Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002

1: Title
1: This Act is the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002.
2: In this Act, the Parental Leave and Employment Protection Act 1987 the principal Act
2: Commencement
1: Section 5
2: The rest of this Act comes into force on 1 July 2002.
3: Application
1: This Act applies to an employee who takes parental leave from his or her employment in respect of a child if—
a: the expected date of delivery of the child is on or after 1 July 2002; or
b: the child is born on or after 1 July 2002; or
c: in the case of an adoption, the date on which the employee, with a view to adoption, first assumes the care of the child is on or after 1 July 2002.
2: An employee to whom this Act applies may, before 1 July 2002,—
a: give notice of a wish to take parental leave, in which case the employee may begin his or her parental leave before 1 July 2002 as if this Act were already in force; and
b: apply for a parental leave payment under Part 7A section 71S
3: However, no person is obliged to comply with any obligation connected with the paid parental leave scheme under Part 7A
1: Paid parental leave
4: New paid parental leave provisions inserted in principal Act
1: The long Title of the principal Act is amended by inserting, after the words pregnancy and parental leave and to entitle certain employees to up to 12 weeks of paid parental leave
2: The principal Act is amended by inserting, after section 71
7A: Payment for parental leave
Preliminary provisions
71A: Purpose
The purpose of this Part is to entitle certain employees to up to 12 weeks of parental leave payments out of public money when they take parental leave from their employment in respect of a child.
71B: Overview
1: Sections 71A to 71C
2: Section 71D
3: Section 71E
4: Sections 71F to 71I
5: Sections 71J to 71P
6: Sections 71Q to 71ZA
7: This section is intended only as a guide to the general scheme and effect of this Part.
71C: Interpretation of this Part
In this Part, unless the context otherwise requires,— eligible employee section 71D(2) non-statutory parental leave parental leave Entitlement to parental leave payment
71D: Entitlement to parental leave payment
1: An employee is entitled to a parental leave payment under this Part if the employee—
a: has given written notice to his or her employer of his or her wish to take parental leave (either in accordance with this Act or with the alternative provision under which the leave is taken); and
b: takes parental leave from his or her employment in respect of a child; and
c: is an eligible employee.
2: An eligible employee
a: a female employee who meets the criteria for maternity leave for the child under section 7
b: an employee who meets the criteria for parental leave for the adopted child under section 8 or section 18 or section 24
c: an employee to whom all or part of an entitlement to a parental leave payment is transferred under section 71E
d: an employee who succeeds to all or part of an entitlement to a parental leave payment under section 39A
3: Rights and benefits to non-statutory parental leave (and section 4
4: This section is subject to sections 71F to 71I Transfer of entitlement to spouse
71E: Entitlement may be transferred to spouse
1: An eligible employee (within the meaning of section 71D(2)(a) or (b)
a: has given written notice to his or her employer of his or her wish to take parental leave (either in accordance with this Act or with the alternative provision under which the leave is taken); and
b: takes parental leave from his or her employment in respect of the child; and
c: meets the criteria for parental leave under any of sections 7(b), 8(1)(b), 17(c), 18(1)(b), 23(b), or 24(1)(b)
2: Rights and benefits to non-statutory parental leave (and section 4
3: To the extent that an employee transfers all or part of his or her entitlement to a parental leave payment to his or her spouse under this section,—
a: references in this Part to the employee's entitlement to a parental leave payment are references to the spouse's entitlement to a parental leave payment; and
b: references in this Part to the period of parental leave are references to the period of parental leave taken by the spouse; and
c: the amount of the parental leave payment is calculated according to the earnings of the spouse; and
d: the entitlement that is transferred is deducted from the transferring employee's entitlement to a parental leave payment.
4: This section is subject to sections 71F to 71I Restrictions on parental leave payments
71F: Subsequent parental leave payments
An employee is not entitled to a parental leave payment if—
a: section 6
b: any of sections 8(2), 18(2), or 24(2)
71G: Parental tax credit
1: The purpose of this section is to ensure that employees do not receive both a parental leave payment under this Part and a parental tax credit (within the meaning of the Income Tax Act 1994
2: An employee loses his or her entitlement to a parental leave payment under this Part if either or both of the employee or his or her spouse has received any payment of parental tax credit in respect of the child.
71H: Joint adoptions
1: If 2 spouses assume the care of a child with a view to adoption by them both jointly,—
a: the spouses must jointly nominate which 1 of them is to be primarily entitled to the parental leave payment; and
b: only the nominated spouse is the eligible employee for the purpose of section 71D(2)(b)
2: However, subsection (1) section 71E
71I: Applications for payment
1: An employee is not entitled to a parental leave payment unless the employee makes an application for payment in accordance with this section.
2: The application must—
a: be made before the date on which the employee returns to work or the parental leave otherwise ends; and
b: be made in the manner prescribed in regulations; and
c: specify the matters, and be accompanied by the documents, prescribed in regulations; and
d: state whether or not the employee wishes to transfer all or part of the entitlement under section 71E
3: An employer must comply with any provision in the regulations that requires the employer to specify matters in, or attach documents to, or sign, an application under this section. Duration of parental leave payment
71J: Duration of parental leave payment
A parental leave payment is payable—
a: for 1 continuous period not exceeding 12 weeks; or
b: if part of the entitlement is transferred under section 71E
71K: Start of parental leave payment
A parental leave payment is payable to an employee for a period that begins on the date of commencement of his or her parental leave.
71L: End of parental leave payment
1: A parental leave payment is payable to an employee for a period that ends on the earlier of—
a: 12 weeks after the date of commencement of his or her parental leave; or
b: the date on which he or she returns to work or resigns from his or her employment.
2: Subsection (1)
a: the employee's employment is terminated due to redundancy or dismissal for cause:
b: the employee has a miscarriage or ceases to have the care of the child:
c: the employee or the child dies.
3: However, the period for which a parental leave payment is payable to an employee terminates earlier than the date referred to in subsection (1)
a: if the employee takes parental leave only from fixed term employment (within the meaning of section 66 of the Employment Relations Act 2000
b: if the employee's spouse succeeds to the parental leave payment entitlement under section 39A
4: This section is subject to section 71E(3) Amount of parental leave payment
71M: Amount of parental leave payment
1: The rate of parental leave payment payable to any employee is the lesser of—
a: $325 per week (or any adjusted amount set under section 71N section 71O
b: the greater of—
i: 100% of the employee's ordinary pay before the commencement of the parental leave; or
ii: 100% of the employee's average weekly earnings.
2: In this Part, unless the context otherwise requires,— average weekly earnings ordinary pay average weekly earnings section 72A subsection (2) of that section ordinary pay section 4 of the Holidays Act 1981
71N: Annual adjustment of maximum rates of parental leave payment
1: The rate of parental leave payment that applies under section 71M(1)(a)
2: In this section, average ordinary time weekly earnings
3: The Order in Council must not reduce the amount.
4: The Order in Council comes into force, or is considered to come into force, on 1 July of the calendar year in which it is made, and applies to parental leave payment payable on and after that date.
71O: Discretionary increases in payment amount by Order in Council
1: The Governor-General may, at any time, by Order in Council made on the recommendation of the Minister, increase the rate of parental leave payment that applies under section 71M(1)(a)
2: The Minister, in making the recommendation, may base his or her decision on any factors that he or she thinks fit.
71P: Amount of payment not affected by other non-statutory entitlements
1: An entitlement to a parental leave payment under this Part is not affected or reduced by any other entitlement that the employee may have under the terms of any employment agreement.
2: An employer must not, without the agreement of the employee, reduce any other entitlement that the employee may have under the terms of any employment agreement because of the employee's entitlement to a payment under this Part.
3: An employer who fails to comply with this section is liable to a penalty imposed by the Employment Relations Authority under the Employment Relations Act 2000
4: Sections 133 to 136 of the Employment Relations Act 2000 Administration
71Q: Payments must come out of public money
There must, from time to time, be paid out of the Crown Bank Account, from money appropriated by Parliament for the purpose, all money required to be expended in providing parental leave payments under, and making other payments in connection with, this Part. 1964 No 136 s 124
71R: Method of payment
1: A parental leave payment is payable in arrears on the days or dates in the month that the chief executive from time to time determines.
2: Every instalment of the payment must be paid into the New Zealand bank account specified by the applicant for the purpose unless the chief executive in any particular case otherwise determines.
3: For the purpose of the PAYE rules under the Income Tax Act 1994
71S: Backdating of payments
The first payment of a parental leave payment includes an amount in respect of the period from the start of the parental leave if the application is received on or after the date of commencement of the parental leave.
71T: Obligation of employer to notify employee of payment entitlements
Every employer who receives a notice of an employee's wish to take parental leave must, within 21 days after the receipt of the notice, inform the employee of the substance of this Part by giving the employee a notice in a form prescribed by the department.
71U: Obligation to notify early return to work, etc
1: An employee must give notice if, during the period for which the employee is receiving a parental leave payment under this Part,—
a: the employee returns to work; or
b: the employee's fixed term employment ends; or
c: the employee resigns from his or her employment.
2: The notification must be made in the manner prescribed in regulations and specify the matters, and be accompanied by the documents, prescribed in regulations.
71V: Non-return to work does not affect payment
1: An employee is not required to refund any parental leave payment under this Part because the employee—
a: does not return to work at the end of his or her parental leave; or
b: does not accept employment offered by the employer during the period of preference in obtaining employment.
2: Sections 46 and 47
71W: Obligation to supply information
1: The department may, by written notice, request an employee who has applied for a parental leave payment, and any employer of that employee, to supply to the department any information in the employee's or the employer's (as the case may be) possession relating to the employee's entitlement or continued entitlement to payment under this Part.
2: The employee or the employer must comply with a request under this section within a reasonable period to be set by the department.
71X: Recovery of debts by department
1: A sum (an overpayment
a: paid to a person in excess of the amount to which the person is entitled under this Part; or
b: paid to a person who has no entitlement to it under this Part.
2: The department may—
a: recover the debt by way of proceedings; or
b: deduct all or part of the debt from any amount payable to that person under this Part.
3: This section is subject to section 71Y 2001 No 49 s 248
71Y: Recovery of payments
The department may not recover any payment or part of a payment under this Part that was paid as a result of an error not intentionally contributed to by the recipient if the recipient—
a: received the payment in good faith; and
b: has so altered his or her position in reliance on the validity of the payment that it would be inequitable to require repayment. 2001 No 49 s 251
71Z: Offence to mislead department
1: A person commits an offence who, for the purpose described in subsection (2)
a: makes any statement knowing it to be false in any material particular; or
b: does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the department or any other person concerned in the administration of this Act.
2: The purpose is for that person or another person to receive or to continue to receive any payment or entitlement under this Part.
3: A person who commits an offence against this section is liable on summary conviction to a fine not exceeding $5,000. 2001 No 49 s 308
71ZA: Chief executive may delegate
1: The chief executive may delegate the administration of all or any part of this Part to 1 or more persons.
2: The delegation must be in writing.
3: Section 41 of the State Sector Act 1988
4: If the delegation is to another person,—
a: the delegation may not include the power to delegate under this section; and
b: subject to any general or special directions given or conditions imposed by the chief executive, the person to whom the delegation is made may administer this Part in the same manner and with the same effect as if this Act (and not the delegation) so provided; and
c: every person purporting to act under the delegation is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
5: Regulations
1: Section 73 paragraph (a)
aa: prescribing the manner in which an application for, or other notices relating to, a parental leave payment must be made:
ab: prescribing the information that employees and employers must give in, or the documents that employees or employers must attach to, an application for, or other notice relating to, a parental leave payment:
ac: prescribing the way in which adjustments must be made under section 71N
ad: increasing the amount under section 71O
ae: extending the class or classes of person entitled to a parental leave payment under Part 7A .
2: Section 73
2: No regulations may be made under this section about parental leave payments unless they are made in accordance with a recommendation of the Minister.
3: The Minister must not make that recommendation without first consulting with any persons or organisations that the Minister considers appropriate, having regard to the subject matter of the proposed regulations.
4: Regulations made under subsection (1)(ad) or (ae)
a: if made on or before 30 June in any year, expire on the close of December of that year except in so far as they are expressly confirmed by Act of Parliament passed during that year; and
b: if made on or after 1 July in any year, expire on the close of 31 December in the following year except in so far as they are expressly confirmed by Act of Parliament passed before the end of that following year.
5: The expiry of regulations under subsection (4)
6: A failure to comply with subsection (3)
3: Any consultation undertaken before the commencement of this section in respect of the making of any regulations is to be treated as consultation for the purpose of section 73(3)
6: Amendments to other Acts relating to parental leave payments
The Acts specified in Schedule 1
2: Other miscellaneous amendments to principal Act
7: Interpretation
1: Section 2(1) employee employee section 5 of the Employment Relations Act 2000 .
2: Section 2(1) spouse spouse
a: a legal marriage; or
b: a de facto relationship within the meaning of section 2D of the Property (Relationships) Act 1976 .
3: Section 2(1) union union Employment Relations Act 2000
4: Section 2(1) chief executive department Minister .
5: Section 2(1) extended leave maternity leave parental leave Parts VI and VII Parts VI to 7A
6: Section 2
3: Section 72A sections 7(b), 8(1)(b), 17(c), 18(1)(b), 23(b), and 24(1)(b)
8: New sections inserted
1: The principal Act is amended by inserting, after section 2
2A: Interpretation: multiple employments
An employee's entitlement to rights and benefits in respect of parental leave must be determined by treating each of the employee's employments separately, if the employee has more than 1 employment.
2B: Interpretation: multiple births or adoptions
1: This section applies for the purpose of—
a: determining a person's entitlement to rights and benefits in respect of parental leave and parental leave payment; and
b: ensuring that employees do not receive both a parental leave payment under Part 7A Income Tax Act 1994
2: A person who gives birth to 2 or more children as a result of 1 pregnancy and assumes or intends to assume the care of those children must be treated as if the person had given birth to only 1 child as a result of the pregnancy and had assumed or intended to assume the care of only 1 of those children.
3: In the case of adoption, a person who assumes (with a view to adoption by that person or by that person and that person's spouse jointly) the care of 2 or more children within 1 month is treated as if the person had assumed the care of only the youngest of those children within that month.
2: The principal Act is amended by repealing section 25
9: New
section 4 The principal Act is amended by repealing section 4
4: Application of this Act to employees who have non-statutory rights to parental leave
1: Parts I to V
a: in their overall effect, as favourable to that employee as, or more favourable to that employee than, the rights and benefits provided for in Parts I to V
b: provided under a comprehensive employment agreement or other arrangement (other than this Act).
2: An employment agreement or other arrangement is comprehensive
a: the conditions of eligibility for any parental leave:
b: the duration of parental leave:
c: the degree of protection provided for the employee's position in the employment of the employer during, and subsequent to, any absence on parental leave:
d: the employer's obligation or lack of an obligation to pay remuneration during the parental leave:
e: the procedural requirements relating to parental leave.
3: The provisions of an employment agreement or other arrangement that is not comprehensive are of no effect in so far as the provisions relate to parental leave.
4: Parts VI to 7A
10: Role of midwives
The principal Act is amended as shown in Schedule 2
11: Adjustments to eligibility criteria based on average hours of work and allowing for periods of authorised leave
The principal Act is amended by omitting from sections 7(b) 8(1)(b) 17(c) 18(1)(b) 23(b) 24(1)(b) for at least 10 hours in each week for at least an average of 10 hours a week during that period
12: New
section 39A The principal Act is amended by inserting, after section 39
39A: Succession to employee's entitlements
1: A spouse of an employee may succeed to the employee's rights to parental leave and to a parental leave payment under this Act if, at any time after the employee gives notice to his or her employer of a wish to take parental leave,—
a: the employee dies; or
b: the spouse becomes the sole guardian of the child, to the exclusion of the employee.
2: However, the spouse may succeed only if—
a: the spouse meets the criteria for parental leave under any of sections 7(b), 8(1)(b), 17(c), 18(1)(b), 23(b), or 24(1)(b)
b: the spouse gives reasonable notice to his or her employer, and to the department (if the employee had applied for a parental leave payment under Part 7A
3: The spouse succeeds under this section on the later of—
a: the date of the employee's death or the date when the spouse becomes sole guardian, as the case may be; or
b: the date on which the employee's bereavement leave expires (if any).
4: The first payment of parental leave payment to the spouse includes an amount for the period from the date of succession if the notice to the department is received on or after that date.
5: A succession under this section is treated, for the purpose of Part 7A section 71E
13: Employer's obligations in respect of remuneration and holiday pay
Section 42(3) section 24(1) of the Holidays Act 1981 section 7A(2) of the Holidays Act 1981
14: State employees
1: Section 55(1) (not being a State employee)
2: Section 56(1) (not being a State employee)
3: Section 2(1) State employee State services
15: Parental leave complaints
Section 56(1) paragraph (c)
c: has taken other action, or has omitted to do something, that affects, to the employee's disadvantage, the employee's rights and benefits in respect of parental leave or a parental leave payment; or .
16: Remedies
Section 65 any decision made under section 60 or section 61(3) or section 63(3) of this Act any decision made for the purposes of this Act
17: New
section 68 The principal Act is amended by repealing section 68
68: Non-compliance with formal requirements
1: An employer must not unreasonably refuse to allow an employee to exercise any rights and benefits in respect of parental leave or a parental leave payment that the employee would be entitled to exercise but for an irregularity.
2: In this section, irregularity
a: omitting to do something required by or under this Act or under the alternative provision under which the leave is taken; or
b: doing something required by or under this Act or the alternative provision under which the leave is taken before or after the time when it is required to be done; or
c: otherwise doing anything irregularly in matter of form.
3: An employee or an employer, or any person acting on behalf of an employee or employer, may apply to the Employment Relations Authority or the Court for relief in respect of an irregularity.
4: The Employment Relations Authority or the Court must grant relief to an employee in respect of a failure to comply with the notice requirements of this Act or of the alternative provision under which the leave is taken if satisfied that—
a: the employee's failure to comply with the notice requirements was in good faith; and
b: the extent to which the employee did or did not comply with the notice requirements was reasonable in all of the circumstances of the case.
5: The Employment Relations Authority or the Court may grant relief in respect of any other irregularity if it thinks it is reasonable to do so, having regard to the nature of the irregularity, the good faith or otherwise of the parties, and any other matters it thinks proper.
6: The Employment Relations Authority or the Court may grant relief—
a: by amending or waiving the irregularity, extending the time within which anything is to be or may be done, confirming the right of the employee to exercise rights and benefits in respect of parental leave or a parental leave payment, or granting any other relief as is reasonable:
b: subject to terms, if any, that the Court, in the circumstances of each case, thinks fit.
18: New heading and
sections 70A to 70F The principal Act is amended by inserting, after section 70 Role of Labour Inspectors
70A: Role of Labour Inspectors
1: A Labour Inspector may—
a: determine, if the employee and employer fail to agree, whether an employee will have been in the employment of the same employer for at least an average of 10 hours a week during a 12-month period in accordance with section 72A
b: determine, if the employee and employer fail to agree, an employee's ordinary pay or average weekly earnings for the purpose of section 71M
c: serve a demand notice as provided in section 70B
d: otherwise enforce the rights and benefits in respect of parental leave or a parental leave payment under this Act.
2: A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the employee and the employer.
3: The consequences of a determination are that it is prima facie evidence of the matter determined.
70B: Demand notice
1: A Labour Inspector may serve on an employer a demand notice, in the prescribed form, if—
a: either—
i: an employee makes a complaint to the Labour Inspector that an employer has denied the employee's entitlement to take parental leave in a case where the Labour Inspector has previously made a determination that the employee is entitled to take leave; or
ii: the Labour Inspector believes on reasonable grounds that an employer has denied the employee's entitlement to take parental leave; and
b: the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector's belief; and
c: the Labour Inspector, after considering any comments made by the employer under paragraph (b)
d: the Labour Inspector is satisfied that the employer is not prepared to acknowledge the employee's entitlement to parental leave in a reasonable manner or within a reasonable time.
2: A demand notice must be served—
a: by giving it to the employer concerned; or
b: if the employer does not accept the demand notice, by leaving it in the employer's presence and drawing the employer's attention to it. 2000 No 24 s 224(1), (2)
70C: Objections to determination or demand notice
1: An employer or an employee may lodge with the Employment Relations Authority an objection to a determination or a demand notice.
2: An objection must be lodged with the Authority within 28 days after the determination or demand notice is served on the employer or employee who makes the objection.
3: A demand notice has the consequences specified in section 70D
a: if no objection is lodged before the close of the period specified in subsection (2)
b: if any objection lodged before the close of the period specified in subsection (2) 2000 No 24 s 225(1)-(3)
70D: Consequences of demand notice
The consequences of a demand notice are that it—
a: imposes a legal requirement on the employer to comply with it; and
b: is prima facie evidence that the employee has the entitlement specified in the notice; and
c: may be enforced by the making by the Employment Relations Authority of a compliance order under section 137 of the Employment Relations Act 2000 2000 No 24 s 225(4)
70E: Authority to determine entitlement to parental leave on objection
The function of the Employment Relations Authority in respect of an objection is to determine whether or not the employee has the entitlement specified in the determination or demand notice. 2000 No 24 s 226(1)
70F: Withdrawal of demand notice
A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not prevent another demand notice being served in relation to the same matter. 2000 No 24 s 227 .
19: New
section 72
1: The principal Act is amended by repealing section 72
72: Contracting out: holiday pay while on parental leave
1: Any employment agreement may, in addressing the matter of holiday pay for an employee who takes any period of parental leave otherwise than in accordance with this Act, provide that the employee is entitled to holiday pay,—
a: in respect of annual holidays, at the same rate as, or at a higher rate than, the rate referred to in section 42(2)
b: in respect of public holidays, of the same amount as, or of a greater amount than, the amount referred to in section 42(3)
2: This section applies despite section 33 of the Holidays Act 1981
2: Section 33 of the Holidays Act 1981 section 72(4) section 72(1)
20: New
section 72A The principal Act is amended by inserting, after section 72
72A: Eligibility criteria based on average hours of work and allowing for periods of authorised leave
1: An employee is treated as being in the employment of the same employer for at least an average of 10 hours a week during a 12-month period if the employee is in the employment of that employer—
a: No less than an average of 10 hours a week during that period; and
b: either no less than 1 hour in every week during that period or no less than 40 hours in every month during that period.
2: An employee is treated as being in the employment of an employer for an hour, despite being absent from work, if the employee would normally have been at work for that employer for that hour but is—
a: absent on leave with pay for that hour; or
b: on leave without pay (other than parental leave) with the employer's agreement for that hour; or
c: entitled to a payment of weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001
d: on protected voluntary service or training (within the meaning of the Volunteers Employment Protection Act 1973
e: on maternity leave before the expected date of delivery of the child for that hour (except in a case to which section 6
f: absent because of any other circumstances that are considered by a Labour Inspector not to disrupt the normal pattern of the employee's employment.
3: The hours that the employee would normally have been at work must be calculated—
a: in accordance with the terms of the employee's employment; or
b: by reference to the employee's hours of work before any period of leave without pay began, in the case of a period of leave without pay that started longer than 12 months ago.
4: Week
21: Gender-neutral language
The principal Act is amended as set out in Schedule 3
22: Terminology updates
The principal Act is amended as set out in Schedule 4