 - Dad and partner pay
Amendments to the Paid Parental Leave Act
Item 1 repeals the long title of the Act and substitutes a new long title `An Act to
provide for a paid parental leave scheme, and for related purposes.'
Chapter 1 - Introduction
Part 1-1 Introduction
Item 2 repeals the heading to Division 1A of Part 1-1 of Chapter 1 and substitutes a
new heading `Division 1A - Objects of this Act.'
Item 3 repeals the heading to section 3A and substitutes a new heading `3A Objects
of this Act'.
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Item 4 inserts new subsections 3A(1A) and (1B) before subsection 3A(1) on the
objects of the Act.
New subsection 3A(1A) provides that the Act establishes a Paid Parental Leave
scheme with two payments - parental leave pay, and dad and partner pay.
New subsection 3A(1B) provides that the objects of the Paid Parental Leave scheme
are to:
· signal that taking time out of the paid workforce to care for a child is part of
the usual course of life and work for both parents; and
· promote equality between men and women and balance between work and
family life.
Item 5 amends subsection 3A(1). This item omits `this Act' and substitutes `parental
leave pay' in subsection 3A(1).
Item 6 amends paragraph 3A(1)(c). This item omits `workforce; and' and substitutes
`workforce'.
Item 7 repeals paragraph 3A(1)(d). This item is consequential to item 4.
Item 8 repeals subsection 3A(2) and substitutes a new subsection which provides
that the object of dad and partner pay is to provide financial support to fathers and
partners caring for newborn or newly adopted children, in order to:
· increase the time that fathers and partners take off work around the time of
birth or adoption; and
· create further opportunities for fathers and partners to bond with the child; and
· allow fathers and partners to take a greater share of caring responsibilities
and to support mothers and partners from the beginning.
Item 9 amends the first paragraph under the heading `Overview' in the Guide to the
Act in section 4 to include an outline of dad and partner pay.
Item 10 amends the last paragraph under the heading `Overview' in the Guide to the
Act in section 4, to include reference to dad and partner pay.
Item 11 amends the Guide to the Act in section 4 by adding an overview of new
Chapter 3A - Dad and partner pay.
Item 12 amends the last paragraph under the heading `Chapter 4 - Compliance and
enforcement'. This item omits `parental leave pay scheme' and substitutes `paid
parental leave scheme' in the Guide to the Act in section 4.
Item 13 amends the third paragraph under the heading `Chapter 6 - Miscellaneous'
in the Guide to the Act in section 4.
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Part 1-2 - Definitions
Item 14 inserts into section 6 a reference to the new term caring. The new term is
defined in new subsections 115CL(1) and 115CL(4). New subsection 115CL(1)
provides that a DAPP claimant is caring for a child on a day in the DAPP claimant's
reference period if the child is in the DAPP claimant's care in that period. Item 31
defines reference period. New subsection 115CL(4) provides that, despite
subsection 115CL(1), a person is not caring for a child on a day if, before that day,
the child has died.
Item 15 repeals the definition of claim in section 6 and substitutes a new definition.
For parental leave pay, a claim means a primary claim, a secondary claim or a
tertiary claim for parental leave pay for a child. For dad and partner pay, a claim
means a claim for dad and partner pay for a child.
Item 16 amends the definition of claimant in section 6 by omitting `or tertiary
claimant' and substituting `tertiary claimant or DAPP claimant'. Claimant means a
person who is a primary claimant, secondary claimant or tertiary claimant in relation
to parental leave pay or a DAPP claimant.
Item 17 inserts into section 6 a definition of the new term dad and partner pay.
Dad and partner pay means payments of dad and partner pay under the Paid
Parental Leave Act.
Item 18 inserts into section 6 a definition of the new term DAPP claimant. A DAPP
claimant means a person who has made an effective claim for dad and partner pay
for a child.
Item 19 inserts into section 6 a reference to the new term DAPP period. A DAPP
period is defined in new subsection 115AE(1), which provides that, if the Secretary
makes a determination that dad and partner pay is payable to a person for a child,
the Secretary must specify, in the determination, the period for which dad and
partner pay is payable to the person. That period is the person's DAPP period.
Item 20 repeals the definition of effective claim in section 6 and substitutes a new
definition. An effective claim, for parental leave pay, means a claim that is made in
accordance with Part 2-4. An effective claim, for dad and partner pay, means a
claim that is made in accordance with new Part 3A-4.
Item 21 repeals the definition of eligible in section 6 and substitutes a new
definition. The new definition of eligible provides that section 31 sets out when a
person is eligible for parental leave pay and new section 115CB sets out when a
DAPP claimant is eligible for dad and partner pay.
Item 22 repeals the definition of income test in section 6 and substitutes a new
definition. The new definition refers the reader to section 37 for the income test
definition for parental leave pay, and new section 115CG for the income test
definition for dad and partner pay.
7
The new note under the definition of income test provides guidance that, for dad
and partner pay, Division 4 of new Part 3A-3 (which includes new section 115CG) is
relevant in applying the income test to claimants for dad and partner pay.
Item 23 repeals the definition of initial eligibility determination in section 6 and
substitutes a new definition. The new definition provides that an initial eligibility
determination for parental leave pay is set out in section 26 and an initial eligibility
determination for dad and partner pay is set out in new section 115BL.
New section 115BL provides that, if a person makes an effective claim for dad and
partner pay, the Secretary may make a determination (the initial eligibility
determination) that the person is initially eligible for dad and partner pay for the
child if, when making the determination, the Secretary is satisfied that the person
satisfies the work test, the income test and the Australian residency test, or will
satisfy those tests on the day immediately before the person's nominated start date.
Item 24 inserts into section 6 a reference to the new term maximum DAPP period.
The new term is defined in new subsection 115AE(3), which provides that the
maximum DAPP period for a child is the period that starts on the child's maximum
DAPP period start day and ends on the child's maximum DAPP period end day.
Item 25 inserts into section 6 a reference to the new term maximum DAPP period
end day. The new term is defined in new subsection 115AE(5), which provides that
the maximum DAPP period end day for a child is the earlier of the day that is 13
days after the maximum DAPP period start day or the day before the child's first
birthday.
Item 26 inserts into section 6 a reference to the new term maximum DAPP period
start day. The new term is defined in new subsection 115AE(4), which provides that
the maximum DAPP period start day for a child is the later of the day the child is
born or the claimant's nominated start date.
Item 27 repeals the definition of nominated start date in section 6 and substitutes a
new definition. The nominated start date for parental leave pay is set out in
subsection 57(1), which provides that, if a claim for parental leave pay is a primary
claim, the claim must state a specific date (the nominated start date) on which the
primary claimant wants parental leave pay to start being paid.
The nominated start date for dad and partner pay is set out in new
subsection 115DG(1), which provides that the claim for dad and partner pay must
state a specific date (the nominated start date) which is the first day of the period for
which the claimant wants to be paid dad and partner pay.
Item 28 inserts into section 6 a reference to the new term not working. Not working
is defined in new section 115CM, which provides that a DAPP claimant is not
working on a day unless, on that day, the DAPP claimant performs one hour or more
of paid work, other than for a permissible purpose for self-employed workers, or the
DAPP claimant is on paid leave.
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Item 29 repeals the definition of payability determination in section 6 and
substitutes a new definition. A payability determination for parental leave pay means
a determination made under section 13, 14, 15, 16 or 17 that parental leave pay is,
or is not, payable to a person for a child. A payability determination for dad and
partner pay means a determination made under new section 115BB that dad and
partner pay is, or is not, payable to a person for a child.
Item 30 repeals the definition of reference income year in section 6 and substitutes
a new definition. The reference income year for a primary claimant or secondary
claimant for parental leave pay is defined in section 39. Paragraph 39(a) provides
that the reference income year for a person who is a primary claimant is the income
year that ended before the earlier of the day the person made the claim and the day
the child was born. Paragraph 39(b) provides that, if the person is a secondary
claimant, the reference income year is the income year that ended before the earlier
of the day the person made the claim and the day the person became the child's
primary carer.
The reference income year for a DAPP claimant is defined in new section 115CH,
which provides that the reference income year for a DAPP claimant is the year that
ended before the earlier of the day the claimant made the claim for dad and partner
pay and the DAPP claimant's nominated start date.
Item 31 repeals the definition of reference period in section 6 and substitutes a new
definition. The reference period for a person claiming parental leave pay is defined
in subsection 47(2), which provides that a person's reference period is the period
that is determined by the Secretary for the purposes of making a payability
determination on the person's claim.
The reference period for a person claiming dad and partner pay is defined in new
subsection 115CL(2), which provides that a DAPP claimant's reference period is the
period that is determined by the Secretary for the purposes of making a payability
determination on the person's claim.
Item 32 repeals the definition of relevant PPL income limit in section 6 and
substitutes a new definition.
The relevant PPL income limit for a primary claimant or a secondary claimant is
defined in section 40. Paragraph 40(a) provides that, if the person is a primary
claimant, the relevant PPL income limit is the PPL income limit that applies on the
earlier of the following days - the day the person made the claim and the day the
child was born. Paragraph 40(b) provides that, if the person is a secondary claimant,
the relevant PPL income limit is the PPL income limit that applies on the earlier of
the following days - the day the person made the claim and the day the person
became the child's primary carer.
The relevant PPL income limit for a DAPP claimant is defined in new section 115CJ,
which provides that the relevant PPL income limit for a DAPP claimant is the PPL
income limit that applies on the earlier of the following days - the day the DAPP
claimant made the claim for dad and partner pay and the DAPP claimant's
nominated start date.
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Item 33 repeals the definition of saved amount and substitutes a new definition.
The meaning of saved amount for parental leave pay comes from subsection 97(2).
The method statement in subsection 97(2) outlines how a saved amount for parental
leave pay in relation to a garnishee order is worked out.
The meaning of a saved amount for dad and partner pay comes from new
subsection 115EK(2). The method statement in new subsection 115EK(2) outlines
how a saved amount for dad and partner pay in relation to a garnishee order is
worked out.
Item 34 repeals the definition of work test in section 6 and substitutes a new
definition. The work test is set out in Division 3 of Part 2-3 and new sections 115CE
and 115CF.
The note under the new work test definition provides guidance that new
sections 115CE and 115CF and other provisions of Division 3 of new Part 3A-3 are
relevant in applying the work test to claimants for dad and partner pay.
Item 35 repeals the definition of work test period in section 6 and substitutes a new
definition. The work test period for a primary claimant or secondary claimant is set
out in section 33. The work test period for a DAPP claimant is set out in new
section 115CD.
Chapter 2 - When parental leave pay is payable to a person
Part 2-2 - Determinations about whether parental leave pay is payable to a person
Item 36 repeals the heading to section 21 and substitutes the heading '21 Parental
leave pay is already payable to the person etc'.
Item 37 repeals subsection 21(1) and substitutes a new subsection. New
subsection 21(1) provides that the Secretary must not make a payability
determination that parental leave pay is payable to a person for a child if any of the
following applies:
· there is in force another payability determination that parental leave pay is
payable to the person for the child, in respect of a different claim made by the
person; or
· if the person is the primary claimant - there is in force a payability
determination that parental leave pay is payable to the person's partner for
the child, or the person's former partner (when he or she was the person's
partner) for the child; or
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· if the person is the secondary claimant - there is in force a payability
determination that parental leave pay is payable to the person's partner for the
child (other than as the primary claimant to which the person's secondary
claim relates) or the person's former partner (when he or she was the
person's partner) for the child (other than as the primary claimant to which the
person's secondary claim relates).
Items 38, 39, 40, 42, 43 and 44 insert `about parental leave pay' into sections 22,
23, 24, 27, 28 and 29 to clarify that these sections relate to parental leave pay and
not dad and partner pay.
Item 41 repeals the heading to Division 5 of Part 2-2 and substitutes a new heading
`Division 5 - Initial eligibility determinations about parental leave pay'. This
amendment is to clarify that the Division includes provisions on initial eligibility
determinations about parental leave pay and does not include provisions relating to
dad and partner pay.
Part 2-3 - Eligibility for parental leave pay
Items 45 amends the Guide to Part 2-3 in section 30 to omit `pregnancy.' and
substitute `pregnancy (see section 36A) or if the person is already eligible for dad
and partner pay (see section 36B)'.
Item 46 amends the Guide to Part 2-3 in section 30 to omit `indexed' and substitute
`indexed. A special rule applies if the person is already eligible for dad and partner
pay (see subsection 37(2).'.
Item 47 inserts the heading `Eligible' before subsection 31(2). This heading relates
to subsections 31(2), (3) and (4), which deal with the main cases when a person is
eligible for parental leave pay for a child on a day.
Item 48 inserts new subsections 31(4A) and (4B) after subsection 31(4). New
subsections 31(4A) and (4B) deal with situations in which a person is not eligible for
dad and partner pay.
New subsection 31(4A) applies if there is in force a payability determination that dad
and partner pay is payable to a person for a child for the person's DAPP period. In
this situation, despite subsections (2), (3) and (4), the person is not eligible for
parental leave pay for the child on a day that is in the person's DAPP period. This
means that a person cannot be eligible for parental leave pay if there is an overlap
with their DAPP period.
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Example
This situation will apply where a father has been deemed eligible and dad and
partner pay is payable with a nominated start date of 6 March. Based on this
date, the father will receive dad and partner pay until 19 March. If the father
makes a subsequent claim as a secondary claimant for 15 weeks' parental
leave pay to start on 13 March, which is half-way through his nominated
DAPP period, the father will not be eligible for parental leave pay on the days
for which dad and partner pay has already been determined to be payable,
that is, the days that overlap (13 March - 19 March).
New subsection 31(4B) applies if there is in force a payability determination that dad
and partner pay is payable for a child for the person's DAPP period, and the total
number of days in the DAPP period and the reference period for the person's claim
for parental leave pay for the child exceeds 126 days. In this situation, despite
subsections (2), (3) and (4), the Secretary must exclude from the person's reference
period the excess number of days. The person is not eligible for parental leave pay
for the child on a day excluded by the Secretary in this situation. This subsection will
apply where a father or partner claims more than 18 weeks of combined dad and
partner pay and parental leave pay.
Example
When a father takes two weeks' (14 days') dad and partner pay from the date
of birth of his child and subsequently claims all 18 weeks (126 days) of
parental leave pay, transferred from the mother, the father will only be eligible
for the first 16 weeks (112 days) of parental leave pay. The Secretary
excludes the final two weeks' (14 days') parental leave pay as those weeks
would result in the father receiving 20 weeks (140 days) of combined dad and
partner pay and parental leave pay, exceeding the 18-week (126-day) cap for
individuals claiming payments under the Act.
Item 49 repeals Step 1 in the method statement to the work test in section 32 and
substitutes a new Step 1. New Step 1 explains that the first step in working out
whether a person satisfies the work test on a day is to work out the person's work
test period.
The new note under Step 1 provides guidance that the work test period for DAPP
claimants is defined in section 33 for primary claimants and for secondary claimants
and in new section 115CD.
Item 50 omits `Note' and substitutes `Note 1' in the note under section 32.
Item 51 amends the note under section 32 to omit `section 36A' and substitute
`sections 36A (for claimants for parental leave pay) and 115CE (for DAPP
claimants)'.
Item 52 adds a note (Note 2) at the end of section 32. The note provides guidance
that section 36B is an alternative way of satisfying the work test for a person claiming
parental leave pay who is already eligible for dad and partner pay. Similarly, an
equivalent provision is provided in new section 115CF for a DAPP claimant who is
already eligible for parental leave pay.
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Item 53 adds a note at the end of subsection 33(3). The note provides guidance that
the work test period for a DAPP claimant is provided for in new section 115CD.
Item 54 adds new section 36B at the end of Division 3 of Part 2-3. New section 36B
provides that a claimant for parental leave pay also satisfies the work test on a day if
the Secretary is satisfied that the claimant is eligible for dad and partner pay for the
child. This will benefit fathers and partners who would otherwise have to meet the
work test twice.
Example
A father takes two weeks' dad and partner pay from the date of birth of his
child, after satisfying the work test for his dad and partner pay claim by
working for more than 330 hours in 10 of the 13 months before his nominated
start date for dad and partner pay. When the baby is six months old, the
father becomes the child's primary carer and claims the remaining 10 weeks
of parental leave pay, transferred from the birth mother. This section will
apply to allow the father to rely on his established eligibility for dad and
partner pay to satisfy the work test for parental leave pay. The father will not
be required to satisfy the work test a second time, by working at least 330
hours in 10 of the 13 months before the date he takes on primary care of the
child, in order to be eligible for parental leave pay.
Item 54 also adds a note under new section 36B, which provides guidance that new
section 115CF is the equivalent provision for a DAPP claimant.
Item 55 inserts `(1)' before `A person' in section 37. This item is consequential to
item 56.
Item 56 adds new subsection 37(2). New subsection 37(2) provides that a claimant
for parental leave pay also satisfies the income test on a day if the Secretary is
satisfied that the claimant is eligible for dad and partner pay for the child. This
subsection will benefit fathers and partners applying for both parental leave pay and
dad and partner pay and who would otherwise have to meet the income test twice
based on different income reference years.
13
Example
A father claims dad and partner pay with a nominated start date of
24 June 2013. The mother decides to return to work early and transfers her
remaining 16 weeks' parental leave pay to the father from 8 July 2013, when
he takes over primary care of their child. The father met the income test for
his DAPP period in May 2013, when he lodged his claim for dad and partner
pay, based on his adjusted taxable income in the financial year ending
30 June before the day he made his claim for dad and partner pay, that is, the
2011-12 financial year. When the father takes over primary care of the child
on 8 July 2013 (and later lodges his claim for parental leave pay), the income
reference year for his PPL period will be the 2012-13 financial year, that is,
the financial year ending 30 June before he became the child's primary carer.
This section will apply so the father is treated as having satisfied the income
test for his claim for parental leave pay despite its applying to a different
income reference year, based on the father's previously establishing his
eligibility for dad and partner pay for the child. The father will not be required
to satisfy two income tests for his two payment claims under the Act.
The new note under new subsection 37(2) provides guidance that new
subsection 115CG(2) provides an equivalent rule in relation to a DAPP claimant to
subsection 37(2) for a parental leave pay claimant.
Item 57 adds a note under section 39, which deals with the reference income year
for a person. The note provides guidance that the reference income year for a
DAPP claimant is provided for in new section 115CH.
Item 58 adds a note at the end of section 40, which deals with the relevant
PPL income limit for a person. The note provides guidance that the relevant PPL
income limit for a DAPP claimant is provided for in new section 115CJ.
Part 2-4 - Claims for parental leave pay
Items 59, 60, 61, 62, 63, 64, 65 and 66 insert `for parental leave pay' into
sections 52 and 60 and subsections 53(1), 55(1), 55(2), 55(3), 56(1), 59(1), 61(1)
and 61(3), to clarify that that these provisions relate to parental leave pay and not
dad and partner pay.
Chapter 3A - Dad and partner pay
Part 3A-1 - Key provisions
Item 67 inserts after Chapter 3 new chapter 3A - Dad and partner pay.
Division 1 - Guide to this Part
New section 115AA sets out the Guide to Part 3A-1, which deals with the key
provisions for new Chapter 3A about dad and partner pay.
14
Division 2 - When dad and partner pay is payable to a person
A determination must be made for dad and partner pay to be payable to a person
New section 115AB provides that dad and partner pay is payable to a person for a
child, for a period, if a determination of the Secretary that dad and partner pay is
payable to the person for that period is in force under new section 115BB.
The note under new section 115AB provides guidance that new Part 3A-2 deals with
the rules about when the Secretary can make a determination that dad and partner
pay is, or is not, payable to a person.
For the determination to be made, the person must be eligible
New section 115AC provides that the Secretary cannot make a determination that
dad and partner pay is payable to a person, for a child for a period unless the person
was or will be eligible for dad and partner pay during the period.
The note under new section 115AC provides guidance that new Part 3A-3 provides
for the rules about when a person is eligible for dad and partner pay.
For the determination to be made, the person must claim
New section 115AD provides that the Secretary cannot make a determination that
dad and partner pay is payable to a person for a child for a period unless the person
has made an effective claim for the child.
The note under new section 115AD provides guidance that new Part 3A-4 provides
for the rules about how to make an effective claim.
The determination must specify the person's DAPP period
New section 115AE inserts provisions dealing with the person's DAPP period in
relation to a Secretary determination that dad and partner pay is payable.
New subsection 115AE(1) provides that the person's DAPP period is the period that
the Secretary specifies in a determination as being the period for which dad and
partner pay is payable to the person. If the Secretary makes a determination that
dad and partner pay is not payable, the person does not have a DAPP period.
The note under new subsection 115AE(1) provides guidance that the reader should
refer to new subsection 115BB(3) for a DAPP claimant's DAPP period.
New subsection 115AE(2) provides that a person's DAPP period must be the same
as, or within, the maximum DAPP period for the child.
New subsection 115AE(3) provides that the maximum DAPP period for a child is
the period that starts on the child's maximum DAPP period start day and ends on the
child's maximum DAPP period end day.
15
New subsection 115AE(4) provides that the maximum DAPP period start day for a
child is the later of the following days - the day the child was born and the claimant's
nominated start date.
New subsection 115AE(5) provides that the maximum DAPP period end day for a
child is the earlier of the following days - the day that is 13 days after the maximum
DAPP period start day and the day before the child's first birthday.
Part 3A-2 - Determinations about whether dad and partner pay is payable to a
person
Division 1 - Guide to this Part
New section 115BA sets out the Guide to new Part 3A-2, which deals with
determinations about whether dad and partner pay is payable to a person.
Division 2 - Determinations about whether dad and partner pay is payable to a
person
Determination on a claim for dad and partner pay
New section 115BB deals with determinations on a claim for dad and partner pay.
New subsection 115BB(1) provides that, if a person has made an effective claim for
dad and partner pay for a child, the Secretary must make a determination on the
claim.
New subsection 115BB(2) provides that the Secretary must determine that dad and
partner pay is payable to the DAPP claimant for the claimant's DAPP period if, when
making the determination, the Secretary is satisfied that the DAPP claimant was or
will be eligible for dad and partner pay on each day in that period.
The note under new subsection 115BB(2) clarifies that the Secretary is prevented
from making a determination under new subsection 115BB(2) in certain
circumstances. The note provides guidance that Division 3 deals with these
situations.
New subsection 115BB(3) provides that the Secretary must specify in the
determination made under subsection (2) that the claimant's DAPP period:
· starts on the child's maximum DAPP period start day; and
· ends on the child's maximum DAPP period end day - if the Secretary is
satisfied that the DAPP claimant was or will be eligible for dad and partner
pay on each day in the child's maximum DAPP period; or
· ends on the last day in the child's maximum DAPP period that the DAPP
claimant was or will be eligible for dad and partner pay - if the Secretary is
satisfied that the DAPP claimant was or will be eligible for a period that is
shorter than the child's maximum DAPP period.
16
New subsection 115BB(4) provides that the Secretary must determine that dad and
partner pay is not payable to the DAPP claimant if the Secretary is not satisfied of
the matters in subsection (2).
Division 3 - When the Secretary cannot make a determination that dad and partner
pay is payable
The child's birth has not been verified
New section 115BC provides that the Secretary must not make a payability
determination that dad and partner pay is payable to a person for a child unless a
person has verified the child's birth.
The note under new section 115BC provides guidance to refer to subsection 18(2)
for how a person verifies a child's birth.
Subsection 18(2) provides that a person verifies a child's birth if the person gives the
Secretary a completed birth verification form for the child, and, if applicable, gives
the Secretary information showing that the child's birth has been registered under
the law, or that the person has applied to have the birth of the child registered under
the law.
New section 115BC does not require the person verifying the child's birth for the
purpose of a dad and partner pay claim to be the person claiming dad and partner
pay. For example, a mother claiming parental leave pay may verify the child's birth
for the purpose of her claim. This birth verification can be used to satisfy the
requirements of new section 115BC for a claim for dad and partner pay.
The child was born before 1 January 2013
New section 115BD provides that the Secretary must not make a payability
determination that dad and partner pay is payable to a person for a child if the child
was born before 1 January 2013. Payments of dad and partner pay will commence
from 1 January 2013 for eligible fathers and partners.
Multiple births
New section 115BE provides that the Secretary must not make a payability
determination that dad and partner pay is payable to a person for a child if the child
and another child are born during the same multiple birth, and dad and partner pay is
or was payable to the person or another person for the other child. This restriction
applies even if children born during the same multiple birth are being cared for within
different families.
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Dad and partner pay is already payable to the person etc.
New subsection 115BF(1) provides that the Secretary must not make a payability
determination that dad and partner pay is payable to a person for a child if there is in
force another payability determination that dad and partner pay is payable to the
person for the child, in respect of a different claim made by the person, or there is in
force a payability determination that dad and partner pay is payable to another
person for the child.
New subsection 115BF(2) provides that, if a claim is made in circumstances
prescribed by the PPL Rules and there is in force a payability determination that dad
and partner pay is payable to another person for the child - this restriction does not
apply.
Division 4 - General provisions applying to determinations about whether dad and
partner pay is payable
Assumptions when making the determination
New section 115BG provides that, in deciding whether to make a payability
determination about dad and partner pay, the Secretary may act on the assumption
that the state of affairs known to the Secretary when making the determination will
remain unchanged. This would not prevent the Secretary from reviewing the
determination if the Secretary becomes aware that the state of affairs has changed
or was different.
When the determination is in force
New section 115BH provides that a payability determination about dad and partner
pay comes into force on the day it is made and continues in force unless it is revoked
or set aside. Revocation of a determination for dad and partner pay may occur
under new section 115BK, or the determination may be set aside under Chapter 5
which deals with review of decisions.
Notice of the determination
New section 115BJ provides that, if the Secretary makes a payability determination
about dad and partner pay, the Secretary must give a notice of the determination to
the DAPP claimant, stating whether dad and partner pay is payable. If dad and
partner pay is payable, the Secretary must state in the notice the DAPP claimant's
DAPP period. The notice must also state that the DAPP claimant may apply for
review of the determination in the manner set out in Chapter 5.
Revoking the determination on request
New section 115BK allows a DAPP claimant to request a revocation of their
payability determination that dad and partner pay is payable.
18
New subsection 115BK(1) provides that, if a payability determination is made that
dad and partner pay is payable to a person and the person requests the Secretary to
revoke the determination before the start of the person's DAPP period, then the
Secretary must revoke the determination. The revocation must be in the form
approved by the Secretary.
New subsection 115BK(2) provides that the revocation is taken to have come into
force on the day the person requested the Secretary to revoke the determination.
Division 5 - Initial eligibility determinations about dad and partner pay
Initial eligibility determinations
New section 115BL provides that, if a person makes an effective claim for dad and
partner pay, the Secretary may make a determination (called the initial eligibility
determination) that the person is initially eligible for dad and partner pay for the
child, if the Secretary is satisfied that the person satisfies: the work test, the income
test and the Australian residency test, or will satisfy these tests on the day
immediately before the person's nominated start date.
Assumptions when making the initial eligibility determination
New section 115BM provides that, in deciding whether to make an initial eligibility
determination about dad and partner pay, the Secretary may act on the assumption
that the state of affairs known to the Secretary when making the determination will
remain unchanged. Despite this section, the Secretary can look at the actual state of
affairs again when a payability determination is being made.
When the initial eligibility determination comes into force
New section 115BN provides that an initial eligibility determination about dad and
partner pay comes into force on the day it is made.
Notice of the initial eligibility determination
New section 115BP provides that, if the Secretary makes an initial eligibility
determination about dad and partner pay under section 115BL, the Secretary must
give a notice of the determination to the DAPP claimant.
Part 3A-3 - Eligibility for dad and partner pay
Division 1 - Guide to this Part
New section 115CA sets out the Guide to new Part 3A-3, which deals with eligibility
for dad and partner pay.
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Division 2 - When a DAPP claimant is eligible for dad and partner pay
When a DAPP claimant is eligible for dad and partner pay
New subsection 115CB(1) provides that this section sets out when a DAPP claimant
is eligible for dad and partner pay for a child on a day.
New subsection 115CB(2) provides that a person is eligible for dad and partner pay
on a day, if, on that day:
· the claimant satisfies the work test (Division 3 of Part 2-3 and new sections
115CD, 115CE and 115CF); and
· the claimant satisfies the income test (Division 4 of Part 2-3 and new sections
115CG, 115CH and 115CJ); and
· the claimant satisfies the Australian residency test (Division 5 of Part 2-3); and
· the claimant is caring for the child (Division 6 of Part 3A-3); and
· the claimant is not working (Division 7 of Part 3A-3).
New subsections 115CB(3) and (4) set out the eligibility criteria for dad and partner
pay, when the child is stillborn or where exceptional conditions as prescribed by the
PPL Rules apply.
New subsection 115CB(3) provides that a DAPP claimant is eligible for dad and
partner pay for a child on a day if the child is stillborn or has died before that day
and, on that day, the claimant would be eligible for dad and partner pay under
subsection (2), disregarding whether the claimant is caring for the child and is or is
not working, and considering instead whether the claimant would have been caring
for the child on that day had the child not been stillborn or died.
New subsection 115CB(4) provides that a DAPP claimant is eligible for dad and
partner pay for a child on a day if, on that day, the claimant satisfies: the work test,
the income test, the Australian residency test and the conditions prescribed by the
PPL Rules. This gives flexibility to allow tailored eligibility criteria to be determined
for exceptional situations.
Example
A police officer claims two weeks' dad and partner pay starting on his child's
date of birth and is deemed eligible and payable. In the second week of his
DAPP period, he is compulsorily recalled to duty and returns to work for four
days that week. As for parental leave pay, PPL Rules could be made that
would enable people in his situation to continue to receive dad and partner
pay even though they may no longer meet the usual eligibility criteria because
they are working for part of their DAPP period.
20
New subsection 115CB(5) provides that, if there is in force a payability determination
that parental leave pay is payable to a person for a child for the person's PPL period,
then, despite subsections (2), (3) and (4), the person is not eligible for dad and
partner pay for the child on a day that is in the PPL period. This means a person
cannot be eligible for dad and partner pay if there is an overlap with a person's PPL
period.
Example
A father has been deemed eligible and payable for 10 weeks of parental leave
pay as a secondary claimant, receiving the payment from 4 February 2013
until 14 April 2013. If the father then makes a subsequent claim for two
weeks' dad and partner pay for the period 11 to 24 March 2013, which is
during the father's PPL period, the father will not be eligible for dad and
partner pay for any day of that period because parental leave pay has already
been determined to be payable for those days, that is, the days that overlap
(11 to 24 March 2013). In these cases, the father may be advised to test his
eligibility for dad and partner pay for a period that does not overlap with his
parental leave pay period.
New subsection 115CB(6) provides that, if there is in force a payability determination
that dad and partner pay is payable to a person for a child for the person's DAPP
period, then, despite subsections (2), (3) and (4), the person is not eligible for dad
and partner pay for another child on a day that is in that DAPP period. This means
that a person cannot be eligible for dad and partner pay if there is an overlap with the
DAPP period for another child.
Example
A father has a child under one year old with a former partner and a newborn
baby with his current partner and he makes a claim for dad and partner pay in
relation to each of his children, listing the same nominated start date (10
December) for both claims. This subsection prevents this father from
receiving dad and partner pay for both children at the same time. In this
situation, the father will only be eligible for dad and partner pay in relation to
one child for the period 10 December to 23 December. To receive dad and
partner pay for the second child, the father will have to list a different
nominated start date which is not during the DAPP period (10 December to 23
December) for the claim for dad and partner pay for the first child.
New subsection 115CB(7) applies to the situation in which the Secretary has made a
payability determination that parental leave pay is payable to a person for a child for
the person's PPL period and the total number of days in the PPL period and the
reference period for the person's claim for dad and partner pay for the child exceeds
126 days. In this situation, despite subsections (2), (3) and (4), if a payability
determination is in force for parental leave pay, the Secretary must exclude from the
reference period the excess number of days. The person is not eligible for dad and
partner pay for the child on a day excluded by the Secretary.
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Example
A father or partner claims more than 18 weeks of combined dad and partner
pay and parental leave pay. If the father takes 17 weeks' (119 days') parental
leave pay, transferred from the mother, and subsequently claims two weeks'
(14 days') dad and partner pay, the father will only be eligible for the first week
(seven days) of dad and partner pay. The Secretary excludes the second
week (seven days) of dad and partner pay as those weeks would result in the
father receiving 19 weeks' (133 days') combined dad and partner pay and
parental leave pay, exceeding the 18-week (126-day) cap for individuals
claiming payments under the Act.
New subsection 115CB(8) provides that, despite subsections (2), (3) and (4), a
DAPP claimant is not eligible for dad and partner pay for a child on a day if, on that
day, the claimant is deceased.
Division 3 - Applying the work test to claimants for dad and partner pay
When a DAPP claimant satisfies the work test
New section 115CC outlines when a DAPP claimant satisfies the work test. To work
out whether a DAPP claimant satisfies the work test on a day, the method statement
in section 32 and the work test period in new section 115CD need to be used.
Section 32 sets out a method statement for working out whether a person satisfies
the work test. The work test applies by reference to work performed prior to the birth
of the child. The result of the work test in relation to a particular day will be the same
result for all days in the person's PPL period.
The method statement at section 32 sets out five steps for working out whether a
person satisfies the work test.
1. Step one requires the Secretary to determine the person's work test period.
The work test period for a person claiming dad and partner pay is set out in
section 115CD as the 392 days (which is broadly equivalent to 13 months)
immediately before the DAPP claimant's nominated start date.
2. Step two requires the Secretary to work out the days in the work test period
on which the person has and has not performed qualifying work (qualifying
work is defined in section 34 as including one hour of paid work on a day, or a
period of paid leave of at least one hour on a day).
3. Step three requires the Secretary to work out whether any of the days on
which the person has not performed qualifying work during the work test
period fall within a permissible break. For DAPP claimants, a permissible
break is defined in section 36.
4. Step four requires the Secretary to work out whether there is a qualifying
period of 295 consecutive days in the work test period that are days on which
the person has performed qualifying work or that fall within a permissible
break.
22
5. Step five requires the Secretary to work out whether the person has
performed at least 330 hours of qualifying work in the qualifying period. A
person who has performed 330 hours of qualifying work in the qualifying
period will meet the work test.
If a DAPP claimant does not meet the work test in line with the requirements in the
method statement, the Secretary will consider whether the exceptions under
sections 115CE or 115CF apply to the person. If either section 115CE or
section 115CF applies, the person will meet the work test.
The note under new section 115CC provides guidance that new sections 115CE
and 115CF in Division 3 are alternative ways of satisfying the work test for DAPP
claimants.
The work test period
New section 115CD provides that, for the purposes of satisfying the work test in
accordance with section 32, the work test period for a DAPP claimant is the
392 days (which is broadly equivalent to 13 months) immediately before the
claimant's nominated start date.
The note under new section 115CD provides guidance that sections 115CE
and 115CF in Division 3 are alternative ways of satisfying the work test for DAPP
claimants.
Premature birth
New section 115CE provides that a DAPP claimant also satisfies the work test on a
day if the Secretary is satisfied that the child was born prematurely and if the
Secretary is also satisfied that the DAPP claimant would have satisfied the work test
on the day in accordance with section 32 if the child had not been born prematurely.
DAPP claimant who is already eligible for parental leave pay
New section 115CF provides that a DAPP claimant also satisfies the work test on a
day if the Secretary is satisfied that the DAPP claimant is eligible for parental leave
pay for the child. This will benefit fathers and partners who would otherwise have to
meet the work test twice.
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Example
A father makes a secondary claim for 10 weeks' parental leave pay,
transferred from the birth mother, when his child is six months of age,
satisfying the work test for his parental leave pay claim as he has worked for
more than 330 hours in 10 of the 13 months before he takes on primary care
of his child with no more than an eight-week break between consecutive
working days. After the 10 weeks of parental leave pay, the father claims two
weeks of dad and partner pay. This section will apply to allow the father to
rely on his eligibility for parental leave pay to satisfy the work test for dad and
partner pay. The father will not be required to satisfy the work test again, by
working at least 330 hours in 10 of the 13 months before his nominated start
date for dad and partner pay. This section prevents the unfortunate possibility
of the father failing the work test for his dad and partner pay claim, based on
having 10 weeks out of the workforce providing primary care for his child and
receiving parental leave pay.
Division 4 - Applying the income test to claimants for dad and partner pay
When a DAPP claimant satisfies the income test
New section 115CG outlines when a DAPP claimant satisfies the income test. New
subsection 115CG(1) provides that, to work out whether a DAPP claimant satisfies
the income test in subsection 37(1) on a day, the income test in subsection 37(1)
needs to be used with the reference income year in new section 115CH and the
relevant PPL income limit in new section 115CJ.
Subsection 37(1) provides that a person satisfies the income test on a day if the
person's adjusted taxable income for the reference income year is not more than the
relevant PPL income limit. To work out whether a person claiming dad and partner
pay satisfies the income test, the Secretary will determine two elements:
1. The reference income year:
For a DAPP claimant, the reference income year is set out at new
section 115CH as the income year that ended before the earlier of the
following days - the day the DAPP claimant made the claim for dad and
partner pay and the DAPP claimant's nominated start date.
2. The relevant PPL income limit:
For a DAPP claimant, the relevant PPL income limit is set out at new section
115CJ as the PPL income limit that applies on the earlier of the following days
- the day the DAPP claimant made the claim for dad and partner pay and the
DAPP claimant's nominated start date.
The PPL income limit is defined in section 41, which provides that the PPL income
limit that applies for a day that is on or after 1 October 2010 but before 1 July 2014,
is $150,000. If the day is after 1 July 2014, the indexed amount is worked out under
Subdivision B.
24
Once the Secretary has determined the income reference year for the person and
the relevant PPL income limit, the Secretary can determine whether the person's
adjusted taxable income for that year is below the relevant PPL income limit. If this
test is satisfied, the person satisfies the income test.
New subsection 115CG(2) provides that a DAPP claimant also satisfies the income
test on a day if the Secretary is satisfied that the DAPP claimant is eligible for
parental leave pay for the child. This subsection will benefit fathers and partners
applying for both parental leave pay and dad and partner pay and who would
otherwise have to meet the income test twice based on different income reference
years.
Example
A father makes a secondary claim for 14 weeks of transferred parental leave
pay for the period 27 May 2013 to 1 September 2013. The father then makes
a subsequent claim for dad and partner pay for the period 2 September 2013
to 15 September 2013. The father met the income test for his parental leave
pay claim (which was made in June 2013), based on his adjusted taxable
income in the financial year ending 30 June before he took on primary care of
the child, that is, the 2011-12 financial year. When the father claims dad and
partner pay in August 2013, the income reference year for his DAPP period
will be the 2012-13 financial year. This section will apply so the father is
considered to have satisfied the income test for his claim for dad and partner
pay, despite it applying to a different income reference year, based on the
father previously establishing his eligibility for parental leave pay for the child.
The father will not be required to satisfy the PPL income test twice for two
payment claims under the Act.
The reference income year
New section 115CH sets out the reference income year for a DAPP claimant. The
reference income year for a DAPP claimant is the income year that ended before
the earlier of the following days - the day the DAPP claimant made the claim for dad
and partner pay and the DAPP claimant's nominated start date.
The relevant PPL income limit
New section 115CJ sets out the relevant PPL income limit for a DAPP claimant. The
relevant PPL income limit for a DAPP claimant is the PPL income limit that applies
on the earlier of the following days - the day the DAPP claimant made the claim for
dad and partner pay and the DAPP claimant's nominated start date.
The relevant PPL income limit that applies on a day is, if the day is on or after an
indexation day (the relevant index day) but before the next indexation day - the
indexed amount worked out under Subdivision B of Division 4 of Part 2-3 on the
relevant indexation day.
The note under new section 115CJ provides guidance that the PPL income limit is
set out in section 41 and that it may be indexed under Subdivision B of Division 4 of
Part 2-3.
25
Division 5 - Applying the Australian residency test to claimants for dad and partner
pay
When a DAPP claimant satisfies the Australian residency test
New section 115CK outlines when a DAPP claimant satisfies the Australian
residency test. To work out whether a DAPP claimant satisfies the Australian
residency test on a day, the Australian residency test in sections 45 and 46 are used.
Subsection 45(1) provides that a person satisfies the Australian residency test on a
day if, on that day, the person is an Australian resident. The Dictionary, in section 6,
provides that `Australian resident' has the same meaning as in the Social Security
Act. A person can be an Australian resident even if they are physically located
outside Australia if they meet a range of factors set out in that Act.
Alternatively, the test will be met if the person is a special category visa holder
residing in Australia. Section 6 provides that a special category visa has the same
meaning as in the Migration Act 1957. These visas are generally held by New
Zealand citizens. Section 6 provides that `resides in Australia' has the same
meaning as in the Social Security Act.
Additionally, the test will be met under subsection 45(2) if the person is the holder of
a visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of
the Social Security Act, and either the person is in Australia, or the person is
temporarily absent from Australia for not more than 13 weeks, and the absence is an
allowable absence in relation to special benefit within the meaning of Part 4.2 of that
Act.
Section 46 outlines the effect of absence from Australia for the purposes of the
residency test.
Subsection 46(1) provides an exception to section 45. Despite section 45, a person
does not satisfy the Australian residency test on a day if, before the relevant day, the
person left Australia and, on the relevant day, the person has been absent from
Australia for more than three years since the day the person left Australia.
Subsection 46(2) provides that, if the person has been absent from Australia for
more than 13 weeks but less than three years, and then returns to Australia but
leaves Australia again less than 13 weeks later, the person is taken not to have
returned to Australia for the purposes of section 46.
Subsection 46(3) provides that, if the person returns to Australia after having been
absent for three years (but would have continued to satisfy the Australian residency
test while the person was absent from Australia but for the three-year limitation), but
then leaves again less than 13 weeks later, the person does not satisfy the residency
test at any time during their return to Australia of less than 13 weeks, or the time
following their departure.
26
Division 6 - Caring for a child
When a DAPP claimant is caring for a child
New subsection 115CL(1) provides that a DAPP claimant is caring for a child on a
day in the claimant's reference period if the child is in the DAPP claimant's care in
that period. A DAPP claimant's reference period is outlined in new
subsection 115CL(2) as meaning the period that is determined by the Secretary for
the purposes of making a payability determination on the DAPP claimant's claim.
New subsection 115CL(3) provides that more than one person may be caring for the
same child on any particular day. This does not prevent one of the persons being
the primary carer of the child under section 47. However, new subsection 115CL(4)
provides that despite subsection 47(1), a person is not caring for a child on a day if,
before that day, the child has died.
Division 7 - Not working
When a DAPP claimant is not working
New subsection 115CM(1) provides that a DAPP claimant is not working on a day if
the following do not apply on that day: firstly, that the DAPP claimant performs one
hour or more of paid work other than for a purpose that is a permissible purpose
under subsection 49(2); and, secondly, that the DAPP claimant is on paid leave.
The meaning of paid work is set out in section 35.
New subsection 115CM(2) provides that the PPL Rules may prescribe
circumstances in which a DAPP claimant is taken to be not working even though the
claimant performs one hour or more of paid work other than for a permissible
purpose under subsection 49(2) or where the claimant is on paid leave.
The PPL Rules are a legislative instrument made by the Minister. These rules
provide for matters required or permitted by the Act to be provided, or necessary or
convenient to be provided, in order to carry out or give effect to the Act. It is
appropriate to include provision for delegated legislation in this way, particularly to
enable the Government to bring certain people in less usual or exceptional
circumstances within the Paid Parental Leave scheme, when they would not
otherwise have the benefit of entitlement under the Act.
Part 3A-4 - Claims for dad and partner pay
Division 1 - Guide to this Part
New section 115DA sets out the Guide for new Part 3A-4, which deals with claims
for dad and partner pay.
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Division 2 - Claims for dad and partner pay
Who can claim
New section 115DB provides that only a natural person can make a claim for dad
and partner pay.
Form of claim
New section 115DC provides that a claim for dad and partner pay must be made in
the form approved by the Secretary for claims for dad and partner pay.
Who can make a claim for dad and partner pay
New section 115DD provides that the following people can make a claim for dad and
partner pay for a child: the biological father of the child; the partner of the child's birth
mother; an adoptive parent of the child; or a person who satisfies circumstances
prescribed by the PPL Rules.
For the purposes of this section, a partner could include a birth mother's defacto
partner who is not the biological father of the child, or the birth mother's same-sex
partner. The PPL Rules could include other relationships such as commissioning
parents in a surrogacy arrangement.
Section 6 defines `partner' as having the same meaning as in the Social Security Act.
Subsection 4(1) of the Social Security Act provides that partner, in relation to a
person who is a member of a couple, means the other member of a couple. A
partner in relation to a person who is a member of a couple is the other member of
the couple, whether legally married or otherwise. This includes couples of the same
sex or a different sex. However, this definition excludes former partners, whether
legally married or otherwise, who have separated from the person.
When a claim is effective
New section 115DE provides that a claim for dad and partner pay is not effective
unless the requirements of new sections 115DF, 115DG, 115DH, 115DJ and 115DK
are satisfied.
New subsection 115DE(2) provides that a claim for dad and partner pay is also not
effective if it is made by a person who cannot make a claim under new
section 115DD.
New subsection 115DE(3) provides that a claim for dad and partner that is not
effective is taken not to have been made.
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Requirements of the claim
New section 115DF provides that the claim for dad and partner pay must be made in
the form approved, and the manner required, by the Secretary for dad and partner
pay. The claim for dad and partner pay must contain any information required by the
Secretary and be accompanied by any documents required by the Secretary. The
kinds of information the Secretary can require a person to provide are limited to
information that the Secretary considers may be relevant to determining whether the
person is eligible for dad and partner pay, whether dad and partner pay is payable to
the person and details of the payment destination. This could include information on
the DAPP claimant's adjusted taxable income for the relevant income year,
residency details, work history information including the number of hours worked and
any unpaid leave taken, tax file number, bank account details and the child's name
and date of birth.
Nominated start date
New section 115DG outlines the requirements for the nominated start date in the
claim for dad and partner pay.
New subsection 115DG(1) provides that the claim must state a specific date (the
nominated start date) which is the first day of the period for which the claimant
wants to be paid dad and partner pay.
New subsection 115DG(2) provides that, if the claim is made before the child is born,
the nominated start date must be on or after the expected date of birth of the child. If
the claim is made after the child is born, the nominated start date must be on or after
the child's actual date of birth.
New subsection 115DG(3) provides that, before a payability determination is made
on the claim for dad and partner pay, the claimant may change his or her nominated
start date by notifying the Secretary of the new nominated start date.
New subsection 115DG(4) provides that, if a payability determination is made that
dad and partner pay is payable to the claimant, the claimant may only change his or
her nominated start date (the old date) by notifying the Secretary, before the old
date, of the new nominated start date.
Expected or actual date of birth
New section 115DH provides that the claim for dad and partner pay for a child must
specify the child's expected date of birth or, if made after the child is born, the child's
actual date of birth.
Tax file number statement
New section 115DJ provides that the claim for dad and partner pay must contain the
person's tax file number statement, which is a statement of the kind set out in
subsections 59(2), (3) or (4). The claimant must provide either:
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· their tax file number (subsection 59(2)); or
· authorisation to the Commissioner of Taxation to provide the claimant's tax
file number (if any) to the Secretary (subsection 59(3)); or
· authorisation to the Commissioner of Taxation to advise the Secretary of the
outcome of the claimant's pending application for a tax file number
(subsection 59(4)).
Tax file number information is required for dad and partner pay claimants to ensure
that income eligibility is correctly assessed, and to allow remission of tax
withholdings to the Commissioner of Taxation.
When to claim
New section 115DK provides that a claim for dad and partner pay for a child must be
made in the period that starts on the day that is 97 days (three months) before the
expected date of birth of the child and ends on the day before the child's first
birthday.
Claim may be withdrawn or varied
New section 115DL allows a claimant who has made an effective claim for dad and
partner pay to withdraw or vary the claim before a payability determination is made
on it. New subsection 115DL(2) provides that the person may only do so in a
manner approved by the Secretary. New subsection 115DL(3) provides that, if a
claim is withdrawn, it is taken never to have been made.
Part 3A-5 - Payment of dad and partner pay
Division 1 - Guide to this Part
New section 115EA sets out the Guide to Part 3A-5, which deals with payment of
dad and partner pay.
Division 2 - Payment of dad and partner pay
Payment of dad and partner pay
New section 115EB provides that, if the Secretary makes a payability determination
that dad and partner pay is payable to a person for a child, the Secretary must pay
the dad and partner pay to the person as soon as practicable after making the
determination, but not before the start of the person's DAPP period.
Amount of dad and partner pay
New section 115EC provides that the amount of dad and partner pay to be paid to
the person is the total of the daily national minimum wage amounts for each week
day during the person's DAPP period.
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The note under new section 115EC provides guidance that subsection 65(2) outlines
how to work out the daily national minimum wage amount for a day.
Subsection 65(2) provides that the daily national minimum wage amount for a day
is defined as 7.6 times the amount of the national minimum wage (expressed as a
monetary amount per hour) set by a national minimum wage order that is in
operation on that day, irrespective of whether it takes effect on that day.
Method of payment of dad and partner pay
New subsection 115ED(1) provides that the Secretary must pay dad and partner pay
that is payable to a person to the credit of a bank account nominated and maintained
by the person. However, new subsection 115ED(2) provides that the Secretary may
direct the whole or part of a payment of dad and partner pay is to be paid in a way
different from that provided for by subsection (1). If the Secretary gives the direction,
the payment is to be paid in accordance with the direction. New
subsection 115ED(3) provides that a direction made under subsection (2) is not a
legislative instrument. This provision is merely declaratory of the law and is included
to assist readers, as the instrument is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act.
Giving person record of payment
New section 115EE provides that, if the Secretary pays dad and partner pay to or in
relation to a person, in particular circumstances, the Secretary must give the person
the information prescribed by the PPL Rules in relation to dad and partner pay paid
in those circumstances.
Effect of extending DAPP period after review
New section 115EF outlines the effect of extending the DAPP period after a review.
If the Secretary has made a payability determination that dad and partner pay is
payable to a person, and, after the Secretary has paid the dad and partner pay, a
decision is made in relation to the payability determination that has the effect that a
higher amount of dad and partner pay is payable to the person, the Secretary must
pay the person the difference between the higher amount and the amount already
paid to the person as soon as practicable after the decision is made. New
subsection 115EF(2) provides that, to avoid doubt, any difference worked out under
subsection (1) is also dad and partner pay.
New section 115EF would not apply if it had been previously determined that DAPP
is not payable to a person, but, following a review, it was determined that DAPP is
payable to the person. In this situation, the full amount of dad and partner pay would
be paid under new section 115EB.
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Protection of payment
New section 115EG protects a payment of dad and partner pay from sale,
assignment, charge, execution, bankruptcy or otherwise by making it inalienable.
The note under new section 115EG directs the reader to new section 115EK, a
related provision, which also provides protection from garnishee for an account into
which dad and partner pay has been paid. However, new subsection 115EG(2)
provides that subsection (1) has effect subject to new section 115EH which deals
with deductions for PAYG withholding. This is the only amount that can be deducted
by the Secretary from dad and partner pay that is payable to the person.
Deductions for PAYG withholding
New section 115EH provides that the Secretary may deduct an amount from a
payment of dad and partner pay to a person if the Secretary is required to withhold
the amount under section 12-110 in Schedule 1 to the Taxation Administration Act
(PAYG withholdings).
No other deductions
New section 115EJ provides that an amount must not be deducted from a payment
of dad and partner pay except in accordance with new section 115EH. This section
applies despite any other law of the Commonwealth, a State or a Territory.
Effect of garnishee etc. order
New section 115EK provides some protection for a payment of dad and partner pay
that has been paid into an account from the effect of a court order in the nature of a
garnishee order. The court order does not apply to a saved amount, which is worked
out under the method statement in this section.
The saved amount is worked out in two steps.
The first step is to work out the total amount of dad and partner pay that has been
paid to the credit of the account during the four-week period immediately before the
court order came into force.
The second step is to subtract from the step 1 amount the total amount withdrawn
from the account during the same four week period - the result is the saved
amount.
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Exemption from operation of workers' compensation and accident compensation
laws
New subsection 115EL(1) clarifies that the payment of dad and partner pay is not
relevant for the purposes of the provisions of any Commonwealth, State or Territory
law dealing with workers' compensation or accident compensation. Similarly, under
new subsection 11EL(2), the payment would not be taken into account for the
purposes of laws, or provisions of laws, prescribed by the PPL Rules to the extent
that they deal with workers' compensation or accident compensation. The PPL
Rules may exclude particular laws or provision of laws from the operation of this
section.
The Minister, by legislative instrument, may make rules providing for matters
required or permitted by the Act to be provided, or necessary or convenient to be
provided, in order to carry out or give effect to the Act. It is appropriate to include
provision for delegated legislation in this way, to enable the Government to ensure
that the PPL Act continues to interact with workers' compensation and accident
compensation law in a way that provides appropriate cover for people in these
circumstances.
This new section ensures that compensation recipients would not have their
compensation payments reduced because they are receiving dad and partner pay
during the same period. Additionally dad and partner pay would not affect premiums
or other contributions required in relation to compensation arrangements.
DAPP period is not a period of paid leave
New section 115EM makes clear that, despite any law of the Commonwealth, a
State or a Territory, or any industrial instrument (however described), a period of
unpaid leave is not to be taken to be a period of paid leave just because a person
receives dad and partner pay for all or part of that period.
Chapter 4 - Compliance and enforcement
Part 4-1 - Information gathering
Item 68 amends section 116. This item amends the Guide to Part 4-1 dealing with
information gathering, to include dad and partner pay.
Item 69 amends section 117 and is consequential to item 70.
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Item 70 inserts new subsection 117(2) at the end of section 117. New
subsection 117(2) provides that the Secretary may require a person to give
information, or produce a document that is in the person's custody or under the
person's control, to a specified agency if the Secretary considers that the information
or document may be relevant to one or more of the matters specified in this section.
These matters are: determining whether a person who has made an effective claim
for dad and partner pay is or was eligible for dad and partner pay, or is or was
initially eligible for dad and partner pay; determining whether dad and partner pay is
or was payable to a person; and ensuring the Secretary can pay dad and partner pay
into the bank account of a person to whom dad and partner pay is payable.
Item 71 amends paragraph 122(1)(a) and is consequential to item 70.
Item 72 amends paragraph 123(a). This amendment clarifies that the information
that the Secretary can seek under this section is limited to information about a
person who has made an effective claim for parental leave pay, and dad and partner
pay.
Item 73 inserts new paragraphs (c) and (d) at the end of subsection 124(2).
New paragraph 124(2)(c) provides that a tax file number provided to the Secretary
as referred to in subsection (1) may be used to detect cases in which dad and
partner pay has been paid when it should not have been paid.
New paragraph 124(2)(d) provides that a tax file number provided to the Secretary
as referred to in subsection (1) may also be used to verify, in relation to persons who
have made effective claims for dad and partner pay, the eligibility of those persons
for that pay.
Item 74 repeals and substitutes new subsections 125(1) and (2).
New subsection 125(1) provides that a person who has made an effective claim for
parental leave pay, in respect of which there is not in force any payability
determination that parental leave pay is not payable, must notify the Secretary of
certain things. These things are: anything that causes the person to cease to be
eligible for parental leave pay on a day; and anything that is likely to have the effect
of causing the person to cease to be eligible for parental leave pay on a day.
New subsection 125(2) provides that a person who has made an effective claim for
dad and partner pay, in respect of which there is not in force any payability
determination that dad and partner pay is not payable, must notify the Secretary of
certain things. These things are: anything that causes the person to cease to be
eligible for dad and partner pay on a day; and anything that is likely to have the effect
of causing the person to cease to be eligible for dad and partner pay on a day.
Item 75 repeals the heading to section 133 and substitutes the heading
`133 Repayment of instalments of parental leave pay, PPL funding amount or dad
and partner pay'. This item is consequential to item 76.
Item 76 inserts new subparagraph 133(1)(b)(iii) at the end of paragraph 133(1)(b).
34
New subparagraph 133(1)(b)(iii) provides that, if a person is convicted of an offence
against Part 7.3 or Part 7.4 of the Criminal Code in relation to this Act, the court may
impose a penalty in relation to the offence and order the person to pay the
Commonwealth an amount equal to any amount paid to, or in relation to, the person
by way of dad and partner pay because of the act, failure or omission that
constituted the offence.
Item 77 amends paragraph 138(2)(a). This amendment clarifies that this section
also applies to dad and partner pay.
Part 4-3-Debt recovery
Item 78, 79, 80 amend the Guide to Part 4-3 in section 164, to clarify that dad and
partner pay applies to this part of the Act.
Item 81 amends section 165. This amendment allows dad and partner pay to be
included in an amount that has been paid for the purposes of section 165 dealing
with debts due to the Commonwealth.
Item 82 inserts new section 168A after section 168. New section 168A deals with
dad and partner pay debts.
New subsection 168A(1) provides that this section applies if the Secretary pays an
amount (the Secretary payment) to, or in relation to, a person for a child by way of
dad and partner pay and the total of Secretary payments paid for the child exceeds
the total of amounts that are payable to, or in relation to, the person for the child
under new Part 3A-5 (which deals with the payment of dad and partner pay by the
Secretary).
The note under new subsection 168A(1) provides guidance that dad and partner pay
may cease to be payable after it has already been paid, if the payability
determination is later set aside or varied.
New subsection 168A(2) provides that an amount equal to the amount of the excess
(the amount that has been overpaid) is a debt due to the Commonwealth by the
person.
The note under new subsection 168A(2) provides an example that, if no dad and
partner pay is payable to, or in relation to, a person for the child, the amount of the
excess is the total amount of the Secretary payments.
New subsection 168A(3) provides that the debt under subsection (2) arises in two
circumstances. Firstly, if the person has a DAPP period for the child - immediately
after the end of the person's DAPP period, or, otherwise, when subsection (1) starts
to apply in relation to a Secretary payment.
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Note 1 under new subsection 168A(3) provides guidance that the person does not
have a DAPP period for the child if a payability determination that dad and partner
pay is payable to the person for the child has not been made, or has been set aside.
In such a case, a debt will arise as soon as there is an excess as referred to in
subsection (1).
Note 2 under new subsection 168A(3) provides guidance that section 167A may
apply to overpayments by way of payments that are mistakenly paid. For example,
an overpayment or mistaken payment may arise due to administrative error, the
setting aside or variation of a payability determination or payments following a stay
order under subsection 41(2) of the Administrative Appeals Tribunal Act 1975.
Item 83 repeals the heading to section 169 and substitutes the new heading `169
Wrong person receives parental leave pay instalment, PPL funding amount or dad
and partner pay'. This item is consequential to item 84.
Items 84, 85, 86 and 87 amend paragraphs 169(1)(a), 171(a), 192(1)(a)
and 192(2)(a) to allow an amount of dad and partner pay to be treated in the same
way as parental leave pay for these sections.
Chapter 5 - Review of decisions
Part 5-2 - Review by the Social Security Appeals Tribunal
Item 88 inserts new subparagraphs 215(2)(a)(viia), (viib), (viic) and (viid) after
subparagraph 215(2)(a)(vii). Section 215 lists the decisions to which Division 2
(which deals with review by the SSAT of claimant decisions) of Part 5 applies and
does not apply.
New subparagraph 215(2)(a)(viia) provides that Division 2 of Part 5 does not apply to
a decision under new subparagraph 115BK(1)(c)(ii), which deals with revoking a
payability determination for dad and partner pay on request.
New subparagraph 215(2)(a)(viib) provides that Division 2 of Part 5 does not apply to
a decision under new section 115DC, which deals with the form of a claim for dad
and partner pay.
New subparagraph 215(2)(a)(viic) provides that Division 2 of Part 5 does not apply to
a decision under new section 115DF, which deals with the requirements of the claim
for dad and partner pay.
New subparagraph 215(2)(a)(viid) provides that Division 2 of Part 5 does not apply to
a decision under new section 115DL(2), which deals with a claim for dad and partner
pay being withdrawn or varied.
Part 5-5 - Other matters relating to review
Items 89, 90 and 91 amend subparagraphs 273(1)(a)(i) and 273(1)(a)(ii) and
paragraph 273(1)(c) to include reference to dad and partner pay.
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Chapter 6 - Miscellaneous
Part 6-1 - How this Act applies in particular circumstances
Item 92 inserts new subsection 277(1A) after subsection 277(1). New
subsection 277(1A) provides that, if a claim is made for dad and partner pay for a
child and, before or after the claim is made, the child is stillborn or dies, the Act
(other than new sections 115CB and 115CL) applies as if a reference to the DAPP
claimant caring for the child were a reference to the DAPP claimant caring for the
child had the child not been stillborn or died. This means that a claim can be made
by a claimant for a child who was stillborn or who has died, and the operation of the
Act is modified by new subsection 277(1A) to establish eligibility correctly.
The note under new subsection 277(1A) provides guidance that new section 115CB
deals with eligibility for dad and partner pay and new section 115CL defines when a
person is caring for a child for the purposes of dad and partner pay.
Item 93 amends subsection 277(2). This item inserts `or (1A)' at the end of
subsection 277(2). The amendment allows the PPL Rules to modify the operation of
new subsection 277(1A).
The Minister, by legislative instrument, may make rules providing for matters
required or permitted by the Act to be provided, or necessary or convenient to be
provided, in order to carry out or give effect to the Act. It is appropriate to include
provision for delegated legislation in this way, particularly to enable the Government
to bring certain people in less usual or exceptional circumstances within the Paid
Parental Leave scheme, when they would not otherwise have the benefit of
entitlement under the Act.
Part 6-2 - Nominees
Items 94, 95, 97, 98 amend section 279, paragraph 280(1)(a), subsection 280(1)
and subsection 281(1) to clarify that these provisions apply to dad and partner pay.
Item 96 amends paragraph 280(1)(b). This item amends paragraph 280(1)(b) to
clarify that this paragraph applies to parental leave pay.
Item 99 repeals the heading to Division 3 of Part 6-2 and substitutes a new heading
`Division 3 - Payment to payment nominee'.
Division 3 - Payment to payment nominees
Item 100 inserts new section 284A after section 284. New subsection 284A(1)
provides that, if a person has a payment nominee and the whole or part of a
payment of dad and partner pay is payable to the person and the Secretary has
given a direction in relation to the payment under section 281, the payment must be
paid in accordance with the direction.
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New subsection 284A(2) provides that a payment of dad and partner pay paid to the
payment nominee of a person is paid to the payment nominee on behalf of the
person and is taken, for the purposes of the Act (other than Part 6-2), to have been
paid to the person and to have been so paid when it was paid to the nominee.
New subsection 284A(3) provides that a payment of dad and partner pay that is to
be paid to the payment nominee of a person must be paid to the credit of a bank
account nominated and maintained by the nominee.
New subsection 284A(4) provides that the Secretary may direct that the whole or
part of a payment of dad and partner pay that is to be paid to a payment nominee be
paid to the payment nominee in a different way from that provided for by
subsection (3). If the Secretary gives such a direction, a payment to which the
direction relates must be paid in accordance with the direction.
New subsection 284A(5) provides that a direction given under subsection (4) is not a
legislative instrument. This provision is merely declaratory of the law and is included
to assist readers, as the instrument is not a legislative instrument within the meaning
of section 5 of the Legislative Instruments Act.
Item 101 repeals and substitutes new section 285, which sets out provisions dealing
with actions of correspondence nominees on behalf of the principal.
New subsection 285(1) provides that, if a person has a correspondence nominee for
parental leave pay, any act that may be done by the person under or for the
purposes of this Act (other than Division 2 or 3) in relation to parental leave pay may
be done by that correspondence nominee. A correspondence nominee means a
person who is appointed as a correspondence nominee under section 281.
The note under new subsection 285(1) provides guidance that this subsection is
subject to section 296 (which deals with the right of the nominee to attend with a
principal) and subsection (3) of this section.
New subsection 285(2) provides that, without limiting subsection (1), if a person has
a correspondence nominee for parental leave pay, an application or claim that may
be made by a person under the Act in relation to parental leave pay may be made by
that correspondence nominee on behalf of the person. An application or claim made
is taken to be made by the person.
New subsection 285(3) provides that, if, under a provision of this Act, the Secretary
gives a notice in relation to parental leave pay to a person who has a
correspondence nominee for parental leave pay, subsection (1) does not extend to
an act that is required by the notice to be done by the person.
New subsection 285(4) provides that, if a person has a correspondence nominee for
dad and partner pay, any act that may be done by the person under, or for the
purposes of, this Act (other than Division 2 or 3) in relation to dad and partner pay
may be done by that correspondence nominee.
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The note under new subsection 285(4) provides guidance that this subsection is
subject to section 296 (which deals with the right of the nominee to attend with a
principal) and subsection (6) of this section.
New subsection 285(5) provides that, without limiting subsection (4), if a person has
a correspondence nominee for dad and partner pay, an application or claim that may
be made by a person under this Act in relation to dad and partner may be made by
that correspondence nominee on behalf of the person. An application or claim made
is taken to be made by the person.
New subsection 285(6) provides that, if, under a provision of this Act, the Secretary
gives a notice in relation to dad and partner pay to a person who has a
correspondence nominee for dad and partner pay, subsection (1) does not extend to
an act that is required by the notice to be done by the person.
New subsection 285(7) provides that an act done by a person's correspondence
nominee under this section has effect, for the purposes of this Act (other than this
Part), as if it had been done by the person.
Item 102 repeals subsection 286(1) and substitutes new subsections 286(1)
and (1A). New subsection 286(1) provides that, if a person has a correspondence
nominee for parental leave pay, any notice that the Secretary is required or
authorised by this Act to give to the person in relation to parental leave pay may be
given by the Secretary to that correspondence nominee.
New subsection 286(1A) provides that, if a person has a correspondence nominee
for dad and partner pay, any notice that the Secretary is required or authorised by
this Act to give to the person in relation to dad and partner pay may be given by the
Secretary to that correspondence nominee.
Item 103 amends subsection 286(2). This item omits `The notice' and substitutes `A
notice given under subsection (1) or (1A)'. This item is consequential to item 101.
Item 104 amends paragraphs 286(3)(a) and (4)(a) to insert in each case `or (1A)'
after `(1)'. This item is consequential to item 101.
Item 105 amends subsection 289(1). This item inserts `, or a payment of dad and
partner pay' after `an instalment' in subsection 289(1).
Part 2 - Consequential amendments
Amendments to the Data-matching Act
Item 106 amends the definition of `personal assistance' in subsection 3(1) of the
Data-matching Act to include the payment of dad and partner pay under the Paid
Parental Leave Act. This change will include dad and partner pay within the
compliance activities in that legislation. The amendment will not allow deductions to
be made from dad and partner pay.
39
Amendments to the Income Tax Assessment Act
Item 107 amends the definitions section of the Income Tax Assessment Act,
section 995-1, to include a definition of dad and partner pay. This term is used in the
Taxation Administration Act (see below).
Amendments to the Social Security Act
Item 108 inserts a new definition of dad and partner pay into subsection 8(1) of the
Social Security Act. This term will mean dad and partner pay under the Paid
Parental Leave Act.
Item 109 amends subsection 8(8) to insert reference to dad and partner pay in a
new paragraph 8(8)(da). This will allow dad and partner pay to be excluded from the
general concept of income, in the same way as parental leave pay is excluded.
Item 110 amends the definition of pension bonus bereavement payment (PBBP)
employment income in section 93WC so as to include dad and partner pay. In
working out the amount of PBBP under section 93WC, any PBBP employment
income is to be disregarded. PBBP employment income includes `leave payments',
which includes an instalment of parental leave pay under paragraph 93WC(2)(aa).
This item adds dad and partner pay to the meaning of leave payments in
subsection 93WC(2), to exclude dad and partner pay from working out the amount of
a PBBP.
Item 111 repeals points 1064-F14, 1066A-G14, 1067G-H20, 1067L-D16,
1068-G7AR, 1068A-E12 and 1068B-D18 in the definitions of leave payment and
substitutes a new definition of leave payment. The new definition of leave payment
includes a payment in respect of sick leave, annual leave, maternity leave and long
service leave, but does not include an instalment of parental leave pay or dad and
partner pay. This item adds dad and partner pay to the definition of leave payment,
to exclude this as a leave payment, in the same way as parental leave pay is
excluded.
Item 112 amends point 1071A-4 to include dad and partner pay within the expanded
definition of income for the purposes of the health care card income test. Including
dad and partner pay within the health care card income test is consistent with other
inclusions in the test, helping to ensure targeting of the card to genuine low-income
earners.
Item 113 inserts new paragraph 1228(2)(cb) to enable a payment of dad and partner
pay that should not have been paid to a person also to be recovered by deductions
from the person's social security payments. This amount would be a debt owed to
the Commonwealth by the recipient under the Paid Parental Leave Act.
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Amendments to the Taxation Administration Act
Item 114 amends section 12-110 in Schedule 1 to the Taxation Administration Act to
include dad and partner pay within its scope. As a result, an entity making a
payment of dad and partner pay to an individual must withhold tax from that
payment. This includes a payment from the Secretary (within the meaning of the
Paid Parental Leave Act). This allows dad and partner pay to be treated in the same
way as parental leave pay for the purposes of PAYG withholdings.
Pursuant to section 16-155 in Schedule 1 to the Taxation Administration Act, entities
that have provided amounts to a recipient from which tax was withheld (known as
withholding payments under the Tax Assessment Act) must give the recipient a
payment summary within 14 days of the end of the year. The payment summary
must cover the withholding payments and certain other payments or benefits
provided to the recipient during the year, as prescribed in section 16-155.
Item 115 repeals the heading to subsection 16-155(3) and substitutes the new
heading `Parental leave pay or dad and partner pay paid in error'. This amendment
is consequential to item 116.
Item 116 amends section 16-155 to provide that an entity must ensure that an
amount of dad and partner not lawfully payable to a recipient is not reported on the
annual payment summary provided to the recipient if the payer is made aware before
the payment summary is provided that the payment was not lawfully so payable.
Item 117 amends section 16-160 to provide that an entity must not report an amount
of dad and partner pay not lawfully payable to a recipient on a part-year payment
summary issued to the recipient if the entity was made aware that the amount of dad
and partner pay was not lawfully so payable before the recipient requested the part-
year payment summary.
Items 118 and 119 amend section 18-65 and section 18-70 respectively to provide
that an individual may recover an amount withheld from a payment of purported dad
and partner pay that was not lawfully so payable under those sections.
Amendments to the Veterans' Entitlements Act
Item 120 inserts a new definition into subsection 5H(1) of the Veterans' Entitlements
Act. Dad and partner pay is defined to mean dad and partner pay under the Paid
Parental Leave Act.
Item 121 amends subsection 5H(8). Consistent with the comparable amendment to
the concept of income in the Social Security Act (item 109), this item inserts a new
paragraph 5H(8)(da), which excludes dad and partner pay from the general concept
of income.
41
Item 122 amends the definition of PBBP employment income in section 45UUC so
as to include dad and partner pay in the definition. PBBP employment income is
disregarded in working out the amount of a person's pension bonus bereavement
payment. This is consistent with the comparable amendment in the Social Security
Act to the definition of PBBP (item 110).
Item 123 amends subsection 46AB(1). This item inserts new paragraphs 46AB(1)(h)
and (i) into subsection 46AB(1), to exclude parental leave pay and dad and partner
pay from the definition of employment income.
Item 124 inserts new paragraph 205(1)(cc), which enables the recovery regime in
section 205 to apply in relation to an amount that has been paid by way of dad and
partner pay that was not lawfully payable. Such an amount would be a debt owed to
the Commonwealth by the recipient under the Paid Parental Leave Act.
Item 125 amends paragraph 205(2)(a) to insert `cc' after `cb'. This item is
consequential to item 124.
Item 126 makes a consequential amendment to the definition of `excluded amount'
in subsection 205(8). The effect is that overpayment of dad and partner pay will not
be recovered by legal proceedings under authority of subsection 205(1C). This
method of recovery would be available under the Paid Parental Leave Act.
Item 127 makes a consequential amendment to the definition of `recoverable
amount' in subsection 205(8) so that an amount of dad and partner pay can be
recovered by instalments in accordance with paragraph 206(1)(c) of the Veterans'
Entitlements Act.
42
Schedule 2 - Other amendments
Summary
This Schedule makes minor refinements to the Paid Parental Leave Act to improve
clarity and consistency. The amendments include refining the provisions which
permit `keeping in touch days', and clarifying the operation of a number of provisions,
including debt recovery provisions, notice provisions, and the provision relating to
delegation of the Secretary's powers under the Act.
This Schedule also amends the Fair Work Act, to clarify unpaid parental leave
arrangements where there is a stillbirth or infant death, to enable early
commencement of unpaid parental leave, and to enable employees who are on
unpaid parental leave to perform permissible paid work for short periods for the
purposes of `keeping in touch'.
Background
The Paid Parental Leave Act commenced on 1 October 2010. This Schedule makes
minor amendments to that Act, including clarification regarding debt recovery, the
provision of notices, and the delegation of the Secretary's powers under the Act.
The amendments in Part 2 of this Schedule to the Fair Work Act will also ensure that
the capacity to perform permissible paid work for the purposes of `keeping in touch'
will be available for employees on unpaid parental leave under the Fair Work Act. It
will also ensure that the arrangements under the Fair Work Act align with the
keeping in touch arrangements for those who are entitled to receive parental leave
pay under the Paid Parental Leave Act.
The amendments will enable pregnant female employees, if they wish, to start
unpaid parental leave more than six weeks before the expected date of birth where
the employer agrees. The amendments also provide that, where unpaid parental
leave has started and there is a stillbirth or infant death, the employee is entitled to
return to work within four weeks of notifying the employer that they wish to return to
work; if the employer wishes the employee to return to work, they must give the
employee at least six weeks' notice. The amendments also clarify that, where an
employer engages a replacement employee to perform the work of another
employee who is taking unpaid parental leave, the replacement employee must be
notified that the engagement is temporary and of the rights of the employer and the
employee who is taking, or will take, unpaid parental leave.
This Schedule also inserts notes to relevant provisions of the Fair Work Act to
explain the operation of certain provisions and to refer readers to relevant provisions
of the Paid Parental Leave Act. The amendments in Part 1 of this Schedule are
taken to have commenced at the same time as the commencement of the Paid
Parental Leave Act. No person's rights will be adversely affected by the
retrospective commencement of the amendments in Part 1 of this Schedule. The
amendments in Part 2 of this Schedule commence the day after Royal Assent.
43
Explanation of the changes
Part 1 - Amendments commencing at the same time as the Paid Parental
Leave Act
Amendments to the Paid Parental Leave Act
Modification of the work test
Section 31 of the Paid Parental Leave Act deals with when a person is eligible for
parental leave pay, including establishing through the `work test' that they have a
sufficient connection to the workforce. Subsection 31(4A) eases the work test to
enable eligibility to be established where mothers do not meet the work test because
the child was born prematurely or there were complications or illness relating to the
pregnancy which prevented the person from performing paid work.
Subsection 31(4A) only deals with eligibility. However, there are other provisions in
the Act under which the Secretary may make determinations referring specifically to
the work test.
Items 1, 2, 3, 4, 5, 6 and 7 make amendments to allow the modification to the work
test, as currently provided for in subsection 31(4A), to be considered wherever the
work test applies in the Paid Parental Leave Act.
Item 1 makes a minor amendment to the definition of the work test to refer to
Division 3 of Part 2-3.
Item 2 amends the Guide to Part 2-3, as set out in section 30 of the Paid Parental
Leave Act, to indicate that, in relation to the work test, special rules apply in the case
of premature birth or complications or illness related to the pregnancy.
Items 3 and 4 make minor consequential changes to paragraph 31(2)(a) and
subparagraph 31(4)(a)(i) respectively, to remove the reference to subsection 31(4A).
This is done because the amendments made by items 5 and 7 of this Part will move
the alternative to the work test (currently set out in subsection 31(4A)) into Division 3
of Part 2-3 as new section 36A.
Item 5 repeals subsection 31(4A), as the amendment made by item 7 inserts the
equivalent of this provision into Division 3 of Part 2-3, which deals with the work test,
as new section 36A.
Item 6 adds a note at the end of section 32 to alert the reader to the fact that a
person may also satisfy the work test if the child was born prematurely and if, while
the person was pregnant with the child, they had complications or illness related to
the pregnancy which prevented them from performing paid work. The note directs
the reader to new section 36A.
44
Item 7 adds new section 36A at the end of Division 3 of Part 2-3. Division 3 of
Part 2-3 deals with the work test for eligibility for parental leave pay. Section 32 sets
out a method statement for when a person satisfies the work test. New section 36A
sets out the alternative to the work test for premature births and pregnancy-related
complications, which is the equivalent of current subsection 31(4A).
Notice of further review right and the validity of an SSAT decision
Part 5-2 of the Paid Parental Leave Act deals with review of decisions by the Social
Security Appeals Tribunal (the SSAT). The procedures for review by the SSAT are
set out in Part 5-3, and section 257 deals with the procedure following a decision of
the SSAT. Subsection 257(6) provides that, when the SSAT determines a review in
relation to an SSAT reviewable claimant decision, the Principal Member must give
each party to the review a written notice that includes a statement to the effect that, if
the party is dissatisfied with the SSAT decision, application may, subject to the
Administrative Appeals Tribunal Act 1975, be made to the Administrative Appeals
Tribunal for review of the decision.
Subsection 257(6) is the equivalent of subsection 141(2) of the A New Tax System
(Family Assistance) (Administration) Act 1999 (the Family Assistance Administration
Act). Subsection 141(3) of that Act specifically provides that a failure to comply with
subsection 141(2) in relation to a decision of the SSAT does not affect the validity of
the decision.
Item 8 inserts new subsection (7) into section 257. This new subsection is
consistent with the approach taken in section 141 of the Family Assistance
Administration Act. New subsection 257(7) provides that a failure to comply with
subsection 257(6) in relation to a decision of the SSAT does not affect the validity of
the decision.
Part 2 - Amendments commencing the day after Royal Assent
Amendments to the Fair Work Act
Item 9 inserts a signpost definition of keeping in touch day into the dictionary in
section 12 of the Fair Work Act. The definition refers readers to subsections 79A(2)
and (3).
Item 10 amends Note 1 to section 70 of the Fair Work Act to alert readers to the
operation of subsection 77A(3), which deals with the situation in which there is a
stillbirth or infant death and the unpaid parental leave has not yet started.
Items 11 and 13 add an identical note to each of subsections 71(2) and 72(2) to
clarify that periods of unpaid parental leave can include keeping in touch days on
which an employee performs work, as provided for by section 79A.
Item 12 amends subsection 71(3) of the Fair Work Act to provide that, for a pregnant
female employee, unpaid parental leave may start earlier than six weeks before the
expected date of birth of her child if the employee and employer agree, but otherwise
may start up to six weeks before the expected date of birth and must not start later
than the date of birth of the child.
45
A note to subsection 71(3) reminds the reader that, if the female employee is not fit
for work, then she may be entitled to paid personal leave under Subdivision A of
Division 7 of Part 2-2 of the Fair Work Act or unpaid special maternity leave under
section 80.
A second note alerts the reader to section 81 of the Fair Work Act, which may
operate to entitle the female employee to transfer to an appropriate safe job or to
paid no safe job leave.
A third note reminds readers that section 344 of the Fair Work Act operates to
prohibit the exertion of undue influence on an employee to agree to early
commencement of unpaid parental leave under paragraph 71(3)(b).
Item 14 amends subparagraph 72(3)(a)(i) to provide that, for a pregnant female
employee, unpaid parental leave may start earlier than six weeks before the
expected date of birth of the child, if the employer and employee so agree.
Item 15 adds a similar note (to the notes in items 11 and 13) to subsection 76(1) to
clarify that extended periods of unpaid leave can include keeping in touch days.
Item 16 inserts new section 77A into Subdivision B of Division 5 of Part 2-2 of the
Fair Work Act. Subsection 77A(1) provides that the new section applies to unpaid
parental leave if the leave is birth-related (birth-related leave is defined at
subsection 67(4) of the Fair Work Act) and there is either a still birth or an infant
death.
Subsections 77A(2) and (3) provide that, if, before the unpaid parental leave starts,
the employee or employer gives written notice cancelling the leave, then the
employee is not entitled to unpaid parental leave. Subsections (2) and (3) will not
apply in any circumstance in which the leave has already started, whether or not the
employee taking the leave is the female employee who gave birth to the child.
An example below new subsection 77A(2) will make clear to the reader that
subsections 77A(2) and (3) will not apply if the child dies after being born, and the
employee is the female employee who gave birth to the child, because
subsection 71(3) provides that unpaid parental leave cannot start later than the date
of birth of the child.
A note to subsection (3) reminds the reader that, if the employee is a female
employee who was pregnant with the child and who is not fit for work, then she may
be entitled to paid personal leave under Subdivision A of Division 7 of Part 2-2 of the
Fair Work Act or unpaid special maternity leave under section 80.
Subsections 77A(4) to (7) provide that, where unpaid parental leave has started and
there is a stillbirth or infant death, the employee may, by giving notice to the
employer, return to work within four weeks of giving such notice, or the employer
may, by giving notice to the employee, require the employee to return to work at
least six weeks after that notice is given. The subsections provide that the
employee's entitlement to unpaid parental leave ends immediately before the return
to work. Subsection 77(8) clarifies that these provisions do not limit the capacity of
parties to agree to reduce the period of parental leave under section 77.
46
Item 17 inserts a new subsection 78(1A), providing that section 78, which applies
where an employee who has taken unpaid parental leave ceases to have
responsibility for care of a child, does not apply where the pregnancy ends with a
stillbirth or where there is an infant death (these circumstances are dealt with by new
section 77A).
Item 18 inserts new sections 79A and 79B at the end of Subdivision B of Division 5
of Part 2-2 of the Fair Work Act.
New subsection 79A(1) provides that Subdivision B of Division 5 of Part 2-2 does not
prevent an employee from performing work on a keeping in touch day while he or
she is taking unpaid parental leave. In addition, this provision clarifies that
performing work on a keeping in touch day does not break the continuity of the
period of unpaid parental leave. This ensures that, as indicated by the new notes to
subsections 71(2) and 72(2), inserted by items 13 and 15 of this Schedule, the
performance of work on a keeping in touch day will not break the single continuous
period of unpaid parental leave.
New subsection 79A(2) sets out the circumstances in which a day (or part of a day)
on which the employee performs work for the employer is a keeping in touch day.
Such a day (or part of a day) will be a keeping in touch day if:
· the purpose of performing the work is to enable the employee to keep in touch
with his or her employment so as to assist with the employee's return to
employment once the period of leave has ended; and
· both the employee and the employer consent to the employee performing that
work on that day; and
· the day is not within 42 days of the date of birth or day of placement of the
child to which the period of leave relates, or, if the keeping in touch day was
suggested or requested by the employee, is not within 14 days of the date of
birth or day of placement of the child; and
· the employee has not already performed work on 10 days during the period of
leave that were keeping in touch days.
New subsection 79A(2) provides that the duration of the work that the employee
performs on the keeping in touch day is not relevant for the purposes of this
subsection. An employee does not have to work a full day for it to constitute a
keeping in touch day.
The note to new subsection 79A(2) informs readers that an employee who performs
work on a keeping in touch day under new section 79A is entitled to payment from
their employer in relation to the performance of that work in accordance with the
relevant contract of employment or industrial instrument.
47
New subsection 79A(3) provides that a decision whether to give consent to perform
work on a keeping in touch day is taken to be a decision to make or not make an
arrangement under the National Employment Standards for the purposes of
section 344 of the Fair Work Act(which prohibits an employer from exerting undue
influence or pressure on an employee in relation to a decision to make or not to
make an arrangement under the National Employment Standards). This will ensure
that there is no ambiguity about the application of section 344 to keeping in touch
days.
New subsection 79A(4) clarifies that, for the purposes of new paragraph 79A(2)(d), a
period of unpaid leave taken during the employee's available parental leave period
and an extension of the available parental leave period are to be treated as two
separate periods of unpaid parental leave.
The note to new subsection 79A(4) refers readers to the keeping in touch provisions
of the Paid Parental Leave Act, which set out when paid work is for a permissible
purpose and conditions for when a day is a keeping in touch day.
Section 79 of the Fair Work Act provides that an employee may take paid leave while
he or she is taking unpaid parental leave, and that the taking of that paid leave does
not break the continuity of the period of unpaid parental leave. New section 79A
provides the same in respect of employees performing work on keeping in touch
days. New section 79B clarifies that, if an employee takes paid leave, or performs
work on a keeping in touch day during a period of unpaid parental leave, then that
will not extend the period of unpaid parental leave.
Item 19 inserts new section 84A, which requires an employer, before engaging an
employee to perform the work of another employee who is going to take, or is taking,
unpaid parental leave, to notify the replacement employee that the engagement is
temporary and that the employee and employer have particular rights under the Fair
Work Act. The employer must specifically notify the replacement employee of rights
under subsections 77A(2) and (3), which apply in the case of a stillbirth or infant
death, under subsections 77A(4) to (6) or section 84 in relation to an employee's
entitlement to return to work, and section 78, which enables an employer to require
an employee to return to work where the employee ceases to have responsibility for
the care of the child.
This new section 84A is intended to apply to cases where a replacement employee
is engaged to perform the work of another employee who is going to take or is taking
unpaid parental leave, as well as where the replacement employee is performing the
work of an employee who, in turn, is performing the work of another employee who is
going to take or is taking unpaid parental leave.
Item 20 inserts a note to section 344 of the Fair Work Act to remind readers that this
section can apply to decisions about whether to consent to performing work on
keeping in touch days under subsection 79A(3).
48
Item 21 inserts a note to subsection 536(1) of the Fair Work Act (which imposes an
obligation on employers to provide pay slips to each employee) to refer readers to
section 80 of the Paid Parental Leave Act, which imposes an obligation on
employers to provide information to each employee in respect of instalments paid
under that Act.
Amendments to the Paid Parental Leave Act
Definition of vocational placement
Item 22 inserts a new definition of `vocational placement' into section 6 of the Paid
Parental Leave Act. The new definition is consistent with the definition of this term in
the Fair Work Act. The meaning of vocational placement is relevant to the definition
of `employee'. A vocational placement means a placement that is: undertaken with
an employer for which a person is not entitled to be paid any remuneration;
and undertaken as a requirement of an education or training course; and authorised
under a law or an administrative arrangement of the Commonwealth, a State or a
Territory.
Keeping in touch days
Under section 48 of the Paid Parental Leave Act, a person is regarded as having
returned to work on a day that is on or after the birth of their child if they perform one
hour or more of paid work on that day (other than for a permissible purpose).
Section 49 outlines when paid work is for a permissible purpose. Under
subsection 49(1), work is for a permissible purpose if the person performs paid work
for an entity as an employee, defence force member, or law enforcement officer, on
a keeping in touch day which would otherwise be a day in a period of leave granted
by that entity, and if the person has not already performed paid work on 10 keeping
in touch days. Section 50 of the Paid Parental Leave Act sets out the conditions for
when a day is a keeping in touch day, including that the purpose of performing the
paid work is to enable the person to keep in touch with their employment or
engagement in order to facilitate a return to that employment or engagement after
the end of the period of leave. Another condition for a day to be a keeping in touch
day, as set out in paragraph 50(c), is that the day is not within 14 days after the day
the child was born.
Item 23 repeals and substitutes paragraph 50(c), providing the condition that the day
is not within 42 days after the day the child was born. There is an exception to this,
where the employee has suggested or requested that they perform the paid work on
that day: in this case, the day must not be within 14 days after the child is born.
49
This will allow sufficient time after the birth of a child for the mother to recover
physically and will enable an uninterrupted six-week period for the caring parent to
bond with the child. This amendment is intended to support the primary objective of
the scheme, which is to provide financial support to allow the primary carer to take
time off work to care for their newborn or adopted child. The exception, that the day
is not within 14 days after the day the child was born where the performance of work
on a day is suggested or requested by the person, will retain flexibility for employees.
In any case, where a keeping in touch day is requested, both the person and their
employer must agree to the performance of paid work on a day that would otherwise
be a leave day.
Item 24 adds several notes at the end of section 50 in relation to keeping in touch
days. A number of these notes reference various provisions in the Fair Work Act
which may be relevant to a person performing paid work on a keeping in touch day.
Note 1 refers the reader to new section 79A of the Fair Work Act, which sets out
arrangements related to the performance of work on keeping in touch days while an
employee is taking unpaid parental leave. This Part also makes consequential
amendments to the Fair Work Act related to keeping in touch days for the purposes
of unpaid parental leave, and item 18 inserts new section 79A.
Note 2 advises the reader of an employer's obligation, under the relevant contract of
employment or industrial instrument, to pay an employee for the performance of
work on a keeping in touch day.
Notes 3 and 4 notify the reader of provisions in the Fair Work Act containing general
protections against undue influence or pressure and coercion, which may be of
assistance to a person in relation to the decision whether or not to consent to a
keeping in touch day.
Note 3 informs the reader that section 344 of the Fair Work Act prohibits the exertion
of undue influence or undue pressure on a person in relation to their decision
whether to consent to performing work on a keeping in touch day. The note refers
the reader to new subsection 79A(3), which is inserted by item 18 of this Part in this
Schedule. Under paragraph 344(a) of the Fair Work Act, an employer must not exert
undue influence or undue pressure on an employee in relation to a decision by the
employee to make or not make an agreement or arrangement under the National
Employment Standards. New subsection 79A(3) provides that an employee's
decision whether or not to consent to performing work on a keeping in touch day is
taken, for the purposes of section 344, to be a decision to make, or not to make, an
arrangement under the National Employment Standards.
Note 4 advises the reader that section 344, and section 343, of the Fair Work Act
contain other prohibitions on coercion and undue influence or pressure.
50
Employer requirement to notify the Secretary if certain events happen
Subsection 82(1) of the Paid Parental Leave Act provides that, if an employer
determination has been made, the employer is required to notify the Secretary if any
of the events set out in paragraphs 82(1)(a) to (l) happen. Subsection 82(2)
specifies when the notice must be given, and also requires that the notice be given in
writing (paragraph 82(2)(c)). Subsection 82(2) is a civil penalty provision.
Items 25 and 26 amend the requirement in paragraph 82(2)(c) that notice be given
in the manner set out in a written notice given to the employer. This would allow the
Secretary to approve the manner of notification: for example, whether the notice
could be given in writing, including by email, or verbally by telephone, or in person.
Item 25 repeals and substitutes paragraph 82(2)(c), providing the requirement that
the notice be given in the manner set out in a written notice given to the employer
under new subsection 82(2).
Item 26 inserts new subsections 82(2A) and (2B) after subsection 82(2). New
subsection 82(2A) requires the Secretary to approve a manner of notification that an
employer must use when notifying of an event under section 82, and new
subsection 82(2B) then requires the Secretary to notify the employer, by written
notice, of the approved manner of notification.
Item 27 is an application and transitional provision. This is intended to improve
administrative processes during the transitional period.
Subitem 27(1) provides that the amendments made by items 25 and 26 apply in
relation to notices which must be given to the Secretary under subsection 82(1) on or
after the commencement of this item.
Subitem 27(2) provides that the Secretary is taken to give an employer written
notice under new subsection 82(2B) if the Secretary publishes a notice setting out
the manner of notification on a PPL agency's website, or notifies the employer of that
manner by another means the Secretary considers appropriate. (The term `PPL
agency' is defined in section 6 of the Paid Parental Leave Act and means the
Department or the Human Services Department.) However, subitem 27(3) provides
that subitem 27(2) does not apply if the Secretary made the employer determination
later than six months after the commencement of this item.
Subitem 27(4) provides that the delegation provisions in subsections 303(1) and (2)
of the Paid Parental Leave Act apply in relation to item 27 in the same way as they
apply in relation to section 82 of that Act.
51
Requirement for notice given to employer after review
Section 105 of the Paid Parental Leave Act deals with the requirement of an
employer to give the Secretary a written notice containing bank account and pay
cycle information after review of an employer determination. This applies where an
employer applies for review and either the employer withdraws the application, or the
determination has not been set aside or quashed and is no longer subject to review,
and the person's PPL period has not ended. The Secretary must give the employer
a written notice requiring the employer to give the Secretary a written notice
containing: the employer's bank account details, pay cycle information, and any
other information prescribed by the PPL rules. Subsection 105(3) then provides that
the employer must give the notice within 14 days of the date of the notice given by
the Secretary.
Item 28inserts new subsection (2A) into section 105, which requires that the notice
given to the employer be dated. The date must be the date the preparation of the
notice was completed.
Item 29 makes a minor amendment to subsection 105(3) to clarify that the employer
must give the notice `to the Secretary'.
Section 131 of the Paid Parental Leave Act
Items 30 and 31 make minor technical amendments to section 131 of the
Paid Parental Leave Act, which deals with the offence for soliciting the disclosure of
protected information.
Item 30 omits the word `protected' from paragraph 131(1)(a). The term is not
required in paragraph 131(1)(a), as paragraph 131(1)(c) explicitly requires that the
information be `protected information'.
Division 3 of Part 4-1 of the Act deals with the confidentiality of protected information.
Section 131 currently makes it an offence to solicit the disclosure of protected
information if the disclosure would be in contravention of the `Subdivision'. As the
confidentiality provisions are contained in a Division, rather than a Subdivision,
item 31 omits the word `Subdivision' from paragraph 131(1)(c) and substitutes the
word `Division'.
Debt recovery
Section 147 of the Paid Parental Leave Act provides for civil penalty orders in
relation to a contravention of a civil penalty provision under the Paid Parental Leave
Act. If, on an application of the Secretary or Fair Work Ombudsman, the Federal
Court or Federal Magistrates Court is satisfied that a person has contravened a civil
penalty provision, the court may order the person to pay a pecuniary penalty to the
Commonwealth. The pecuniary penalty is a civil debt payable to the
Commonwealth. The Commonwealth may enforce the order in the same way as a
judgment debt.
52
Part 4-3 of the Paid Parental Leave Act deals with debt recovery. Several provisions
relating to debt notices, debt recovery and write-off and waiver of debts extend the
operation of Part 4-3 to debts due to the Commonwealth under the Paid Parental
Leave Act.
Item 32 adds new section 201A at the end of Division 8 of Part 4-3. New
section 201A clarifies that normal civil debt recovery procedures are to apply to the
recovery of debts arising from a civil penalty order, rather than the debt recovery
provisions in Part 4-3 of the Paid Parental Leave Act.
Amendment to the application of Division 2 of Part 5-2
Division 2 of Part 5-2 deals with review by the SSAT of claimant decisions.
Subsection 215(2) sets out those decisions to which Division 2 does not apply. This
includes decisions under certain provisions specified in paragraph 215(2)(a), which
deal with the making, form and manner of claims, and the form and manner of
notices.
Item 33 inserts new subparagraph (va) into paragraph 215(2)(a) to provide that
Division 2 of Part 5-2 does not apply to decisions under new subsection 82(2A) (see
item 26 above).
Commonwealth employees and the requirement for 12 months' employment for an
employer determination to be made
Section 278 of the Paid Parental Leave Act deals with how the Act applies to
Commonwealth employment. The Paid Parental Leave Act applies in relation to a
person engaged to perform functions in a Commonwealth agency as if: the
employee were employed by the agency (rather than the Commonwealth); the
agency were a body corporate; and the agency head has all the rights, duties and
powers of an employer in relation to the employee. `Commonwealth agency' is
defined in section 6 of the Paid Parental Leave Act.
Subsection 101(1) of the Paid Parental Leave Act provides that the Secretary must
make an employer determination for an employer and a person if satisfied of the
conditions set out in paragraphs (a) to (f). It is a requirement under
paragraph 101(1)(c) that the person has, or will have, been employed by the
employer for at least 12 months immediately before the applicable date. As
section 278 applies the Act to a Commonwealth employee as if the person were
employed by the agency rather than the Commonwealth, this effectively means that
a Commonwealth employee would, for the purposes of paragraph 101(1)(c), need to
have been employed by the particular agency for at least 12 months before the
applicable date.
Item 35 inserts new subsection (2) into section 278 to give effect to the intention
that, for the purposes of working out for paragraph 101(1)(c) whether the person has,
or will have, been employed by the Commonwealth agency for at least 12 months,
the reference in paragraph 101(1)(c) to the employer is to be treated as being a
reference to the Commonwealth, and subsection 278(1) is disregarded. Item 34
makes a minor amendment to insert `(1)' before `this Act' in section 278.
53
Appointment of payment nominees under section 280
Section 280 of the Paid Parental Leave Act provides the Secretary with the
discretion to appoint a person (including a body corporate) to be the payment
nominee of another person for the purposes of the Act, and to direct that the whole
or part of an instalment payable to the nominee's principal be paid to the nominee.
The intention is that a payment nominee only be appointed in respect of a person if
instalments of parental leave pay are payable by the Secretary, rather than by the
person's employer. Part 3-3 of the Act deals with payment of instalments of parental
leave pay by the Secretary, and section 84 sets out when the Secretary is required
to pay instalments.
Item 36 clarifies the intended operation of section 280 by amending
paragraph 280(1)(b) so that instalments can only be paid to a payment nominee
where the instalment is payable by the Secretary under Part 3-3.
Delegation of the Secretary's powers under the Paid Parental Leave Act
Section 303 of the Paid Parental Leave Act provides for the Secretary to delegate his
or her powers under the Act. Subsection 303(1) allows the Secretary to delegate his
or her powers, with some exceptions, to a person such as an officer or person
engaged by an Agency or other Commonwealth authority. This does not include the
Chief Executive Centrelink, the Chief Executive Medicare, or an APS employee in
the Human Services Department, as subsection 303(2) expressly provides for the
Secretary to delegate his or her powers under the Act (other than certain provisions)
to the Chief Executive Centrelink, the Chief Executive Medicare, or an APS
employee in the Human Services Department.
Items 37, 38, 39 and 40 make minor amendments in relation to subsection 303(1)
for clarity.
Item 37 inserts the heading `General powers' before subsection 303(1).
Item 38 substitutes `Commonwealth;' with `Commonwealth.'.
Item 39 omits all words after subparagraph 303(1)(iii), as new subsection 303(1A)
(see item 40 below) now provides that paragraphs 303(1)(a) and (b) do not apply to
the Chief Executive Centrelink, the Chief Executive Medicare, or an APS employee
in the Human Services Department.
Item 40 inserts new subsection 303(1A), which provides that paragraphs 303(1)(a)
and (b) do not apply to the Chief Executive Centrelink, the Chief Executive Medicare,
or an APS employee in the Human Services Department.
Subsection 303(3) of the Paid Parental Leave Act provides for the delegation of the
Secretary's powers under Division 3 or 5 of Part 4-2 of the Act (which deal with civil
penalty orders and infringement notices) to the Chief Executive Centrelink, the Chief
Executive Medicare, or an SES employee or acting SES employee.
54
Item 41 inserts the heading `Powers under Division 3 or 5 of Part 4-2' before
subsection 303(3).
It is intended that the Secretary's powers in relation to infringement notices and civil
penalty orders, if delegated under the Paid Parental Leave Act, may only be
exercised by the Chief Executive Centrelink, the Chief Executive Medicare, or an
SES or acting SES employee.
Item 42 inserts new subsections (3A) and (3B) into section 303 to clarify this
intention. New subsection 303(3A) provides that, if the Secretary delegates any of
his or her powers under Division 3 or 5 of Part 4-2 to the Chief Executive Centrelink,
the Chief Executive Centrelink cannot, despite any provision in the Human Services
(Centrelink) Act 1997, delegate the power to a Departmental employee (within the
meaning of that Act) who is not an SES employee or an acting SES employee.
Similarly, if the Secretary delegates any of his or her powers under Division 3 or 5 of
Part 4-2 to the Chief Executive Medicare, new subsection 303(3B) provides that the
Chief Executive Medicare cannot, despite any provision of the Human Services
(Medicare) Act 1973, delegate the power to a Departmental employee (within the
meaning of that Act)who is not an SES employee or an acting SES employee.
Item 42 also inserts the heading `Power under paragraph 128(1)(b)'.
Subsection 303(4) of the Paid Parental Leave Act prevents the Secretary from
delegating to anyone, other than the Chief Executive Centrelink or the Chief
Executive Medicare, the Secretary's power under paragraph 128(1)(b) to disclose
information to an Agency Head (within the meaning of the Public Service Act 1999).
Subsection 303(5) provides that, if the Secretary delegates the power mentioned in
subsection 303(4) to the Chief Executive Centrelink, the Chief Executive Centrelink
cannot, despite any other provision in the Human Services (Centrelink) Act 1997,
delegate that power to a Departmental employee (within the meaning of the Human
Services (Centrelink) Act 1997). Similarly, subsection 303(6) provides that, if the
Secretary delegates the power mentioned in subsection 303(4) to the Chief
Executive Medicare, the Chief Executive Medicare cannot, despite any other
provision in the Human Services (Medicare) Act 1973, delegate that power to a
Departmental employee (within the meaning of Human Services (Medicare)
Act 1973).
Item 43 makes a minor amendment to subsection 303(5) for clarity. The words `the
power mentioned in subsection (4)' are omitted and substituted with `his or her power
under paragraph 128(1)(b)' to make clear that subsection 303(5) is limiting the Chief
Executive Centrelink's ability to delegate further the Secretary's power under
paragraph 128(1)(b) to disclose information to an Agency head.
Item 44 omits the word `other' from subsection 303(5).
Item 45 omits the second occurrence of `the Human Services (Centrelink)
Act 1997'from subsection 303(5) and substitutes `that Act'.
Items 46, 47 and 48 make similar amendments to subsection 303(6) for clarity.
55
Item 46 omits `the power mentioned in subsection (4)' from subsection 303(6), and
substitutes `his or her power under paragraph 128(1)(b)'.
Item 47 omits the word `other' from subsection 303(6).
Item 48 omits the second occurrence of `the Human Services (Medicare) Act 1973'
from subsection 303(6) and substitutes `that Act'.
56
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
Paid Parental Leave and Other Legislation Amendment
(Dad and Partner Pay and Other Measures) Bill 2012
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Overview of the Bill
The Paid Parental Leave Act 2010 provides for the Paid Parental Leave scheme, a
national, Government-funded payment to complement the entitlement to unpaid
leave under the National Employment Standards (NES) in the Fair Work Act 2009.
The scheme currently consists of parental leave pay, an 18 week payment for
eligible primary carers (mostly birth mothers) of newborn and newly adopted children
at the National Minimum Wage.
Parental leave pay is particularly aimed at advancing the human rights of children
and birth mothers. The object of parental leave pay is to provide financial support to
primary carers (mainly birth mothers) of newborn and adopted children, in order to:
· allow those carers to take time off work to care for the child after the birth or
adoption, and
· enhance health and development of birth mothers and children, and
· encourage women to participate in the workforce.
The Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay
and Other Measures) Bill 2012 ("the Bill") will extend the scheme by introducing dad
and partner pay, a two week dedicated payment for eligible fathers and partners
caring for a newborn or newly adopted child. Payments will be available to eligible
fathers and partners (including adoptive parents and parents in same-sex couples)
but will not be transferrable to birth mothers. The requirement to meet work, income
and residency tests, and the rate of pay and will be consistent with parental leave
pay. Subject to the passage of legislation, payments will commence from 1 January
2013 with first claims able to be lodged from 1 October 2012.
Dad and partner pay will advance the protection of human rights by facilitating both
parents' participation in caring responsibilities. The object of dad and partner pay is
to provide financial support to fathers and partners caring for newborn or newly
adopted children to:
· increase the time that fathers and partners take off work around the time of a
birth or adoption,
· create further opportunities for fathers and partners to bond with the child, and
· allow fathers and partners to take a greater share of caring responsibilities
and support mothers and partners from the beginning.
1
The Bill also makes a number of minor technical amendments to clarify the operation
of the Paid Parental Leave Act 2010 in relation to parental leave pay and changes to
the Fair Work Act 2009 to improve flexibility for parents accessing unpaid parental
leave under the NES.
Human rights implications
The right to social security
Article 9 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR) recognises `the right of everyone to social security, including social
insurance'. That right requires a country to, within its maximum available resources,
provide a minimum essential level of benefits to all individuals and families that will
enable them to acquire at least essential health care, basic shelter and housing,
water and sanitation, foodstuffs, and the most basic forms of education. Article 26 of
the Convention on the Rights of the Child (CRC) ensures that right to `every child'
and requires that `the benefits should, where appropriate, be granted, taking into
account the resources and the circumstances of the child and persons having
responsibility for the maintenance of the child'. The financial assistance provided by
dad and partner pay will build on support for the right to social security provided by
the existing Paid Parental Leave Scheme.
Rights to work
Article 10 (2) of the International Covenant on Civil and Political Rights (ICCPR)
states that `working mothers should be accorded paid leave or leave with adequate
social security benefits' for a `reasonable period before and after childbirth'. The
Convention to Eliminate all forms of Discrimination Against Women (CEDAW) also
requires States Parties to `introduce maternity leave with pay or with comparable
social benefits without loss of former employment, seniority or social allowances'
under Article 11(2)(b). Although Australia maintains a reservation to Article 11(2)(b)
of the CEDAW, the Paid Parental Leave scheme introduced a Government-funded
entitlement to 18 weeks parental leave pay in 2011, to complement the existing
entitlement to unpaid leave under the NES. Dad and partner pay will extend families'
entitlements under the scheme by up to two weeks.
Amendments to the Fair Work Act 2009 to improve flexibility for parents accessing
unpaid parental leave under the NES will promote the intent of maternity leave rights
by strengthening protections for the right to return to work. Amendments will be
made to make sure that employees on unpaid parental leave will be able to perform
paid work for up to 10 days for the purposes of keeping in touch with their employer,
without losing eligibility for further unpaid leave. Amendments will also be made to
give parents the right to return to their employment, subject to four weeks' notice, in
the event of a still birth or infant death.
2
Rights of parents and children
Article 18 of the CRC states that `States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common responsibilities for the
upbringing and development of the child'. In guaranteeing and promoting those
rights, `States Parties shall render appropriate assistance to the parents and legal
guardians in the performance of their child-rearing responsibilities'. Dad and partner
pay will promote the understanding that both parents have an important role to play
in raising a child and support working parents to fulfil those roles, in line with
Australia's obligations under the CRC.
Rights to health
Amendments to allow employees and employers to agree that a pregnant
employee's unpaid leave period under the NES may begin earlier than six weeks
before a child's expected due date, and to prevent employers from requesting that
an employee take a "keeping in touch" day within six weeks after birth will support
the `right to protection of health and to safety in working conditions, including the
safeguarding of the function of reproduction', as recognised under Article 11(1)(f) of
the CEDAW. Enabling employees to access leave at an earlier stage in their
pregnancy will also reinforce Australia's commitment to `ensure appropriate pre-natal
and post-natal health care for mothers' under Article 24(2)(d).
The right to privacy
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. Privacy guarantees a right to secrecy from
the public of personal information. For interference with privacy not to be arbitrary it
must be in accordance with the provisions, aims and objectives of the ICCPR and
should be reasonable in the particular circumstances. Reasonableness in this
context incorporates notions of proportionality to the end sought and necessity in the
circumstances.
Item 305 of the Bill will amend existing section 117 of the Paid Parental Leave
Act 2010 to allow the Secretary to require a person claiming dad and partner pay to
provide information to a specified agency. This interference with the right to privacy
is not arbitrary. It is limited by the Paid Parental Leave Act 2010 and consistent with
the aims and objectives of the ICCPR. The kinds of information the Secretary can
require a person to provide are limited to information that the Secretary considers
may be relevant to determining whether a person is eligible for dad and partner pay,
whether dad and partner Pay is payable to a person or ensuring that the Secretary
can pay dad and partner pay into a person's bank account. The collection of that
information is necessary to identify eligible claimants and provide payments to
deliver the benefits of the policy including the promotion of rights under the ICCPR
discussed above.
3
Information collected under section 117 is also protected by provisions under
sections 120, 127 and 128 of the Paid Parental Leave Act 2010 and the requirement
that disclosure of any personal information obtained be authorised under the Privacy
Act 1988. Section 120 requires the Secretary to request the information in writing
notifying the person affected of the agency and officer to whom the information will
be given. Section 127 limits the ways in which information collected under
section 117 can be used and section 128 limits the people to whom information
collected by the Secretary can be disclosed. In disclosing information to a person
not specifically identified in section 128 the Secretary must grant a public interest
certificate in accordance with the public interest certificate guidelines set out in the
Paid Parental Leave Rules.
Conclusion
The Paid Parental Leave and Other Legislation Amendment (Dad and Partner Pay
and Other Measures) Bill 2012 is compatible with human rights. Dad and partner
pay will advance the protection of human rights by facilitating both parents'
participation in caring responsibilities through the provision of financial support
following the birth or adoption of a child. To the extent that it may limit human rights
those limitations are reasonable, necessary and proportionate to achieving the
legitimate objective of increasing the time away from work that fathers and partners
take to bond with their child following a birth or adoption.
Minister for Families, Housing, Community Services and Indigenous Affairs,
Minister for Disability Reform, the Hon Jenny Macklin MP
4