Explanatory Memorandum
Circulated By the Authority of the Minister for Families, Housing, Community Services and Indigenous Affairs, the Hon Jenny Macklin MPSchedule 2 - Transitional provisions
Summary
This Schedule provides for certain transitional matters relating to employer determinations (which require an employer to pay instalments of parental leave pay to a person). This Schedule also provides other transitional provisions required as a result of changes made by Schedule 1.
Background
Chapter 3 of the new Paid Parental Leave Act 2010 provides for the payment of instalments of parental leave pay either by a person's employer or the Secretary. Part 3-5 provides for the making of an employer determination where prescribed conditions (set out in new section 101) are met. If an employer determination is in force for an employer and a person, then the employer must pay instalments to the person if the employer has been funded to make those instalments.
This Schedule contains transitional provisions to ensure that the requirement for employers to provide parental leave pay to their employees will take effect for children born or adopted on or after 1 July 2011 (although employers will be able to opt in to provide any eligible employees with parental leave pay from 1 January 2011).
There are also transitional provisions relating to the amendments made by Schedule 1 to the Child Support Registration and Collection Act and amendments relating to certain family payments.
Explanation of the changes
Part 1 - Transitional provisions relating to employer determinations under the Paid Parental Leave Act 2010
Item 1 - Employer determination made where expected or actual date of birth is before 1 July 2011
This item modifies the operation of new section 101 of the new Paid Parental Leave Act 2010 for a person where the child in relation to whom parental leave pay is claimed is expected to be born before 1 July 2011 (in the case where the claim is made before the child is born) or is born before 1 July 2011 (where the claim is made after the child is born).
The note refers the reader to subitem 1(9) , which deals with the situation where the expected date of birth of a child is before 1 July 2011 but the child is born on or after that date.
In these circumstances, subitem 1(2) provides a new subsection 101(1) that replaces subsections 101(1) and (2) of the new Paid Parental Leave Act 2010 . An employer determination can only be made under modified subsection 101(1) if the employer has elected to pay the person their instalments of parental leave pay (under section 109 of the new Paid Parental Leave Act 2010 ) and the person has consented in their claim to the employer doing so. Consistent with the conditions that apply for employer determinations under the new Paid Parental Leave Act 2010 where the employer has made an election under section 109, there would be no need for the employer to be likely to be required to pay instalments for at least 40 consecutive PPL days if the employer determination is made or for the person to have had 12 months' continuous employment with the employer prior to the expected date of birth or the day the child was born (as appropriate).
Subitem 1(3) labels an employer determination made under modified subsection 101(1) as a transitional employer determination for the purposes of item 1 , for ease of reference.
Subitem 1(4) provides that section 103, subsection 107(2) and specified provisions dealing with the review of employer determinations do not apply to a transitional employer determination. These provisions are replaced by the rules in subitems 1(5), (6), (7) and (8).
Subitem 1(5 ) enables an employer, who is given a notice under section 102 advising of the making of a transitional employer determination, to give the Secretary an acceptance notice within 14 days after the date of the Secretary's notice, if the employer accepts the obligation to pay instalments. The acceptance notice would need to comply with the requirements of section 104.
If the employer gives the Secretary an acceptance notice within that 14-day period, then the transitional employer determination comes into force on the day the Secretary receives the notice ( subitem 1(6) refers). However, if the employer does not give the Secretary an acceptance notice within that timeframe, the Secretary must revoke the transitional employer determination and give notice of the revocation to the employer ( subitem 1(7) refers). Subitem 1(8) allows the Secretary to extend the 14-day period in which an employer can provide an acceptance notice to the Secretary.
Subitem 1(9) deals with the situation where the child in respect of whom parental leave pay was claimed is born on or after 1 July 2011. In these circumstances, the Secretary may make an employer determination for the person and their employer under the usual rules in section 101 of the new Paid Parental Leave Act 2010 . If the Secretary does so and has previously made a transitional employer determination for the person and the employer, then the transitional employer determination is taken never to have been made.
Subitem 1(10) ensures that sections 275 and 276 (which deal with how the new Paid Parental Leave Act 2010 applies to adopted children and claims made in exceptional circumstances) also apply in relation to the transitional arrangements set out in this item.
Item 2 - Employer determination made where expected date of birth is on or after 1 July 2011 but child born before that date
Item 2 applies where an employer determination is made for an employer and a person under the new Paid Parental Leave Act 2010 on the basis of a claim made before the child's birth, where the expected date of birth is on or after 1 July 2011 but the child is born before 1 July 2011 and where the employer has not elected (under section 109) to pay the person their instalments. In this situation, the usual rules regarding employer determinations would have applied rather than the modified rules in item 1 of this Schedule because the expected date of birth of the child was on or after 1 July 2011.
Under subitem 2(2) , if the Secretary makes a payability determination that parental leave pay is payable to the person in relation to the child, the notice of decision required to be given to the employer by the Secretary under section 113 must also state the day the child was born, be dated and advise the employer that the employer determination will be revoked unless the employer gives the Secretary notice agreeing to pay the person their instalments, within 14 days of the date of the Secretary's notice. This would allow the employer to make a choice about whether or not to pay the person their instalments, given that the child for whom parental leave pay is payable was born before 1 July 2011. Under subitem 2(3) , if the employer does not give the Secretary a notice, then the employer determination must be revoked with effect from the day of the revocation. The Secretary would be required to advise the employer of the revocation decision. In these circumstances, section 103 (which requires an employer to respond to the decision to make an employer determination by accepting the decision by acceptance notice or appealing the decision) is taken never to have applied.
Subitem 2(4) ensures that sections 275 and 276 (which deal with how the new Paid Parental Leave Act 2010 applies to adopted children and claims made in exceptional circumstances) also apply in relation to the transitional arrangements set out in this item.
Part 2 - Other transitional provisions
Item 3 is a transitional provision relating to eligibility for baby bonus and is discussed in this explanatory memorandum in the context of the relevant amendments to the Family Assistance Act made by Schedule 1.
Item 4 is a transitional provision relating to eligibility for maternity immunisation allowance and is discussed in this explanatory memorandum in the context of the relevant amendment to section 39 of the Family Assistance Act made by Schedule 1.
Item 5 contains transitional provisions relating to claims for FTB, baby bonus and maternity immunisation allowance. These transitional provisions are also discussed in this explanatory memorandum in the context of the relevant amendments to the Family Assistance Administration Act made by Schedule 1.
Items 6 and 7 are transitional arrangements related to the amendments made by Schedule 1 to the Child Support Registration and Collection Act. They too are explained in the context of those child support amendments.