House of Representatives

Explanatory Memorandum

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

Statement of Compatibility with Human Rights

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

Paid Parental Leave Amendment (Flexibility Measures) Bill 2019

The Paid Parental Leave Amendment (Flexibility Measures) Bill 2019 ( 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 PPL scheme is a Government-funded payment consisting of PLP, 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 increase the flexibility of PLP for mothers and primary carers from 1 July 2020, by allowing them to take:

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a non-flexible PPL period of up to 12 weeks (60 week days), which must be taken in the 12 months following the birth or adoption of the child; and

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a flexible PPL period of a maximum of 6 weeks (30 days), which can be taken any time after the initial period and within 24 months of the birth or adoption of the child.

Under this measure, parents will be able to use an initial block of their entitlement (up to 12 weeks depending on eligibility) any time within the first 12 months after the birth or adoption of their child. This gives parents a period of recuperation and bonding in the months immediately following the birth or adoption. Parents will be able to take their remaining entitlement of up to six weeks any time before their child turns two years old. This totals the 18 weeks currently allowed, but with greater flexibility.

This will help thousands of new parents who currently return to work before they have used all of their PLP and lose valuable time with their young children. In particular, these changes will support thousands of self-employed women and small business owners who cannot afford to leave their businesses for 18 consecutive weeks.

The increased flexibility will also make it easier for mothers who are eligible for PLP to transfer the entitlement to eligible partners who take on the role of primary carer, where it suits the family's circumstances.

The Bill engages the following 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 PLP.

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 PLP 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.

Conclusion

The Bill is compatible with human rights because it does not limit but, rather, enhances access to maternity leave, social security and assistance for families.