Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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.
1
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repealed as set out in that Schedule, and any other item in a Schedule to the Bill has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.
1
Schedule 1 - Amendments
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.
2
Schedule 1 - Amendments
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.
3
Schedule 1 - Amendments
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
4
Regulation Impact Statement
5
Statement of compatibility with human rights
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:
6
Statement of compatibility with 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.
7
Statement of compatibility with human rights
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.
8