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Schedule 17—Adjustment of parental leave pay for primary carer pay and other amendments

Schedule 17 Adjustment of parental leave pay for primary carer pay and other amendments

Part 1 Amendments

Paid Parental Leave Act 2010

1  Section 4

Omit:

Parental leave pay is paid to a person for a particular period. That period is called the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 18 weeks. A person’s PPL period may be the full 18 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period).

Parental leave pay is paid in instalments at the national minimum wage for each week day during the person’s PPL period. It is paid by either the person’s employer or the Secretary.

substitute:

Parental leave pay is paid to a person for a particular period, or as a lump sum supplement, or both. If it is paid for a period, that period is called the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 20 weeks. A person’s PPL period may be the full 20 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period or is entitled to primary carer pay in respect of the child).

Parental leave pay may be paid to a person as a lump sum supplement where the person is entitled to primary carer pay in respect of the child but that entitlement falls below the national minimum wage.

Parental leave pay is paid in instalments at the national minimum wage for each week day during the person’s PPL period (or, in the case of lump sum supplement, as a single instalment). It is paid by either the person’s employer or the Secretary.

2  Section 4

Omit:

There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one—a secondary or tertiary claim cannot be made without it. The primary claim will often be the only claim that is made. If a secondary or tertiary claim is made, that claim will be for the part of the maximum 18 week period (or lesser period) in which parental leave pay was not payable to the primary claimant.

substitute:

There are 3 types of claims: a primary claim, a secondary claim and (in rare cases) a tertiary claim. These claims relate to each other, although the primary claim is the main one—a secondary or tertiary claim cannot be made without it. The primary claim will often be the only claim that is made.

3  Section 6

Insert:

adjustment for paid PC leave : see section 11J.

4  Section 6 (definition of initial eligibility determination )

Repeal the definition, substitute:

initial eligibility determination : see section 115BL.

5  Section 6 (definition of maximum PPL period end day )

Omit “subsection 11(5)”, substitute “section 11B”.

6  Section 6 (definition of maximum PPL period start day )

Omit “subsection 11(4)”, substitute “section 11A”.

7  Section 6

Insert:

maximum supplement period : see section 11H.

paid PC leave : see section 11F.

paid PC leave period : see section 11F.

paid PC leave reduction number : see section 11D.

parental leave pay supplement : see section 11G.

PC leave : see section 11E.

PC pay : see section 11F.

primary carer leave : see section 11E.

primary carer pay : see section 11F.

provisional entitlement determination : see section 26.

supplement period : see section 11H.

8  Section 7

Omit:

If the Secretary makes a determination that parental leave pay is payable to a person for a child, the parental leave pay is payable for the particular period that is specified in the determination. This period is the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 18 weeks. A person’s PPL period may be the full 18 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period).

If a secondary or tertiary claim is made, that claim will be for the part of the maximum 18 week period (or lesser period) in which parental leave pay was not payable to the primary claimant.

substitute:

If the Secretary makes a determination that parental leave pay is payable to a person for a child, the parental leave pay is payable for the particular period that is specified in the determination, or as a lump sum supplement, or both. If it is paid for a period, that period is the person’s PPL period. The maximum period for which any person may be paid parental leave pay is 20 weeks. A person’s PPL period may be the full 20 weeks or a lesser period (e.g. where the person is not eligible for parental leave pay for that full period or is entitled to primary carer pay in respect of the child).

If a secondary or tertiary claim is made, that claim will be for the part of the maximum 20 week period (or lesser period) in which parental leave pay was not payable to the primary claimant.

9  Section 8

Omit “for a period”.

10  Section 8

Omit “for that period”.

11  Section 9

Omit “for a period”.

12  Section 9

Omit “during the period”.

13  Section 10

Omit “for a period”.

14  Before subsection 11(1)

Insert:

PPL period

15  Before subsection 11(3)

Insert:

Maximum PPL period

16  Subsections 11(4) and (5)

Repeal the subsections.

17  At the end of Part 2-1

Add:

11A   The maximum PPL period start day for a child

             (1)  The maximum PPL period start day for a child is the latest of the following:

                     (a)  the day on which the child was born;

                     (b)  the nominated start date;

                     (c)  if the primary claimant has a paid PC leave period for a child, and the nominated start date is in that period—the first day after the end of that period;

                     (d)  the day that is 28 days before the primary claimant made an effective claim for parental leave pay for the child;

                     (e)  the day that is 28 days before the day on which the primary claimant verified the child’s birth.

             (2)  Despite subsection (1), if the Secretary has made a determination under subsection (3), the maximum PPL period start day for the child is the day specified in the determination.

             (3)  For the purposes of subsection (2) in respect of a particular claim, the Secretary may determine, in writing, a specified day on or after the day on which the child was born but earlier than the days mentioned in paragraphs (1)(b), (c), (d) and (e), if the Secretary is satisfied that there are exceptional circumstances for doing so.

11B   The maximum PPL period end day for a child

             (1)  The maximum PPL period end day for a child is the earlier of the following days:

                     (a)  the day that is 139 days after the maximum PPL period start day for the child (which is 20 weeks from (and including) that start day);

                     (b)  the day before the child’s first birthday.

             (2)  However, if the primary claimant has a paid PC leave reduction number for the child, the maximum PPL period end day for the child is:

                     (a)  unless paragraph (b) applies—the latest day in the maximum PPL period (worked out using the maximum PPL period end day for the child worked out under subsection (1)) that is followed by that number of week days in that period; or

                     (b)  if the maximum PPL period start day for the child is before the first day of the primary claimant’s paid PC leave period for the child—the earlier of:

                              (i)  the day before the first day of that paid PC leave period; or

                             (ii)  the day worked out under paragraph (a).

Note:          If this subsection applies, the maximum PPL period end day will be an earlier day than the day worked out under subsection (1), which will have the effect of reducing the maximum PPL period without affecting the day on which that period starts.

             (3)  Despite subsections (1) and (2), if the Secretary has made a determination under subsection (4), the maximum PPL period end day for the child is the day specified in the determination.

             (4)  If paragraph (2)(b) applies, for the purposes of subsection (3) in respect of a particular claim by a secondary claimant, the Secretary may determine, in writing, a specified day that is:

                     (a)  later than the day worked out under paragraph (2)(b); and

                     (b)  on or before the day worked out under paragraph (2)(a).

11C   No PPL period etc. if excessive paid PC leave reduction number

             (1)  This section applies if:

                     (a)  the primary claimant has a paid PC leave reduction number for a child; and

                     (b)  that number equals or exceeds the number of week days in the maximum PPL period for the child (worked out using the maximum PPL period end day for the child worked out under subsection 11B(1)).

             (2)  Despite any other provision in this Division (other than subsection 11J(4)):

                     (a)  there is no maximum PPL period for the child; and

                     (b)  there is no PPL period for the child for any person.

11D   Paid PC leave reduction number for a child

             (1)  The primary claimant has a paid PC leave reduction number for a child if he or she has a paid PC leave period for the child.

             (2)  The primary claimant’s paid PC leave reduction number for the child is worked out as follows:

                     (a)  first, divide the number of days in the paid PC leave period for the child by 7;

                     (b)  next:

                              (i)  if the result of paragraph (a) is not a whole number and is greater than 1—round it down to the nearest whole number; or

                             (ii)  if the result of paragraph (a) is not a whole number and is between 1 and zero—round it up to 1;

                     (c)  next, multiply the result of paragraph (a) (or, if applicable, the result of paragraph (b)) by 5.

Note:          This calculation converts the number of days in the paid PC leave period into a generally equivalent number of week days.

11E   Primary carer leave (or PC leave ) for a child

             (1)  If, under the terms and conditions of an employee’s employment, the employee is entitled to leave:

                     (a)  because the employee is expecting to give birth to a child; or

                     (b)  to allow the employee to be the primary carer for a child who has not yet turned one; or

                     (c)  to allow the employee to be the primary carer for a child who has been entrusted to the care of the employee within the immediately preceding 12 months as part of the process for the adoption of the child by the employee; or

                     (d)  to allow the employee to be the primary carer for a child who has been adopted by the employee; or

                     (e)  because the employee would be entitled to leave of a kind described in paragraph (a), (b), (c) or (d) apart from the fact that a child is stillborn or has died;

that leave is primary carer leave (or PC leave ) for the child.

             (2)  However, primary carer leave does not include the following:

                     (a)  personal/carer’s leave, annual leave, long service leave or bereavement leave (however any of those forms of leave are described);

                     (b)  leave that is purchased by the employee in accordance with the terms and conditions of the employee’s employment;

                     (c)  leave, the main purpose of which is to allow an employee:

                              (i)  to support the primary carer for a child; or

                             (ii)  to develop initial emotional bonds with a child; or

                            (iii)  to support the primary carer for a child and to develop initial emotional bonds with that child.

             (3)  To avoid doubt, paragraph (2)(c) does not apply to leave, the main purpose of which is to allow an employee to be the primary carer for a child.

11F   Primary carer pay , paid PC leave and paid PC leave period for a child

             (1)  If, under the terms and conditions of an employee’s employment, the employer will pay an amount to the employee in respect of the employee’s entitlement to PC leave for a child of the employee:

                     (a)  the amount is the employee’s primary carer pay (or PC pay ) for the child; and

                     (b)  the PC leave in respect of which the PC pay is payable is the employee’s paid PC leave for the child; and

                     (c)  the employee’s paid PC leave period for the child is the period of that paid PC leave (disregarding any part of that period that does not represent a whole day of the employee’s entitlement to PC leave).

             (2)  Subsection (1) is subject to the following subsections.

Certain classes of payments under PPL rules

             (3)  The PPL rules may specify classes of payment that are, or are not, to be taken to be primary carer pay .

Employer top-up pay

             (4)  Subsection (5) applies if, under the terms and conditions of the employee’s employment, the amount of the employee’s PC pay for the child is determined by reference to the amount of parental leave pay payable to the employee for the child.

             (5)  For the purposes of this Act, treat the amount of that PC pay for each day in the employee’s paid PC leave period as being the amount that it would be disregarding subsection 11B(2).

Note:          For a child born or entrusted to the care of a person during the 3-year period starting on the commencement of this section, that PC pay for that period is disregarded (see Part 2 of Schedule 17 to the Social Services Legislation Amendment (Omnibus Savings and Child Care Reform) Act 2017 ).

Unpaid parts of period

             (6)  Subsection (7) applies if the period of PC leave in respect of which the PC pay is payable includes a day (whether or not a week day) (a non-pay day ) if:

                     (a)  that day is a day on which the employee would ordinarily work and for which the employee would be ordinarily entitled to pay (but for the period of PC leave); and

                     (b)  PC pay for the child is not payable in respect of that day.

             (7)  The employee’s paid PC leave period for the child is the shortest period that:

                     (a)  starts on the first day of the period of PC leave; and

                     (b)  contains a number of week days equal to the number of week days in that period less the number of non-pay days.

Lump sum payments

             (8)  If the PC pay for the child is payable as a lump sum in respect of the PC leave, but the amount of the lump sum does not depend on the length of that leave, the employee’s paid PC leave period for the child is the shortest period that:

                     (a)  starts on the first day of the period of that PC leave; and

                     (b)  contains a number of week days equal to the lump sum divided by the daily national minimum wage amount for the first day of the period of that PC leave (rounding down if the result of this division is not a whole number).

Half pay or other percentage pay arrangements

             (9)  Subsection (10) applies if:

                     (a)  under the terms and conditions of the employee’s employment, the employee can choose to take the PC pay for the child:

                              (i)  at full pay over a period (the full pay period ); or

                             (ii)  at a percentage (however expressed) of full pay over a period equal to the full pay period divided by that percentage; and

                     (b)  the employee chooses to take the PC pay for the child as described in subparagraph (a)(ii).

           (10)  The employee’s paid PC leave period for the child is the full pay period. To avoid doubt, this subsection does not affect the amount of the employee’s PC pay for the child.

Multiple entitlements to PC leave

           (11)  The PPL rules may, in cases where a person has more than one entitlement to PC leave for a child:

                     (a)  specify one or more methods for determining the amount of the person’s primary carer pay for the child; and

                     (b)  specify one or more methods for determining the person’s paid PC leave for the child; and

                     (c)  specify one or more methods for determining the person’s paid PC leave period for the child.

Division 3 Parental leave pay supplement

11G   Parental leave pay supplement for a child

             (1)  Parental leave pay supplement for a child is payable to a person if:

                     (a)  the person has a supplement period for the child (see section 11H); and

                     (b)  if the person has returned to work—the person made the claim mentioned in section 10 no later than 28 days after the day on which the person returned to work.

             (2)  The amount of a person’s parental leave pay supplement for a child is the amount (if any) by which:

                     (a)  the amount of the person’s PC pay for the child in respect of the supplement period;

falls short of:

                     (b)  the daily national minimum wage amount for the last day of that period multiplied by the number of week days in that period.

             (3)  For the purposes of this Act, and any other law of the Commonwealth:

                     (a)  treat parental leave pay supplement as parental leave pay; and

                     (b)  treat parental leave pay supplement payable to a person as an instalment of parental leave pay.

             (4)  To avoid doubt, a reference in Division 2 of this Part to parental leave pay includes a reference to parental leave pay supplement.

             (5)  Subsection (3) does not apply to section 11.

11H  Supplement period and maximum supplement period for a child

             (1)  A person’s supplement period for a child is the period specified in a determination under any of the following:

                     (a)  section 13, in accordance with subsection 13(3B);

                     (b)  section 14, in accordance with subsection 14(3B) or (6D);

                     (c)  section 15, in accordance with subsection 15(1B) or (5D);

                     (d)  section 16, in accordance with subsection 16(4D).

             (2)  The person’s supplement period for the child must be the same as, or within, the person’s maximum supplement period for the child.

             (3)  Subject to subsection (4), a person’s maximum supplement period for a child is the shortest period that:

                     (a)  starts on the first day of the person’s paid PC leave period for the child; and

                     (b)  contains the number of week days in:

                              (i)  if the person is the primary claimant—the primary claimant’s adjustment for paid PC leave; or

                             (ii)  if the person is the secondary claimant—the secondary claimant’s adjustment for paid PC leave.

             (4)  A person does not have a maximum supplement period for a child if the person’s PC pay for the child is payable wholly as a lump sum in respect of the PC leave for the child.

Note:          This subsection has the effect that the person does not have a supplement period for the child: see subsection (2).

11J   Adjustment for paid PC leave for a child

             (1)  The primary claimant’s adjustment for paid PC leave for a child is the number of week days worked out by subtracting:

                     (a)  the number of week days in the maximum PPL period for the child;

from:

                     (b)  the number of week days in the maximum PPL period for the child (worked out using the maximum PPL period end day for the child worked out under subsection 11B(1)).

Note:          This number represents the reduction in the number of week days in the maximum PPL period that results from the primary claimant’s paid PC leave period.

             (2)  A secondary claimant’s adjustment for paid PC leave for a child is the number of week days worked out under subsection (1) on the assumption that he or she were the primary claimant. However, if that number exceeds the cap worked out under subsection (3), the number of week days is equal to that cap.

             (3)  The cap is 100, reduced by:

                     (a)  the number of week days in the primary claimant’s PPL period; and

                     (b)  the primary claimant’s adjustment for paid PC leave.

             (4)  If section 11C applies in relation to a child, for the purposes of subsection (1) of this section:

                     (a)  disregard subsection 11C(2); and

                     (b)  assume that the number of week days in the maximum PPL period for the child is zero.

18  Section 12 (paragraph relating to Division 5)

Repeal the paragraph, substitute:

Division 5 deals with provisional entitlement determinations. These determinations can be made by the Secretary before the Secretary makes a payability determination. The Secretary can make a provisional entitlement determination if the Secretary is satisfied that the person satisfies, or will satisfy, certain requirements for a payability determination. If the Secretary makes a determination, the Secretary must give a notice of it to the claimant (and in some cases, the claimant’s employer).

19  Subsections 13(2) and (3)

Repeal the subsections, substitute:

When parental leave pay is payable to primary claimant

             (2)  The Secretary must determine that parental leave pay is payable to the primary claimant if, when making the determination, the Secretary is satisfied that either or both of the following apply:

                     (a)  the primary claimant has a PPL period and was or will be eligible for parental leave pay on each day in the period that:

                              (i)  starts on the day the child was born; and

                             (ii)  ends on the last day of the primary claimant’s PPL period;

                     (b)  the primary claimant has a supplement period and was or will be eligible for parental leave pay on each day in the period that:

                              (i)  starts on the day the child was born; and

                             (ii)  ends on the last day of the primary claimant’s supplement period.

Note:          The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Primary claimant’s PPL period

             (3)  The Secretary must specify in the determination under subsection (2) that the primary claimant’s PPL period:

                     (a)  starts on the child’s maximum PPL period start day; and

                     (b)  ends on the day worked out under subsection (3A).

          (3A)  If the Secretary is satisfied that the primary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the child’s maximum PPL period start day; and

                     (b)  ends on a day in that maximum PPL period;

the day is the day mentioned in paragraph (b).

Primary claimant’s supplement period

          (3B)  The Secretary must specify in the determination under subsection (2) that the primary claimant’s supplement period:

                     (a)  starts on the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on the day worked out under subsection (3C).

          (3C)  If the Secretary is satisfied that the primary claimant was or will be eligible on each day in the period that:

                     (a)  starts on:

                              (i)  if the first day of the primary claimant’s maximum supplement period for the child is before the day the child was born—the day the child was born; or

                             (ii)  otherwise—the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on a day in that maximum supplement period;

the day is the day mentioned in paragraph (b).

20  Subsections 14(2) and (3)

Repeal the subsections, substitute:

When parental leave pay is payable to primary claimant

             (2)  The Secretary must determine that parental leave pay is payable to the primary claimant if, when making the determination, the Secretary is satisfied that either or both of the following apply:

                     (a)  the primary claimant has a PPL period and was or will be eligible for parental leave pay on each day in the period that:

                              (i)  starts on the day the child was born; and

                             (ii)  ends on the last day of the primary claimant’s PPL period;

                     (b)  the primary claimant has a supplement period and was or will be eligible for parental leave pay on each day in the period that:

                              (i)  starts on the day the child was born; and

                             (ii)  ends on the last day of the primary claimant’s supplement period.

Note:          The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Primary claimant’s PPL period

             (3)  The Secretary must specify in the determination under subsection (2) that the primary claimant’s PPL period:

                     (a)  starts on the child’s maximum PPL period start day; and

                     (b)  ends on the day worked out under subsection (3A).

          (3A)  If the Secretary is satisfied that the primary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the child’s maximum PPL period start day; and

                     (b)  ends on a day in that maximum PPL period;

the day is the day mentioned in paragraph (b).

Primary claimant’s supplement period

          (3B)  The Secretary must specify in the determination under subsection (2) that the primary claimant’s supplement period:

                     (a)  starts on the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on the day worked out under subsection (3C).

          (3C)  If the Secretary is satisfied that the primary claimant was or will be eligible on each day in the period that:

                     (a)  starts on:

                              (i)  if the first day of the primary claimant’s maximum supplement period for the child is before the day the child was born—the day the child was born; or

                             (ii)  otherwise—the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on a day in that maximum supplement period;

the day is the day mentioned in paragraph (b).

21  Subsections 14(5) and (6)

Repeal the subsections, substitute:

When parental leave pay is payable to secondary claimant

             (5)  The Secretary must determine that parental leave pay is payable to the secondary claimant if, when making the determination:

                     (a)  the Secretary is satisfied that a determination has been made under subsection (2) for the primary claimant; and

                     (b)  subsection (5A) applies.

Note:          The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

          (5A)  This subsection applies if the Secretary is satisfied that either or both of the following apply:

                     (a)  the secondary claimant has a PPL period and was or will be eligible for parental leave pay on each day in that PPL period;

                     (b)  the secondary claimant has a supplement period and was or will be eligible for parental leave pay on each day in that supplement period on or after the day the child was born.

Secondary claimant’s PPL period

             (6)  The Secretary must specify in the determination under subsection (5) that the secondary claimant’s PPL period:

                     (a)  starts on the first day after the primary claimant’s PPL period ends; and

                     (b)  ends on the day worked out under subsection (6A).

          (6A)  If the Secretary is satisfied that the secondary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the day worked out under paragraph (6)(a); and

                     (b)  ends on:

                              (i)  unless subparagraph (ii) applies—a day (the end day ) in the maximum PPL period for the child; or

                             (ii)  if the secondary claimant has a paid PC leave period for the child—a day (also the end day ) in the maximum PPL period that is followed by a number of week days in that period equal to the secondary claimant’s adjustment for paid PC leave;

the day is the end day.

          (6B)  Subparagraph (6A)(b)(ii) does not apply if the Secretary is satisfied that the secondary claimant made his or her secondary claim in exceptional circumstances mentioned in paragraph 54(2)(d).

          (6C)  To avoid doubt:

                     (a)  if the secondary claimant has a paid PC leave period for the child; and

                     (b)  the day worked out under subparagraph (6A)(b)(ii) is before the day mentioned in paragraph (6A)(a);

the secondary claimant does not have a PPL period.

Secondary claimant’s supplement period

          (6D)  The Secretary must specify in the determination under subsection (5) that the secondary claimant’s supplement period is the period worked out in accordance with the PPL rules.

22  After subsection 15(1)

Insert:

When parental leave pay is payable to primary claimant

          (1A)  The Secretary must determine that parental leave pay is payable to the primary claimant if, when making the determination, the Secretary is satisfied that the primary claimant:

                     (a)  has a supplement period; and

                     (b)  was or will be eligible for parental leave pay on each day in the period that:

                              (i)  starts on the day the child was born; and

                             (ii)  ends on the last day of the primary claimant’s supplement period.

Note:          The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

Primary claimant’s supplement period

          (1B)  The Secretary must specify in the determination under subsection (1A) that the primary claimant’s supplement period:

                     (a)  starts on the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on the day worked out under subsection (1C).

          (1C)  If the Secretary is satisfied that the primary claimant was or will be eligible on each day in the period that:

                     (a)  starts on:

                              (i)  if the first day of the primary claimant’s maximum supplement period for the child is before the day the child was born—the day the child was born; or

                             (ii)  otherwise—the first day of the primary claimant’s maximum supplement period for the child; and

                     (b)  ends on a day in that maximum supplement period;

the day is the day mentioned in paragraph (b).

23  Subsection 15(2)

After “primary claimant”, insert “if the Secretary is not satisfied of the matters in subsection (1A)”.

24  Subsection 15(3)

Omit “for the secondary claimant’s PPL period”.

25  Paragraph 15(3)(b)

Repeal the paragraph, substitute:

                     (b)  subsection (3A) applies; and

26  After subsection 15(3)

Insert:

          (3A)  This subsection applies if either or both of the following apply:

                     (a)  the secondary claimant has a PPL period and was or will be eligible for parental leave pay on each day in that PPL period;

                     (b)  the secondary claimant has a supplement period and was or will be eligible for parental leave pay on each day in that supplement period on or after the day the child was born.

27  Paragraph 15(5)(b)

Repeal the paragraph, substitute:

                     (b)  ends on the day worked out under subsection (5A).

28  After subsection 15(5)

Insert:

          (5A)  If the Secretary is satisfied that the secondary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the child’s maximum PPL period start day; and

                     (b)  ends on:

                              (i)  unless subparagraph (ii) applies—a day (the end day ) in the maximum PPL period for the child; or

                             (ii)  if the secondary claimant has a paid PC leave period for the child—a day (also the end day ) in the maximum PPL period that is followed by a number of week days in that period equal to the secondary claimant’s adjustment for paid PC leave;

the day is the end day.

          (5B)  Subparagraph (5A)(b)(ii) does not apply if the Secretary is satisfied that the secondary claimant made his or her secondary claim in exceptional circumstances mentioned in paragraph 54(2)(d).

          (5C)  To avoid doubt:

                     (a)  if the secondary claimant has a paid PC leave period for the child; and

                     (b)  the day worked out under subparagraph (5A)(b)(ii) is before the day mentioned in paragraph (5A)(a);

the secondary claimant does not have a PPL period.

Secondary claimant’s supplement period

          (5D)  The Secretary must specify in the determination under subsection (5) that the secondary claimant’s supplement period is the period worked out in accordance with the PPL rules.

29  Subsection 16(3)

Repeal the subsection, substitute:

When parental leave pay is payable to secondary claimant

             (3)  The Secretary must determine that parental leave pay is payable to the secondary claimant for the secondary claimant’s PPL period if, when making the determination:

                     (a)  the Secretary is satisfied that a determination under section 13 that parental leave pay is payable to the primary claimant was or will be in force on the day before the start of the secondary claimant’s PPL period; and

                     (b)  subsection (3A) applies.

Note:          The Secretary is prevented from making a determination under this subsection in certain circumstances: see Division 3.

          (3A)  This subsection applies if the Secretary is satisfied that either or both of the following apply:

                     (a)  the secondary claimant has a PPL period and was or will be eligible for parental leave pay on each day in that PPL period;

                     (b)  the secondary claimant has a supplement period and was or will be eligible for parental leave pay on each day in that supplement period on or after the day the child was born.

30  Paragraph 16(4)(b)

Repeal the paragraph, substitute:

                     (b)  ends on the day worked out under subsection (4A).

31  After subsection 16(4)

Insert:

          (4A)  If the Secretary is satisfied that the secondary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the day worked out under paragraph (4)(a); and

                     (b)  ends on:

                              (i)  unless subparagraph (ii) applies—a day (the end day ) in the maximum PPL period for the child; or

                             (ii)  if the secondary claimant has a paid PC leave period for the child—a day (also the end day ) in the maximum PPL period that is followed by a number of week days in that period equal to the secondary claimant’s adjustment for paid PC leave;

the day is the end day.

          (4B)  Subparagraph (4A)(b)(ii) does not apply if the Secretary is satisfied that the secondary claimant made his or her secondary claim in exceptional circumstances mentioned in paragraph 54(2)(d).

          (4C)  To avoid doubt:

                     (a)  if the secondary claimant has a paid PC leave period for the child; and

                     (b)  the day worked out under subparagraph (4A)(b)(ii) is before the day mentioned in paragraph (4A)(a);

the secondary claimant does not have a PPL period.

Secondary claimant’s supplement period

          (4D)  The Secretary must specify in the determination under subsection (3) that the secondary claimant’s supplement period is the period worked out in accordance with the PPL rules.

32  Paragraph 17(3)(b)

Repeal the paragraph, substitute:

                     (b)  ends on the day worked out under subsection (3A).

33  After subsection 17(3)

Insert:

          (3A)  If the Secretary is satisfied that the tertiary claimant was or will be eligible on each day in the period that:

                     (a)  starts on the day worked out under paragraph (3)(a); and

                     (b)  ends on:

                              (i)  unless subparagraph (ii) applies—a day (the end day ) in the maximum PPL period for the child; or

                             (ii)  if the secondary claimant has a paid PC leave period for the child—a day (also the end day ) in the maximum PPL period that is followed by a number of week days in that period equal to the secondary claimant’s adjustment for paid PC leave;

the day is the end day.

          (3B)  Subparagraph (3A)(b)(ii) does not apply if the Secretary is satisfied that the secondary claimant made his or her secondary claim in exceptional circumstances mentioned in paragraph 54(2)(d).

          (3C)  To avoid doubt:

                     (a)  if the secondary claimant has a paid PC leave period for the child; and

                     (b)  the day worked out under subparagraph (3A)(b)(ii) is before the day mentioned in paragraph (3A)(a);

the tertiary claimant does not have a PPL period.

34  Paragraph 24(b)

Repeal the paragraph, substitute:

                     (b)  if parental leave pay is payable:

                              (i)  the claimant’s PPL period (if any); and

                             (ii)  if the claimant is not the primary claimant—the primary claimant’s PPL period (if any); and

                            (iii)  the amount of parental leave pay that will be paid to the claimant for the child; and

                            (iv)  in a case where parental leave pay supplement is payable for the child—the claimant’s supplement period for the child; and

                             (v)  in a case where parental leave pay supplement is payable for the child—the amount of parental leave pay represented by that parental leave pay supplement; and

                   (ba)  if the claimant is the primary claimant and the claimant has a paid PC leave period for a child:

                              (i)  the claimant’s paid PC leave period; and

                             (ii)  the amount (if any) of primary carer pay to which the claimant is entitled; and

                   (bb)  if the claimant is not the primary claimant:

                              (i)  if the claimant has a paid PC leave period for a child—the claimant’s paid PC leave period; and

                             (ii)  if the primary claimant has a paid PC leave period for a child—the primary claimant’s paid PC leave period; and

35  After section 24

Insert:

24A   Varying a payability determination

Variation of PPL period

             (1)  The Secretary may vary a payability determination that parental leave pay is payable to a person for a child by varying any of the following:

                     (a)  the person’s PPL period;

                     (b)  the person’s supplement period for the child;

                     (c)  the amount of the person’s parental leave pay supplement for the child.

             (2)  The Secretary may do so:

                     (a)  on his or her own initiative; or

                     (b)  on request from the person made:

                              (i)  at any time before one year after the day on which the person’s PPL period would have ended apart from the variation; and

                             (ii)  in a manner approved by the Secretary.

Coming into force

             (3)  A variation comes into force on the day that it is made.

Matters to be satisfied for making of variation

             (4)  The provisions in Division 2 of Part 2-1 and in this Part that require matters to be satisfied in order for a payability determination to be made apply to a variation under this section in the same way that they apply to a payability determination.

Matters to be specified in variation

             (5)  The provisions in Division 2 of Part 2-1 and in this Part requiring matters to be specified in a payability determination apply to a variation under this section in the same way that they apply to a payability determination.

Notice of variation

             (6)  Section 24 (requirement to give notice) applies to a variation under this section in the same way that it applies to a payability determination.

Note:          The Secretary may have to give a notice of the variation to the person’s employer under section 114.

36  Paragraph 25(1)(c)

Repeal the paragraph, substitute:

                     (c)  the request is made in a manner approved by the Secretary;

37  Division 5 of Part 2-2

Repeal the Division, substitute:

Division 5 Provisional entitlement determinations about parental leave pay

26   Provisional entitlement determinations

Primary claimants

             (1)  If a person makes an effective primary claim, the Secretary may make a determination (the provisional entitlement determination ) that the person is provisionally entitled to parental leave pay for the child if, when making the determination, the Secretary is satisfied that:

                     (a)  the person satisfies:

                              (i)  the work test; and

                             (ii)  the income test; and

                            (iii)  the Australian residency test; and

                     (b)  the other requirements in Division 2 of Part 2-1 and in this Part, relating to the making of a payability determination, are satisfied in relation to the person.

Secondary claimants

             (2)  If a person makes an effective secondary claim, the Secretary may make a determination (the provisional entitlement determination ) that the person is provisionally entitled to parental leave pay for the child if, when making the determination, the Secretary is satisfied that:

                     (a)  the person satisfies the following tests (or will satisfy those tests on the day the person becomes the child’s primary carer):

                              (i)  the work test;

                             (ii)  the income test;

                            (iii)  the Australian residency test; and

                     (b)  the other requirements in Division 2 of Part 2-1 and in this Part, relating to the making of a payability determination, are satisfied in relation to the person.

26A   Provisional entitlement determination does not prevent Secretary making different payability determination

                   The fact that the Secretary has made a provisional entitlement determination that a person is provisionally entitled to parental leave pay for a child does not prevent the Secretary from later:

                     (a)  making a payability determination that parental leave pay is not payable to the person for the child; or

                     (b)  making a payability determination that parental leave pay is payable to the person for the child, but which does not reflect the provisional entitlement determination.

27   Assumptions when making the provisional entitlement determination

                   In deciding whether to make a provisional entitlement determination about parental leave pay, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.

28   When the provisional entitlement determination comes into force

                   A provisional entitlement determination about parental leave pay comes into force on the day it is made.

29   Matters to be specified in, and notice of, provisional entitlement determination

Matters to be specified

             (1)  The provisions in Division 2 of Part 2-1 and in this Part requiring matters to be specified in a payability determination apply to a provisional entitlement determination in the same way that they apply to a payability determination.

Notice

             (2)  Section 24 (requirement to give notice) applies to a provisional entitlement determination in the same way that it applies to a payability determination.

38  Paragraph 31(4B)(b)

Repeal the paragraph, substitute:

                     (b)  combined, the total days in the following exceed 140:

                              (i)  the person’s DAPP period;

                             (ii)  any paid PC leave period for the child;

                            (iii)  the reference period for the person’s claim for parental leave pay for the child;

39  Subsection 33(2)

Omit “an initial eligibility determination”, substitute “a provisional entitlement determination”.

40  After subsection 33(2)

Insert:

          (2A)  If:

                     (a)  a primary claimant is pregnant with the child or is the birth mother of the child; and

                     (b)  the primary claimant performs paid work of a kind before the child is born; and

                     (c)  the primary claimant ceases performing that work on a particular day because of hazards that:

                              (i)  are connected with the work; and

                             (ii)  pose a risk to the pregnancy; and

                     (d)  if the PPL rules specify extra requirements relating to ceasing that type of work because of such hazards—those requirements are satisfied; and

                     (e)  the primary claimant would not satisfy the work test in the work test period that would apply under subsection (1) because she ceased work as mentioned in paragraph (c);

the work test period for the primary claimant is the 392 days immediately before the day on which the primary claimant ceased work as mentioned in paragraph (c) and not the work test period that would apply under subsection (1) or (2).

41  Subsection 36(2)

Omit “56”, substitute “84”.

42  Paragraph 36(3)(c)

Omit “56”, substitute “84”.

43  Subsection 57(1) (note 2)

Omit “subsection 11(4)”, substitute “subsection 11A(1)”.

44  Section 62

Omit:

Parental leave pay is payable in instalments for regular periods called instalment periods. Instalments are payable to a person if those instalment periods overlap with the person’s PPL period.

substitute:

Parental leave pay is payable in instalments for regular periods called instalment periods (or, in the case of lump sum supplement, as a single instalment). Instalments (other than for lump sum supplement) are payable to a person if those instalment periods overlap with the person’s PPL period.

45  Subsections 63(3) and (4)

Repeal the subsections, substitute:

When an instalment is payable

             (3)  An instalment is payable to a person if:

                     (a)  one or more days (the PPL days ) of an instalment period for the person fall within the person’s PPL period; or

                     (b)  parental leave pay supplement is payable to the person.

             (4)  An instalment becomes payable:

                     (a)  if paragraph (3)(a) applies—on the payday for the instalment; or

                     (b)  if paragraph (3)(b) applies—as soon as practicable after the earlier of the last day of the person’s paid PC leave period and the last day of the person’s supplement period.

46  Subsection 66(2)

Omit “and 69A”, substitute “, 69A and 190A”.

47  Subsection 70(1)

Omit “or 69A”, substitute “, 69A or 190A”.

48  Subsection 76(3)

Omit “for the person’s PPL period”.

49  Section 87 (heading)

Repeal the heading, substitute:

87   Payment of arrears—extending PPL period after review or variation

50  Subsection 87(1)

Omit “after a review”, substitute “after a review or variation”.

51  Section 92 (heading)

Repeal the heading, substitute:

92   Effect of extending PPL period after review or variation

52  Paragraph 92(b)

After “is made”, insert “(whether by way of review or variation)”.

53  Paragraph 101(1)(a)

Omit “an initial eligibility determination”, substitute “a provisional entitlement determination”.

54  Paragraph 115CB(7)(b)

Repeal the paragraph, substitute:

                     (b)  combined, the total days in the following exceed 140:

                              (i)  the person’s PPL period;

                             (ii)  any paid PC leave period for the child;

                            (iii)  the reference period for the person’s claim for dad and partner pay for the child;

55  Paragraph 117(1)(a)

Omit “initially eligible for”, substitute “provisionally entitled to”.

56  Paragraph 117(1)(b)

After “to a person”, insert “(and if so, the amount of that parental leave pay)”.

57  Paragraph 124(2)(a)

After “not have been paid”, insert “, or if incorrect amounts have been paid as parental leave pay”.

58  At the end of subsection 125(1)

Add:

                   ; (c)  anything that has the effect of:

                              (i)  changing the amount of the person’s entitlement to PC pay for the child in respect of whom the claim is made; or

                             (ii)  causing the person to have such an entitlement;

                     (d)  anything that is likely to have the effect described in paragraph (c);

                     (e)  anything that has the effect of:

                              (i)  changing the person’s paid PC leave period for the child in respect of whom the claim is made; or

                             (ii)  causing the person to have such a period;

                      (f)  anything that is likely to have the effect described in paragraph (e).

59  Sections 166 and 167

Repeal the sections, substitute:

166   Parental leave pay instalment debts—instalments paid by employer

             (1)  This section applies if:

                     (a)  an amount is paid by an entity other than the Secretary to, or in relation to, a person for a child by way of an instalment; and

                     (b)  the amount exceeds what it should be under Part 3-3.

Note 1:       Instalments may stop being payable with retrospective effect if the payability determination is set aside or varied after the instalments are paid.

Note 2:       If no amounts are payable to, or in relation to, a person for a child as instalments (for example, if a payability determination that parental leave pay is payable to the person for the child has not been made, or has been set aside), the amount of the excess is the total amount mentioned in paragraph (a).

Note 3:       This section may apply to overpayments by way of instalments or amounts 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 AAT Act.

             (2)  An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

             (3)  The debt under subsection (2) arises when the amount is paid as mentioned in paragraph (1)(a).

167   Parental leave pay instalment debts—instalments paid by Secretary

             (1)  This section applies if:

                     (a)  the Secretary pays an amount to, or in relation to, a person for a child by way of an instalment; and

                     (b)  the amount exceeds what it should be under Part 3-3.

Note 1:       Instalments may stop being payable with retrospective effect if the payability determination is set aside or varied after the instalments are paid.

Note 2:       If no amounts are payable to, or in relation to, a person for a child as instalments (for example, if a payability determination that parental leave pay is payable to the person for the child has not been made, or has been set aside), the amount of the excess is the total amount mentioned in paragraph (a).

Note 3:       This section may apply to overpayments by way of instalments or amounts 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 AAT Act.

             (2)  An amount equal to the amount of the excess is a debt due to the Commonwealth by the person.

             (3)  The debt under subsection (2) arises when the Secretary pays the amount mentioned in paragraph (1)(a).

60  After paragraph 182(c)

Insert:

                    (ca)  deductions from instalments payable to the debtor (see section 190A);

61  After section 190

Insert:

190A   Deductions from instalments payable to debtors

             (1)  A debt may be deducted, in accordance with this section, from instalments that would otherwise be payable to the debtor.

             (2)  The Secretary may determine the amount to be deducted from each instalment.

             (3)  A determination under subsection (2) may be an amount that would reduce the instalment to zero if the debtor has consented to the amount of the deduction reducing the instalment to zero.

             (4)  Each instalment is to be reduced by the amount determined by the Secretary until the sum of those amounts, and any amounts of the debt recovered under another provision of this Act or under another Act, equals the debt.

             (5)  The Secretary may vary the amount to be deducted from an instalment.

62  Subsections 193(5) and 197(2)

Omit “or setting off in relation to”, substitute “under this Act or another Act or by set-off against”.

63  Subsection 272(1)

Omit “reviewing a decision for the purposes of this Chapter”, substitute “reviewing a decision for the purposes of this Chapter or varying a payability determination under section 24A”.

Part 2 Application provisions

64  Application of amendments

The amendments made by this Schedule apply in relation to a claim for parental leave pay for a child who:

                     (a)  is born on or after the commencement of this Schedule; or

                     (b)  becomes entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act 2010 ) on or after the commencement of this Schedule.

65  Transitional arrangement for employer top-up pay

(1)       This item applies if a child is born, or becomes entrusted to the care of a person (as mentioned in subsection 275(2) of the Paid Parental Leave Act 2010 ), during the 3-year period starting on the commencement of this Schedule.

(2)       Subsection 11F(5) of that Act applies in relation to a person’s entitlement to PC pay for the child as if the reference in that subsection to “treat the amount of that PC pay for each day in the employee’s paid PC leave period as being the amount that it would be disregarding subsection 11B(2)” were instead a reference to “disregard the amount of that PC pay for each day in the employee’s paid PC leave period”.