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Paid Parental Leave Amendment (COVID-19 Work Test) Bill 2021

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2019-2020-2021

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

PAID PARENTAL LEAVE AMENDMENT (COVID-19 WORK TEST) BILL 2021

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by the authority of the Minister for Families and Social Services Senator the Hon Anne Ruston)



 

PAID PARENTAL LEAVE AMENDMENT (COVID-19 WORK TEST) BILL 2021

 

 

OUTLINE

 

This Bill will enable people to access parental leave pay and dad and partner pay who do not meet the current work test provisions because their employment has been affected by the COVID-19 pandemic, but who have been paid Commonwealth payments in recognition of this effect.

 

Financial impact statement

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

Schedule 1

Nil impact of the Paid Parental Leave appropriation

Services Australia implementation costs to be agreed with the Department of Finance. 

 

 

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 (COVID-19 WORK TEST) BILL 2021

 

 

NOTES ON CLAUSES

 

Abbreviations and Acronyms used in this explanatory memorandum

 

  • Paid Parental Leave Act means the Paid Parental Leave Act 2010 ;
  • Paid Parental Leave Rules means the Paid Parental Leave Rules 2021 .

 

Clause 1 sets out how the new Act is to be cited - that is, as the Paid Parental Leave Amendment (COVID-19 Work Test) Act 2021 .

 

Clause 2 provides a table, which sets out the commencement date of the Act.

Clause 3 provides the Act that is specified in Schedule 1 is amended as set out in Schedule 1, and any other item in a Schedule has effect according to its terms.



 

Schedule 1 - Amendments to the Paid Parental Leave Act

 

 

Summary

 

This schedule will enable people to access parental leave pay and dad and partner pay who do not meet the current work test provisions because their employment has been affected by lockdowns as a result of the COVID-19 pandemic, but who have been paid Commonwealth payments in recognition of this effect.

 

Background

 

 

The Paid Parental Leave scheme is enabled by the Paid Parental Leave Act, with the Paid Parental Leave Rules giving effect to specific provisions such as matters related to the work test.

 

In 2020, amendments to the Paid Parental Leave Act made by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020 , allowed time spent in receipt of the JobKeeper Payment to count towards the Paid Parental Leave work test.

 

Because of the state health ordered lockdowns due to the continuation of the COVID-19 pandemic, across much of Australia, many people who would otherwise have qualified for paid parental leave may no longer meet the requirements of the work test. For example, a person who has been stood down, had their hours of work reduced or ceased work entirely as a result of a lockdown, may not be able to satisfy the work test for Parental Leave Pay or Dad and Partner Pay.

 

The COVID-19 Disaster Payment is paid to provide financial assistance to limit the financial hardship for eligible individuals who are unable to work and earn an income under a state public health order for restricted movement. The recognition of periods in receipt of this payment as qualifying work is consistent with the objectives of the Paid Parental Leave Scheme.

 

This Bill amends the Paid Parental Leave Act, to provide that a person in receipt of an Australian Government COVID-19 payment as specified by the Paid Parental Leave rules or the COVID-19 Disaster Payment will be considered to be performing qualifying work for the purpose of the paid parental leave work test. This will mean that the period the person receives specified payments will count toward the paid parental leave work test.

 

The purpose of this Bill is to ensure that the empowering provision in the Paid Parental Leave Act is broad enough to enable periods in receipt of either the current COVID-19 Disaster Payment or future payments (prescribed by the Paid Parental Leave Rules) to be counted as qualifying work for the purposes of the paid parental leave work test.

 

Eligibility for parental leave pay is provided for in Division 2 of Part 2-3 of Chapter 2 of the Paid Parental Leave Act. To be eligible for parental leave pay, a person must, among other things, satisfy the work, income and residency tests.  

The work test requires that the person:

•            perform qualifying work for at least 10 of the 13 months prior to the expected or actual birth date of the child;

•            work at least 330 hours during those 10 months; and

•            not have a break between work days of more than 12 weeks.

 

Qualifying work includes a person performing at least one hour of paid work on a day or taking at least one hour of paid leave on a day. Currently, unpaid leave and being stood down from work as a result of the impact of COVID-19 pandemic and resultant state lockdowns would not be considered qualifying work, impacting the ability for people to satisfy the work test.

 

The amendments also provide for matters pertaining to hours of qualifying work, future COVID-19 Australian Government payments and similar matters to be addressed in the Paid Parental Leave Rules.

 

 

Explanation of the changes

 

 

Item 1 amends section 6 to insert two new definitions COVID-19 Australian Government payment and a COVID-19 Australian Government payment period . These definitions will refer to new subsections 34(6) and 34(5) respectively, inserted below by item 8, which provide the detailed definitions.

 

Item 2 is a technical amendment which amends section 11(4)(c) to clarify that paragraph 11(4)(c) does not apply if new paragraph 11(4)(e), inserted by item 3,  applies to a claimant and a claim.

 

Item 3 amends section 11 to allow primary claimants who have made a claim after 28 days after the day the child was born, and who were in receipt of a COVID-19 Australian Government payment in relation to the claimant and their claim, to backdate the start date of their PPL period to the later of the date of birth of their child or their nominated start day.

 

Item 4 amends the guide to Part 2-3 in section 30, dealing with eligibility for parental leave pay. The amendment includes the words “or COVID-19 Australian Government payment period” after the existing words ‘“JobKeeper payment period”. This amendment is made to the paragraph of the guide beginning with ‘Division 3’ that explains the paid parental leave work test.

 

Item 5 amends note 3 to section 32 to insert the words ‘or (f)’ after ’paragraph (e)’, to alert the reader that section 35A applies where a person has performed qualifying work on a day because of paragraph (c) or (d) and does not also perform qualifying work because of paragraph (e) or (f).

 

Item 6 adds a fifth note to section 32 alerting the reader that where a person performs qualifying work on a day as a result of receiving a COVID-19 Australian Government Payment, the hours of work are determined in accordance with the Paid Parental Leave Rules (see section 35C).

 

New section 35C is inserted by item 9 below .

 

Item 7 of this bill inserts new paragraph 34(1)(f) at the end of subsection 34(1) to provide that a person will perform qualifying work on a day if the day is in a COVID-19 Australian Government payment period for the person (defined by amendments to section 6 by reference to new subsections 34(5) and (6) inserted by item 8).

 

Item 8 inserts new subsections 34(5) and 34(6).

 

New subsection 34(5) defines a COVID-19 Australian Government payment period for a person to be a period for which the person themselves is entitled to a COVID-19 Australian Government payment.

 

New paragraph 34(6)(a) defines COVID-19 Australian Government payment as a payment or grant of financial assistance that is payable by the Commonwealth covered by item 492 of the table in Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997 .

 

This item also adds new paragraph 34(6)(b) which adds to the definition of COVID-19 Australian Government payment a payment or grant of financial assistance prescribed by the Paid Parental Leave Rules.

 

Item 9 inserts after section 35B new section 35C to provide for working out the hours of qualifying work that a person has performed on a day if that day is in a COVID-19 Australian Government payment period for the person.

 

New section 35C is made for the purposes of step 5 of the method statement contained in section 32.

 

Step 5 of the method statement requires the person to have performed at least 330 hours of qualifying work during 10 months of the 13 month work test period to satisfy the work test.

 

Subsection 35C(1) provides that the calculation of the number of hours for the work test, for a person who performs qualifying work on a day because it is in a COVID-19 Australian Government payment period, is to be worked out in accordance with the Paid Parental Leave Rules.

 

The Paid Parental Leave Rules are made under section 298 of the Paid Parental Leave Act and are a legislative instrument. Section 298 enables the Minister for Families and Social Services to make rules providing for matters necessary or convenient to give effect to the relevant Act. This extends to the calculation of hours in relation to the work test. For example, Division 3 of Part 2 of the Rules sets additional rules about what is considered to be paid leave and paid work for the purposes of the work test.

 

Subsection 35C(2) provides that new subsection 35C(1) has effect even if the person also performs qualifying work on that day due to paragraphs 34(1)(a), (b), (c), (ca) or (d); and despite section 35A. This gives greater flexibility for the Rules to prescribe calculation processes for the number of hours of work.

 

Item 10 is an application provision:

 

Sub- item 10(1) provides that the amendments in this bill apply to a claim for parental leave pay or for dad and partner pay made on or after the commencement of this item.

 

Sub-item 10(2) provides that a COVID-19 Australian Government Payment Period under subsection 34(5) of this bill as inserted by item 8 applies in relation to a period beginning on or after 3 June 2021. This is the date upon which the Prime Minister announced the COVID-19 Disaster payment, and the period from which entitlement to the payment commenced.

 



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

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

 

Paid Parental Leave Amendment (COVID-19 Work Test) Bill 2021

 

 

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 Bill amends the Paid Parental Leave Act 2010 (PPL Act) to provide that a person in receipt of an Australian Government COVID-19 payment, as specified by the Paid Parental Leave Rules, or the COVID-19 Disaster Payment will be considered to be performing qualifying work for the work test for Parental Leave Pay (PLP) and Dad and Partner Pay (DaPP).

The Paid Parental Leave (PPL) scheme is a Government-funded scheme consisting of PLP, an 18-week payment at the rate of the national minimum wage for eligible primary carers of newborn or recently adopted children; and DaPP, a two-week payment at the rate of the national minimum wage for eligible fathers and partners caring for newborn or recently adopted children.

The amendments made by this Bill are intended to assist people who have been affected by the economic impacts of the COVID-19 pandemic to be eligible for PLP and DaPP.

COVID-19 Payments as qualifying work

The Bill will support certain employees who have had their work hours reduced or who are stood down from their jobs due to the COVID-19 pandemic to continue to meet the work test for PLP or DaPP. The work test requires a person to have worked for at least 10 months of the 13 months prior to the birth or adoption of their child (or prior to their nominated start date for DaPP); and to have worked for at least 330 hours in that 10-month period with no more than a 12 week gap between two working days. This Bill would allow the time a person is receiving specified COVID-19 payments, including the COVID-19 Disaster Payment, to count as qualifying work towards the work test for PLP and DaPP

Human rights implications

This legislative instrument engages the following rights:

·          the right to social security,

·          the right to protection and assistance for families, and

·          the right to maternity leave.

 

 

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. The Bill engages these rights by broadening the eligibility criteria for PLP and DaPP and increasing the number of claimants who can receive the payments during the COVID-19 pandemic.

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.

The Bill engages these rights by broadening the eligibility criteria for PLP to allow more women to access payment under the PPL 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’. Note 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.

These amendments are beneficial, broadening the eligibility criteria for PLP to support women affected by the economic impacts of the COVID-19 pandemic to continue to be eligible for Government-funded paid parental leave.

 

Conclusion

The Bill is compatible with human rights because it does not interfere with human rights and provides families with greater access to financial assistance.

 

 

(Circulated by the authority of the Minister for Families and Social Services Senator the Hon Anne Ruston)