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Paid Parental Leave Amendment (Work Test) Bill 2019

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2019

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PAID PARENTAL LEAVE AMENDMENT

(WORK TEST) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the

Minister for Families and Social Services, Senator the Hon Anne Ruston)



PAID PARENTAL LEAVE AMENDMENT

(WORK TEST) BILL 2019

 

 

OUTLINE

 

The Paid Parental Leave Amendment (Work Test) Bill 2019 (the Bill) introduces in part the measure affecting Paid Parental Leave announced in the Mid-Year Economic and Fiscal Outlook 2018-19 measure Extending Access to Parental Leave Pay’.  The Paid Parental Leave work test will be amended to take into account the circumstances of pregnant employees who are unable to continue in their job because the hazardous nature of their employment presents a risk to their pregnancy and there is no safe job alternative available. 

 

The permissible break in the Paid Parental Leave work test will also be extended to allow parents to have a gap of up to 12 weeks between two working days and still meet the Paid Parental Leave work test.  This change will enable more working parents, particularly those in irregular employment, to be eligible for

Paid Parental Leave.

 

The new measure will be implemented from 1 January 2020.

 

Financial impact statement

 

  • The financial impact for the Bill is a cost of $6.74 million over the forward estimates:

 

 

2019-20

2020-21

2021-22

Total

Costs ($m)

1.30

2.69

2.75

6.74

 

  • The measure in this Bill is included in the Mid-Year Economic and Fiscal Outlook for 2018-19 as part of the Women’s Economic Security Statement.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Statement of Compatibility with Human Rights appears at the end of this Explanatory Memorandum.



PAID PARENTAL LEAVE AMENDMENT

(WORK TEST) BILL 2019

 

 

NOTES ON CLAUSES

 

Abbreviations used in this explanatory memorandum

 

  • Paid Parental Leave Act means the Paid Parental Leave Act 2010 .

 

 

Clause 1 sets out how the new Act is to be cited - that is, as the

Paid Parental Leave Amendment (Work Test) Act 2019.

 

Clause 2 provides a table setting out the commencement dates of the various sections in, and the Schedule 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, and any other item in a Schedule to the Bill has effect according to its terms.



Schedule 1 - Amendments

 

 

Summary

 

This schedule amends the Paid Parental Leave work test to take into account the circumstances of pregnant employees who are unable to continue in their job because the hazardous nature of their employment presents a risk to their pregnancy and there is no safe job alternative available. 

 

The permissible break in the Paid Parental Leave work test is also extended to allow parents to have a gap of up to 12 weeks between two working days and still meet the Paid Parental Leave work test.  This change will enable more working parents, particularly those in irregular employment, to be eligible for Paid Parental Leave.

 

Background

 

Women may be employed in fields where it is not safe for them to continue to work while pregnant, and no alternative safe job can be provided.  For example, miners and jockeys often work on contracts and do not have employers who can provide them with alternative safe work.  This measure will allow the Paid Parental Leave work test period to be moved to an earlier period, to allow such women to meet the work test.

 

Under the current Paid Parental Leave scheme rules, a person will meet the work test where they have:

·          worked for at least 10 months of the 13 months prior to the birth or adoption of their child; and

·          worked for at least 330 hours in that 10-month period with no more than an eight week gap between two working days.

 

The amendments in this Schedule will allow the work test period for a pregnant woman in an unsafe job to be moved from the 13-month period prior to the birth of her child to the 13-month period before the pregnant woman had to cease work due to the hazards connected with her employment and the subsequent risk to her pregnancy. 

 

Further amendments in this Schedule provide for the permissible break in the work test to be extended from eight weeks to 12 weeks between two working days.  Currently, some people’s access to Government-funded Parental Leave Pay is limited because they have breaks between employment of longer than eight weeks despite having an established long-term work pattern.  This amendment addresses that issue.

 

 

 

 

 

 

 

Explanation of the changes

 

 

Item 1 is consequential to the amendments in item 2, and inserts a definition of a ‘ claimant’s work cessation day ’ into section 6, by reference to new paragraph 33(2A)(c).

 

Item 2 repeals subsections 33(1) and (2), and substitutes new subsections 33(1), (2) and (2A).

 

New subsection 33(1) establishes the work test period for a primary claimant.  This is the 392 days immediately before a date established by paragraph 33(1)(a), (b) or (c).

 

The default rule is in subsection 33(1)(c) which sets up a work test period ending immediately before the child is born.

 

However, if the child is born after the expected date of birth of the child, and the primary claimant would not satisfy the work test if the child’s actual date of birth sets the work test period, then the period is the 392 days immediately before the expected date of birth of the child under paragraph 33(1)(b).  This duplicates the effect of previous paragraph 33(1)(b) of the Act.

 

However, if new subsection 33(2A) applies in relation to the primary claimant (relating to performing hazardous work before the birth of the child) and the primary claimant would not satisfy the work test based upon the child’s date of birth, the work test period may be set under new subsection 33(2A) per paragraph 33(1)(a).

 

Paragraph 33(2) applies for the purposes of making an initial eligibility determination on a primary claim.  The default date setting the work test period is the expected date of birth of the child.  However, if new subsection 33(2A) applies in relation to the primary claimant (relating to performing hazardous work before the birth of the child) and the primary claimant would not satisfy the work test based upon the child’s expected date of birth, the work test period for the initial eligibility determination may be set under new subsection 33(2A) per paragraph 33(2)(a).

 

New subsection 33(2A) applies in relation to a primary claimant if:

 

·          the primary claimant is pregnant with the child or is the birth mother of the child; and

·          the primary claimant is performing or performed paid work of a particular kind before the birth of the child; and

·          the primary claimant will cease or ceased performing that kind of work on a particular day (the claimant’s work cessation day) because of hazards connected with that kind of work that pose or posed a risk to the pregnancy; and

·          any conditions prescribed by the Paid Parental Leave rules are satisfied.

 



 

The Paid Parental Leave Rules 2010 are a legislative instrument made under section 298 of the Paid Parental Leave Act that specify additional rules for the Paid Parental Leave scheme. The Paid Parental Leave rules are a disallowable instrument.

 

The work test period is then the 392 days immediately before the claimant’s work cessation day.

 

Items 3 and 4 amend section 36, which provides for when there is a permissible break in the work test period.  For both instances where 56 days is specified, 84 days are substituted.  This extends the permissible break from eight weeks to

12 weeks.

 

Item 5 provides for the application of the amendments.  The amendments apply in relation to a claim for Paid Parental Leave for a child who, if the child is an adopted child, 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 item; or otherwise, is born on or after the commencement of this item





Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Paid Parental Leave Amendment Bill (Work Test) 2019

 

The Paid Parental Leave Amendment (Work Test) Bill 2019 (the 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 scheme is a Government-funded payment consisting of Parental Leave Pay, an 18-week payment at the rate of the national minimum wage for eligible primary carers of newborn and recently adopted children; and Dad and Partner Pay, a two-week payment at the rate of the national minimum wage for eligible fathers and partners caring for newborn or recently adopted children.

This Bill makes amendments to the Paid Parental Leave Act 2010 (PPL Act) in order to make improvements to the work test arrangements to ensure more working mothers are eligible for Parental Leave Pay, from 1 January 2020.

Under the current Paid Parental Leave scheme rules, a person will meet the

Paid Parental Leave work test where they have:

·                      worked for at least 10 months of the 13 months prior to the birth or adoption of their child; and

·                      worked for at least 330 hours in that 10-month period with no more than an eight week gap between two working days.

Amendments in this Bill provide for the permissible break in the Paid Parental Leave work test to be extended from eight weeks to 12 weeks between two working days. Currently, some people are unable to access Parental Leave Pay because they have a break between work days of longer than eight weeks, despite having established a long-term work pattern. This amendment addresses that issue.

 

The amendments in this Bill will also allow the work test period for a pregnant woman in an unsafe job to be moved from the 13-month period prior to the birth of her child to the 13-month period before she had to cease work due to the hazards connected with her employment and the subsequent risk to her pregnancy. 

 

Human rights implications

The Bill engages the following human rights:

 

 

 

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, and Article 26 of the Convention on the Rights of Children (recognises the right of every child to benefit from social security.  This Bill engages these rights by broadening the eligibility criteria for Paid Parental Leave and increasing the number of claimants who can receive the entitlement to Parental Leave Pay.

The right to protection and assistance for families

The right to protection and assistance to families, particularly mothers during a reasonable period before and after childbirth in Article 10(2) of the ICESCR recognises protection should be accorded to mothers. During such a period, working mothers should be accorded paid leave or leave with adequate social security benefits.

This Bill engages these rights by broadening the eligibility criteria for               Parental Leave Pay to allow more women to access the scheme.

The UN Committee on Economic, Social and Cultural Rights has commented that Article 7 of the ICESCR requires States Parties to take steps to ‘reduce the constraints faced by men and women in reconciling professional and family responsibilities by promoting adequate policies for childcare and care of dependent family members.’

The right to maternity leave

The right to maternity leave is contained within Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Article 10(2) of the ICESCR.  Article 11(2)(b) of the CEDAW requires States Parties ‘to introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances’. 

The amendments do not interfere with the existing rights under the                          Fair Work Act 2009 , including access to 12 months of unpaid parental leave, noting that Australia has a reservation in relation to Article 11(2)(b) of the Convention on the Elimination of All Forms of Discrimination Against Women .

The right to physical and mental health

The right to health in Article 12 of the ICESCR requires the recognition of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. This Bill engages these rights by increasing eligibility to receive the full entitlement to Parental Leave Pay for mothers who have to stop work due to working a dangerous job, which could harm the mother and/or unborn child if the mother continued to work.

 

 

Conclusion

The Bill is compatible with human rights because they do not limit but, rather, enhance access to social security, physical and mental health or protection and assistance for families.