House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Amanda Rishworth MP)

OUTLINE

The Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 ( the Bill ) will add a superannuation contribution to the Commonwealth-funded Paid Parental Leave Scheme ( the Scheme ). The Bill also makes a minor technical amendment to the Fair Work Act 2009 ( FWA 2009 ) relating to unpaid parental leave.

Paid Parental Leave Superannuation Contribution

These changes were announced as part of the launch of the Working for Women: A Strategy for Gender Equality in March 2024 and included in the May 2024-25 Budget, and implement a key recommendation of the Women's Economic Equality Taskforce aimed at recognising the economic importance and value of care work in Australia and helping families to better share caring responsibilities.

In 2021-22, the gap between the median male and female superannuation balance approaching retirement (60-64) was 25.2 per cent. The 2023 Intergenerational Report (IGR) identified that the superannuation gap reflects the lower lifetime earnings of women, including time taken out of the workforce to care for children. Paying superannuation on Commonwealth-funded Paid Parental Leave ( PPL ) recognises the important contribution parents make to society, by reducing the impact that career breaks to care for young children have on superannuation balances. This will help to improve equity in the superannuation system.

Parental Leave Pay ( PLP ) recipients will receive the Paid Parental Leave Superannuation Contribution ( PPLSC ) in respect of children born on or after 1 July 2025 (or regarded as having been born on or after this date for the purposes of the Paid Parental Leave Act 2010 ( PPLA 2010 )). The PPLSC will comprise two components:

•

A core component, which will be calculated by multiplying the total amount of PLP paid for the person in an income year by the superannuation guarantee rate for that income year; and

•

A nominal interest component to address the foregone returns resulting from the annual payment of the PPLSC.

PLP recipients will not be required to make a separate claim to access the PPLSC. The Australian Taxation Office ( ATO ) will calculate and disburse the PPLSC based on information it will receive from Services Australia about PLP payments. The process for claiming PLP will not be altered.

This Bill and the administration of the PPLSC broadly aligns with existing processes under superannuation and taxation law, including in relation to payments, obligations of superannuation funds, and the treatment of over and under-payments. To ensure consistency with superannuation and taxation schemes, this legislation uses the design of superannuation and taxation law where possible.

Amendment to the FWA 2009

This Bill makes a minor technical amendment to the FWA 2009 to clarify that an employee may take 'keeping in touch ( KIT )' days during a period of continuous unpaid parental leave ( UPL ), irrespective of whether they have previously taken flexible UPL.

UPL is an entitlement that supports parents to remain connected to paid employment while they care for their child, and KIT days support employees to remain in contact with their workplace and can help facilitate a return to employment after a period of UPL.

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 introduced additional flexibilities to help parents better share work and care responsibilities. As part of these changes, employees can now access flexible UPL days before a period of continuous unpaid parental leave.

The current drafting of subsection 79A(5) of the FWA 2009 reflects previous arrangements where an employee forfeited their right to any further KIT days during any future period of UPL, if they took a day of flexible UPL. The Bill repeals and replaces this provision to remove this barrier and restore the policy intent to afford flexibility to employees who are entitled to UPL.

Schedule 1—Main amendments

The key measures in Schedule 1 will:

•

establish PPLSC entitlement as part of the Scheme;

•

provide for the calculation of the amount of the PPLSC and the manner in which this amount is paid;

•

create mechanisms for the Commissioner of Taxation ( Commissioner ) to correct under- and over-payments of the PPLSC;

•

provide an avenue for recipients to seek review of PPLSC decisions made by the Commissioner; and

•

give the Commissioner new compliance and enforcement powers to assist with administration of the PPLSC.

Schedule 2 – Other amendments

Schedule 2 of the Bill contains:

•

a minor technical amendment to the unpaid parental leave provisions of the FWA 2009 to clarify the entitlement to 'keeping in touch days'; and

•

amendments to the Income Tax Assessment Act 1997 ( ITAA 1997 ) and the Taxation Administration Act 1953 ( TAA 1953 ) that are consequential to the PPLSC-related amendments in Schedule 1 to this Bill.

FINANCIAL IMPACT STATEMENT

The measures in this Bill add superannuation to Commonwealth-funded Paid Parental Leave and make a minor technical amendment to the FWA 2009 relating to unpaid parental leave.

This financial impact includes impacts for Services Australia and the Australian Taxation Office, in relation to the costs of Information and Communications Technology development and implementation.

Tax receipts are expected to increase by $155 million to 2027-28.

The amendments to the FWA 2009 in this Bill have nil financial impact.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statement of compatibility with human rights appears at the end of this explanatory memorandum.

Abbreviations and acronyms used in this explanatory memorandum

•

ATO means the Australian Taxation Office

•

Commissioner means the Commissioner of Taxation

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FWA 2009 means the Fair Work Act 2009

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ITAA 1997 means the Income Tax Assessment Act 1997

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PLP means Parental Leave Pay

•

PLP instalment means an instalment of PLP paid directly to the person by the Secretary under section 84 of the PPLA 2010, in circumstances where the person receives PLP directly from Centrelink

•

PPLA 2010 means the Paid Parental Leave Act 2010

•

PPL funding amount means the amount paid by the Secretary to a person's employer in accordance with section 75 of the PPLA 2010 in circumstances where the person receives PLP via their employer

•

PPL Rules means the Paid Parental Leave Rules 2021

•

PPLSC means the Paid Parental Leave Superannuation Contribution

•

RSA means Retirement Savings Account

•

Scheme means the Paid Parental Leave Scheme

•

SGCCA 2003 means Superannuation (Government Co-Contribution for Low Income Earners) Act 2003

•

SHASA means the Superannuation Holding Accounts Special Account

•

SSAA 1995 means the Small Superannuation Accounts Act 1995

•

TAA 1953 means the Taxation Administration Act 1953

NOTES ON CLAUSES

Clause 1 sets out how the new Act is to be cited – that is, as the Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Act 2024.

Clause 2 provides a table setting out the commencement dates of the various sections in, and Schedules to, the new Act. The whole of the Act is to commence on the day after it receives Royal Assent.

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 - Main amendments

Summary

The amendments in this Schedule establish the PPLSC, a superannuation contribution for people receiving PLP in respect of children born on or after 1 July 2025 (or regarded as having been born on or after this date for the purposes of the PPLA 2010).

The PPLSC is calculated by reference to the total amount of PLP paid by Services Australia to a person or their employer in an income year, and is paid annually. Paying on an annual basis helps to ensure any subsequent changes to the PLP entitlement (including because of a review decision) are taken into account in calculating the PPLSC. A nominal interest amount is also included in the calculation of the contribution so that individuals are not disadvantaged by the PPLSC payment being made annually.

The PPLSC will be calculated as a percentage of the total amount of PLP paid in the preceding income year, plus a nominal interest component. The percentage will align with the Superannuation Guarantee rate as at 1 July of the income year that the PLP is paid. For example, the amount of a PPLSC for the financial year 2025-26 will be the charge percentage on 1 July 2025 (which will be 12 percent) multiplied by the total amount of PLP paid in that financial year, plus a nominal interest component.

PLP recipients will not need to make a separate claim to access the PPLSC entitlement. The PPLSC will be payable for all recipients of PLP, regardless of their gender or period of PLP taken during the income year.

The PPLSC will be treated as a concessional contribution when it is received by a person's superannuation fund, in line with the treatment of employer superannuation guarantee contributions. This means it will generally be subject to 15 per cent concessional contributions tax in the fund and will count towards a person's concessional contributions cap in the year it is received by the fund.

The amendments in this Schedule relating to the administration of the PPLSC are intended to broadly align with existing practices under the superannuation and taxation legislation, in particular the SGCCA 2003.

Paying superannuation contributions on PLP will help normalise parental leave as a workplace entitlement and reduce the impact of parental leave on retirement incomes. It will also reinforce the value placed on caring for children and align the Commonwealth-funded Scheme with employers who pay superannuation on their own parental leave arrangements. According to the Workplace Gender Equality Agency, in 2022-23, 86 per cent of employers offering paid parental leave also paid superannuation for parents while on paid leave, including 13 per cent also paying it on unpaid leave.

Subsequent amendment to the PPL Rules will be required to give full effect to the amendments of this Bill. These elements have been referred to the PPL Rules to ensure that the Government has flexibility to efficiently implement changes in response to broader societal and economic conditions, and to, where appropriate, maintain consistency with the arrangements in place for delivery of the Superannuation Co-Contribution under the SGCCA 2003, and broader superannuation and taxation regimes.

Explanation of the changes

Schedule 1— Main amendments

Schedule 1 amends the PPLA 2010 and SSAA 1995.

Paid Parental Leave Act 2010

Items 1 and 2 amend section 3A, the objects provision of the PPLA 2010.

Item 1 amends subsection 3A(1) to reflect that the Scheme established by the PPLA 2010 comprises of both PLP and the PPLSC.

Item 2 adds new subparagraph 3A(2)(c)(viii) which provides that the objects of the PPL scheme include to provide financial support to parents caring for children, in order to reduce the long-term financial impact of taking time off to care for children, by adding to the superannuation balances of those parents.

Item 3 amends the guide to the PPLA 2010, set out in section 4. Specifically, it inserts guidance on new Chapter 3A, which establishes the framework for the PPLSC.

The guide to the PPLA 2010 helps readers understand the substantive provisions. It is included as a navigation aid for the reader and is not intended to be comprehensive. The reader should consult substantive provisions to understand the rights and obligations under the PPLA 2010.

Item 4 inserts the following definitions into section 6:

Base contribution has the same meaning as in new subsection 115C(2) of the PPLA 2010.

Base interest rate for a day has the same meaning as in section 8AAD of the TAA 1953.

Commissioner means the Commissioner of Taxation.

Complying superannuation fund and constitutionally protected fund have the same meaning as in the ITAA 1997.

Credit to an RSA that is a policy (within the meaning of the Life Insurance Act 1995) means pay as a premium in relation to the policy.

General interest charge means the charge worked out under Part IIA of the TAA 1953.

Legal personal representative of a person who has died means an executor or administrator of the person's estate.

Nominal interest rate amount has the same meaning as in new subsection 115C(5) of the PPLA 2010.

Payment date means:

(a)

for a PPLSC – the date worked out in accordance with the PPL Rules for the purposes of new section 115H of the PPLA 2010; or

(b)

for an underpaid amount of a PPLSC – the date worked out in accordance with the PPL Rules made for the purposes of new section 115M of the PPLA 2010.

PPL superannuation contribution means a PPLSC under new section 115B of the PPLA 2010.

Provider of an RSA has the same meaning as in the Retirement Savings Accounts Act 1997.

RSA has the same meaning as in the Retirement Savings Accounts Act 1997.

SG charge percentage has the same meaning as in new subsection 115C(4) of the PPLA 2010.

Superannuation Holding Accounts Special Account means the Superannuation Holding Accounts Special Account continued in existence by section 8 of the SSAA 1995.

Superannuation provider means:

(a)

the trustee of a complying superannuation fund; or

(b)

the provider of an RSA; or

(c)

the trustee of a constitutionally protected fund.

Taxation officer means a person who is a taxation officer within the meaning of subsection 355-30(2) in Schedule 1 to the TAA 1953.

Trustee, of a superannuation fund, or constitutionally protected fund, means:

(a)

if there is a trustee (within the ordinary meaning of that expression) of the fund—the trustee; or

(b)

otherwise—the person who manages the fund.

Underpaid amount of a PPL superannuation contribution has the meaning given by new subsection 115K(2) of the PPLA 2010.

Item 5 inserts new Chapter 3A after Chapter 3 of the PPLA 2010. New Chapter 3A establishes the framework for administering the PPLSC.

Part 1 —Payability and amount of PPL superannuation contribution

Division 1—Guide to this Part

Section 115A provides a guide to Part 1 of Chapter 3A, which sets out the new rules concerning payability for, and calculation of, the PPLSC.

Division 2—Payability and amount of PPL superannuation contribution

Section 115B provides that a PPLSC will be payable for a person for an income year if the Secretary:

•

paid a PPL funding amount in respect of the person to the person's employer in the income year, pursuant to section 75 of the PPLA 2010; and/or

•

paid a PLP instalment directly to the person in the income year, pursuant to section 84 of the PPLA 2010, and that amount was payable to the person under section 63.

This is intended to capture Scheme recipients that receive PLP directly from Services Australia, or via their employer, or both.

Subsection 115B(2) provides that any PPL funding amounts that are subsequently raised as a debt under subsection 168(2) of the PPLA 2010 are to be disregarded for the purposes of determining whether a PPL funding amount has been paid in relation to the person. This ensures that, in circumstances where an employer is paid a PPL funding amount, but an instalment is not subsequently paid to the person (because, for example, they are not eligible for PLP), payability for the PPLSC is not triggered.

Section 115C sets out the basis for calculating the amount of PPLSC payable.

Subsection 115C(1) provides that the PPLSC for a person for an income year is the sum of the:

•

'base contribution' for the person for the income year multiplied by the 'SG charge percentage' for that year; and

•

'nominal interest rate amount' for the person for the year.

The relevant period for the interest amount may include days in more than one year.

Subsection 115C(2) provides that the base contribution for a person for an income year is the sum of all PPL funding amounts and PLP instalments paid by the Secretary in relation to a person during that income year. Paragraph 115C(2)(b) provides that, for a person's PLP instalment to be counted for these purposes, it must have been in fact paid to the person under section 84, and the amount must also have been payable under section 63.

This ensures that any subsequent adjustments to a person's PLP entitlement within an income year are accounted for in calculation of the base contribution. If, for example, an instalment were paid and a subsequent review reduced the amount payable for that instalment, it is intended that the difference between the amount paid and the amount that was payable would be disregarded for the purposes of determining the base contribution.

For the avoidance of doubt, where a person receives payment under the Scheme for two or more children that are born on or after 1 July 2025 (or regarded as having been born on or after this date for the purposes of the PPLA 2010), the base contribution is the sum of all PPL funding amounts and PLP instalments paid in respect for all the children in the relevant income year.

Subsection 115C(3) provides that if the Secretary has made deductions from a PLP instalment under sections 67 to 69B of the PPLA 2010, the instalment figure used to calculate the base contribution is taken to be increased by the sum of the deductions. Sections 67 to 69B of the PPLA 2010 enable the Secretary to make deductions from a person's PLP instalment in certain circumstances (including to repay a debt due to the Commonwealth, or in satisfaction of an enforceable child support liability). This provision ensures that the calculation of a person's PPLSC entitlement is not affected by any deductions from their PLP instalment during the income year.

Subsection 115C(4) provides that the SG charge percentage for an income year means the charge percentage for the year, worked out using the table in subsection 19(2) of the Superannuation Guarantee (Administration) Act 1992. This means the percentages used to calculate the PPLSC are the same as those used to calculate the superannuation guarantee.

Subsection 115C(5) provides that the nominal interest rate amount is the amount worked out under new paragraph 115C(1)(a) of the PPLA 2010, multiplied by the rate worked out in accordance with the PPL Rules. The intention is that the rate prescribed in the PPL Rules will align with the equivalent rate prescribed for the purposes of the superannuation guarantee charge. The nominal interest rate amount is intended to compensate for forgone superannuation fund earnings as a result of the PPLSC being paid annually.

Subsection 115C(6) excludes from the base contribution any PPL funding amount that is subsequently raised as a debt due to the Commonwealth under subsection 168(2) of the PPLA 2010. This prevents the double counting of amounts in circumstances where the employer fails to pay instalments to the person, and those instalments are subsequently paid to the person by the Secretary instead.

Section 115D requires the Commissioner to determine the amount of PPLSC that is payable for a person for an income year under new section 115C of the PPLA 2010.

Subsection 115D(2) provides that the PPL Rules may prescribe the time within which determinations under this section are to be made by the Commissioner.

Part 2—Payment of PPL superannuation contributions

Division 1—Guide to this Part

Section 115E provides a guide for Part 2 of new Chapter 3A, which sets out the new rules for disbursement of PPLSC and managing overpayments and underpayments of the PPLSC.

Division 2—How payments are made

Section 115F requires the Commissioner to determine where or to whom the PPLSC is made, if a determination has been made under new section 115D of the PPLA 2010.

Subsection 115F(1) requires the Commissioner to determine whether the PPLSC is made to:

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the trustee of a complying superannuation fund, for crediting to an account of the person within that fund;

•

the provider of an RSA that the person holds for crediting to the RSA;

•

the person's legal personal representative (the executor or administrator of a PPL recipient's estate if they have died prior to payment of the PPLSC); or

•

an account of the person in the SHASA.

The Commissioner will only be able to pay the PPLSC to those entities or accounts listed in this subsection.

Subsection 115F(2) requires the Commissioner, if they have determined to pay the PPLSC to the trustee of a complying superannuation fund or to the provider of an RSA, to also determine which particular account the PPLSC is to be credited to.

Subsection 115F(3) requires the Commissioner to make their determination, in relation to whom and where the PPLSC is to be paid, in accordance with any requirements prescribed by the PPL Rules. It is intended that the prescribed methodology will be similar to how the Commissioner determines where to direct the Government Co-contribution for Low Income Earners under the SGCCA 2003 and associated legislation.

Subsection 115F(4) provides that the Commissioner may revoke a determination made under section 115F if the Commissioner is satisfied that the payment cannot be effected. The Commissioner may also revoke the determination if satisfied that it is otherwise appropriate in the circumstances.

Subsection 115F(5) provides that the PPL Rules may prescribe the time within which determinations under this section are to be made by the Commissioner.

Section 115G provides for circumstances where the PPLSC is paid to a superannuation trustee or RSA provider, and the trustee or provider has not credited the amount to the relevant account by the required timeframe. This may occur when, for example, the person no longer has an account with that superannuation fund or RSA provider.

Subsection 115G(1) provides that trustees and providers in these circumstances are liable to repay the PPLSC to the Commonwealth, and must give a statement to the Commissioner in the approved form (within the meaning of section 388-50 in Schedule 1 to the TAA 1953) at the time the PPLSC is repaid.

Subsection 115G(2) provides that the amount liable to be repaid under new subsection 115G(1) of the PPLA 2010 is a debt due to the Commonwealth and may be recovered by the Commissioner.

Subsection 115G(3) establishes that it is an offence for the trustee or provider to fail to give the Commissioner the statement at the time when the contribution is repaid.

Subsection 115G(4) clarifies the offence is a strict liability offence. This is a strict liability offence because the Commissioner's reliance on that information in the administration of this measure should override the need to prove fault.

Section 115H sets out when the Commissioner must pay the PPLSC.

Subsection 115H(1) requires the Commissioner to pay PPLSC in accordance with determinations made under new sections 115D (the amount of the PPLSC) and 115F (to whom and where the PPLSC is to be paid) of the PPLA 2010, on or before the payment date for the PPLSC.

Subsection 115H(2) provides that the payment date for a PPLSC is worked out in accordance with the PPL Rules.

Subsection 115H(3) clarifies that the payment date for the PPLSC may be a day in a later income year. Although this would in most instances be the subsequent income year, the provision is intended to accommodate payment dates in any later income year (subject to the PPL Rules).

Section 115J sets out who the Commissioner must give notice to when a PPLSC is paid for a person for an income year.

Subsection 115J(1) requires the Commissioner to give a written notice to the person the PPLSC payment relates to. The notice must contain the following information:

•

when and to whom the contribution was paid;

•

the amount of the contribution; and

•

how the person may apply for review of the decision about the amount of the contribution.

Subsection 115J(2) provides that if the PPLSC is paid to the person's legal personal representative, the notice under new subsection 115J(1) of the PPLA 2010 must be given to the legal personal representative.

Subsection 115J(3) provides that if the PPLSC is paid to a superannuation trustee or RSA provider, the Commissioner must provide the trustee or provider with information about the PPLSC prescribed by the PPL Rules.

Division 3—Underpayments

Section 115K sets out the process to be followed if there has been an underpayment of the PPLSC.

Subsection 115K(1) provides that the section applies if the Commissioner has paid a PPLSC, and is satisfied that the amount of the PPLSC paid is less than the correct amount. Subsection 115K(2) defines the term underpaid amount to be the difference between these two amounts.

Where this section applies, subsection 115K(3) requires the Commissioner to determine that the underpaid amount is to be paid for the person for the income year.

Subsections 115K(4) to (8) set out where payment of the underpaid amount ought to be directed. These are similar to the rules for payment of the PPLSC, set out in new subsections 115F(1) to (5) of the PPLA 2010. The Commissioner must make determinations, in relation to whom or where the underpaid amount is to be paid, in accordance with any requirements prescribed by the PPL Rules.

Subsection 115K(9) provides that the Commissioner must pay the underpaid amount on or before the payment date. The payment date is worked out in accordance with the methodology prescribed in the PPL Rules under new subsection 115M(2) of the PPLA 2010. Depending on the circumstances, the relevant payment date could be later than the income year in which the original PPLSC was paid. Where this occurs, the underpaid amount would count towards that later year's concessional contributions cap.

Subsection 115K(10) requires the Commissioner to notify the person the PPLSC relates to when the Commissioner pays the underpaid amount. The notice must be in writing and specify:

•

when and to whom it was paid;

•

the amount of the underpaid amount; and

•

how the person can apply for review of the decision.

Section 115L provides for circumstances where the underpaid amount is paid to a superannuation trustee or RSA provider, and the trustee or provider has not credited the amount to the relevant account by the required timeframe. As noted above, this could arise where, for example, the person no longer has an account with that superannuation fund or RSA.

Subsection 115L(1) provides that trustees and providers in these circumstances are liable to repay the underpaid amount to the Commonwealth, and must give a statement to the Commissioner in the approved form (within the meaning of section 388-50 in Schedule 1 to the TAA 1953) at the time the underpaid amount is repaid.

Subsection 115L(2) provides that the amount liable to be repaid under subsection 115L(1) of the PPLA 2010 is a debt due to the Commonwealth and may be recovered by the Commissioner.

Subsection 115L(3) establishes that it is an offence for the trustee or provider to fail to give the Commissioner the statement at the time when the underpaid amount is repaid.

Subsection 115L(4) clarifies the offence is a strict liability offence. This is a strict liability offence because the Commissioner's reliance on that information in the administration of this measure should override the need to prove fault.

Section 115M provides that the Commissioner must pay additional interest in relation to any underpaid amounts not paid on or before the payment date for the underpaid amount.

Subsection 115M(1) provides that additional interest may be paid in relation to an underpaid amount, increasing the PPLSC amount, where the Commissioner does not pay the underpaid amount in full on or before the payment date for the underpaid amount.

Subsection 115M(2) provides that the payment date for an underpaid amount is to be worked out in accordance with the PPL Rules.

Subsection 115M(3) sets out that the additional interest payable under this section is calculated:

•

on the underpaid amount that remains unpaid on the payment date;

•

for the period from the payment date for the underpaid amount until the day on which the underpaid amount is paid in full; and

•

on a daily basis at the base interest rate for the day on which the interest is calculated.

As noted above at the amendments to section 6 of the PPLA 2010, the base interest rate for a day has the same meaning as section 8AAD of the TAA 1953, which is, at the time of writing, 7 per cent plus the relevant monthly average yield of 90-day Bank Accepted Bills published by the Reserve Bank of Australia.

This rate, applicable to underpaid amounts paid under section 115K in circumstances arising under either 115M (late payment) or 115N (if arising due to administrative error – see below), is intended to align with the treatment of similar late or erroneous payments made by the Commissioner under the SGCCA 2003.

Section 115N requires that the Commissioner must pay additional interest on an unpaid amount caused by administrative error.

Subsection 115N(1) provides that this requirement applies where the Commissioner has made a determination under new section 115K of the PPLA 2010 that an underpaid amount is to be paid for a person for an income year, and that determination is necessary to correct an administrative error.

Subsection 115N(2) defines payment shortfall to be the difference between the correct amount of the person's PPLSC, and the sum of all PPLSC amounts that have been paid for the income year before the determination under new section 115K of the PPLA 2010 is made.

Subsection 115N(3) provides that the PPLSC for the person for the income year is increased by the additional interest worked out under new subsection 115N(4) of the PPLA 2010.

Subsection 115N(4) sets out that the additional interest payable under this section is calculated:

•

on the payment shortfall amount;

•

for the period from the payment date for the PPLSC until the payment date for the underpaid amount; and

•

on a daily basis at the base interest rate for the day on which the interest is calculated.

Subsection 115N(5) states that the PPL Rules may prescribe what is or is not an 'administrative error' for the purposes of this section.

Division 4—Overpayments

Section 115P sets out the actions the Commissioner may take where there has been an overpayment of the PPLSC. An overpayment may occur, for example, if a person's PPLSC entitlement was calculated and paid with reference to a PPL funding amount paid to their employer under section 75 of the PPLA 2010, but it comes to light after the payment date for the PPLSC that the amount of PLP actually claimed by the person did not align with this funding amount and thus they were overpaid.

Subsection 115P(1) provides that the section applies if the Commissioner pays an amount of PPLSC, and either the amount is more than the correct amount, or no PPLSC was payable.

Subsection 115P(2) defines the amount overpaid to be the whole of the amount already paid if no PPLSC was payable, or the amount by which the amount paid exceeds the correct amount of the PPLSC.

Subsection 115P(3) sets out a table outlining the actions the Commissioner may take to recover an amount overpaid. Certain actions are subject to conditions also set out in the table.

Item 1 of the table provides that the Commissioner may deduct the whole or part of the amount overpaid from any PPLSC payable in respect of a person. This action would necessarily require there to be future PPLSC payments from which the Commissioner is able to deduct the amount overpaid before paying any difference as a 'net' payment. If this method is used, the Commissioner must give certain details to the person within 28 days of the deduction being made, pursuant to new paragraph 115P(7)(a) of the PPLA 2010.

Item 2 of the table provides that the Commissioner may debit an account of the person in the SHASA with the whole or part of the amount overpaid. This method is subject to the following conditions:

•

the person's account must still include one or more PPLSC amounts; and

•

the amount debited must not exceed the amount of those PPLSC amounts.

These conditions prevent the Commissioner debiting the account where no PPLSC amounts exist in it. If this method is used, the Commissioner must give certain details to the person within 28 days of debiting, pursuant to new paragraph 115P(7)(b) of the PPLA 2010.

Item 3 of the table provides that the Commissioner may recover the whole or part of the amount overpaid from the person's legal personal representative as a debt due to the Commonwealth. This method is subject to the following conditions:

•

the PPLSC must have been paid by the Commissioner to the person's legal personal representative;

•

the Commissioner has given the legal personal representative written notice (as prescribed by the PPL Rules) of the proposed recovery and amount to be recovered;

•

at least 28 days have elapsed since the notice was given; and

•

the amount recovered does not exceed the amount specified in the notice.

Item 4 of the table provides that the Commissioner may recover the whole or part of the amount overpaid as a debt due to the Commonwealth payable by either:

•

a superannuation provider to whom the Commissioner has paid the PPLSC; or

•

if the PPLSC has been transferred to another superannuation provider – that superannuation provider.

This method is subject to the following conditions:

•

the superannuation provider must hold one or more PPLSC amounts in respect of the person;

•

the amount recovered must not exceed the amount of those PPLSC amounts;

•

the Commissioner must give the superannuation provider written notice (as prescribed by the PPL Rules) of the proposed recovery and amount to be recovered;

•

at least 28 days have elapsed since the notice was given; and

•

the amount recovered does not exceed the amount specified in the notice.

If this method is used, the Commissioner must give certain details to the person within 28 days of debiting, pursuant to new paragraph 115P(7)(b) of the PPLA 2010.

Subsection 115P(4) clarifies that if the Commissioner gives notice to a superannuation provider pursuant to item 4 in the table of new subsection 115P(3) of the PPLA 2010, and the provider holds one or more PPLSC amounts for the person at the time the Commissioner provided the notice, the Commissioner may, if they so choose, continue to seek recovery from the provider. This is the case even if the provider does not continue to hold PPLSC amounts after that time.

Subsection 115P(5) allows the Commissioner to revoke a notice under item 3 or 4 of the table in new subsection 115P(3) of the PPLA 2010 if the Commissioner is satisfied that it is appropriate to do so. This may include consideration of the circumstances that led to the overpayment and the circumstances in which the person or provider find themselves in at the time the Commissioner is seeking recovery. This also then allows the Commissioner to seek recovery under one of the other methods without the possibility of breaching the rule in new subsection 115P(6), which states that the Commissioner's deductions, debits and other recoveries must not exceed the amount overpaid.

Subsection 115P(7) sets out the notice requirements for the methods set out in items 1, 2 and 4 of the table in new subsection 115P(3) of the PPLA 2010. The subsection also provides for the details the Commissioner is required to give under this subsection to be prescribed by the PPL Rules.

Division 5—General interest charge

Section 115Q sets out when a person is liable to pay the general interest change in relation to unpaid amounts. Depending on the circumstances, the person liable will be the relevant superannuation trustee, RSA provider, or legal personal representative. The general interest charge is administered by the Commissioner under Part IIA of the TAA 1953 and is applied to, among other things, encourage timely payments of debts to the Commonwealth.

Subsection 115Q(1A) provides that the general interest charge is payable on an unpaid amount where:

•

a person is liable to repay a PPLSC or underpaid amount (under new sections 115G or 115L) because it has not been credited to the relevant account within 28 days of receipt; and

•

the whole or part of the amount the person is liable to repay remains unpaid after the due date.

Subsection 115Q(1) provides that the general interest charge is payable on an unpaid amount where:

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a person is given a notice under item 3 or 4 of the table in new subsection 115P(3) of the PPLA 2010 (recovery from legal personal representatives or superannuation providers); and

•

the amount that the person must pay under the notice remains unpaid after the time by which it is due to be paid.

Subsection 115Q(2) states that a person is liable to pay the general interest change for each day in the period that starts from when the unpaid amount was due to be paid and concludes on the day before the unpaid amount and associated general interest charge have been paid off.

Subsection 115Q(3) clarifies that, for the purposes of this section:

•

an amount a person is liable to repay under new subsections 115G(1) and 115L(1) of the PPLA 2010 (PPLSC and underpaid amounts not credited to the relevant account within 28 days) is due 7 days after the day on which the person first becomes liable to repay the amount; and

•

an amount payable under a notice given under item 3 or 4 of the table in new subsection 115P(3) of the PPLA 2010 (recovery from legal personal representatives or superannuation providers) is due to be paid 28 days after the day on which the notice is given.

Part 3—Enforcement

Division 1—Guide to this Part

Section 115R provides a guide for Part 3 of new Chapter 3A, which imposes record keeping requirements on superannuation providers and provides for the Commissioner to issue infringement notices where superannuation providers fail to give statements relating to returned PPLSC amounts or underpaid amounts.

Division 2—Record keeping

Section 115S sets out record keeping obligations imposed on superannuation providers in relation to the PPLSC and establishes offences for failure to comply with these obligations. These obligations are broadly equivalent to those imposed on superannuation providers in respect of the Government Co-contribution for Low Income Earners (see Part 6 of the SGCCA 2003).

Subsection 115S(1) provides that a superannuation provider commits an offence if it fails to keep records that explain all the transactions and other acts it engages in, as prescribed by the PPL Rules. The penalty for this offence is 30 penalty units.

Subsection 115S(2) states that the records must be kept in English, or be readily accessible and convertible into English. The superannuation provider commits an offence if they fail to do this. The penalty for this offence is 30 penalty units.

Subsection 115S(3) imposes a requirement on superannuation providers to retain records for at least 5 years (from the day the records were prepared or obtained), and until completion of the transactions or acts to which the records relate (if this is more than 5 years). The superannuation provider commits an offence if they fail to do this. The penalty for this offence is 30 penalty units.

Subsection 115S(4) provides that new subsections 115S(2) and 115S(3) of the PPLA 2010 do not apply if the Commissioner notifies the superannuation provider that retention of records is not required, or if the superannuation provider is a company that has gone into liquidation and finally dissolved.

Division 3—Infringement notices

Section 115T provides the Commissioner with the power to issue an infringement notice if the Commissioner has reasonable grounds to believe a superannuation provider has committed an offence under new subsection 115G(3) or subsection 115L(3) of the PPLA 2010 (that is, by failing to comply with the requirement to give a statement to the Commissioner when repaying a PPLSC or underpaid amount that cannot be credited to an account).

To ensure the reasons for each notice are clear, subsection 115T(2) requires that a separate infringement notice must be issued for each alleged offence, unless the offence relates to an action that should have been completed before a particular time and the ongoing failure to complete the action constitutes one or more daily offences (see subsection 4K of the Crimes Act 1914 for daily offences).

An infringement notice must be issued within one year of an alleged offence. An infringement notice issued later than this is invalid and cannot be enforced.

Section 115U sets out matters that the Commissioner must include in an infringement notice. These include that the notice has been served on behalf of the Commissioner, various matters dealing with the offence or alleged offence, the penalty payable, and any other matters the Commissioner considers necessary.

Subsection 115U(3) provides that the penalty specified in an infringement notice is 20 per cent of the maximum amount of the fine or fines that a court could impose for the offence or offences.

Section 115V provides that a person who has received an infringement notice may seek withdrawal of the notice by making written representations to the Commissioner. The Commissioner may withdraw an infringement notice by way of written notice to the person. This written notice is to be served on the person within the period that the penalty must be paid, as specified in that infringement notice.

Subsection 115V(3) sets out the factors the Commissioner may have regard to in deciding whether or not to withdraw such a notice. These include whether the person has previously been convicted of an offence under the PPLA 2010, the circumstances in which the offence or alleged offence were committed (or alleged to have been committed), whether the person has previously been served with an infringement notice, and any written representations made by the person.

Subsection 115V(4) requires the Commissioner to repay any infringement notice penalty paid by the person if that notice is subsequently withdrawn.

Section 115W discharges a person from liability for an offence specified in the infringement notice where penalties imposed by the notice are paid by the due date, and the infringement notice has not been withdrawn. Specifically, in these circumstances:

•

the person is discharged from any liability for the offences specified in the notice (or other offences that might apply to the same omission);

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further proceedings cannot be taken against the person for the offences specified in the notice (or other offences that might apply to the same omission); and

•

the person will not be regarded as having been convicted of the offence in that notice.

Section 115X prohibits the service of more than one infringement notice for the same offence.

Section 115Y clarifies that the Commissioner is not required to serve an infringement notice on a person in relation to an offence. Whether a notice has been served or not, or whether it has been withdrawn or not, does not affect the liability of the person to be prosecuted for an offence.

Section 115Z provides that the Commissioner may extend the period for payment of a penalty specified in an infringement notice. The Commissioner may extend the period before or after the period has ended.

Part 4—Administration

Division 1—Guide to this Part

Section 115ZA provides a guide for Part 4 of new Chapter 3A, which concerns the administration of, and review of decisions under, the new Chapter.

Division 2—Administration of this Chapter

Section 115ZB provides that the Commissioner has the general administration of new Chapter 3A of the PPLA 2010. An effect of this is that the new Chapter will be a 'taxation law' within the meaning of the ITAA 1997 and the TAA 1953. One consequence of this is that people who acquire information under the Chapter are subject to the confidentiality regime in Division 355 of Schedule 1 to the TAA 1953.

Section 115ZC requires the Commissioner to record decisions in writing, but clarifies that this includes electronic recording.

Section 115ZD allows the Commissioner to arrange for the use of computer programs (including automation) for any purpose for which the Commissioner may, under new Chapter 3A of the PPLA 2010 or PPL Rules made for the purposes of Chapter 3A, make a decision. The use of such computer programs would need to be under the Commissioner's control.

The inclusion of this provision allows the Commissioner to more efficiently process the making of decisions in respect of a person's PPLSC entitlement. Decisions made by computers, where appropriate, can provide greater speed and consistency, reduce administrative burden, and minimise delays there might otherwise be in people being able to access entitlements.

Decisions made under Chapter 3A of the PPLA 2010 (and related PPL Rules) are, for the most part, non-discretionary and dictated by the amount of PLP a person has received in a previous income year. In this sense, the calculation of a person's PPLSC entitlement is largely a numerical consideration. It is intended that this provision only be relied upon to automate the Commissioner's functions under Chapter 3A, where those functions are legally amenable to automation.

Additionally, this provision provides that a computer-generated decision is subject to review by a human delegate, by deeming automated decisions to have been made the Commissioner.

Section 115ZE provides that the Commissioner may use a tax file number for the purposes of new Chapter 3A of the PPLA 2010 or PPL Rules made for the purposes of that Chapter, where the tax file number was provided for any other purpose under the PPLA 2010 or a law relating to taxation or superannuation.

Division 3—Review of decisions

Section 115ZF introduces a pathway for review of decisions made by the Commissioner under Parts 1 to 3 of new Chapter 3A of the PPLA 2010, which generally relate to the calculation of the amount of PPLSC and where it is paid.

Any person affected by a decision under these Parts may ask the Commissioner for a review of that decision. The Commissioner will then review the decision and either affirm, vary or set aside and substitute a new decision. Alternatively, the Commissioner may arrange for an authorised review officer to undertake the review. The PPL Rules may prescribe the time within which review decisions must be must be made.

Review under this section is distinct from existing review provisions in the PPLA 2010, which relate to decisions by the Secretary, which generally relate to the PLP entitlement. Furthermore, these provisions do not enliven the formal objection rights set out in Part IVC of the TAA 1953.

A formal external review and appeal process (via, for example, the Administrative Review Tribunal) was not seen as necessary as the matters arising under Chapter 3A are almost-entirely factual in nature, with limited discretionary elements. As such it was believed that an administrative remedy of this nature would be satisfactory.

In this context, it is also worth noting that entitlement to PPLSC is largely dictated to a person's entitlement to, and receipt of, PLP. If a person is dissatisfied with a decision of the Secretary in relation to their PLP, they will be able to seek review under Chapter 5 of the PPLA 2010. Depending on the circumstances, this will include review by a Services Australia Authorised Review Officer, and following that, two tiers of review by the Administrative Review Tribunal. Any retrospective adjustments of a person's PLP entitlement for these purposes will flow through to the PPLSC amount they are entitled to. Where necessary, any adjustments to a person's PPLSC calculation would then be administered by the Commissioner under the overpayment and underpayment provisions in Divisions 3 and 4 of Part 2 in new Chapter 3A of the PPLA 2010.

If a person is still dissatisfied with the manner in which the Commissioner has handled the decision, they will still have recourse to a judicial review under the Administrative Decisions (Judicial Review) Act 1977 or other avenues such as the Commonwealth Ombudsman.

Section 115ZG requires the Commissioner to authorise taxation officers to be authorised review officers for the purposes of this Part.

Section 115ZH provides that a person may, at any time before a review decision is made, withdraw the application in writing or any other method approved by the Commissioner. Where this occurs, the application is taken never to have been made.

Item 6 amends subsection 173(1) of the PPLA 2010 to exclude debts due to the Commonwealth under new Chapter 3A of the PPLA 2010 from categories of debt for which the Secretary is required to give notice. This is done in light of the fact that PPLSC-related debts are managed by the Commissioner under a separate regime for notification and recovery due to these debts being tax-related liabilities under the TAA 1953.

Item 7 inserts a note at the end of subsection 173(1) of the PPLA 2010 to clarify that debts due to the Commonwealth under new Chapter 3A are tax-related liabilities under the TAA 1953.

Item 8, in effect, adds to the note after the heading to Chapter 5 of the PPLA 2010 to clarify that the general internal review provisions in that Chapter (which broadly relate to review of PLP-related decisions by the Secretary) do not apply to decisions of the Commissioner under new Chapter 3A of the PPLA 2010 (which broadly relate to the PPLSC). This is done in light of the fact that Part 4-3 of new Chapter 3A of the PPLA 2010 provides a separate review regime for this class of decisions.

Item 9 inserts new paragraph 206(1)(ba) into the PPLA 2010. This excludes PLP recipients from making an application for internal review under section 206 in relation to decisions made by the Commissioner under new Chapter 3A. This means that this class of decisions cannot be reviewed under the general internal review provisions in Chapter 5 of the PPLA 2010 (which broadly relate to review of PLP-related decisions by the Secretary). This is done in light of the fact that Part 4-3 of new Chapter 3A of the PPLA 2010 provides a separate review regime for this class of decisions.

Small Superannuation Accounts Act 1995

Item 10 inserts a new definition in section 4 of the SSAA 1995 which provides that the term PPL superannuation contribution has the same meaning as in the PPLA 2010 (see item 2 of Schedule 1 to the Bill).

Item 11 inserts new Part 12B after Part 12A in the SSAA 1995. New Part 12B enables the Commissioner to deposit PPLSC into the SHASA. The Commissioner may make a determination that the PPLSC be paid into the account of a person in the SHASA under new section 115F of the PPLA 2010 (or an underpaid amount under new section 115K).

Part 12B—PPL superannuation contributions

Section 91H provides that the Commissioner may credit a PPLSC payable for an individual to the individual's account (being the notional account referred to in section 12 of the SSAA 1995).

Section 91J provides that the SSAA 1995 applies in relation to a PPLSC deposited under section 91H except to the extent modified by new Part 12B.

Section 91K clarifies that:

•

only section 33 of the SSAA 1995 (which states that a deposit or purported deposit is not held on trust) applies to PPLSC deposits made under new Part 12B of the SSAA 1995; and

•

none of the other rules under Part 4 of the SSAA 1995 apply to such deposits.

Section 91L provides that PPLSC-related deposits under new Part 12B of the SSAA 1995 will not be credited to the SHASA in the same way as other deposits under Part 5. The process that will be followed for these deposits is that an amount equal to the amount to be deposited will be transferred from the Consolidated Revenue Fund to the SHASA. As soon as is practicable after this, the individual's account is to be credited with an amount equal to the deposit.

Section 91M allows the Commissioner to debit accounts in cases where an overpayment of PPLSC has occurred under the PPLA 2010. This may only be done if the account still holds a PPLSC amount. Employer deposits are not to be debited for this purpose.

Section 91N sets out how the making of a PPLSC under new Part 12B of the SSAA 1995 interacts with the rules regarding withdrawal of account balances.

Subsection 91N(1) provides that the general rules in Division 2 of Part 7 of the SSAA 1995, which freezes an individual's account from withdrawals for 14 days after a deposit is credited to the account, do not apply to PPLSC-related deposit.

Subsection 91N(2) modifies the general rule in section 61 of the SSAA 1995, which relates to transfers of amounts from an individual's account to an RSA or superannuation fund (where they meet a 'compliance test') at the individual's request. The subsection clarifies that, to the extent the balance in the person's account comprises PPLSC-related deposits, the compliance test criterion that the fund is a 'regulated superannuation fund' is to be read as though it were a reference to a 'complying superannuation fund'. This is intended to prevent PPLSC-related deposits from being transferred to a regulated superannuation fund that has not complied with the requirements set out in section 45 of the Superannuation Industry (Supervision) Act 1993.

Subsection 91N(3) provides that section 63 of the SSAA 1995 (which provides for withdrawal from an account if the balance is less than $200) does not apply to the extent that balance comprises of PPLSC-related deposits made under new Part 12B of the SSAA 1995.

Subsection 91N(4) clarifies that a reference 'to the balance of an individual's account to the extent to which it represents deposits made under this Part' includes interest accruing on deposits made under new Part 12B of the SSAA 1995.

Section 91P provides that Part 8 of the SSAA 1995 (which provides for the Commissioner to refund deposits if the deposit form was false or defective) does not apply to PPLSC-related deposits made under new Part 12B of the SSAA 1995. As PPLSC-related deposits are 'Government' contributions the refund of deposits provisions in Part 8 of the SSAA 1995 are not necessary.

Item 12 provides for the application of the amendments in Schedule 1. The amendments apply only to PPL funding amounts and instalments paid on or after 1 July 2025 in relation to a child born on or after that day. For the purposes of this application provision, sections 275 and 276 of the PPLA 2010 apply as it they were part of this item. This means, for example, that a child adopted after 1 July 2025 will be taken to have been 'born' after 1 July 2025 for the purposes of this application provision (thus ensuring the person who is entrusted care after that date can access the PPLSC in addition to their PLP entitlement if eligible). This also ensures that people who have claimed in exceptional circumstances will be able to access PPLSC if they became the child's primary carer on or after 1 July 2025.

Schedule 2— Other amendments

Summary

Schedule 2 amends the FWA 2009 to clarify that an employee may take 'keeping in touch days' during a period of continuous unpaid parental leave, irrespective of whether they have previously taken flexible unpaid parental leave.

Schedule 2 also makes a number of minor amendments that are consequential to the establishment of the PPLSC under the PPLA 2010.

Explanation of the changes

Schedule 2 – Other amendments

Schedule 2 amends the FWA 2009, the ITAA 1997, and the TAA Act 1953.

Fair Work Act 2009

Item 1 amends the FWA 2009 to repeal the current subsection 79A(5), which prevents employees from accessing 'keeping in touch days' during a period of continuous unpaid parental leave if they have previously taken a flexible unpaid parental leave day.

The amendment will substitute a new subsection 79A(5) to clarify that 'keeping in touch days' do not apply in relation to flexible unpaid parental leave.

The amendment restores the policy intent of 'keeping in touch days', which is to enable any employee accessing continuous unpaid parental leave to keep in touch with their workplace and facilitate a return to that employment after the end of the period of leave.

In particular, the amendment provides that an employee who takes a period of flexible unpaid parental leave prior to commencing a period of continuous unpaid parental leave – for example, prior to the birth of their child – would not forfeit their entitlement to take 'keeping in touch days' as best suits their family and employment arrangements.

Income Tax Assessment Act 1997

Items 2 to 4 amend section 307-5 of the ITAA 1997 to include the PPLSC as a type of superannuation benefit, where it is payable to the legal personal representative (as a superannuation death benefit).

Item 5 inserts new section 307-133 of the ITAA 1997, which provides that the components of a PPLSC consist entirely of a taxable component. This ensures the PPLSC attracts taxation treatment consistent with concessional contributions for the purposes of superannuation death benefits.

Item 6 clarifies that the term PPL superannuation contribution payment has the meaning given by amended section 307-5 of the ITAA 1997 (namely a payment under new paragraphs 115F(1)(c) or 115K(4)(c) of the PPLA 2010).

Taxation Administration Act 1953

Item 7 inserts table item 27A into the table set out in subsection 8AAB(4) of the TAA 1953. This table is an index of the laws that deal with liability to pay the general interest charge. The new item is being inserted because the general interest charge will be payable under new section 115Q of the PPLA 2010.

Item 8 inserts table items 39C to 39F into the table set out in subsection 250-10(2) in Schedule 1 to the TAA 1953. This table is an index of tax-related liabilities under other Acts. The new table items set out the tax-related liabilities arising under new Chapter 3A of the PPLA 2010.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

PAID PARENTAL LEAVE AMENDMENT (ADDING SUPERANNUATION FOR A MORE SECURE RETIREMENT) BILL 2024

The Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 (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

Superannuation on Paid Parental Leave

The Bill amends the Paid Parental Leave Act 2010 (PPLA 2010) to add a superannuation payment on the Paid Parental Leave (PPL) scheme for births and adoptions on or after 1 July 2025.

The PPL scheme provides Commonwealth-funded financial support to assist parents and carers to take time off work after a birth or adoption. Under the PPL scheme, eligible parents and carers can receive Parental Leave Pay (PLP). PLP is currently a 22 week entitlement paid at a rate based on the national minimum wage, with two weeks reserved for each parent. PLP will increase to 24 weeks on 1 July 2025, with 3 weeks reserved for each parent, and to 26 weeks on 1 July 2026 with 4 weeks reserved for each parent.

This Bill will allow eligible individuals to receive an additional 12 per cent (the legislated superannuation guarantee rate from 1 July 2025) of their PLP as a contribution to their superannuation. This superannuation payment will be made annually by the Australian Taxation Office (ATO) after the end of each income year. The payment will include an additional interest component to compensate for forgone returns resulting from the annual payment.

Unpaid parental leave – keeping in touch days

This Bill will amend the Fair Work Act 2009 (FWA 2009), to clarify that an employee may take 'keeping in touch days' during a period of continuous unpaid parental leave, irrespective of whether they have previously taken flexible unpaid parental leave.

Human Rights Implications

This legislative instrument engages the following rights:

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The right to social security – Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 11(1)(e) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)

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The right to a standard of living and security – Article 25 of the Universal Declaration of Human Rights (UDHR)

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The right to protection and assistance for families – Article 10(1) of ICESCR

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The right to maternity leave – Article 11(2)(b) of CEDAW and Article 10(2) of ICESCR

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The right to just and favourable conditions of work – Articles 6 and 7 of ICESCR

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The rights of parents and children – Articles 3 and 18 of the Convention on the Rights of the Child (CRC) and Article 5 CEDAW

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The right to respect for the family – Article 23(1) of the International Covenant on Civil and Political Rights (CPPR).

The right to social security

Article 9 of the ICESCR recognises the right of everyone to social security, including social insurance.

Article 11(1)(e) of the CEDAW recognises the right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave.

The Bill engages these rights by providing parents receiving PLP with more financial support for their retirement through superannuation contributions. This will help reduce the financial impact of taking time off work after the birth or adoption of a child.

The right to a standard of living and security

The UDHR Article 25 recognises that everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, and the right to security in the event of old age.

The amendments to the PPL scheme will support the family to take time off work to care for their child after birth or adoption without reducing their ability to maintain their standard of living and security in old age. Paying a superannuation payment will contribute towards the family's financial security in old age.

The right to protection and assistance for families

Article 10(1) of the ICESCR recognises that 'the widest possible protection and assistance should be accorded to the family.'

The Bill engages this right by providing additional financial support to families, reducing barriers for parents in taking time off work to care for a child after a birth or adoption. Paying a superannuation payment on PLP will help to normalise parental leave as a workplace entitlement like annual and sick leave, supporting families to take time off work while continuing to contribute to their superannuation.

The right to maternity leave

The right to maternity leave is contained within Article 11(2)(b) of the 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 Bill engages this right by increasing the total amount of financial support available to eligible parents who take time off work to care for a child after a birth or adoption. It also enables parents to continue to receive contributions towards their superannuation while they are on leave from work, similar to the payment of superannuation on employer-provided leave entitlements.

The right to respect for the family

Article 23 (1) of the CPPR recognises "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State."

The Bill does not interfere with this right and engages with the protection of the family by the State through guaranteed contribution to their superannuation on their parental leave payment.

The right to just and favourable conditions of work

Articles 6 of the ICESCR describes the right to work and Article 7 describes the right of everyone to the enjoyment of just and favourable conditions of work. It 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 content of the right to work and the right to just and favourable conditions of work can be informed by specific obligations in treaties of the International Labour Organisation (ILO), such as the Employment Policy Convention 1964 (No. 122) (ILO Convention 122).

The amendments to the PPL scheme engage this right by allowing for just and favourable conditions when parents take time off work to care for their child. Introducing a superannuation payment will increase economic security for parents, supporting them to take time off work to bond with their child.

The amendments to the FWA 2009 enhance the ability of parents to balance their work and care responsibilities by ensuring that they can access 'keeping in touch days' during a period of continuous unpaid parental leave. By increasing the opportunities for employees to participate in the workforce while caring for children, the Bill will promote employees' right to work on just and favourable conditions, in accordance with Articles 6 and 7 of the ICESCR and Article 1 of the ILO Convention 122.

The rights of parents and children

Article 3(1) of the CRC provides that the best interests of the child must be a primary consideration in all actions undertaken by legislative bodies.

Article 18(1) of the CRC goes on to state that parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of their children. Similarly, Article 5(b) of the CEDAW provides parties shall take measures to promote the recognition of the common responsibility of men and women in the upbringing and development of their children.

The amendment to the FWA 2009 supports the rights of parents and children, facilitating working parents to fulfil their responsibility to care for their children by providing parents with more choice in how unpaid parental leave can be combined with paid work. By facilitating 'keeping in touch days', the amendment will support shared caring arrangements. The amendment promotes the understanding that both parents have an important role to play in raising children and contributes to changing cultural norms about achieving gender equality, in accordance with Articles 3 and 18 of the CRC and Article 5(b) of the CEDAW.

Conclusion

The Bill is compatible with human rights because it does not limit but, rather, enhances access to just and favourable work conditions and provides for an increase in the financial support available to eligible parents who take time off work to care.