Parental Leave and Employment Protection Act 1987

1: Short Title and commencement
1: This Act may be cited as the Parental Leave and Employment Protection Act 1987.
2: This Act shall come into force on 1 October 1987.
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 26 weeks parental leave payments Section 1A inserted 1 July 2006 section 7 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 1A(c) amended 1 July 2020 section 16 Parental Leave and Employment Protection Amendment Act 2017 Section 1A(c) amended 1 April 2016 section 4(1) Parental Leave and Employment Protection Amendment Act 2016 Section 1A(c) amended 1 April 2016 section 4(2) Parental Leave and Employment Protection Amendment Act 2016
1B: Outline
1: This section is a guide to the overall scheme and effect of this Act, but does not affect the interpretation or application of the other provisions of this Act.
2: This Act sets out the circumstances in which a biological mother or other person who takes permanent primary responsibility for the care, development, and upbringing of a child who is under the age of 6 may be entitled to—
a: leave from their employment:
b: parental leave payments. Primary carer entitlements
3: The person who is the child’s primary carer ( see section 7
a: for an employee who meets the 6-month employment test ( see section 2BA
i: up to 26 weeks see Part 1
ii: an extension to 26 weeks ( see Part 3 see section 28
iii: if the employee is eligible to receive parental leave payments ( see section 71CA 26 weeks see Part 7A
b: for an employee who meets the 12-month employment test ( see section 2BA
i: up to 26 weeks see Part 1
ii: an extension to 52 weeks ( see Part 3 see section 28
iii: if the employee is eligible to receive parental leave payments ( see section 71CA 26 weeks see Part 7A
c: for an employee who does not meet the 6-month employment test but who meets the parental leave payment threshold test ( see section 2BA(4)
i: if agreed to by the employee’s employer, a period of negotiated carer leave ( see Part 3A
ii: up to 26 weeks see Part 7A
d: for a self-employed person,—
i: as much parental leave as the person wishes to take; and
ii: if the person meets the parental leave payment threshold test ( see section 2BA(4) 26 weeks see Part 7A Spouse/partner entitlements
4: The spouse or partner of a child’s primary carer may, if he or she assumes responsibility for the care of the child, be entitled to partner’s leave as follows:
a: for an employee who meets the 6-month employment test ( see section 2BA
i: up to 1 week of partner’s leave ( see Part 2
ii: an extension to 26 weeks ( see Part 3 see section 28
b: for an employee who meets the 12-month employment test ( see section 2BA
i: up to 2 weeks of partner’s leave ( see Part 2
ii: an extension to 52 weeks ( see Part 3 see section 28
c: for an employee who does not meet the 6-month employment test, there is no entitlement under this Act to partner’s leave; and
d: for a self-employed person, as much partner’s leave as the person wishes to take.
5: It is also possible, in certain circumstances, for a primary carer to transfer their entitlements to their spouse or partner ( see section 71E , for see section 72B , or for the spouse or partner of a primary carer to become the primary carer of a child ( see section 7(1)﻿(b)﻿(iii) Administrative matters
6: Parts 4 to 7 see see Part 5 see Part 6 see Part 7
7: Part 8 Section 1B inserted 1 April 2016 section 5 Parental Leave and Employment Protection Amendment Act 2016 Section 1B(3)﻿(a)﻿(i) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(3)﻿(a)﻿(iii) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(3)﻿(b)﻿(i) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(3)﻿(b)﻿(iii) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(3)﻿(c)﻿(ii) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(3)﻿(d)﻿(ii) amended 1 July 2020 section 17 Parental Leave and Employment Protection Amendment Act 2017 Section 1B(5) amended 13 January 2020 section 13(a) Regulatory Systems (Workforce) Amendment Act 2019 Section 1B(5) amended 13 January 2020 section 13(b) Regulatory Systems (Workforce) Amendment Act 2019 Interpretation Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
2: Interpretation
1: In this Act, unless the context otherwise requires,— 6-month employment test section 2BA 12-month employment test section 2BA chief executive Chief of Defence Force section 8 company section 2(1) court Employment Relations Act 2000 department employee
a: means a person who is an employee within the meaning of section 6
b: in the context of provisions of this Act that relate to entitlements to parental leave payments in respect of a child, includes a person who was an employee for any 26 of the 52 weeks immediately preceding—
i: the expected date of delivery of the child (in the case of a child to be born to the employee or to the employee’s spouse or partner); or
ii: the first date on which either the employee or the employee’s spouse or partner becomes the primary carer in respect of the child (in any other case) employer employment agreement section 5 section 242 Employment Relations Authority Employment Relations Act 2000 expected date of delivery extended leave
a: means extended leave to which an employee is entitled in accordance with this Act; and
b: includes, for the purposes of Parts 6 to 7A only
i: any Act other than this Act; or
ii: any employment agreement keeping-in-touch day section 71CE(2) 71DB(1) medical practitioner section 114(1)﻿(a) member of the Armed Forces section 2(1) midwife section 114(3) Minister negotiated carer leave Part 3A parental leave
a: means, for an employee,—
i: primary carer
ii: partner’s
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
b: includes, for the purposes of Parts 6 to 7A
i: negotiated carer leave granted by an employer to an employee; and
ii: rights and benefits in the nature of any of the kinds of leave described in paragraph (a) to which an employee is entitled by virtue of—
A: any Act other than this Act; or
B: any employment agreement parental leave payment threshold test section 2BA(4) partner spouse or partner partner’s leave
a: means partner’s leave to which an employee is entitled in accordance with this Act; and
b: includes, for the purposes of Parts 6 to 7A
i: any Act other than this Act; or
ii: any employment agreement primary carer section 7 primary carer leave 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)) carried on by the trust self-employed person
a: means a person who is self-employed; and
b: in the context of provisions that relate to entitlements to parental leave payments in respect of a child, includes a person who was self-employed for any 26 of the 52 weeks immediately preceding—
i: the expected date of delivery of the child (in the case of a child to be born to the self-employed person or to the self-employed person’s spouse or partner); or
ii: the first date on which either the self-employed person or the self-employed person’s spouse or partner becomes the primary carer in respect of the child (in any other case) spouse union Employment Relations Act 2000
2:
3: 1980 No 162 s 2 Section 2(1) substituted 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991 Section 2(1) 6-month employment test inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) 12-month employment test inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) chief executive inserted 1 July 2002 section 7(4) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) Chief of Defence Force inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) company replaced 5 December 2013 section 14 Companies Amendment Act 2013 Section 2(1) contract of employment repealed 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) court substituted 2 October 2000 section 240 Employment Relations Act 2000 Section 2(1) department inserted 1 July 2002 section 7(4) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) employee replaced 1 April 2016 section 6(1) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) employment agreement inserted 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) Employment Relations Authority inserted 2 October 2000 section 240 Employment Relations Act 2000 Section 2(1) Employment Tribunal repealed 2 October 2000 section 240 Employment Relations Act 2000 Section 2(1) expected date of delivery substituted 1 July 2002 section 10 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) extended leave amended 1 April 2016 section 6(2) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) extended leave amended 1 July 2002 section 7(5) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) extended leave amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) keeping-in-touch day inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) maternity leave repealed 1 April 2016 section 6(3) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) medical practitioner inserted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 2(1) member of the Armed Forces inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) midwife substituted 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 2(1) Minister inserted 1 July 2002 section 7(4) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) negotiated carer leave inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) parental leave substituted 1 July 2006 section 8(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2(1) parental leave amended 1 April 2016 section 6(4) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) parental leave amended 1 April 2016 section 6(5) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) parental leave inserted 1 July 2006 section 8(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2(1) parental leave replaced 1 April 2016 section 6(6) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) parental leave payment threshold test inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) partner inserted 26 April 2005 section 3(1) Parental Leave and Employment Protection Amendment Act 2005 Section 2(1) partner’s leave inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) partner’s/paternity leave repealed 1 April 2016 section 6(7) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) paternity leave repealed 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) primary carer inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) primary carer leave inserted 1 April 2016 section 6(9) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) self-employed inserted 1 July 2006 section 8(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2(1) self-employed person replaced 1 April 2016 section 6(8) Parental Leave and Employment Protection Amendment Act 2016 Section 2(1) spouse substituted 26 April 2005 section 3(2) Parental Leave and Employment Protection Amendment Act 2005 Section 2(1) State employee repealed 1 July 2002 section 14(3) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) State services repealed 1 July 2002 section 14(3) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(1) union substituted 1 July 2002 section 7(3) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2(2) repealed 1 April 2016 section 6(10) Parental Leave and Employment Protection Amendment Act 2016 Section 2(3) repealed 1 April 2016 section 6(10) Parental Leave and Employment Protection Amendment Act 2016
2A: generally An employee's entitlement to rights and benefits in respect of parental leave Section 2A inserted 1 July 2002 section 8(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2A heading amended 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2A heading amended 1 December 2004 section 7 Parental Leave and Employment Protection Amendment Act 2004 Section 2A amended 1 April 2016 section 7 Parental Leave and Employment Protection Amendment Act 2016
2AB: Section 2AB repealed 1 July 2022 section 104 Pae Ora (Healthy Futures) Act 2022
2AC:
1: For the purposes of determining the entitlement of a teacher to rights and benefits in respect of parental leave board
2: In subsection (1),— board subpart 5 integrated school section 10(1) State school teacher section 10(1)
3: This section overrides section 2A Section 2AC inserted 9 November 2004 section 8 Parental Leave and Employment Protection Amendment Act 2004 Section 2AC heading amended 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2AC(1) amended 1 August 2020 section 668 Education and Training Act 2020 Section 2AC(1) amended 1 April 2016 section 9 Parental Leave and Employment Protection Amendment Act 2016 Section 2AC(2) replaced 1 August 2020 section 668 Education and Training Act 2020
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
3: This section is subject to section 2A Section 2AD inserted 1 July 2006 section 10 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2AD(2) amended 1 April 2016 section 10(1) Parental Leave and Employment Protection Amendment Act 2016 Section 2AD(3) amended 1 April 2016 section 10(2) Parental Leave and Employment Protection Amendment Act 2016
2B: children
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 a person described in subsection (2) or (3) does Part 7A Income Tax Act 2007
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: A person who becomes the primary carer in respect of 2 or more children within a 4-week period is treated as if the person had become the primary carer in respect of only the youngest of those children within that period. Section 2B inserted 1 July 2002 section 8(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 2B heading amended 1 April 2016 section 11(1) Parental Leave and Employment Protection Amendment Act 2016 Section 2B heading amended 1 July 2006 section 11(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 2B(1)﻿(b) amended 1 April 2016 section 11(2) Parental Leave and Employment Protection Amendment Act 2016 Section 2B(1)﻿(b) amended 1 April 2008 section ZA 1(1) Income Tax Act 2007 Section 2B(3) replaced 1 April 2016 section 11(3) Parental Leave and Employment Protection Amendment Act 2016
2BA: Thresholds for entitlements
Parental leave threshold tests
1: In this Act, the following tests are used to determine an employee’s entitlements to parental leave:
a: an employee meets the 6-month employment test
i: delivery of the child (in the case of a child to be born to the employee or to the employee’s spouse or partner); or
ii: assumption of responsibility for the care of the child (in any other case):
b: an employee meets the 12-month employment test
i: delivery of the child (in the case of a child to be born to the employee or to the employee’s spouse or partner); or
ii: assumption of responsibility for the care of the child (in any other case).
2: The provisions of Schedule 1 clauses 1 to 5
a: whether an employee has been employed by the same employer during any period of time; or
b: whether an employee has resumed service with the same employer.
3: Section 72A Parental leave payment threshold test
4: In this Act, the following test is used to determine a person’s entitlement to parental leave payments (the parental leave payment threshold test
a: an employee meets the parental leave payment threshold test if he or she will have been employed as an employee for at least an average of 10 hours a week for any 26 of the 52 weeks immediately preceding—
i: the expected date of delivery of the child (in the case of a child to be born to the person or his or her spouse or partner); or
ii: the first date on which the person, or his or her spouse or partner becomes the primary carer in respect of the child (in any other case):
b: a self-employed person meets the parental leave payment threshold test if he or she will have been self-employed for at least an average of 10 hours a week for any 26 of the 52 weeks immediately preceding—
i: the expected date of delivery of the child (in the case of a child to be born to the self-employed person or his or her spouse or partner); or
ii: the first date on which the self-employed person, or his or her spouse or partner becomes the primary carer in respect of the child (in any other case). Section 2BA inserted 1 April 2016 section 12 Parental Leave and Employment Protection Amendment Act 2016 Application of Act Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
2C: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 2C inserted 20 May 2014 section 4 Parental Leave and Employment Protection Amendment Act 2014
3: Act to bind the Crown
This Act shall bind the Crown. 1980 No 162 s 3
4: Application of this Act to employees who have non-statutory rights to parental leave
1: Parts 1 to 5
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 1 to 5
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 6 to 7A persons Section 4 substituted 1 July 2002 section 9 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 4(4) amended 1 April 2016 section 13 Parental Leave and Employment Protection Amendment Act 2016 Restrictions on parental leave Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
5: Restriction on parental leave under this Act where employee or employee's spouse
or partner Nothing in this Act shall entitle an employee otherwise entitled to any period of parental leave under this Act to take a period of parental leave under this Act which, when aggregated with any rights and benefits in the nature of parental leave taken or proposed to be taken by that employee's spouse or partner employment agreement or partner primary carer leave, partner’s leave or partner Section 5 heading amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 5 amended 1 April 2016 section 14 Parental Leave and Employment Protection Amendment Act 2016 Section 5 amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 5 amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 5 amended 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
6: Restriction on taking of parental leave within
6 months An employee shall not be entitled to parental leave in respect of a child by virtue of this Act if—
a: that employee has previously taken, in respect of another child, a period of leave, being—
i: parental leave under this Act; or
ii: a period of leave in the nature of parental leave under any Act other than this Act, or any employment agreement
b: less than 6 months Section 6 heading amended 1 July 2006 section 12(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 6(a)﻿(ii) amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 6(a)﻿(ii) amended 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991 Section 6(b) amended 1 July 2006 section 12(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
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 Section 6A inserted 1 July 2006 section 13 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
1: Primary carer Part 1 heading amended 1 April 2016 section 15 Parental Leave and Employment Protection Amendment Act 2016
7: Meaning of primary carer
1: In this Act, unless the context otherwise requires, primary carer
a: a female (the biological mother
b: the spouse or partner of the biological mother, only if—
i: the spouse or partner has succeeded under section 72B
ii: the biological mother has transferred all or part of her entitlement to a parental leave payment to that spouse or partner under section 71E
iii: neither subparagraph (i) nor (ii) applies and all of the following are true:
A: the child is under 1 year of age; and
B: the spouse or partner, because of the death of the biological mother or for any other reason, has taken permanent primary responsibility for the care, development, and upbringing of the child to the exclusion of the biological mother; and
C: at the time the spouse or partner took that permanent primary responsibility, the biological mother either had not applied for, or did not qualify to apply for, a parental leave payment:
c: a person, other than the biological mother or her spouse or partner, who takes permanent primary responsibility for the care, development, and upbringing of a child who is under the age of 6 years (and if there is more than 1 such person, the person nominated in accordance with subsection (2)). Examples
If a child under the age of 6 years goes to live with their aunt, who intends to raise the child in place of the child’s biological parents, the aunt is the child’s primary carer. If a couple formally adopt a child under the age of 6 years, or undertake to care for the child permanently, the member of the couple that is nominated under subsection (2) is the child’s primary carer. If a child under the age of 6 is temporarily placed with a foster parent, that person is not a primary carer because the placement is not permanent. If a child’s grandmother minds the child every day while his or her parents are at work, the grandmother is not a primary carer, because the child’s parents still have primary responsibility for the child’s upbringing.
2: If 2 or more persons meet the criterion in subsection (1)﻿(c),—
a: those persons must jointly nominate which one of them is to be the primary carer; and
b: only the nominated person is entitled to primary carer leave and parental leave payments under this Act.
3: Subsection (2)﻿(b) does not limit sections 71E 71EA section 72B Section 7 replaced 1 April 2016 section 16 Parental Leave and Employment Protection Amendment Act 2016 Section 7(1)﻿(b)﻿(iii) inserted 13 January 2020 section 14 Regulatory Systems (Workforce) Amendment Act 2019
8: Entitlement to primary carer leave
1: An employee may take primary carer leave if the employee—
a: is the primary carer in respect of a child; and
b: meets the 6-month employment test or the 12-month employment test.
2: No employee may take primary carer leave under subsection (1) in respect of a child if the employee has previously taken a period of leave in respect of that child, being—
a: parental leave under this Act; or
b: a period of leave in the nature of parental leave under any Act other than this Act or under any employment agreement.
3: Subsection (2) does not apply to an employee who is a primary carer under section 7(1)﻿(b)﻿(iii) Section 8 replaced 1 April 2016 section 16 Parental Leave and Employment Protection Amendment Act 2016 Section 8(3) inserted 13 January 2020 section 15 Regulatory Systems (Workforce) Amendment Act 2019
9: Duration of
primary carer
1: Primary carer 26 weeks
2: If a female employee begins her primary carer
a: on a date specified, pursuant to section 13(1)
b: on a date appointed, pursuant to section 14 the female employee shall be entitled to take at least 20 weeks primary carer primary carer
3: A period of primary carer 26 weeks primary carer section 26 or partner 1980 No 162 s 8 Section 9 heading amended 1 April 2016 section 17(1) Parental Leave and Employment Protection Amendment Act 2016 Section 9(1) substituted 1 December 2005 section 28(1) Parental Leave and Employment Protection Amendment Act 2004 Section 9(1) amended 1 July 2020 section 18(1) Parental Leave and Employment Protection Amendment Act 2017 Section 9(1) amended 1 April 2016 section 17(2) Parental Leave and Employment Protection Amendment Act 2016 Section 9(2) amended 1 July 2020 section 18(2) Parental Leave and Employment Protection Amendment Act 2017 Section 9(2) amended 1 April 2016 section 17(3) Parental Leave and Employment Protection Amendment Act 2016 Section 9(2)﻿(a) amended 1 July 2002 section 10 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 9(3) substituted 1 December 2004 section 11(2) Parental Leave and Employment Protection Amendment Act 2004 Section 9(3) amended 1 July 2020 section 18(1) Parental Leave and Employment Protection Amendment Act 2017 Section 9(3) amended 1 April 2016 section 17(4) Parental Leave and Employment Protection Amendment Act 2016 Section 9(3) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005
10: Date of commencement of
primary carer Primary carer leave begins,
a: in the case of a child born to the employee, on the date of confinement; or
aa: in the case of an employee who is a primary carer under section 7(1)﻿(b)﻿(iii)
b: in any other case, on the date on which the employee becomes the primary carer in respect of the child; or
c: on such earlier date—
i: as is determined in accordance with section 11 section 12 section 13
ii: as is appointed by the employer pursuant to section 14 1980 No 162 s 9 Section 10 heading amended 1 April 2016 section 18(1) Parental Leave and Employment Protection Amendment Act 2016 Section 10 amended 1 April 2016 section 18(2) Parental Leave and Employment Protection Amendment Act 2016 Section 10(a) replaced 1 April 2016 section 18(3) Parental Leave and Employment Protection Amendment Act 2016 Section 10(aa) inserted 13 January 2020 section 16 Regulatory Systems (Workforce) Amendment Act 2019 Section 10(b) replaced 1 April 2016 section 18(3) Parental Leave and Employment Protection Amendment Act 2016
11: Right of employee to determine date of commencement of
primary carer Primary carer section 37 6 weeks than,
a: in the case of a child to be born to the employee, the expected date of delivery; or
b: in any other case, the date on which the employee intends to become the primary carer in respect of the child. 1980 No 162 s 10(1) Section 11 heading amended 1 April 2016 section 19(1) Parental Leave and Employment Protection Amendment Act 2016 Section 11 amended 1 April 2016 section 19(2) Parental Leave and Employment Protection Amendment Act 2016 Section 11 amended 1 April 2016 section 19(3) Parental Leave and Employment Protection Amendment Act 2016 Section 11 amended 1 April 2016 section 19(4) Parental Leave and Employment Protection Amendment Act 2016 Section 11(a) replaced 1 April 2016 section 19(5) Parental Leave and Employment Protection Amendment Act 2016 Section 11(b) replaced 1 April 2016 section 19(5) Parental Leave and Employment Protection Amendment Act 2016
12: Right of employer and employee to determine date of commencement of primary carer leave by agreement
Primary carer leave may, by agreement between the employee and his or her employer, begin on any date before,—
a: in the case of a child to be born to the employee, the expected date of delivery; or
b: in any other case, the date on which the employee intends to become the primary carer in respect of the child. Section 12 replaced 1 April 2016 section 20 Parental Leave and Employment Protection Amendment Act 2016 Provisions applicable to pregnant employees only Heading inserted 1 April 2016 section 21 Parental Leave and Employment Protection Amendment Act 2016
13: Right of medical practitioner or midwife to determine date of commencement of
primary carer
1: If a primary carer primary carer
2: If the female employee gives that certificate to her employer, her primary carer section 10 section 12 section 14
a: the date specified in the certificate; or
b: the date of confinement. Section 13 substituted 1 July 2002 section 10 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 13 heading amended 1 April 2016 section 22(1) Parental Leave and Employment Protection Amendment Act 2016 Section 13(1) amended 1 April 2016 section 22(2) Parental Leave and Employment Protection Amendment Act 2016 Section 13(1) amended 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 13(2) amended 1 April 2016 section 22(2) Parental Leave and Employment Protection Amendment Act 2016
14: Right of employer to appoint date of commencement of
primary carer Where, by reason of pregnancy, a female employee is unable to perform her work to the safety of herself or others or is incapable of performing her work adequately, her employer, if no other suitable work is available, may, subject to section 9(2) primary carer 1980 No 162 s 13 Section 14 heading amended 1 April 2016 section 23(1) Parental Leave and Employment Protection Amendment Act 2016 Section 14 amended 1 April 2016 section 23(2) Parental Leave and Employment Protection Amendment Act 2016
15: Special leave
1: A female employee who is pregnant is entitled, before taking primary carer
2: No period of special leave taken under subsection (1) by a female employee shall be taken into account in assessing the period of primary carer or partner 1980 No 162 s 25 Section 15(1) amended 1 April 2016 section 24 Parental Leave and Employment Protection Amendment Act 2016 Section 15(2) amended 1 April 2016 section 24 Parental Leave and Employment Protection Amendment Act 2016 Section 15(2) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005
16: Ability to perform work
Where, by reason of pregnancy, a female employee is unable to perform her work to the safety of herself or others or is incapable of performing her work adequately, her employer may temporarily transfer her from one job to another. 1980 No 162 s 24
2: Partner’s Part 2 heading substituted 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Part 2 heading amended 1 April 2016 section 25 Parental Leave and Employment Protection Amendment Act 2016
17: Entitlement of spouse or partner of primary carer to partner’s leave
1: An employee may take partner’s leave if the employee—
a: is the spouse or partner of the primary carer in respect of a child; and
b: assumes or intends to assume responsibility for the care of that child; and
c: meets the 6-month employment test or the 12-month employment test.
2: Despite subsection (1), an employee may not take partner’s leave in respect of a child under subsection (1) if—
a: the employee has previously taken, in respect of that child, a period of leave, being—
i: partner’s leave under this Act; or
ii: a period of leave in the nature of partner’s leave under any Act other than this Act or under any employment agreement; or
b: the employee is the biological mother of the child and transferred her parental leave payment entitlements to her spouse or partner under section 71E Section 17 replaced 1 April 2016 section 26 Parental Leave and Employment Protection Amendment Act 2016
18: Entitlement of
other adoptive parent partner's/paternity leave Section 18 repealed 1 April 2016 section 26 Parental Leave and Employment Protection Amendment Act 2016
19: Duration of
Partner’s Partner’s
a: 2 weeks if the employee meets the 12-month employment test
b: 1 week if the employee meets the 6-month employment test Section 19 substituted 1 December 2004 section 14 Parental Leave and Employment Protection Amendment Act 2004 Section 19 heading amended 1 April 2016 section 27(1) Parental Leave and Employment Protection Amendment Act 2016 Section 19 amended 1 April 2016 section 27(2) Parental Leave and Employment Protection Amendment Act 2016 Section 19(a) amended 1 April 2016 section 27(3) Parental Leave and Employment Protection Amendment Act 2016 Section 19(b) amended 1 April 2016 section 27(4) Parental Leave and Employment Protection Amendment Act 2016
19A: Extension of partner's/paternity leave entitlements
for spouses or partners of employees Section 19A repealed 1 April 2016 section 28 Parental Leave and Employment Protection Amendment Act 2016
19AB: Extension of partner's/paternity leave entitlements for spouses or partners of self-employed persons in certain circumstances
Section 19AB repealed 1 April 2016 section 28 Parental Leave and Employment Protection Amendment Act 2016
19B: Extension of partner's/paternity leave of adoptive parent
Section 19B repealed 1 April 2016 section 28 Parental Leave and Employment Protection Amendment Act 2016
20: Date of commencement of partner’s leave
Partner’s leave begins,—
a: in the case of a child born to the employee’s spouse or partner, on the date of confinement; or
b: in any other case, on the date on which the employee’s spouse or partner becomes the primary carer in respect of the child; or
c: on any earlier or later date determined in accordance with section 21 22 Section 20 replaced 1 April 2016 section 29 Parental Leave and Employment Protection Amendment Act 2016
21: Right of employee to determine date of commencement of partner’s leave
Partner’s leave may, at the option of the employee, begin,—
a: in the case of a child to be born to the employee’s spouse or partner, on any date in the period—
i: beginning on the 21st day before the expected date of delivery; and
ii: ending with the close of the 21st day after the actual date of delivery or, if the child is discharged from a hospital or a similar establishment more than 21 days after the actual date of delivery, the close of the day on which the child is discharged from that hospital or establishment; or
b: in any other case, on any date in the period—
i: beginning on the 21st day before the date on which the employee’s spouse or partner intends to become the primary carer in respect of the child; and
ii: ending with the close of the 21st day after the actual date on which the employee’s spouse or partner becomes the primary carer in respect of the child. Section 21 replaced 1 April 2016 section 30 Parental Leave and Employment Protection Amendment Act 2016
22: Right of employer and employee to determine date of commencement of
partner’s Partner’s employee and his or her employer Section 22 heading amended 1 April 2016 section 31(1) Parental Leave and Employment Protection Amendment Act 2016 Section 22 heading amended 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 22 amended 1 April 2016 section 31(2) Parental Leave and Employment Protection Amendment Act 2016 Section 22 amended 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
3: Extended leave
23: Entitlement of employee to extended leave
1: Except as otherwise provided in this Act, an employee is entitled to extended leave if—
a: the employee—
i: is the primary carer in respect of a child; or
ii: is the spouse or partner of the primary carer in respect of a child and assumes or intends to assume responsibility for the care of that child; and
b: the employee meets—
i: the 6-month employment test (in which case the maximum duration of extended leave is 26 weeks, as set out in section 26(1)﻿(a)
ii: the 12-month employment test (in which case the maximum duration of extended leave is 52 weeks, as set out in section 26(1)﻿(b)
2: An employee is not entitled to extended leave in respect of a child under subsection (1) if that employee has previously taken, in respect of that child, 1 or more periods of leave that in total amount to the employee’s maximum entitlement under section 26(1)﻿(a) or (b)
a: extended leave under this Act; or
b: a period of leave in the nature of extended leave under any Act other than this Act, or any employment agreement. Section 23 replaced 1 April 2016 section 32 Parental Leave and Employment Protection Amendment Act 2016
24: Entitlement of adoptive parent to extended leave
Section 24 repealed 1 April 2016 section 32 Parental Leave and Employment Protection Amendment Act 2016
25: Restriction where 2 or more children born or adopted at one time
Section 25 repealed 1 July 2002 section 8(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
26: Duration of extended leave
1: Subject to subsections (2) and (3), the maximum amount of extended leave that an individual employee may take in respect of a child is—
a: 26 weeks, if the employee meets the 6-month employment test; or
b: 52 weeks, if the employee meets the 12-month employment test.
2: If an employee and that employee's spouse or partner are each individually entitled to extended leave in respect of the same child, the maximum combined entitlement of the employee and his or her spouse or partner is—
a: 26 weeks, if both meet the 6-month employment test; or
b: 52 weeks, if both meet the 12-month employment test; or
c: 52 weeks, if one meets the 12-month employment test and the other meets the 6-month employment test (in which case the person who meets the 6-month employment test may not take more than 26 weeks of extended leave out of the combined total entitlement of 52 weeks).
3: If an employee takes primary carer leave in respect of a child, the period of extended leave to which the employee and his or her spouse or partner are entitled in respect of the child is the relevant period specified in subsection (1) or (2) reduced by the total period of primary carer leave taken, excluding any period of primary carer leave in excess of 26 weeks section 9(2)
4: If a female employee takes special leave under section 15
5: If an employee takes a period of partner’s leave, the period of extended leave to which the employee and his or her spouse or partner are entitled in accordance with this Act is not reduced.
6: The period of extended leave to which an employee and his or her spouse or partner are entitled is not increased by the number of hours worked by the employee or his or her spouse or partner on a keeping-in-touch day in accordance with section 71CE(2) 71DB(2)
7: This section is subject to the other provisions of this Act. Section 26 replaced 1 April 2016 section 33 Parental Leave and Employment Protection Amendment Act 2016 Section 26(3) amended 1 July 2020 section 19 Parental Leave and Employment Protection Amendment Act 2017
27: Period during which extended leave may be taken
1: An employee may take 1 or more periods of extended leave (up to the maximum amount to which the employee is entitled) at any time within the period beginning with the applicable start date and ending with the applicable end date.
2: If an employee takes more than 1 period of extended leave within the period referred to in subsection (1), each such period of extended leave must be taken on dates agreed between the employee and the employer.
3: In this section,— applicable start date
a: if the employee takes primary carer leave in respect of a child, the date of expiry or earlier termination of the employee’s primary carer leave; or
b: if the employee takes partner’s leave in respect of a child, the date of expiry or earlier termination of the employee’s partner’s leave; or
c: if the employee is entitled to take primary carer leave or partner’s leave in respect of a child, and has not taken any such leave,—
i: in the case of a child born to the employee or to the employee’s spouse or partner, the date of confinement; or
ii: in any other case, the first date on which either the employee or the employee’s spouse or partner becomes the primary carer in respect of the child; or
d: any other date that is agreed on by the employee and that employee's employer applicable end date
a: if the employee, or the employee’s spouse or partner, qualifies for extended leave under section 23(1)﻿(b)﻿(i)
i: in the case of a child born to the employee, or to the employee’s spouse or partner, the date on which the child attains the age of 6 months; or
ii: in any other case, the date that is 6 months after the first date on which either the employee, or the employee’s spouse or partner, becomes the primary carer in respect of the child; or
b: if the employee, or the employee’s spouse or partner, qualifies for extended leave under section 23(1)﻿(b)﻿(ii)
i: in the case of a child born to the employee, or to the employee’s spouse or partner, the date on which the child attains the age of 12 months; or
ii: in any other case, the date that is the first anniversary of the first date on which either the employee, or the employee’s spouse or partner, becomes the primary carer in respect of the child.
4: No employee is entitled to start or continue any period of extended leave under this Act after—
a: the applicable end date; or
b: the date on which the employee ceases to have care of the child in respect of whom the extended leave is taken.
5: Subsection (1) is subject to subsection (4) and section 28
6: Subsection (4) prevails over all other provisions of this Act. Section 27 replaced 1 April 2016 section 33 Parental Leave and Employment Protection Amendment Act 2016
28: Sharing of extended leave
1: The maximum combined period of extended leave provided by section 26(2)
a: neither the employee nor the employee’s spouse or partner takes a period of extended leave that exceeds, or periods of extended leave that in total exceed, the amount of extended leave to which that person is individually entitled under section 26(1)
b: the total period formed by adding together all periods of extended leave taken by the employee and the employee’s spouse or partner does not exceed the maximum combined period of extended leave provided by section 26(2)
2: The ways in which the maximum combined period of extended leave may be shared between an employee and that employee’s spouse or partner are—
a: the employee or the employee's spouse or partner may take the full maximum combined period of extended leave, and the other not take any period of primary carer or extended leave under this Act:
b: the employee and the employee's spouse or partner may each take a period or periods of extended leave, and neither of them take any period of primary carer leave:
c: either the employee or the employee's spouse or partner (or both, in the case of a transfer of entitlements) may take a period of primary carer leave, and each of the employee and the employee's spouse or partner may take 1 or more periods of extended leave.
3: Subsection (2) is subject to subsection (1). Section 28 replaced 1 April 2016 section 33 Parental Leave and Employment Protection Amendment Act 2016
29: Extended leave may be taken consecutively or concurrently with leave taken by partner
Subject to the provisions of this Act, if an employee takes a period of extended leave in accordance with section 28
a: consecutively with any period of primary carer leave or partner’s leave taken by the employee; and
b: consecutively or concurrently with any period of primary carer leave, partner’s leave, or extended leave taken by the employee’s spouse or partner, or with any period for which the employee’s spouse or partner receives a parental leave payment, as the case may be. Section 29 replaced 1 April 2016 section 33 Parental Leave and Employment Protection Amendment Act 2016
30: Termination of extended leave
Section 30 repealed 1 April 2016 section 33 Parental Leave and Employment Protection Amendment Act 2016
3A: Primary carers not eligible for primary carer leave may request negotiated carer leave
Part 3A inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30A: Object of this Part
The object of this Part is to—
a: provide for certain employees who are not entitled to primary carer leave to request a period of leave from their employment to enable them to receive parental leave payments; and
b: require an employer to deal with a request as soon as possible, but not later than 1 month after receiving it; and
c: provide that an employer may refuse a request only if it cannot be accommodated on certain grounds. Section 30A inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016 Employee's right to make request Heading inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30B: Employee may make request
1: This section applies to an employee who—
a: is not entitled to primary carer leave; but
b: is entitled to parental leave payments under section 71D(1)
2: An employee to whom this section applies may make a request to his or her employer for negotiated carer leave.
3: The request must be made,—
a: in the case of an employee who wishes to take negotiated carer leave in respect of a child to be born to the employee or to the employee’s spouse or partner, at least 3 months before the expected date of delivery; or
aa: in the case of an employee who is a primary carer under section 7(1)﻿(b)﻿(iii)
b: in any other case, at least 14 days prior to the date on which the employee intends to become the primary carer in respect of the child. Section 30B inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016 Section 30B(3)﻿(aa) inserted 13 January 2020 section 17 Regulatory Systems (Workforce) Amendment Act 2019
30C: Requirements relating to request
A request for negotiated carer leave must be in writing and must—
a: state—
i: the employee's name; and
ii: the date on which the request is made; and
iii: that the request is made under this Part; and
b: specify the proposed date on which the employee wishes to begin negotiated carer leave and the proposed duration of the leave; and
c: include a statement that the employee—
i: will be the primary carer in respect of the child during the specified period; and
ii: will, if the request for a period of negotiated carer leave is approved, be entitled to receive parental leave payments under the Act for that period; and
d: explain, in the employee's view, what changes, if any, the employer may need to make to the employer's arrangements if the employee's request is approved. Section 30C inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016 Duties of employer Heading inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30D: Employer must notify decision as soon as possible
An employer must deal with a request for negotiated carer leave as soon as possible, but not later than 1 month after receiving it, and—
a: notify the employee in writing as to whether the employee’s request is approved or refused; and
b: if the request is refused,—
i: notify the employee of the ground or grounds specified in section 30E(2)
ii: provide an explanation of the reasons why the ground applies or the grounds apply. Section 30D inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30E: Grounds for refusal of request by employer
1: An employer may refuse a request for negotiated carer leave only if the employer determines that the request cannot be accommodated on 1 or more of the grounds specified in subsection (2).
2: The grounds are—
a: inability to reorganise work among existing staff:
b: inability to recruit additional staff:
c: detrimental impact on quality:
d: detrimental impact on performance:
e: planned structural changes:
f: burden of additional costs:
g: detrimental effect on ability to meet customer demand. 2000 No 24 s 69AAF(2) Section 30E inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016 Resolving disputes Heading inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30F: Limitation on challenging employer
1: An employee may not challenge his or her employer's refusal of a request for negotiated carer leave.
2: An employee may challenge his or her employer’s failure to respond to a request for negotiated carer leave, or failure to respond adequately to a request, if the employee believes his or her employer has not complied with section 30D Section 30F inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30G: Role of Labour Inspector
1: For the purposes of this Part, a Labour Inspector may provide to employees and employers such assistance as he or she considers appropriate in the circumstances.
2: This section applies subject to section 30H(2) Section 30G inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30H: Labour Inspectors and mediation
1: This section applies if an employee believes that his or her employer has not complied with section 30D
2: The employee may refer the non-compliance with section 30D
a: directly to mediation; or
b: to a Labour Inspector, who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter.
3: If, after completion of the process under subsection (2)﻿(b), the employee is dissatisfied with the result, the employee may refer the matter to mediation.
4: For the purposes of subsection (3), non-compliance with section 30D Section 30H inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30I: Application to Employment Relations Authority
1: This section applies if—
a: an employee believes that his or her employer has not complied with section 30D
b: mediation has not resolved the matter.
2: The employee may apply to the Employment Relations Authority for a determination as to whether the employer has complied with section 30D
3: An application must be made within 12 months after the relevant date.
4: In subsection (3), relevant date
a: if the employer notifies a refusal within 1 month after receiving a request, the date of the notification:
b: in any other case, the date that is 1 month after the employer received the employee's request. Section 30I inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
30J: Penalty
1: An employer who does not comply with section 30D
2: The penalty is payable to the employee concerned. Section 30J inserted 1 April 2016 section 34 Parental Leave and Employment Protection Amendment Act 2016
3B: COVID-19 response workers
Part 3B inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JA: Repeal of this Part
This Part is repealed immediately after the expiry of the 2-year period that starts at the end of the COVID-19 response period. 2025-01-20 Parental Leave and Employment Protection Act 1987 Part 3B is repealed immediately after the expiry of the 2-year period that starts at the end of the COVID-19 response period (see section 30JA). The 'COVID-19 response period' is defined in section 30JC as ending 3 months after the expiry or revocation of The Epidemic Preparedness (COVID-19) Notice 2020 (gazette notice 2020-go1368), UNLESS an earlier expiry or revocation date is notified; OR the notice is renewed (under section 7 of the Epidemic Preparedness Act 2006). Renewed by the Epidemic Preparedness (COVID-19) Notice 2020 Renewal Notice (No 3) 2022) (https://gazette.govt.nz/notice/id/2022-sl3849), on 15 September 2022 to 20 October 2022. Section 30JA inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JB: Retrospective application of this Part
This Part applies on and from 25 March 2020 as if it were in force on and from that date. Section 30JB inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JC: Interpretation
In this Part,— COVID-19 response period Epidemic Preparedness (COVID-19) Notice 2020 COVID-19 response work COVID-19 response worker section 30JD parental leave Section 30JC inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JD: Meaning of COVID-19 response worker
1: This section applies to a person if—
a: the person is entitled to parental leave; and
b: the person is—
i: an employee who has agreed with their employer to temporarily return to work to respond to circumstances related to the outbreak of COVID-19; or
ii: a self-employed person who wants to temporarily return to work to respond to circumstances related to the outbreak of COVID-19.
2: A person to whom this section applies is a COVID-19 response worker
a: their role cannot reasonably be filled by another person (because of the person’s skill, qualifications, or experience); or
b: there is higher demand than usual for workers doing their role. Section 30JD inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JE: COVID-19 response work day is not keeping-in-touch day
A day of COVID-19 response work is not a keeping-in-touch day. Section 30JE inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Parental leave payments Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JF: Application for parental leave payments after period of COVID-19 response work
1: This section applies to a COVID-19 response worker who has not yet received all the parental leave payments to which the worker is entitled under—
a: section 71D
b: section 71J section 30JK
c: section 71L section 30JI
2: The worker is entitled to parental leave payments if—
a: the worker has applied for parental leave payments under section 71I
b: the worker temporarily returns to work for COVID-19 response work; and
c: the worker applies for payment in accordance with subsection (5).
3: The temporary return—
a: may not be for longer than 12 weeks (unless a Labour Inspector determines that a longer period is reasonable under section 30JS
b: must be in 1 continuous period (unless a Labour Inspector determines that more than 1 period is reasonable under section 30JS
4: The worker may apply to the department for parental leave payments to be paid for the period for which the worker resumes parental leave after finishing COVID-19 response work.
5: The application must include—
a: the date on which the worker will resume (or has resumed) parental leave; and
b: confirmation that the worker—
i: is a COVID-19 response worker; and
ii: is applying in relation to COVID-19 response work; and
iii: has not yet received all the parental leave payments referred to in subsection (1). Section 30JF inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JG: COVID-19 response worker must notify temporary return to work if receiving payment
1: A COVID-19 response worker must notify the department under this section and not under section 71U(1)
2: The worker may notify at the same time as the worker applies under section 30JF
3: This section overrides the obligation in section 71U(1) Section 30JG inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JH: No payments in relation to period of COVID-19 response work
1: The department must not pay parental leave payments or preterm baby payments to a COVID-19 response worker in relation to the period of COVID-19 response work.
2: Any payments received by the worker in respect of that period are recoverable under section 71X Section 30JH inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JI: End of parental leave payments
1: Section 71L(1)
2: A parental leave payment is payable to the worker in respect of a child for a period that ends on the earlier of—
a: the date on which the worker has received all the parental leave payments to which the worker is entitled under section 71D section 71J section 30JK
b: the date on which the worker permanently returns to work as an employee or a self-employed person (as notified under section 71U Section 30JI inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JJ: Primary carer leave need not be for 1 continuous period
1: The requirement in section 9
2: However, the periods must not together exceed the maximum period allowed under section 9
3: This Act applies accordingly so that references to a period of leave must be read as references to periods. Section 30JJ inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JK: Payment need not relate to 1 continuous period
1: The requirement in sections 71DA(2) 71J
2: However, the periods must not together exceed the maximum period for which payments are payable under section 71DA(2) 71J
3: This Act applies accordingly so that references to a period during which payments are payable must be read as references to periods. Section 30JK inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Extended leave Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JL: Applicable end date for extended leave
For the purposes of section 27 applicable end date
a: in relation to employees who meet the 6-month employment test, the date on which the worker has had 6 months of parental leave; and
b: in relation to employees who meet the 12-month employment test, the date on which the worker has had 12 months of parental leave. Section 30JL inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Preterm baby payments Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JM: Preterm baby payments
1: This section applies (and section 71DA(5A)﻿(a)﻿(i)
2: If the worker temporarily returns to work for COVID-19 response work, the department must not pay preterm baby payments to the worker in relation to the period of COVID-19 response work.
3: Any preterm baby payments received by the worker in respect of that period are recoverable under section 71X
4: However, if the return to work finishes before the end of the preterm baby payment period, the worker’s preterm baby payments—
a: resume on the date on which the worker resumes parental leave; and
b: continue until the end of what would have been the 36th week of pregnancy had the child not been born prematurely. Section 30JM inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Remuneration and holiday pay for COVID-19 response workers Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JN: Remuneration and holiday pay for COVID-19 response workers
1: A temporary return to work by a COVID-19 response worker for COVID-19 response work is not a return to work for the purposes of section 42(2)﻿(c)
2: Section 21(2) Section 30JN inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Subsequent children Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JO: Parental leave within 6 months of end of previous period of parental leave in respect of another child
Section 6 Section 30JO inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JP: Subsequent parental leave payments
Section 71F(a) Section 30JP inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Regulations Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JQ: Regulations
Regulations may be made under section 73
a: an application under section 30JF
b: a notice relating to a return to work by a COVID-19 response worker. Section 30JQ inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Department’s discretion in relation to this Part Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JR: Department’s discretion about irregular applications
Section 71IA section 30JF irregularity
a: an application being made after the COVID-19 response worker has begun COVID-19 response work; and
b: an application under section 71I section 30JF
c: an application being made after the COVID-19 response worker has begun parental leave again after completing COVID-19 response work; and
d: an application being made after the commencement of this section and in respect of COVID-19 response work that occurred at any time during the COVID-19 response period (whether the work was performed before or after the commencement of this section); and
e: an application being made after a notice was given in accordance with section 71U section 30JG Section 30JR inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020 Role of Labour Inspectors in relation to this Part Heading inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
30JS: Labour Inspectors may make determinations
1: A Labour Inspector may determine, for the purposes of an application made under section 30JF
a: that a temporary return to work for longer than 12 weeks is a temporary return to work and is a reasonable period in the circumstances; or
b: that more than 1 temporary return to work is reasonable in the circumstances and is a temporary return to work, as long as the returns do not together exceed a period of 12 weeks (or any other period determined under paragraph (a)).
2: A Labour Inspector must, as soon as practicable after making a determination, serve a copy on the worker and any employer.
3: The consequences of a determination are that it is prima facie evidence of the matter determined.
4: Sections 70C 70E section 70A Section 30JS inserted 16 May 2020 section 3 COVID-19 Response (Further Management Measures) Legislation Act 2020
4: Requirements concerning notice
31: Obligation to notify employer
1: An employee who wishes to take parental leave under this Act shall give written notice to the employee's employer of the employee's wish to take that leave.
2: The notice under subsection (1) shall state the proposed date on which the employee wishes to commence leave, and the duration of the leave.
3: If the employee wishes to take parental leave in respect of a child to be born to the employee or to the employee’s spouse or partner,
a: shall be given at least 3 months before the expected date of delivery; and
b: if given by a pregnant employee or a midwife
i: certifying that the female employee is pregnant; and
ii: stating the expected date of delivery; or
c: if given by the pregnant woman's spouse or partner
i: a certificate or a copy of a certificate from a or a midwife
ii: a written assurance from the woman named in the medical certificate that the employee or partner the employee
4: Despite subsection (3), in the case of an employee who is a primary carer under section 7(1)﻿(b)﻿(iii) 1980 No 162 s 14(1), (3) Section 31(3) amended 1 April 2016 section 35 Parental Leave and Employment Protection Amendment Act 2016 Section 31(3)﻿(b) amended 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 31(3)﻿(b) amended 1 July 2002 section 10 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 31(3)﻿(b) amended 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 31(3)﻿(c) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 31(3)﻿(c) amended 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 31(3)﻿(c)﻿(i) amended 18 September 2004 section 175(1) Health Practitioners Competence Assurance Act 2003 Section 31(3)﻿(c)﻿(i) amended 1 July 2002 section 10 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 31(3)﻿(c)﻿(ii) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 31(3)﻿(c)﻿(ii) amended 1 July 2002 section 21 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 31(4) inserted 13 January 2020 section 18 Regulatory Systems (Workforce) Amendment Act 2019
32: Requirements where extended leave sought
1: Where any notice is given in accordance with section 31 section 33
a: state whether the employee's spouse or partner primary carer
b: state the name of the employee's spouse or partner or partner
c: state the proposed dates of commencement and expiry of each period of leave proposed to be taken in respect of the child by—
i: the employee; and
ii: the employee's spouse or partner under this Act or under any provision contained in any Act other than this Act or in any employment agreement
d: contain an assurance by the employee that the aggregate periods of leave of the kinds specified in subsection (2) that are proposed to be taken in respect of the child by the employee and the employee’s spouse or partner will not exceed the maximum combined entitlements of the employee and the employee’s spouse or partner set out in section 26(2)
2: The kinds of leave referred to in subsection (1)﻿(d) are—
a: all primary carer leave (other than primary carer leave in excess of 26 weeks section 9(2)
b: all extended leave under this Act; and
c: all leave (other than partner’s leave) to which the employee or the employee’s spouse or partner is entitled in respect of the child by or under any Act other than this Act or under any employment agreement. Section 32(1)﻿(a) amended 1 April 2016 section 36(1) Parental Leave and Employment Protection Amendment Act 2016 Section 32(1)﻿(a) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 32(1)﻿(b) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 32(1)﻿(c) amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 32(1)﻿(c) amended 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991 Section 32(1)﻿(c)﻿(ii) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 32(1)﻿(d) replaced 1 April 2016 section 36(2) Parental Leave and Employment Protection Amendment Act 2016 Section 32(2) inserted 1 April 2016 section 36(3) Parental Leave and Employment Protection Amendment Act 2016 Section 32(2)﻿(a) amended 1 July 2020 section 20 Parental Leave and Employment Protection Amendment Act 2017
33: Requirements where primary carer is not biological mother or her spouse or partner
If an employee, or his or her spouse or partner, intends to be the primary carer in respect of a child to whom the employee or the employee’s spouse or partner did not give birth, the notice required to be given under section 31(1)
a: include a statement by the employee that the employee (or his or her spouse or partner, as applicable) will be the primary carer in respect of the child; and
b: be given at least 14 days before the employee (or his or her spouse or partner, as applicable) intends to become the primary carer in respect of the child; and
c: be accompanied by any evidence that is prescribed in regulations. Section 33 replaced 1 April 2016 section 37 Parental Leave and Employment Protection Amendment Act 2016
34: Incomplete notification
1: Where any employee gives a written notice to the employee's employer stating that the employee wishes to take parental leave under this Act and any of the provisions of sections 31 to 33 subsection (2) and sections 35(2) 36(2)
2: Where an employee gives an incomplete notice within the meaning of subsection (1), the employer of that employee shall, within 7 days after the date on which it comes to that employer's attention that the notice is an incomplete notice, give to the employee a written notice stating that the notice is an incomplete notice and specifying the additional information, documentation, or assurance that the employee is required by any provision of sections 31 to 33
3: An employee to whom a notice is given under subsection (2) shall, within 14 days after the date on which the employee receives the notice, give to the employer the additional information, documentation, or assurance specified in the notice and required by any provision of sections 31 to 33
35: Failure to notify employer
1: Subject to section 68 section 31(1) section 31(3) or section 33
a: that employee gives a written notice under section 31(1)
b: the employer of that employee agrees that the employee may take extended leave under this Act.
2: Nothing in subsection (1) shall apply to an employee who gives an incomplete notice to that employee's employer within the time required by section 31(3) section 33
36: Obligation to notify employee
1: Subject to subsection (2), every employer who receives a notice under section 31(1)
a: stating whether the employee is entitled to take parental leave; and
b: where an employer states that the employee is not entitled to take parental leave, stating the reasons why the employee is not so entitled; and
c: stating that, until the end of the employee's parental leave, the employee's position in the employment of the employer—
i: can be kept open; or
ii: cannot be kept open; and
d: where the employer states that the employee's position cannot be kept open, informing the employee—
i: that the employee may dispute the employer's statement that the employee's position cannot be kept open; and
ii: that the employer will, for the period of 26 weeks beginning with the day after the date on which the parental leave ends, give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the parental leave; and
e: informing the employee of the substance of Parts 1 to 3 section 45 sections 11 21 29
2: Where an employer receives a notice that is an incomplete notice that employer shall, within 21 days after the date of the receipt by the employer of the additional information, documentation, or assurance specified in the notice given under section 34(2)
2A: In the case of an employee who is a primary carer under section 7(1)﻿(b)﻿(iii)
3: Where any employee receives a notice given under subsection (1) or under subsection (1) (as applied by subsection (2)) and the employee disputes any statement given in that notice, that employee may invoke any procedure set out in Part 7 1980 No 162 s 15 Section 36(2A) inserted 13 January 2020 section 19 Regulatory Systems (Workforce) Amendment Act 2019
37: Requirement where employee wishes to begin primary carer leave early
1: This section applies to an employee who—
a: has given notice that the employee wishes to take parental leave under this Act; and
b: intends to exercise the option conferred by section 11
2: The employee must give his or her employer not less than 21 days’ notice in writing of the day on which the employee wishes his or her primary carer leave to begin. 1980 No 162 s 10(2) Section 37 replaced 1 April 2016 section 38 Parental Leave and Employment Protection Amendment Act 2016
38: Employer's notice in relation to return to work and preference for appointment
Within 21 days after the beginning of an employee's parental leave, the employer of the employee shall give to the employee written notice stating—
a: the date on which the employee's parental leave will end; and
b: either—
i: where the employer is able to keep the employee's position open until the end of the employee's parental leave, the date on which, if the employee decides to return to work at the end of the parental leave, the employee will be required to return to work, being the date of the next working day after the date on which the employee's parental leave ends; or
ii: in any other case, the period of 26 weeks during which the employer will give the employee preference over other applicants for any position which is vacant and which is substantially similar to the position held by the employee at the beginning of the employee's parental leave; and
c: where paragraph (b)﻿(i) applies, the employee's obligations under section 39
d: the employee's rights under section 45 1980 No 162 s 17
39: Employee's notice in relation to return to work
1: Every employee who is on parental leave and whose position is being kept open by the employer, shall, not later than 21 days before the date on which the employee's parental leave ends, give to the employer written notice stating whether or not the employee will be returning to work at the end of the employee's parental leave.
2: Where an employee chooses,—
a: pursuant to section 45(1)﻿(f)
b: pursuant to section 45(1)﻿(g) the employee shall give to the employer not less than 21 days' notice in writing of the date on which the employee intends to return to work or begin the period of preference, as the case may be.
3: Subsection (1) does not apply if the employee’s employment agreement requires the employee to give a longer period of notice of resignation to the employer. 1980 No 162 s 18 Section 39(3) inserted 1 April 2016 section 39 Parental Leave and Employment Protection Amendment Act 2016
39A: Succession to employee's entitlements
Section 39A repealed 1 July 2006 section 17 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
5: Rights and obligations after commencement of parental leave
40: Presumption that employee's position can be kept open in the case of first period of parental leave not exceeding 4 weeks
1: Where an employee takes a continuous period of parental leave—
a: that does not exceed 4 weeks (inclusive of any public or statutory holiday falling within the period); and
b: that is the first period of parental leave taken by the employee in respect of the child; and
c: of which the employee's employer has had no less notice than the period of notice required by section 31(3) section 33 the employer shall be presumed, in any proceedings under this Act, to be able to keep open for the employee, until the end of that period of parental leave, the employee's position in the employment of the employer unless the employer proves that the employee's position cannot be kept open because of the occurrence of a redundancy situation.
2: For the purposes of determining under subsection (1) whether an employer has had no less notice of a period of parental leave than the period of notice required by section 31(3) section 33
3: The reference in subsection (1) to the employee's position in the employment of the employer shall be a reference to the position ordinarily held by the employee, and shall not include any position to which the employee was temporarily transferred under section 16
41: Presumption that employee's position can be kept open in the case of other periods of parental leave
1: Where an employee takes a period of parental leave (other than a period of parental leave referred to in section 40
a: because a temporary replacement is not reasonably practicable due to the key position occupied within the employer's enterprise by the employee; or
b: because of the occurrence of a redundancy situation.
2: In determining whether or not a position is a key position for the purposes of subsection (1)﻿(a), regard may be had, among other things, to—
a: the size of the employer's enterprise; and
b: the training period or skills required in the job.
3: The reference in subsection (1) to the employee's position in the employment of the employer shall be a reference to the position ordinarily held by the employee, and shall not include any position to which the employee was temporarily transferred under section 16 1980 No 162 s 16
42: Employer's obligations in respect of remuneration and holiday pay
1: Subject to subsections (2) and (3), the employer of an employee who takes any form of parental leave in accordance with this Act shall not be obliged to pay that employee any remuneration for—
a: any period of the employee's parental leave under this Act; or
b: any period during which the employee is entitled under this Act, following any period of parental leave, to preference in obtaining employment with the employer.
2: If an employee becomes entitled to an annual holiday on pay during—
a: a period of parental leave under this Act; or
b: a period of preference in obtaining employment; or
c: the period of 12 months commencing with the date on which the employee returns to work after a period of parental leave under this Act or a period of preference in obtaining employment,— the employee is, despite anything in section 21 (as defined in section 5(1) is taken or paid out
3: 1980 No 162 s 7 Section 42(2) substituted 1 April 2004 section 91(2) Holidays Act 2003 Section 42(2) amended 1 April 2016 section 40 Parental Leave and Employment Protection Amendment Act 2016 Section 42(2) amended 1 April 2011 section 18 Holidays Amendment Act 2010 Section 42(3) repealed 1 April 2004 section 91(2) Holidays Act 2003
43: Continuity of employment
Where an employee resumes service with the same employer at the end of a period of parental leave or while the employee is entitled, following parental leave, to preference in obtaining employment with the employee's employer—
a: the employee's service, for the purpose of any rights and benefits that are conditional on unbroken service, shall not be broken—
i: by the taking of parental leave; or
ii: by the employee being without a position in the employer's service during part of the period of preference; or
iii: by both; and
b: any period during which the employee was on parental leave and any period during which the employee was entitled, following parental leave, to preference in obtaining employment with the employer shall count,—
i: subject to section 42 employment agreement
ii: subject to section 44 1980 No 162 s 22 Section 43(b)﻿(i) amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
44: Contributions to superannuation schemes
Nothing in section 43(b)﻿(ii)
a: entitle an employee to have any period counted as service for the purposes of a superannuation scheme if the employee is required to pay contributions in respect of that period and has not done so; or
b: relieve an employee from any obligation under a superannuation scheme to pay contributions in respect of any period during which the employee is on parental leave or during which the employee is entitled, following parental leave, to preference in obtaining employment with the employee's employer. 1980 No 162 s 23
45: Early ending and extension of parental leave
1: Subject to compliance with section 39(2)
a: if the employee or the employee's spouse or partner
b: if the child is stillborn or dies; or
c: if the employee or the employee’s spouse or partner fails to become or ceases to be the primary carer in respect of the child; or
d:
e: if the employer consents,— choose—
f: where the employee's position is being kept open by the employer, to end the parental leave by returning to work before the date on which the employee is required to return to work at the end of the parental leave; or
g: in any other case, to end the parental leave and begin the period of preference.
2: If a female employee is on primary carer leave under section 8
3: Subject to subsection (4), an employee who is on parental leave may, if the employer consents, extend the parental leave until a specified date which shall thereafter be the date on which the employee's parental leave will end.
4: Without limiting any right of an employee to take a period of leave otherwise than by virtue of this Act, and subject to section 9(2)
a: in the case of a period of primary carer primary carer 26 weeks
b: in the case of a period of partner’s leave, the duration of partner’s leave exceeds—
i: 1 week if the employee meets the 6-month employment test:
ii: 2 weeks if the employee meets the 12-month employment test; or
c: in the case of a period of extended leave, the period of extended leave, when aggregated with all leave of the kinds specified in section 32(2) section 26(2) 1980 No 162 s 19 Section 45(1)﻿(a) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 45(1)﻿(c) replaced 1 April 2016 section 41(1) Parental Leave and Employment Protection Amendment Act 2016 Section 45(1)﻿(d) repealed 1 April 2016 section 41(1) Parental Leave and Employment Protection Amendment Act 2016 Section 45(2) replaced 1 April 2016 section 41(2) Parental Leave and Employment Protection Amendment Act 2016 Section 45(4)﻿(a) amended 1 July 2020 section 21 Parental Leave and Employment Protection Amendment Act 2017 Section 45(4)﻿(a) amended 1 April 2016 section 41(3) Parental Leave and Employment Protection Amendment Act 2016 Section 45(4)﻿(b) replaced 1 April 2016 section 41(4) Parental Leave and Employment Protection Amendment Act 2016 Section 45(4)﻿(c) replaced 1 April 2016 section 41(4) Parental Leave and Employment Protection Amendment Act 2016
46: Failure to return to work
If an employee who takes up parental leave and whose position is kept open by the employer—
a: fails, without good cause, to return to work at the end of that period of parental leave; or
b: informs the employer, before the end of that period of parental leave, that the employee has decided not to return to work at the end of the period of parental leave,— the employee's employment shall, subject to any agreement between the employer and the employee, be deemed to have been at an end as from the day on which the period of parental leave began. 1980 No 162 s 20
47: Failure to accept employment
If an employee who has taken parental leave fails, without reasonable excuse, to take up, on the date specified by the employer or within 7 days thereafter, any position substantially similar to the position ordinarily held by the employee before taking parental leave that is offered to the employee by the employee's employer during the period of 26 weeks beginning with the day after the date on which the period of parental leave ends, that employee's employment shall be deemed to have been at an end as from the day on which the period of parental leave began. 1980 No 162 s 21
48: Workers employed to replace employees on parental leave
Where a temporary employee is employed to replace an employee who is on parental leave, the employer shall, before employing the temporary employee, inform the temporary employee in writing—
a: that the temporary employee is being employed on a temporary basis in the place of an employee who is on parental leave; and
b: that the employee may return to work, in accordance with section 45 1980 No 162 s 26
6: Protection of employment
49: Dismissal by reason of pregnancy or parental leave prohibited
1: No employer shall terminate the employment of any employee—
a: by reason of, in the case of a female employee,—
i: her pregnancy; or
ii: her state of health during her pregnancy, unless her state of health during her pregnancy is materially affected by causes not related to her pregnancy; or
b: by reason of, in the case of any employee,—
i: the employee indicating that the employee wishes to take parental leave under this Act or rights and benefits in the nature of parental leave under any provision other than this Act; or
ii: the employee, or the employee’s spouse or partner, becoming the primary carer in respect of a child; or
c: during the employee's absence on parental leave or during the period of 26 weeks beginning with the day after the date on which any period of parental leave ends.
2: It shall not be a contravention of subsection (1) for an employer to terminate the employment of an employee—
a: with the employee's consent; or
b: where solely on account of—
i: the pregnancy of a female employee or the employee's spouse or partner
ii: the employee becoming the primary carer in respect of a child,— the employee absents himself or herself from work (other than with the agreement of the employee's employer or in accordance with section 13 section 14 1980 No 162 s 27 Section 49(1)﻿(b)﻿(ii) replaced 1 April 2016 section 42(1) Parental Leave and Employment Protection Amendment Act 2016 Section 49(2)﻿(b)﻿(i) amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005 Section 49(2)﻿(b)﻿(ii) replaced 1 April 2016 section 42(2) Parental Leave and Employment Protection Amendment Act 2016
50: Special defences relating to dismissal
Where—
a: it is alleged in any proceedings under this Act that an employer has, in contravention of section 49(1)
b: it is proved in those proceedings that the employer terminated the employee's employment either—
i: during the employee's absence on parental leave; or
ii: during the period of 26 weeks beginning with the day after the date on which any period of the employee's parental leave ended,— the defences set out in sections 51 52 1980 No 162 s 28
51: Special defences relating to dismissal during parental leave
Where the termination is proved to have taken place during the employee's absence on parental leave, it shall be a defence for the employer to prove—
a: that,—
i: in the case of a period of parental leave to which section 40(1) section 36(1)﻿(c)﻿(i)
ii: in the case of other periods of parental leave, on the ground of circumstances (of the type referred to in section 41 section 36(1)﻿(c)﻿(i)
b: that the employer terminated the employee's employment on account of a redundancy situation of such nature that there was no prospect of the employer being able to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's parental leave; and
c: that the employer had not, in the period commencing with the beginning of the employee's parental leave and ending with the termination of the employee's employment, prejudicially affected either the employee's seniority or the employee's superannuation rights. 1980 No 162 s 29
52: Special defence relating to dismissal during the 26 weeks following parental leave
Where the termination of employment is proved to have taken place during the period of 26 weeks beginning with the day after the date on which any period of the employee's parental leave ended, it shall be a defence for the employer to prove—
a: the matters set out in paragraphs (b) and (c) of section 51
b: that, during the period between the end of the period of the employee's parental leave and the termination of the employee's employment, the employer had (despite being prepared to accord the employee preference over other applicants) been unable to appoint the employee to a position which was vacant and which was substantially similar to the position held by the employee at the beginning of the employee's period of parental leave. 1980 No 162 s 30
53: Redundancy payments not affected
Nothing in this Act shall affect any redundancy payment payable pursuant to the provisions of any Act or of any order employment agreement 1980 No 162 s 31 Section 53 amended 1 July 2002 section 22 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 53 amended 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
54: Dismissal for cause not affected
Nothing in this Act shall affect any right of an employer to dismiss an employee for a substantial reason not related to—
a: the pregnancy of the employee or the pregnancy of the employee's spouse or partner; or
b: the employee or the employee’s spouse or partner becoming the primary carer in respect of a child; or
c: the employee's rights under this Act. 1980 No 162 s 32 Section 54(a) substituted 26 April 2005 section 4 Parental Leave and Employment Protection Amendment Act 2005 Section 54(b) replaced 1 April 2016 section 43 Parental Leave and Employment Protection Amendment Act 2016
7: Remedies available to employees
55: Interim order
1: Where any employee section 49(1) ex parte Employment Relations Authority
2: Subject to subsection (3), every interim order made under subsection (1) shall expire on a date to be specified in the order, being the later of—
a: a date not later than 26 weeks after the date on which the order is made; or
b: a date not later than 26 weeks after—
i: the expected date of delivery of the child (in the case of a child born to the employee or to the employee’s spouse or partner); or
ii: the first date on which either the employee or the employee’s spouse or partner becomes the primary carer in respect of the child (in any other case).
3: An interim order made under subsection (1) may be renewed by the Employment Relations Authority ex parte Employment Relations Authority sections 57 to 67
4: An officer of the Employment Relations Authority Section 55 substituted 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991 Section 55(1) amended 1 July 2002 section 14(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 55(1) amended 2 October 2000 section 240 Employment Relations Act 2000 Section 55(2)﻿(b) replaced 1 April 2016 section 44 Parental Leave and Employment Protection Amendment Act 2016 Section 55(3) amended 2 October 2000 section 240 Employment Relations Act 2000 Section 55(4) amended 2 October 2000 section 240 Employment Relations Act 2000
56: Parental leave complaints
1: Where any employee
a: is not justified in stating, in the notice given to the employee under section 36
b: has, in contravention of section 49(1)
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
d: has exercised, without reasonable justification, the powers conferred on the employer by section 14 section 16 that allegation shall be a parental leave complaint to which this section applies, and the employee may use, in respect of that parental leave complaint, the procedures provided in sections 57 to 67
2: A parental leave complaint to which this section applies shall not be made—
a: after the expiration of 26 weeks from the date on which the subject matter of the complaint arose; or
b: after the expiration of 26 weeks from—
i: the expected date of delivery of the child (in the case of a child to be born to the employee or to the employee’s spouse or partner); or
ii: the first date on which either the employee or the employee’s spouse or partner became the primary carer in respect of the child (in any other case); or
c: after the expiration of 8 weeks from the expiry of any period of parental leave taken by the employee,— whichever is the later.
3: The procedures provided in sections 57 to 67 section 55
4: A parental leave complaint to which this section applies is not a personal grievance within the meaning of section 103 1980 No 162 s 34 Section 56(1) amended 1 July 2002 section 14(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 56(1)﻿(c) substituted 1 July 2002 section 15 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 56(2)﻿(b) replaced 1 April 2016 section 45 Parental Leave and Employment Protection Amendment Act 2016 Section 56(4) substituted 2 October 2000 section 240 Employment Relations Act 2000
57: Procedures for settlement of parental leave complaints
1: The procedures for the settlement of a parental leave complaint shall be in accordance with this section and sections 58 to 67
2: As soon as practicable after a parental leave complaint arises, the employee shall submit the complaint to the employee's immediate supervisor, affording the immediate supervisor an opportunity to remedy the cause of the complaint, the intent being that it is desirable, if the circumstances permit it, to settle the complaint rapidly and as near as possible to the point of origin.
3: Where any such attempt at settlement has failed, or where the complaint is of such a nature that a direct discussion between the employee and the employee's immediate supervisor would be inappropriate, the employee shall either—
a: notify the branch secretary or secretary or a duly authorised representative of any union to which the employee belongs or could belong; or
b: where the employee elects to act on his or her own behalf or to appoint an agent or barrister or solicitor to act on his or her behalf, forthwith take the matter up, or arrange for that agent, barrister, or solicitor, as the case may be, to take up the matter on his or her behalf, with the employer or the representative of the employer.
4: Where the person notified under subsection (3)﻿(a) considers that there is some substance in the parental leave complaint, that person shall forthwith take the matter up with the employer or the representative of the employer.
5: If the matter is not disposed of in discussion with the employer or the representative of the employer, the complaint shall be reduced to writing in a statement setting out all the facts relied on. The statement shall establish the nature of the employee's complaint, and of the issues, for all subsequent consideration of the case. 1980 No 162 s 35
58: Power to refer complaint to Employment Relations Authority
1: Where a parental leave complaint is not disposed of between the parties, it may be referred to the Employment Relations Authority.
2: The Employment Relations Authority must, subject to any decision to provide mediation services, proceed to hear and determine the complaint and, in doing so, must consider—
a: the written statement of the complaint required by section 57(5)
b: any evidence or submissions given by or on behalf of the parties; and
c: such other matters as the Employment Relations Authority thinks fit. Section 58 substituted 2 October 2000 section 240 Employment Relations Act 2000
59: Role of institutions
Where any parental leave complaint comes before the Employment Relations Authority, sections 177 to 184 sections 214 215 Section 59 substituted 2 October 2000 section 240 Employment Relations Act 2000
60: Decisions
Section 60 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
61: Appeals to Labour Court in respect of decision of complaint committee
Section 61 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
62: Appeals to Court of Appeal on question of law
Section 62 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
63: Court of Appeal may refer appeals back for reconsideration
Section 63 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
64: Duty to promote settlement
It shall be the duty of every party to a parental leave complaint—
a: to promote the settlement of the complaint under the procedures provided in sections 57 to 67
b: to abstain from any action that might impede the effective functioning of the procedures. 1980 No 162 s 41
65: Remedies
In the case of any alleged breach of any of the provisions of this Act, any decision made for the purposes of this Act
a: the reinstatement of the employee in the employee's former position or in a position not less advantageous to the employee:
b: the reimbursement to the employee of a sum equal to the whole or any part of any wages lost by the employee:
c: the payment to the employee of compensation by the employer. 1980 No 162 s 42 Section 65 amended 1 July 2002 section 16 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
66: Reinstatement
Where the remedy of reinstatement is provided by the Employment Relations Authority or the Employment Court, the employee must be reinstated immediately or on such date as is specified by the Employment Relations Authority or the Employment Court and, despite any appeal against the determination of the Employment Relations Authority or the Employment Court, the provisions for reinstatement remain in full force pending the determination of the appeal. Section 66 substituted 2 October 2000 section 240 Employment Relations Act 2000
67: Power to refer complaint to Labour Court
Section 67 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
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, 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.
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 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. Section 68 substituted 1 July 2002 section 17 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 68(3) substituted 1 July 2006 section 18(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 68(6) substituted 1 July 2006 section 18(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
69: Penalties
Section 69 repealed 15 May 1991 Parental Leave and Employment Protection Amendment Act 1991
70: Enforcement of judgments
1: A certificate under the hand of the Registrar of the court, specifying the amount payable under any order for the payment of money made under this Act by the court, and the persons by whom and to whom it is payable, may be filed in the District Court the District Court
2: No proceedings shall be taken under the Imprisonment for Debt Limitation Act 1908 1980 No 162 s 46 Section 70(1) amended 1 March 2017 section 261 District Court Act 2016 Role of Labour Inspectors in relation to employees Heading inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Heading amended 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
70A: Labour Inspectors may make determinations in respect of employees
1: A Labour Inspector may—
a: determine, if the employee and employer fail to agree, whether an employee will have been employed by (or 6-month section 72A
ab: determine, at the request of the department, whether an employee meets the parental leave payment threshold test; or
b: determine, at the request of the department or if the employee and employer fail to agree, an employee’s ordinary pay or average weekly income from work for the purpose of section 71M(1)
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. Section 70A inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 70A heading substituted 1 July 2006 section 19(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 70A(1)﻿(a) amended 1 April 2016 section 46(1) Parental Leave and Employment Protection Amendment Act 2016 Section 70A(1)﻿(a) amended 1 April 2016 section 46(2) Parental Leave and Employment Protection Amendment Act 2016 Section 70A(1)﻿(a) amended 1 December 2004 section 17 Parental Leave and Employment Protection Amendment Act 2004 Section 70A(1)﻿(ab) inserted 1 April 2016 section 46(3) Parental Leave and Employment Protection Amendment Act 2016 Section 70A(1)﻿(b) replaced 1 April 2016 section 46(4) Parental Leave and Employment Protection Amendment Act 2016
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), is satisfied that the employee is entitled to take parental leave; and
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) Section 70B inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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); or
b: if any objection lodged before the close of the period specified in subsection (2) is withdrawn (whether before or after the close of that period). 2000 No 24 s 225(1)–(3) Section 70C inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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 2000 No 24 s 225(4) Section 70D inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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) Section 70E inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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 Section 70F inserted 1 July 2002 section 18 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Role of Labour Inspectors in relation to self-employed persons Heading inserted 1 July 2006 section 20 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
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 meets the parental leave payment threshold test; 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. Section 70G inserted 1 July 2006 section 20 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 70G(1)﻿(a) replaced 1 April 2016 section 47 Parental Leave and Employment Protection Amendment Act 2016 State employees Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
71: Procedures available to State employees
Nothing in this Act shall limit the procedures by which State employees may enforce their conditions of employment and those procedures may be used, where appropriate, to enforce the rights conferred on State employees by this Act. 1980 No 162 s 47
7A: Payment for parental leave
Part 7A inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Preliminary provisions Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71A: Purpose
The purpose of this Part is to entitle certain persons who become the primary carer in respect of a child, and who stop working or take a period of leave, to—
a: up to 26 weeks
b: additional preterm baby payments out of public money if the child is born before the end of the 36th week of gestation. Section 71A replaced 1 April 2016 section 48 Parental Leave and Employment Protection Amendment Act 2016 Section 71A(a) amended 1 July 2020 section 22 Parental Leave and Employment Protection Amendment Act 2017
71AB: Application to members of Armed Forces
1: Except as provided in subsection (3), this Part applies to a member of the Armed Forces, in New Zealand or otherwise, as if the member were an employee in the employment of the Chief of Defence Force.
2: In this Part,—
a: references to an employee must be read as including a member of the Armed Forces; and
b: references to an employer must be read as including, for the purposes of members of the Armed Forces, the Chief of Defence Force; and
c: references to an employment agreement must be read as including, for the purposes of members of the Armed Forces, conditions of service set by the Chief of Defence Force in accordance with the Defence Act 1990
3: Despite subsection (1), sections 71P 71T Section 71AB inserted 1 April 2016 section 49 Parental Leave and Employment Protection Amendment Act 2016
71B: Overview
1: Section 71A payment
2: Sections 71C to 71CD
3: Section 71D
3A: Sections 71DA 71DB
4: Sections 71E 71EA eligible section 71D
5: Sections 71F to 71H
6: Sections 71I 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. Section 71B substituted 1 July 2006 section 21 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71B(1) amended 1 April 2016 section 50(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71B(3) replaced 1 April 2016 section 50(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71B(3A) inserted 1 April 2016 section 50(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71B(4) amended 1 April 2016 section 50(3) Parental Leave and Employment Protection Amendment Act 2016 Section 71B(4) amended 1 April 2016 section 50(4) Parental Leave and Employment Protection Amendment Act 2016 Interpretation Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
71C: Interpretation of this Part
In this Part, unless the context otherwise requires,— eligible employee section 71CA eligible self-employed person section 71CB employee’s average weekly income from work section 71CAA net income section YA 1 non-statutory parental leave ordinary weekly pay that in combination mean the employee is entitled to receive parental leave payments section 8 parental leave self-employed person’s average weekly income from work section 71CBA Section 71C inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71C eligible employee substituted 1 July 2006 section 22(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71C eligible self-employed person inserted 1 July 2006 section 22(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71C employee’s average weekly earnings repealed 1 April 2016 section 51(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71C employee’s average weekly income from work inserted 1 April 2016 section 51(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71C net income inserted 1 July 2006 section 22(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71C net income amended 1 April 2008 section ZA 2(1) Income Tax Act 2007 Section 71C ordinary weekly pay inserted 1 July 2006 section 22(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71C ordinary weekly pay amended 1 April 2016 section 51(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71C parental leave substituted 1 July 2006 section 22(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71C self-employed person’s average weekly earnings repealed 1 April 2016 section 51(3) Parental Leave and Employment Protection Amendment Act 2016 Section 71C self-employed person’s average weekly income from work inserted 1 April 2016 section 51(3) Parental Leave and Employment Protection Amendment Act 2016
71CA: Definition of eligible employee
1: In this Part, eligible employee
a: is the primary carer in respect of a child; and
b: meets the parental leave payment threshold test.
2: Rights and benefits to non-statutory parental leave (and section 4 Section 71CA inserted 1 July 2006 section 23 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71CA(1) replaced 1 April 2016 section 52 Parental Leave and Employment Protection Amendment Act 2016
71CAA: Calculation of employee’s average weekly income from work
1: An employee’s average weekly income from work must be determined by—
a: calculating the sum of the employee’s gross weekly earnings, from all employments, for the 26 weeks out of the relevant 52-week period in respect of which the highest amounts were earned by the employee (whether or not those weeks were consecutive); and
b: dividing the amount calculated in accordance with paragraph (a) by 26.
2: In subsection (1), relevant 52-week period
a: the expected date of delivery of the child (in the case of a child to be born to the employee or to the employee’s spouse or partner); or
b: the first date on which either the employee or the employee’s spouse or partner becomes the primary carer in respect of the child (in any other case). Section 71CAA inserted 1 April 2016 section 53 Parental Leave and Employment Protection Amendment Act 2016
71CB: Definition of eligible self-employed person
1: In this Part, eligible self-employed person
a: is the primary carer in respect of a child; and
b: meets the parental leave payment threshold test.
2: For the purposes of subsection (1) and section 71E(2)
a: entitled to a payment of weekly compensation under the Accident 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: Section 71CB inserted 1 July 2006 section 23 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71CB(1) replaced 1 April 2016 section 54(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71CB(2) amended 1 April 2016 section 54(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71CB(2)﻿(a) amended 3 March 2010 section 5(1)﻿(b) Accident Compensation Amendment Act 2010 Section 71CB(3) repealed 1 April 2016 section 54(3) Parental Leave and Employment Protection Amendment Act 2016
71CBA: Calculation of self-employed person’s average weekly income from work
1: An eligible self-employed person must elect whether to determine their average weekly income from work over a 12-month period or over a 6-month period.
2: An eligible self-employed person’s average weekly income from work over a 12-month period is one fifty-second of that person’s net income from self-employment over the 12 months immediately preceding—
a: the expected date of delivery of the child (in the case of a child to be born to the self-employed person or to the self-employed person’s spouse or partner); or
b: the first date on which either the self-employed person or the self-employed person’s spouse or partner becomes the primary carer in respect of the child (in any other case).
3: An eligible self-employed person’s average weekly income from work over a 6-month period is one twenty-sixth of that person’s net income from self-employment over the 6 months immediately preceding—
a: the expected date of delivery of the child (in the case of a child to be born to the self-employed person or to the self-employed person’s spouse or partner); or
b: the first date on which either the self-employed person or the self-employed person’s spouse or partner becomes the primary carer in respect of the child (in any other case).
4: The divisor of 52 in subsection (2) and the divisor of 26 in subsection (3) must be reduced by the number of complete weeks during which the eligible self-employed person was not working in a circumstance described in section 71CB(2) Section 71CBA inserted 1 April 2016 section 55 Parental Leave and Employment Protection Amendment Act 2016
71CC: Multiple self-employment
Section 71CC repealed 1 April 2016 section 56 Parental Leave and Employment Protection Amendment Act 2016
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. Section 71CD inserted 1 July 2006 section 23 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Keeping-in-touch days Heading inserted 1 April 2016 section 57 Parental Leave and Employment Protection Amendment Act 2016
71CE: Keeping-in-touch days
1: An employee is not to be treated as having returned to work because he or she performs 64 hours
2: An employee may perform 1 or more hours of paid work for his or her employer on a keeping-in-touch day if—
a: both the employee and the employer consent to the employee performing work for the employer on that day; and
b: the day is not within 28 days after the date on which the child in respect of whom the employee took parental leave was born.
3: An employee is treated as having returned to work, and all parental leave payments received by the employee in respect of a period after the date on which the employee is treated as having returned to work are recoverable under section 71X
a: performs paid work for his or her employer within 28 days after the date of birth of the child; or
b: performs more than a total of 64 hours paid
4: Subsections (2)﻿(b) and (3)﻿(a) do not apply to an employee if the parental leave payment the employee receives is in respect of a child born before the end of the 36th week of gestation. Section 71CE inserted 1 April 2016 section 57 Parental Leave and Employment Protection Amendment Act 2016 Section 71CE(1) amended 1 July 2020 section 23 Parental Leave and Employment Protection Amendment Act 2017 Section 71CE(3)﻿(b) amended 1 July 2020 section 23 Parental Leave and Employment Protection Amendment Act 2017 Section 71CE(3)﻿(b) amended 1 June 2017 section 8 Regulatory Systems (Workplace Relations) Amendment Act 2017 Entitlement to parental leave payment Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71D: Entitlement to parental leave payments
1: A person is entitled to a parental leave payment under this Part, if—
a: the person is—
i: an eligible employee or an eligible self-employed person; or
ii: a person to whom all or part of an entitlement to a parental leave payment is transferred under section 71E
iii: a person who succeeds to all or part of an entitlement to a parental leave payment under section 72B
b: during the period in relation to which the person receives parental leave payments, the person—
i: is not employed or self-employed; or
ii: takes parental leave from their employment or self-employment.
2: Despite subsection (1), a person who becomes the primary carer in respect of a child who is under the age of 6 years is not entitled to parental leave payments in respect of that child if—
a: the person has previously received parental leave payments in respect of that child; or
b: the person’s spouse or partner has previously received parental leave payments in respect of that child (unless the person’s entitlement arises from a transfer under section 71E section 72B
2A: Subsection (2) does not apply to a person who is a primary carer under section 7(1)﻿(b)﻿(iii)
3: This section is subject to sections 71F to 71IA Section 71D replaced 1 April 2016 section 58 Parental Leave and Employment Protection Amendment Act 2016 Section 71D(2A) inserted 13 January 2020 section 20 Regulatory Systems (Workforce) Amendment Act 2019 Entitlement to preterm baby payments Heading inserted 1 April 2016 section 58 Parental Leave and Employment Protection Amendment Act 2016
71DA: Entitlement to preterm baby payment
1: A person is entitled to a preterm baby payment under this section if—
a: the person is entitled to a parental leave payment under section 71D
b: that child is born alive before the end of the 36th week of gestation.
2: A preterm baby payment is payable for 1 continuous period that corresponds to the number of weeks, up to a maximum of 13, between—
a: the date of birth of the child; and
b: the date on which the 36th week of gestation would have ended had the child not been born prematurely.
3: A preterm baby payment in respect of a child is payable for a period that begins,—
a: in the case of a child born to the person or to the person’s spouse or partner, on the date of the child’s birth; or
b: in the case of any other person who becomes the primary carer in respect of the child, on the date on which that person becomes the primary carer in respect of the child.
4: A preterm baby payment in respect of a child is payable for a period that ends on the earliest of—
a: the date on which the 36th week of gestation would have ended had the child not been born prematurely; and
b: the date on which the person returns to work as an employee or a self-employed person; and
c: the date on which the person ceases to be the primary carer in respect of the child.
5: If a person who is receiving a parental leave payment in respect of a child becomes entitled to a preterm baby payment in respect of that child,—
a: the person’s parental leave payment must be suspended for the period in relation to which a preterm baby payment is made to the person; and
b: the requirement in section 71J(1)
c: any week in relation to which a preterm baby payment is made must not be counted when determining the date on which the parental leave payment ends under section 71L(1)﻿(a)
5A: A person may return to work as an employee or a self-employed person after becoming entitled to a preterm baby payment, in which case—
a: either,—
i: if the person receives a preterm baby payment, the preterm baby payment period ends on the date on which the person returns to work; or
ii: if the person does not receive a preterm baby payment, the person’s parental leave payment period is suspended on the date on which the person returns to work; and
b: the person’s parental leave payment period resumes on the date on which the person resumes parental leave (which must be no later than the original expected date of delivery, had the child not been born prematurely).
6: Subsection (4)﻿(c) does not apply to the biological mother of a preterm baby.
7: Sections 71E 71G to 71IA 71M to 71S 71U to 71ZB 72B Section 71DA replaced 1 April 2016 section 58 Parental Leave and Employment Protection Amendment Act 2016 Section 71DA(5A) inserted 1 June 2017 section 9 Regulatory Systems (Workplace Relations) Amendment Act 2017
71DB: Additional keeping-in-touch hours for primary carers who receive preterm baby payments
1: An employee who receives a preterm baby payment may, during the period in relation to which the employee receives that payment (the payment period
a: the employee may work up to a total of 3 hours multiplied by the number of weeks in the payment period (the permitted number of hours
b: the employee may work on any day in the payment period, if both the employee and the employer consent to the employee working on that day.
2: The permitted number of hours of paid work under this section is in addition to the number of hours of paid work permitted under section 71CE(1)
3: An employee is not to be treated as having returned to work because the employee performs up to the permitted number of hours of paid work for the employer.
4: If an employee performs more than the permitted number of hours of paid work for the employer during the payment period:
a: the employee is treated as having returned to work on the day after the date on which the permitted number of hours is exceeded; and
b: all preterm baby payments received by the employee in respect of a period after the date on which the permitted number of hours is exceeded are recoverable under section 71X
c: the employee’s entitlement to a parental leave payment under this Part is not affected. Section 71DB inserted 1 April 2016 section 58 Parental Leave and Employment Protection Amendment Act 2016 Transfer of entitlement to spouse or partner Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Heading amended 26 April 2005 section 8 Parental Leave and Employment Protection Amendment Act 2005
71E: Entitlement may be transferred to spouse or partner
1: An eligible employee or an eligible self-employed person (the transferor
2: This subsection applies if the spouse or partner is a person who—
a: has or intends to have primary responsibility for the day-to-day care of the child; and
b: meets the parental leave payment threshold test; and
c: stops working as an employee or a self-employed person, including by taking a period of parental leave, for the period in relation to which the entitlements are transferred. Section 71E replaced 1 April 2016 section 59 Parental Leave and Employment Protection Amendment Act 2016
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. Section 71EA inserted 1 July 2006 section 26 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Restrictions on parental leave payments Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71F: Subsequent parental leave payments
A person is not entitled to a parental leave payment in respect of a child if—
a: fewer than 6 months have elapsed after the end of the period for which the person received a parental leave payment for another child; or
b: section 71D(2) Section 71F replaced 1 April 2016 section 60 Parental Leave and Employment Protection Amendment Act 2016
71G: Parental tax credit
1: The purpose of this section is to ensure that a person Income Tax Act 2007
2: A person loses his or her entitlement to a parental leave payment under this Part if the person or his or her spouse or partner has received, or both the person and his or her spouse or partner have received, any payment of parental tax credit in respect of the child. Section 71G inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71G(1) amended 1 April 2016 section 61(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71G(1) amended 1 April 2008 section ZA 1(1) Income Tax Act 2007 Section 71G(1) amended 1 July 2006 section 28(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71G(2) replaced 1 April 2016 section 61(2) Parental Leave and Employment Protection Amendment Act 2016
71H: Joint adoptions
Section 71H repealed 1 April 2016 section 62 Parental Leave and Employment Protection Amendment Act 2016 Applications for parental leave payment Heading inserted 1 July 2006 section 46 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
71I: Applications for payment
1: A person is not entitled to a parental leave payment unless he or she makes an application for payment in accordance with this section.
2: The application must—
a: be made by the employee or self-employed person before the earliest of the following:
i: the date on which the person returns to work:
ii: the date on which the child attains the age of 12 months (in the case of a child born to the person or to the person’s spouse or partner):
iii: the date that is the first anniversary of the first date on which either the person or the person’s spouse or partner became the primary carer in respect of the child (in any other case).
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 person section 71E
2A: In the case of an employee or a self-employed person who is a primary carer under section 7(1)﻿(b)﻿(iii)
a: the date on which the person returns to work; or
b: the date that is the first anniversary of the date on which the person became the primary carer in respect of the child.
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.
4: This section is subject to section 71IA Section 71I inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71I(1) replaced 1 April 2016 section 63(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71I(2)﻿(a) replaced 1 April 2016 section 63(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71I(2)﻿(d) amended 1 April 2016 section 63(3) Parental Leave and Employment Protection Amendment Act 2016 Section 71I(2)﻿(d) amended 1 July 2006 section 30(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71I(2A) inserted 13 January 2020 section 21 Regulatory Systems (Workforce) Amendment Act 2019 Section 71I(4) added 1 July 2006 section 30(3) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
71IA: Discretion to approve irregular applications
1: The department may approve the making of a parental leave payment to a person
2: In deciding whether to approve the making of a parental leave payment under subsection (1), the department must have regard to—
a: the extent of the irregularity (including whether the extent of the irregularity was reasonable in all of the circumstances); and
b: whether the
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 person section 71E
e: otherwise applying irregularly in matter of form. Section 71IA inserted 1 July 2006 section 31 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71IA(1) amended 1 April 2016 section 64(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71IA(2)﻿(b) amended 1 April 2016 section 64(2) Parental Leave and Employment Protection Amendment Act 2016 Section 71IA(5)﻿(d) amended 1 April 2016 section 64(3) Parental Leave and Employment Protection Amendment Act 2016 Duration of parental leave payment Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71J: Duration of parental leave payment
1: A parental leave payment is payable—
a: for 1 continuous period not exceeding 26 weeks
b: if part of the entitlement is transferred under section 71E person 26 weeks
2: This section is subject to section 71DA(5)﻿(b) Section 71J inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71J(1)﻿(a) amended 1 July 2020 section 24 Parental Leave and Employment Protection Amendment Act 2017 Section 71J(1)﻿(b) amended 1 July 2020 section 24 Parental Leave and Employment Protection Amendment Act 2017 Section 71J(1)﻿(b) amended 1 April 2016 section 65(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71J(1)﻿(b) amended 1 July 2006 section 32 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71J(2) inserted 1 April 2016 section 65(2) Parental Leave and Employment Protection Amendment Act 2016
71K: Start of parental leave payment
1: A parental leave payment in respect of a child is payable for a period that begins—
a: in the case of a child born to the person or to the person’s spouse or partner, on the earlier of—
i: the date the person commences parental leave; and
ii: the date of confinement; and
b: in any other case, on the date on which the person becomes the primary carer in respect of the child.
2: Despite subsection (1),—
a: an employee who takes a period of paid leave at the start of his or her parental leave period may elect to start his or her parental leave payment period on the day after the date on which that period of paid leave ends:
b: if a person becomes entitled to a preterm baby payment under section 71DA(1)
3: If this subsection applies, the period in relation to which a parental leave payment is payable to the person in respect of the child does not begin until the earlier of—
a: the date the person commences parental leave; and
b: the original expected date of delivery, had the child not been born prematurely.
4: Despite subsections (1) to (3), in the case of a person who is a primary carer under section 7(1)﻿(b)﻿(iii)
a: if the person is an employee who takes a period of paid leave at the start of his or her parental leave period, on the day after the date on which that period of paid leave ends, if the person so elects; and
b: otherwise, on the date that the person designates, which must be on, or within a reasonable period after, the date on which the person becomes the primary carer in respect of the child. Section 71K replaced 1 April 2016 section 66 Parental Leave and Employment Protection Amendment Act 2016 Section 71K(2) replaced 1 June 2017 section 10 Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71K(3) inserted 1 June 2017 section 10 Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71K(4) inserted 13 January 2020 section 22 Regulatory Systems (Workforce) Amendment Act 2019
71L: End of parental leave payment
1: A parental leave payment is payable to a person in respect of a child for a period that ends on the earlier of—
a: 26 weeks section 71K
b: the date on which the person returns to work as an employee or a self-employed person; or
c: the date on which the person ceases to be the primary carer in respect of the child.
2: Subsection (1)﻿(c) does not apply, and parental leave payments continue to be payable until the earlier of the dates specified in subsection (1)﻿(a) and (b)
a: she has a miscarriage or ceases to be the primary carer in respect of the child; or
b: the child dies.
3: This section is subject to section 71EA section 71DA(5)﻿(c) Section 71L replaced 1 April 2016 section 67 Parental Leave and Employment Protection Amendment Act 2016 Section 71L(1)﻿(a) amended 1 July 2020 section 25 Parental Leave and Employment Protection Amendment Act 2017 Section 71L(2) amended 1 June 2017 section 11 Regulatory Systems (Workplace Relations) Amendment Act 2017
71LA: End of parental leave payment for self-employed persons
Section 71LA repealed 1 April 2016 section 68 Parental Leave and Employment Protection Amendment Act 2016 Amount of parental leave payment Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71M: Amount of parental leave payment
1: The rate of parental leave payment payable to any eligible
a: $712.17 section 71N(1) section 71O ; and
b: the greater of—
i: 100% of the employee's ordinary weekly pay payments ; and
ii: 100% of the employee's average weekly income from work
1A: The rate of parental leave payment payable to any eligible
a: $712.17 section 71N(1) section 71O
b: the greater of—
i: 100% of the self-employed person's average weekly income from work
ii: the minimum amount of parental leave payment for a self-employed person set under section 71N(4)
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 $712.17 section 71N(1) section 71O
2: Section 71M inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71M(1) amended 1 April 2016 section 69(1) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1)﻿(a) $712.17 is the adjusted amount for the purposes of section 71M(1)﻿(a) 1 July 2023 section 71N(5) Ministry of Business, Innovation, and Employment Section 71M(1)﻿(a) amended 1 April 2016 section 69(3) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1)﻿(a) amended 1 July 2006 section 36(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71M(1)﻿(b)﻿(i) amended 1 April 2016 section 69(4) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1)﻿(b)﻿(i) amended 1 July 2006 section 36(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71M(1)﻿(b)﻿(i) amended 1 April 2004 section 91(2) Holidays Act 2003 Section 71M(1)﻿(b)﻿(ii) amended 1 April 2016 section 69(5) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1A) inserted 1 July 2006 section 36(3) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71M(1A) amended 1 April 2016 section 69(7) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1A)﻿(a) $712.17 is the adjusted amount for the purposes of section 71M(1A)﻿(a) 1 July 2023 section 71N(5) Ministry of Business, Innovation, and Employment Section 71M(1A)﻿(a) amended 1 April 2016 section 69(8) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1A)﻿(b)﻿(i) amended 1 April 2016 section 69(9) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1A)﻿(b)﻿(ii) amended 1 April 2016 section 69(10) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(1B) inserted 1 July 2006 section 36(3) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71M(1B) $712.17 is the adjusted amount for the purposes of section 71M(1B) 1 July 2023 section 71N(5) Ministry of Business, Innovation, and Employment Section 71M(1B) amended 1 April 2016 section 69(12) Parental Leave and Employment Protection Amendment Act 2016 Section 71M(2) repealed 1 July 2006 section 36(4) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
71N: Annual adjustment of parental leave payment rates
1: The rates of parental leave payment that apply to eligible employees under section 71M(1)﻿(a) section 71M(1A)﻿(a) and persons who are eligible for a parental leave payment as an employee and as a self-employed person under section 71M(1B)
2: The adjustment required by subsection (1) is calculated
a: the percentage movement is
b: if, in that 12-month period, there is a downward percentage movement in average ordinary time weekly earnings (employees), as published in that survey,—
i: no adjustment takes effect under subsection (1) on the following 1 July; and
ii: an adjustment on any succeeding 1 July is
c: any correction to the Quarterly Employment Survey that is published after 15 May in the current year must be disregarded until the adjustment that takes effect on 1 July in the following year.
3: In subsection (2), Quarterly Employment Survey
4: The minimum rate of parental leave payment that applies to self-employed persons under section 71M(1A)﻿(b)﻿(ii) is adjusted, by this section, as at 1 July each year, as Minimum Wage Act 1983
5: The Minister must, as soon as practicable after 1 July each year,—
a: publish the adjusted rates for employees and self-employed persons on an Internet site maintained by or on behalf of the department; and
b: advise the Chief Parliamentary Counsel of those rates. Section 71N replaced 1 April 2016 section 70 Parental Leave and Employment Protection Amendment Act 2016 Section 71N(1) amended 1 June 2017 section 12(1) Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71N(2) amended 1 June 2017 section 12(2) Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71N(2)﻿(a) amended 1 June 2017 section 12(3) Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71N(2)﻿(b)﻿(ii) amended 1 June 2017 section 12(4) Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71N(4) amended 1 June 2017 section 12(5) Regulatory Systems (Workplace Relations) Amendment Act 2017 Section 71N(5) replaced 1 June 2017 section 12(6) Regulatory Systems (Workplace Relations) Amendment Act 2017
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) and section 71M(1A)﻿(a)
2: The Minister, in making the recommendation, may base his or her decision on any factors that he or she thinks fit.
3: An order under this section—
a: is secondary legislation ( see Part 3
b: must be confirmed by an Act ( see subpart 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 71O inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71O(1) amended 1 July 2006 section 38 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71O(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
71OA: Annual adjustment of minimum rates of parental leave payment for self-employed persons
Section 71OA repealed 1 April 2016 section 71 Parental Leave and Employment Protection Amendment Act 2016
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 an employee
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 Section 71P inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71P(1) amended 1 April 2016 section 72 Parental Leave and Employment Protection Amendment Act 2016 Administration Heading inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71Q: Payments must come out of public money
There must, from time to time, be paid out of a Crown Bank Account 1964 No 136 s 124 Section 71Q inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71Q amended 25 January 2005 section 65R(3) Public Finance Act 1989
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 2007 Section 71R inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71R(3) amended 1 April 2008 section ZA 1(1) Income Tax Act 2007
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. Section 71S inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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. Section 71T inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
71U: Obligation to notify early return to work, etc
1: A person must give notice to the department if, during the period for which the person is receiving a parental leave payment under this Part, the person returns to work as an employee or as a self-employed person.
1A:
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. Section 71U inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71U(1) replaced 1 April 2016 section 73 Parental Leave and Employment Protection Amendment Act 2016 Section 71U(1A) repealed 1 April 2016 section 73 Parental Leave and Employment Protection Amendment Act 2016
71V: Non-return to work does not affect payment
Section 71V repealed 1 April 2016 section 74 Parental Leave and Employment Protection Amendment Act 2016
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.
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: The employee , employer, or self-employed person Section 71W inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71W(1A) inserted 1 July 2006 section 41(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71W(2) amended 1 July 2006 section 41(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
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 Section 71X inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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 Section 71Y inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002
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 (including failing to provide information requested under section 71W
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 $15,000
4: A charging document in respect of an offence against this section may be filed
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. 2001 No 49 s 308 Section 71Z inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71Z(1)﻿(b) amended 1 July 2006 section 42(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71Z(3) amended 1 April 2016 section 75 Parental Leave and Employment Protection Amendment Act 2016 Section 71Z(3) amended 1 July 2013 section 413 Criminal Procedure Act 2011 Section 71Z(4) added 1 July 2006 section 42(2) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71Z(4) amended 1 July 2013 section 413 Criminal Procedure Act 2011
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: Clauses 2 3
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. Section 71ZA inserted 1 July 2002 section 4(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 71ZA(3) amended 7 August 2020 section 135 Public Service Act 2020 Section 71ZA(3) amended 25 January 2005 section 19(1) State Sector Amendment Act (No 2) 2004
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) that is notified to the Section 71ZB inserted 1 July 2006 section 43 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 71ZB(4) amended 1 April 2016 section 76 Parental Leave and Employment Protection Amendment Act 2016
8: Miscellaneous provisions
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:
2: Section 72 substituted 1 July 2002 section 19(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 72(1)﻿(b) repealed 1 April 2004 section 91(2) Holidays Act 2003 Section 72(2) repealed 1 April 2004 section 91(2) Holidays Act 2003
72A: Eligibility criteria based on average hours of work and allowing for periods of authorised leave
1:
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 Accident Compensation Act 2001
d: on volunteers leave (within the meaning of the Volunteers Employment Protection Act 1973
e: a pregnant employee who is on primary carer leave 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 Section 72A inserted 1 July 2002 section 20 Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 72A(1) repealed 1 April 2016 section 77(1) Parental Leave and Employment Protection Amendment Act 2016 Section 72A(2)﻿(c) amended 3 March 2010 section 5(1)﻿(b) Accident Compensation Amendment Act 2010 Section 72A(2)﻿(d) substituted 1 April 2004 section 15 Volunteers Employment Protection Amendment Act 2004 Section 72A(2)﻿(e) amended 1 April 2016 section 77(2) Parental Leave and Employment Protection Amendment Act 2016
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 person who has permanent primary responsibility for the care, development, and upbringing 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 person who has permanent primary responsibility for the care, development, and upbringing of the child, to the exclusion of the self-employed person.
3: The spouse or partner (the successor
a: meets the criteria for parental leave under any of section 8 17 23
b: gives reasonable notice to his or her employer of his or her wish to succeed under this section.
3A: The spouse or partner (the successor
a: meets the parental leave payment threshold test; and
b: stops working as an employee or a self-employed person, including by taking a period of parental leave, for the period in relation to which the parental leave payments are made; and
c: gives reasonable notice to the department of his or her wish to succeed to a parental leave payment under this section.
4: A succession under this section is treated, for the purpose of Part 7A section 71E
5: Subsections (1) and (2) are subject to subsections (3) and (3A).
6: This section applies to a member of the Armed Forces as if the member of the Armed Forces were an employee of the Chief of Defence Force, except that a member of the Armed Forces may not succeed to the member’s spouse’s or partner’s entitlement to parental leave. Section 72B inserted 1 July 2006 section 44 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 72B(1)﻿(b) replaced 1 April 2016 section 78(1) Parental Leave and Employment Protection Amendment Act 2016 Section 72B(2)﻿(b) replaced 1 April 2016 section 78(2) Parental Leave and Employment Protection Amendment Act 2016 Section 72B(3) replaced 1 April 2016 section 78(3) Parental Leave and Employment Protection Amendment Act 2016 Section 72B(3A) inserted 1 April 2016 section 78(3) Parental Leave and Employment Protection Amendment Act 2016 Section 72B(5) inserted 1 April 2016 section 78(4) Parental Leave and Employment Protection Amendment Act 2016 Section 72B(6) inserted 1 April 2016 section 78(4) Parental Leave and Employment Protection Amendment Act 2016
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(3A) Section 72C inserted 1 July 2006 section 44 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 72C(2) amended 1 April 2016 section 79 Parental Leave and Employment Protection Amendment Act 2016
72D: Application of Employment Relations Act 2000 in case of self-employed persons
Part 10 Section 72D inserted 1 July 2006 section 44 Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006
73: Regulations
1: The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:
a: prescribing forms for the purposes of this Act:
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 must be given in, or the documents that must be attached to, an application for, or other notice relating to, a parental leave payment:
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:
abb: prescribing the evidence that must be provided to an employer by an employee who requests parental leave in respect of a child to whom the employee, or the employee’s spouse or partner, does not give birth:
abc: prescribing the information that must be given in, or the documents that must be attached to, an application for, or other notice relating to, a preterm baby payment:
ac:
ad: increasing the amount under section 71O
ada:
ae: extending the class or classes of person entitled to a parental leave payment under Part 7A
b: prescribing procedures and practices for the implementation of this Act:
c: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for the due administration thereof.
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:
5:
6: A failure to comply with subsection (3) does not affect the validity of any regulation made under this Act.
7: Regulations under this section—
a: are secondary legislation ( see Part 3
b: if they are made under subsection (1)﻿(ad) or (ae), must be confirmed by an Act ( see subpart 3 1980 No 162 s 48 2011-01-01 Parental Leave and Employment Protection (Rate of Parental Leave Payment) Regulations 2010 Order deemed expired on close of 31 December 2010 unless confirmed during 2010. The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)﻿(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)﻿(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 73(1)﻿(aa) inserted 31 March 2002 section 5(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(1)﻿(ab) replaced 18 March 2016 section 80(1) Parental Leave and Employment Protection Amendment Act 2016 Section 73(1)﻿(aba) inserted 17 May 2006 section 45(1) Parental Leave and Employment Protection (Paid Parental Leave for Self-Employed Persons) Amendment Act 2006 Section 73(1)﻿(abb) inserted 18 March 2016 section 80(2) Parental Leave and Employment Protection Amendment Act 2016 Section 73(1)﻿(abc) inserted 18 March 2016 section 80(2) Parental Leave and Employment Protection Amendment Act 2016 Section 73(1)﻿(ac) repealed 18 March 2016 section 80(3) Parental Leave and Employment Protection Amendment Act 2016 Section 73(1)﻿(ad) inserted 31 March 2002 section 5(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(1)﻿(ada) repealed 18 March 2016 section 80(3) Parental Leave and Employment Protection Amendment Act 2016 Section 73(1)﻿(ae) inserted 31 March 2002 section 5(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(2) added 31 March 2002 section 5(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(3) added 31 March 2002 section 5(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(4) repealed 1 January 2016 section 14 Legislation (Confirmable Instruments) Amendment Act 2015 Section 73(5) repealed 1 January 2016 section 14 Legislation (Confirmable Instruments) Amendment Act 2015 Section 73(6) added 31 March 2002 section 5(2) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 Section 73(7) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
73A: Regulations are confirmable instruments
Section 73A repealed 28 October 2021 section 3 Secondary Legislation Act 2021
74: Repeal
The Maternity Leave and Employment Protection Act 1980
75: Consequential amendments
Section 75 repealed 1 April 2004 section 91(1) Holidays Act 2003
76: Transitional provisions
1: Notwithstanding any provision to the contrary in this Act, nothing in section 7 section 17 section 23
2: Notwithstanding any provision to the contrary in this Act, nothing in section 8 section 18 section 24
77: Savings provisions
1: Notwithstanding the repeal of the Maternity Leave and Employment Protection Act 1980 section 74
a: the expected date of delivery of whom is on or after 1 October 1987 but before 1 January 1988; or
b: of whom the employee assumes care on or after 1 October 1987 but before 1 January 1988 with a view to adoption by that employee or by that employee and that employee's spouse jointly,— and the female employee shall be entitled to the same rights and benefits as the rights and benefits to which the female employee would have been entitled if the maternity leave had been taken before the repeal of the Maternity Leave and Employment Protection Act 1980
2: The repeal of the Maternity Leave and Employment Protection Act 1980 section 74
a: any rights or entitlements conferred, or any obligations imposed, by that Act on a female employee who—
i: is on maternity leave under that Act on 1 October 1987; or
ii: is absent on 1 October 1987 during a period of preference in obtaining employment in the employment of that employee's employer following any period of maternity leave taken under that Act; or
iii: commences, after 1 October 1987, maternity leave under that Act in accordance with subsection (1):
b: any obligations imposed, or any rights conferred, by that Act on an employer of a female employee referred to in paragraph (a).
3: All matters and proceedings—
a: commenced before the repeal of the Maternity Leave and Employment Protection Act 1980
b: commenced after the repeal of the Maternity Leave and Employment Protection Act 1980
i: the rights, entitlements, or obligations of any female employee to whom subsection (2)﻿(a) relates; or
ii: the obligations or rights of any employer to whom subsection (2)﻿(b) relates,— may be continued and determined in accordance with the provisions of the Maternity Leave and Employment Protection Act 1980