Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006

1: Title
This Act is the Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006.
2: Commencement
1: Sections 3 5 37 45
2: The rest of this Act comes into force on 1 July 2006.
3: Principal Act amended
This Act amends the Parental Leave and Employment Protection Act 1987
1: Preliminary provisions
4: Purpose
1: The main purpose of this Act is to entitle certain self-employed persons to parental leave payments and provide for the administration of those payments.
2: This Act also makes other amendments including—
a: reducing, from 12 months to 6 months, the minimum period before an employee is entitled to a subsequent period of parental leave and a parental leave payment; and
b: adding a power for the department to accept an application for parental leave payments despite an irregularity in the application; and
c: allowing a right of review by the Employment Relations Authority in respect of entitlement to a parental leave payment.
5: Application of this Act
1: This Act applies to an employee or a self-employed person who takes parental leave in respect of a child if—
a: the expected date of delivery of the child is on or after 1 July 2006; or
b: the child is born on or after 1 July 2006; or
c: in the case of adoption, the date on which the person or the person's spouse or partner, with a view to adoption, assumes the care of the child is on or after 1 July 2006.
2: An employee or a self-employed person to whom this Act applies may, before 1 July 2006, apply for a parental leave payment under Part 7A Parental Leave and Employment Protection Act 1987
2: Amendments to principal Act
6: Title repealed
The Title is repealed.
7: New section 1A inserted
The following section is inserted after section 1
1A: Purpose
The purpose of this Act is to—
a: set minimum entitlements with respect to parental leave for male and female employees; and
b: protect the rights of employees during pregnancy and parental leave; and
c: entitle certain employees and self-employed persons to up to 14 weeks of paid parental leave.
8: Interpretation
1: The definition of parental leave section 2(1) paragraph (a)
a: means, for an employee,—
i: maternity leave to which the employee is entitled in accordance with this Act:
ii: partner's/paternity leave to which the employee is entitled in accordance with this Act:
iii: extended leave to which the employee is entitled in accordance with this Act:
ab: means, for a self-employed person, a period during which the self-employed person temporarily does not work because of the birth of a child or the assumption of care of a child by the person or the person's spouse or partner (subject to section 71CD .
2: Section 2(1) self-employed
a: providing goods or services for hire or reward under a contract for services:
b: carrying on a business (including a profession, trade, manufacture, or undertaking carried on for pecuniary profit), including in partnership with another person:
c: working for a trust in a business (as defined in paragraph (b) self-employed person
9: Interpretation: multiple employments generally
Section 2A and parental leave payment parental leave
10: New section 2AD inserted
The following section is inserted after section 2AC
2AD: Concurrent employment and self-employment
1: This section applies to a person who is an employee and a self-employed person.
2: The person's entitlement to rights and benefits in respect of parental leave and parental leave payment must be determined by treating the person's employment and self-employment separately.
3: This section is subject to sections 2A and 71CC
11: Interpretation: multiple births or adoptions
1: The heading to section 2B Interpretation:
2: Section 2B(1)(b) and self-employed persons employees
12: Restriction on taking of parental leave within 12 months of end of previous period of parental leave in respect of another child
1: The heading to section 6 12 months 6 months
2: Section 6(b) 12 months 6 months
13: New section 6A inserted
The following section is inserted after section 6
6A: Treatment of employment with same employer for purposes of determining subsequent parental leave entitlements
1: This section applies if an employee resumes service with the same employer—
a: at the end of a period of parental leave; or
b: while the employee is entitled, following parental leave, to preference in obtaining employment with the employee's employer.
2: For the purposes of determining subsequent entitlements to parental leave under this Act, the employee's period of employment with the employer must be treated as beginning on the day that the employee resumes service with the employer.
3: This section overrides section 43
14: New section 19AB inserted
The following section is inserted after section 19A
19AB: Extension of partner's/paternity leave entitlements for spouses or partners of self-employed persons in certain circumstances
1: This section applies if—
a: a self-employed person is entitled to a parental leave payment under section 71DA
b: the self-employed person's spouse or partner is entitled to partner's/paternity leave under section 17(c)(ii) or section 18(1)(b)(ii)
c: the self-employed person transfers all or part of his or her entitlement to parental leave payments to the spouse or partner under section 71E
2: The spouse's or partner's entitlement to partner's/paternity leave is extended so that it is the same as the period of parental leave payments transferred to him or her.
15: Duration of extended leave
Section 26(2) who is entitled to both maternity leave and extended leave in accordance with this Act,
16: Extended leave may be taken consecutively or concurrently with any leave taken by other parent
1: Section 28 Extended leave may be taken consecutively or concurrently with other parent's leave or parental leave payments
2: Section 28 or any period for which the employee's spouse or partner receives a parental leave payment, partner
17: Section 39A repealed
Section 39A
18: Non-compliance with formal requirements
1: Section 68 subsection (3)
3: An employee, employer, or self-employed person, or a person acting on behalf of an employee, employer, or self-employed person, may apply to the Employment Relations Authority or the Court for relief in respect of an irregularity.
2: Section 68 subsection (6)
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 an employee or self-employed person to exercise rights in respect of parental leave or a parental leave payment (as applicable), or granting other relief as is reasonable:
b: subject to terms, if any, that the Authority or the Court, in the circumstances of each case, thinks fit.
19: Role of Labour Inspectors
1: Section 70A Labour Inspectors may make determinations in respect of employees
2: Section 70A(1)(b) 71M 71M(1)
20: New heading and section 70G inserted
The following heading and section are inserted after section 70F Role of Labour Inspectors in relation to self-employed persons
70G: Labour Inspectors may make determinations in respect of self-employed persons
1: A Labour Inspector may, if requested by the department,—
a: determine whether a self-employed person will have been self-employed for at least an average of 10 hours a week during a 6-month or 12-month period for the purpose of eligibility for a parental leave payment; and
b: determine a self-employed person's average weekly earnings for the purpose of section 71M(lA)
2: The department may, for the purposes of obtaining a determination under this section, supply to the Labour Inspector any information provided by the self-employed person.
3: The Labour Inspector may, for the purposes of carrying out the Inspector's functions under this section, request the self-employed person to provide any further information relevant to the matter being determined by the Labour Inspector.
4: A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the self-employed person and the department.
5: The consequence of a determination is that it is prima facie evidence of the matter determined.
21: New sections 71A and 71B substituted
Sections 71A 71B
71A: Purpose
The purpose of this Part is to entitle certain employees and self-employed persons to up to 14 weeks of parental leave payments out of public money when they take parental leave.
71B: Overview
1: Section 71A
2: Sections 71C to 71
3: Sections 71D and 71DA
4: Sections 71E and 71EA sections 71D and 71DA
5: Sections 71F to 71H
6: Sections 71I and 71IA
7: Sections 71J to 71P
8: Sections 71Q to 71ZB
9: This section is intended only as a guide to the general scheme and effect of this Part.
22: Interpretation of this Part
1: Section 71C eligible self-employed person section 71CB employee's average weekly earnings
a: for an employee to whom—
i: section 7(b)(i), 8(1)(b)(i), 17(c)(i), or 18(1)(b)(i)
ii: section 7(b)(ii), 8(1)(b)(ii), 17(c)(ii), or 18(1)(b)(ii)
b: if section 72A subsection (2) of that section net income section OB 1 of the Income Tax Act 2004 ordinary weekly pay section 8 of the Holidays Act 2003 self-employed person's average weekly earnings
a: for a self-employed person who has been self-employed for at least an average of 10 hours a week over—
i: the 12 months immediately preceding the expected date of delivery (or, in the case of adoption, the date on which the self-employed person assumes the care of the child with a view to adoption), it means one fifty-second of the self-employed person's net income during that period; or
ii: the 6 months immediately preceding the expected date of delivery (or, in the case of adoption, the date on which the self-employed person assumes the care of the child with a view to adoption), it means one twenty-sixth of the self-employed person's net income during that period; but
b: the divisor of 52 or 26 must be reduced by the number of complete weeks during which the self-employed person was not working in a circumstance described in section 71CB(lA) .
2: Section 71C eligible employee parental leave eligible employee section 71CA parental leave
23: New sections 71CA to 71 CD inserted
The following sections are inserted after section 71C
71CA: Definition of eligible employee
1: In this Part, 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 72B
2: Rights and benefits to non-statutory parental leave (and section 4
71CB: Definition of eligible self-employed person
1: In this Part, eligible self-employed person
a: a female self-employed person who—
i: becomes pregnant; and
ii: at the expected date of delivery, will have been self-employed for at least an average of 10 hours a week over the immediately preceding 6 months or the immediately preceding 12 months; and
iii: takes parental leave from self-employment in respect of the child; or
b: a self-employed person who—
i: assumes (with a view to adoption by that self-employed person or by that person and that person's spouse or partner jointly) the care of a child who is not more than 5 years of age; and
ii: at the date on which he or she, with a view to adoption, first assumes the care of the child, will have been self-employed for at least an average of 10 hours a week over the immediately preceding 6 months or the immediately preceding 12 months; and
iii: takes parental leave from self-employment in respect of the child.
2: For the purposes of subsection (1) section 71E(3) and (4)
a: entitled to a payment of weekly compensation under the Injury Prevention, Rehabilitation, and Compensation Act 2001
b: on parental leave before the expected date of delivery of the child; or
c: unable to work because of any other circumstances that are considered by a Labour Inspector not to disrupt the normal pattern of the person's self-employment.
3: However, by virtue of subsection (1)(b)
71CC: Multiple self-employment
1: This section applies for the purposes of determining the rights, in relation to a parental leave payment, of a person who is engaged in more than 1 type of work on a self-employed basis. Those rights include the right of a self-employed person to have a parental leave payment transferred to him or her under section 71E
2: If the self-employed person is engaged in more than 1 type of work—
a: concurrently during a 6-month or 12-month period, the work must be treated as 1 period of self-employment:
b: consecutively during a 6-month or 12-month period, the work must be treated as 1 period of self-employment, if the break between the types of work is no greater than 30 days.
71CD: Return to work by self-employed person
In this Part, a self-employed person is not to be treated as having returned to work because he or she—
a: receives income for work done before the period of parental leave; or
b: receives income because of work done by other people during the period of parental leave; or
c: carries out work in the nature of oversight or occasional administrative tasks in the business in which the person is self-employed.
24: Entitlement to parental leave payment
1: The heading to section 71D for employees
2: Section 71D subsections (2) to (4)
2: This section is subject to sections 71F to 71IA
25: New section 71DA inserted
The following section is inserted after section 71D
71DA: Entitlement to parental leave payment for self-employed persons
1: A self-employed person is entitled to a parental leave payment under this Part if the person is—
a: an eligible self-employed person; or
b: a self-employed person to whom all or part of an entitlement to a parental leave payment is transferred under section 71E
c: a self-employed person who succeeds to all or part of an entitlement to a parental leave payment under section 72B
2: This section is subject to sections 71F to 71IA
26: New sections 71E and 71EA substituted
Section 71E
71E: Entitlement may be transferred to spouse or partner
1: An eligible employee (within the meaning of section 71CA(1)(a) or (b) subsections (2) to (4)
2: The spouse or partner is an employee who—
a: has given written notice to his or her employer of his or her wish to take parental leave (in accordance either 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: 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)
3: The spouse or partner is a self-employed person who—
a: assumes or intends to assume the care of a child to whom the person's spouse or partner gives birth (in the case of the spouse or partner of either a female employee to whom section 7
b: takes parental leave from his or her self-employment; and
c: at the expected date of delivery, will have been self-employed for at least an average of 10 hours a week over the immediately preceding 6 months or the immediately preceding 12 months.
4: The spouse or partner is a self-employed person who—
a: assumes (with a view to adoption by the self-employed person's spouse or partner or the self-employed person's spouse or partner and the self-employed person jointly) the care of a child who is not more than 5 years of age (in the case of the spouse or partner of either a person to whom section 8 or section 18 or section 24
b: takes parental leave from his or her self-employment; and
c: at the date on which he or she, with a view to adoption, first assumes the care of the child, will have been self-employed for at least an average of 10 hours a week over the immediately preceding 6 months or the immediately preceding 12 months.
5: Rights and benefits to non-statutory parental leave (and section 4
71EA: Effect of transfer of entitlement to spouse or partner
To the extent that an employee or a self-employed person transfers all or part of his or her entitlement to a parental leave payment to his or her spouse or partner under section 71E
a: references in this Part to the employee's or self-employed person's entitlement to a parental leave payment are references to the spouse's or partner'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 or partner; and
c: the amount of the parental leave payment is calculated according to the earnings of the spouse or partner; and
d: the entitlement that is transferred is deducted from the transferring employee's or self-employed person's entitlement to a parental leave payment.
27: Subsequent parental leave payments
1: Section 71F(a) 12 months 6 months
2: Section 71F
2: A self-employed person is not entitled to a parental leave payment in respect of a child if—
a: less than 6 months have elapsed after the end of the period for which the person received a parental leave payment; or
b: section 71CB(2)
28: Parental tax credit
1: Section 71G(1) employees do an employee or a self-employed person does
2: Section 71G(2)
2: An employee or self-employed person loses his or her entitlement to a parental leave payment under this Part if the employee or self-employed person, or his or her spouse or partner, or both of them, has received any payment of parental tax credit in respect of the child.
29: Joint adoptions
Section 71H(1)(b) 71D(2)(b) 71CA(1)(b) or the eligible self-employed person for the purpose of section 71CB(1)(b)
30: Applications for payment
1: Section 71I(1) or self-employed person employee
2: Section 71I(2)(a) (d) or self-employed person employee
3: Section 71I
4: This section is subject to section 71IA
31: New section 71IA inserted
The following section is inserted after section 71I
71IA: Discretion to approve irregular applications
1: The department may approve the making of a parental leave payment to an employee or a self-employed person despite an irregularity in his or her application for the payment.
2: In deciding whether to approve the making of a parental leave payment under subsection (1)
a: the extent of the irregularity (including whether the extent of the irregularity was reasonable in all of the circumstances); and
b: whether the employee or self-employed person was acting in good faith.
3: However, the department may not exercise its discretion under this section if the matter giving rise to the irregularity is disputed between an employee and an employer.
4: The department may, in order to approve the application, amend or waive the irregularity or extend the time within which anything is to be or may be done, subject to terms, if any, that the department thinks fit in the circumstances of the application.
5: In this section, irregularity
a: failing to make the application for payment before the relevant date in section 71I
b: applying in a manner other than that prescribed in the regulations; or
c: failing to specify all the matters or include all the documents prescribed in the regulations; or
d: failing to state whether the employee wishes to transfer all or part of the entitlement under section 71E
e: otherwise applying irregularly in matter of form.
32: Duration of parental leave payment
Section 71J(b) or self-employed person employee
33: Start of parental leave payment
Section 71K
2: A parental leave payment is payable to a self-employed person for a period that begins on the earliest of—
a: the date the person commences parental leave; or
b: the date of confinement; or
c: in the case of adoption, the date on which the person assumes (with a view to adoption by that person or by that person and that person's spouse or partner jointly) the care of the child.
34: End of parental leave payment
1: The heading to section 71L for employees
2: Section 71L(3)(b) section 39A section 72B
3: Section 71L(4) 71E(3) (effect of transfers of entitlement) 71EA (effect of transfer of entitlement to spouse or partner)
35: New section 71LA inserted
The following section is inserted after section 71L
71LA: End of parental leave payment for self-employed persons
1: A parental leave payment is payable to a self-employed person for a period that ends on the earliest of—
a: 14 weeks after the date of commencement of his or her parental leave; or
b: the date on which the self-employed person returns to work; or
c: the date on which the self-employed person ceases self-employment.
2: The period does not end earlier than the date referred to in subsection (1)
a: the self-employed person is declared bankrupt or the business in which the person is self-employed goes into liquidation:
b: the self-employed person has a miscarriage or ceases to have the care of the child:
c: the self-employed person or the child dies.
3: The period ends earlier than the date referred to in subsection (1) section 72B
4: This section is subject to section 71EA
36: Amount of parental leave payment
1: Section 71M(1)(a) ; or ; and
2: Section 71M(1)(b)(i) ; or ; and
3: Section 71M subsection (1)
1A: The rate of parental leave payment payable to any self-employed person is the lesser of—
a: $357.30 per week (or any adjusted amount set under section 71N section 71O
b: the greater of—
i: 100% of the self-employed person's average weekly earnings; and
ii: the minimum amount of parental leave payment for a self-employed person set under section 71OA
1B: The rate of parental leave payment payable to a person who is eligible for a parental leave payment as an employee and also as a self-employed person may not exceed $357.30 per week (or any adjusted amount set under section 71N section 71O subsections (1) and (1A)
4: Section 71M(2)
37: Annual adjustment of maximum rates of parental leave payment
Section 71N(1) and section 71M(1A)(a) section 71M(1)(a)
38: Discretionary increases in payment amount by Order in Council
Section 71O(1) and section 71M(1A)(a)
39: New section 71OA inserted
The following section is inserted after section 71O
71OA: Annual adjustment of minimum rates of parental leave payment for self-employed persons
The minimum rate of parental leave payment that applies under section 71M(1A)(b)(ii) Minimum Wage Act 1983
40: Obligation to notify early return to work, etc
Section 71U subsection (1)
1A: A self-employed person must give notice if, during the period for which the person is receiving a parental leave payment under this Part,—
a: the self-employed person returns to work; or
b: the person ceases self-employment.
41: Obligation to supply information
1: Section 71W subsection (1)
1A: The department may, by written notice, request a self-employed person who has applied for a parental leave payment to supply to the department any information in the self-employed person's possession relating to that person's entitlement or continued entitlement to payment under this Part.
2: Section 71W(2) or the employer , employer, or self-employed person
42: Offence to mislead department
1: Section 71Z(1)(b) (including failing to provide information requested under section 71W says anything
2: Section 71Z
4: An information in respect of an offence against this section may be laid at any time within 6 months after the earlier of—
a: the date when the alleged offence first became known to the department; and
b: the date when the alleged offence should reasonably have become known to the department.
43: New section 71ZB inserted
The following section is inserted after section 71ZA
71ZB: Review of department's decisions about parental leave payment
1: An employee or a self-employed person may apply to the Employment Relations Authority for a review of a decision made by the department relating to—
a: the person's entitlement to a parental leave payment:
b: whether a parental leave payment may be transferred to the person under section 71E
c: the amount of parental leave payment made to the person:
d: the deduction or recovery of overpayments by the department under section 71X
2: An application for review must be made within 12 months after the date on which the decision is notified to the employee or self-employed person.
3: The Authority may confirm, modify, or reverse the decision of the department.
4: An application for review under this section may be made in respect of a decision described in subsection (1)
44: New sections 72B to 72D inserted
The following sections are inserted after section 72A
72B: Succession to spouse's or partner's entitlements
1: A spouse or partner 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 or partner becomes the sole guardian of the child, to the exclusion of the employee.
2: The spouse or partner of a self-employed person may succeed to the self-employed person's rights to a parental leave payment under this Act if, at any time after the self-employed person commences parental leave,—
a: the self-employed person dies; or
b: the spouse or partner becomes the sole guardian of the child, to the exclusion of the self-employed person.
3: However, the spouse or partner may succeed only if he or she is—
a: an employee, and—
i: 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)
ii: 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
b: an eligible self-employed person under section 71CB
4: A succession under this section is treated, for the purpose of Part 7A section 71E
72C: Date of succession to spouse's or partner's entitlements
1: The date of succession to the entitlements of an employee or self-employed person is the later of—
a: the date of the death of the employee or self-employed person or the date when the spouse or partner becomes sole guardian, as the case may be; and
b: the date on which the bereavement leave of the spouse or partner expires (if any).
2: The first payment of parental leave payment to the spouse or partner includes an amount for the period from the date of succession if the notice to the department referred to in section 72B(3)
72D: Application of
Employment Relations Act 2000 Part 10 of the Employment Relations Act 2000
45: Regulations
1: Section 73(1) paragraph (ab)
aba: prescribing the information that self-employed persons must give in, or the documents that self-employed persons must attach to, an application for, or other notices relating to, a parental leave payment: .
2: Section 73(1) paragraph (ad)
ada: setting the amount under section 71OA .
46: Consequential amendments
Consequential amendments are set out in the Schedule