Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
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.
1
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.
1
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.
2
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).
3
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
4
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.
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 (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.
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. 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)
7