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This is a Bill, not an Act. For current law, see the Acts databases.

PAID PARENTAL LEAVE AND OTHER LEGISLATION AMENDMENT (CONSOLIDATION) BILL 2011

2010-2011
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Paid Parental Leave and Other
Legislation Amendment (Consolidation)
Bill 2011
No. , 2011
(Families, Housing, Community Services and Indigenous Affairs)
A Bill for an Act to amend the Paid Parental Leave
Act 2010 and the Fair Work Act 2009, and for
related purposes
i Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No.
, 2011
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Paid Parental Leave Act 2010
3
Part 1--Amendments commencing at the same time as the
Paid Parental Leave Act 2010
3
Paid Parental Leave Act 2010
3
Part 2--Amendments commencing the day after Royal Assent
5
Paid Parental Leave Act 2010
5
Schedule 2--Fair Work Act 2009
10
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 1
A Bill for an Act to amend the Paid Parental Leave
1
Act 2010 and the Fair Work Act 2009, and for
2
related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act may be cited as the Paid Parental Leave and Other
6
Legislation Amendment (Consolidation) Act 2011.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
13
2 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
Commencement information
Column 1
Column 2
Column 3
Provision(s)
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
At the same time as the Paid Parental Leave
Act 2010 commences.
1 October 2010
3. Schedule 1,
Part 2
The day after this Act receives the Royal
Assent.
4. Schedule 2
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedule(s)
7
Each Act that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
12
Paid Parental Leave Act 2010 Schedule 1
Amendments commencing at the same time as the Paid Parental Leave Act 2010 Part 1
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 3
Schedule 1--Paid Parental Leave Act 2010
1
Part 1--Amendments commencing at the same time
2
as the Paid Parental Leave Act 2010
3
Paid Parental Leave Act 2010
4
1 Section 6 (definition of work test)
5
Omit "section 32", substitute "Division 3 of Part 2-3".
6
2 Section 30
7
Omit "secondary claimant)", substitute "secondary claimant). Special
8
rules apply in the case of premature birth or complications or illness
9
related to the pregnancy".
10
3 Paragraph 31(2)(a)
11
Omit "or subsection (4A) applies to the person".
12
4 Subparagraph 31(4)(a)(i)
13
Omit "or subsection (4A) applies to the person".
14
5 Subsection 31(4A)
15
Repeal the subsection.
16
6 At the end of section 32
17
Add:
18
Note:
A person may also satisfy the work test despite not satisfying the test
19
in step 5, if:
20
(a) the child was born prematurely; or
21
(b) while the person was pregnant with the child, the person had
22
complications or illness related to the pregnancy which prevented
23
the person from performing paid work.
24
See
section
36A.
25
7 At the end of Division 3 of Part 2-3
26
Add:
27
Schedule 1 Paid Parental Leave Act 2010
Part 1 Amendments commencing at the same time as the Paid Parental Leave Act 2010
4 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
36A Premature birth or pregnancy-related complications or illness
1
A person also satisfies the work test on a day if:
2
(a) the person is the birth mother of the child; and
3
(b) the Secretary is satisfied that either or both of the following
4
circumstances existed:
5
(i) the child was born prematurely;
6
(ii) while the person was pregnant with the child, the person
7
had complications or illness related to the pregnancy
8
which prevented the person from performing paid work;
9
and
10
(c) the Secretary is satisfied that the person would have satisfied
11
the work test on the day in accordance with section 32 if that
12
circumstance, or those circumstances, had not existed.
13
8 At the end of section 257
14
Add:
15
(7) A failure to comply with subsection (6) in relation to a decision of
16
the SSAT does not affect the validity of the decision.
17
18
Paid Parental Leave Act 2010 Schedule 1
Amendments commencing the day after Royal Assent Part 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 5
Part 2--Amendments commencing the day after
1
Royal Assent
2
Paid Parental Leave Act 2010
3
9 Section 6
4
Insert:
5
vocational placement means a placement that is:
6
(a) undertaken with an employer for which a person is not
7
entitled to be paid any remuneration; and
8
(b) undertaken as a requirement of an education or training
9
course; and
10
(c) authorised under a law or an administrative arrangement of
11
the Commonwealth, a State or a Territory.
12
10 Paragraph 50(c)
13
Repeal the paragraph, substitute:
14
(c) the day is not within:
15
(i) if the person suggested or requested that he or she
16
perform work for the entity on that day--14 days after
17
the day the child was born; or
18
(ii) otherwise--42 days after the day the child was born.
19
11 At the end of section 50
20
Add:
21
Note 1:
Performance of work on keeping in touch days is also dealt with, for
22
the purposes of unpaid parental leave, in section 79A of the Fair Work
23
Act 2009.
24
Note 2:
The employer will be obliged, under the relevant contract of
25
employment or industrial instrument, to pay the employee for
26
performing work on a keeping in touch day.
27
Note 3:
Section 344 of the Fair Work Act 2009 prohibits the exertion of undue
28
influence or undue pressure on the person in relation to a decision by
29
the person whether to consent to performing work on keeping in touch
30
days: see subsection 79A(3) of that Act.
31
Note 4:
That section, and section 343 of that Act, contain other prohibitions on
32
coercion and undue influence or pressure.
33
12 Paragraph 82(2)(c)
34
Schedule 1 Paid Parental Leave Act 2010
Part 2 Amendments commencing the day after Royal Assent
6 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
Repeal the paragraph, substitute:
1
(c) in the manner set out in a written notice given to the
2
employer under subsection (2B).
3
13 After subsection 82(2)
4
Insert:
5
(2A) The Secretary must approve a manner of notification that an
6
employer must use when notifying the Secretary of an event under
7
this section.
8
(2B) The Secretary must, by written notice, notify the employer of the
9
approved manner of notification.
10
14 Application and transitional provision
11
Application provision
12
(1)
The amendments made by items 12 and 13 of this Schedule apply in
13
relation to notices that must be given to the Secretary under subsection
14
82(1) of the Paid Parental Leave Act 2010 on or after the
15
commencement of this item.
16
Transitional provision
17
(2)
The Secretary is taken to give an employer a written notice under
18
subsection 82(2B) of the Paid Parental Leave Act 2010 setting out a
19
manner of notification if the Secretary:
20
(a) publishes on a PPL agency's website a notice setting out that
21
manner; or
22
(b) notifies the employer of that manner by another means that
23
the Secretary considers appropriate.
24
(3)
Subitem (2) does not apply if the Secretary made the relevant employer
25
determination later than 6 months after the commencement of this item.
26
Delegation
27
(4)
Subsections 303(1) and (2) of that Act (which deal with delegation)
28
apply in relation to this item in the same way as they apply in relation to
29
section 82 of that Act.
30
15 After subsection 105(2)
31
Paid Parental Leave Act 2010 Schedule 1
Amendments commencing the day after Royal Assent Part 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 7
Insert:
1
(2A) The notice given to the employer must also be dated. The date of
2
the notice must be the date the preparation of the notice was
3
completed.
4
16 Subsection 105(3)
5
After "give the notice", insert "to the Secretary".
6
17 Paragraph 131(1)(a)
7
Omit "protected".
8
18 Paragraph 131(1)(b)
9
Omit "Subdivision", substitute "Division".
10
19 At the end of Division 8 of Part 4-3
11
Add:
12
201A Debts arising from civil penalty orders
13
This Part does not apply to a debt arising from a civil penalty
14
order.
15
20 After subparagraph 215(2)(a)(v)
16
Insert:
17
(va)
subsection
82(2A);
18
21 Section 278
19
Before "This Act", insert "(1)".
20
22 At the end of section 278
21
Add:
22
(2) However, for the purposes of working out for the purposes of
23
paragraph 101(1)(c) (which deals with when the Secretary must
24
make an employer determination) whether the person has, or will
25
have, been employed by the Commonwealth agency for at least 12
26
months:
27
(a) treat the reference in that paragraph to the employer as being
28
a reference to the Commonwealth; and
29
Schedule 1 Paid Parental Leave Act 2010
Part 2 Amendments commencing the day after Royal Assent
8 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
(b) disregard subsection (1) of this section.
1
23 Paragraph 280(1)(b)
2
Omit "to the nominee's principal", substitute "by the Secretary to the
3
nominee's principal under Part 3-3".
4
24 Before subsection 303(1)
5
Insert:
6
General powers
7
25 Subparagraph 303(1)(b)(iii)
8
Omit "Commonwealth;", substitute "Commonwealth.".
9
26 Paragraph 303(1)(b)
10
Omit all the words after subparagraph (iii).
11
27 After subsection 303(1)
12
Insert:
13
(1A) Paragraphs (1)(a) and (b) do not apply to the Chief Executive
14
Centrelink, Chief Executive Medicare or an APS employee in the
15
Human Services Department.
16
28 Before subsection 303(3)
17
Insert:
18
Powers under Division 3 or 5 of Part 4-2
19
29 After subsection 303(3)
20
Insert:
21
(3A) If the Secretary delegates any of his or her powers under Division 3
22
or 5 of Part 4-2 to the Chief Executive Centrelink, the Chief
23
Executive Centrelink cannot, despite any provision in the Human
24
Services (Centrelink) Act 1997, delegate the power to a
25
Departmental employee (within the meaning of that Act) who is
26
neither:
27
(a) an SES employee; nor
28
(b) an acting SES employee.
29
Paid Parental Leave Act 2010 Schedule 1
Amendments commencing the day after Royal Assent Part 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 9
(3B) If the Secretary delegates any of his or her powers under Division 3
1
or 5 of Part 4-2 to the Chief Executive Medicare, the Chief
2
Executive Medicare cannot, despite any provision in the Human
3
Services (Medicare) Act 1973, delegate the power to a
4
Departmental employee (within the meaning of that Act) who is
5
neither:
6
(a) an SES employee; nor
7
(b) an acting SES employee.
8
Power under paragraph 128(1)(b)
9
30 Subsection 303(5)
10
Omit "the power mentioned in subsection (4)", substitute "his or her
11
power under paragraph 128(1)(b)".
12
31 Subsection 303(5)
13
Omit "other".
14
32 Subsection 303(5)
15
Omit "the Human Services (Centrelink) Act 1997" (second occurring),
16
substitute "that Act".
17
33 Subsection 303(6)
18
Omit "the power mentioned in subsection (4)", substitute "his or her
19
power under paragraph 128(1)(b)".
20
34 Subsection 303(6)
21
Omit "other".
22
35 Subsection 303(6)
23
Omit "the Human Services (Medicare) Act 1973" (second occurring),
24
substitute "that Act".
25
26
Schedule 2 Fair Work Act 2009
10 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
Schedule 2--Fair Work Act 2009
1
2
1 Section 12
3
Insert:
4
keeping in touch day: see subsections 79A(2) and (3).
5
2 Section 70 (note 1)
6
Repeal the note, substitute:
7
Note 1:
Entitlement is also affected by:
8
(a) section 67 (which deals with length of the employee's service);
9
and
10
(b) for pregnancy and birth--subsection 77A(3) (which applies if the
11
pregnancy ends other than by the child being born alive, or if the
12
child dies after birth); and
13
(c) for adoption--section 68 (which deals with the age etc. of the
14
adopted child).
15
3 Subsection 71(2) (note)
16
Repeal the note, substitute:
17
Note 1:
An employee may take a form of paid leave at the same time as he or
18
she is on unpaid parental leave (see section 79).
19
Note 2:
Periods of unpaid parental leave can include keeping in touch days on
20
which an employee performs work (see section 79A).
21
4 Subsection 71(3)
22
Repeal the subsection, substitute:
23
(3) If the leave is birth-related leave for a female employee who is
24
pregnant with, or gives birth to, the child, the period of leave may
25
start:
26
(a) up to 6 weeks before the expected date of birth of the child;
27
or
28
(b) earlier, if the employer and employee so agree;
29
but must not start later than the date of birth of the child.
30
Note 1:
If the employee is not fit for work, she may be entitled to:
31
(a) paid personal leave under Subdivision A of Division 7; or
32
(b) unpaid special maternity leave under section 80.
33
Note 2:
If it is inadvisable for the employee to continue in her present position,
34
she may be entitled under section 81:
35
Fair Work Act 2009 Schedule 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 11
(a) to be transferred to an appropriate safe job; or
1
(b) to paid no safe job leave.
2
Note 3:
Section 344 prohibits the exertion of undue influence or undue
3
pressure on the employee in relation to a decision by the employee
4
whether to agree as mentioned in paragraph (3)(b) of this section.
5
5 Subsection 72(2) (note)
6
Repeal the note, substitute:
7
Note 1:
An employee may take a form of paid leave at the same time as he or
8
she is on unpaid parental leave (see section 79).
9
Note 2:
Periods of unpaid parental leave can include keeping in touch days on
10
which an employee performs work (see section 79A).
11
6 Subparagraph 72(3)(a)(i)
12
After "may start up to 6 weeks before the expected date of birth of the
13
child,", insert "or earlier if the employer and employee so agree,".
14
7 At the end of subsection 76(1)
15
Add:
16
Note:
Extended periods of unpaid parental leave can include keeping in
17
touch days on which an employee performs work (see section 79A).
18
8 After section 77
19
Insert:
20
77A Pregnancy ends (other than by birth of a living child) or child
21
dies after being born
22
Application of this section
23
(1) This section applies to unpaid parental leave, if:
24
(a) the leave is birth-related leave; and
25
(b)
either:
26
(i) the pregnancy ends other than by the child being born
27
alive; or
28
(ii) the child dies after being born.
29
Cancellation of leave
30
(2) Before the leave starts:
31
Schedule 2 Fair Work Act 2009
12 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
(a) the employee may give the employer written notice
1
cancelling the leave; or
2
(b) the employer may give the employee written notice
3
cancelling the leave.
4
(3) If the employee or employer does so, the employee is not entitled
5
to unpaid parental leave in relation to the child.
6
Example: Subsections (2) and (3) do not apply if:
7
(a) the child dies after being born; and
8
(b) the employee is the female employee who gave birth to the child.
9
This is because in this case the leave must not start later than the date
10
of birth of the child (see subsection 71(3)).
11
Note:
If the employee is the female employee who was pregnant with the
12
child and the employee is not fit for work, she may be entitled to:
13
(a) paid personal leave under Subdivision A of Division 7; or
14
(b) unpaid special maternity leave under section 80.
15
Return to work
16
(4) The employee may give the employer written notice that the
17
employee wishes to return to work:
18
(a) after the start of the period of leave, but before its end; and
19
(b) within 4 weeks after the employer receives the notice.
20
(5)
The
employer:
21
(a) may give the employee written notice requiring the employee
22
to return to work on a specified day; and
23
(b) must do so if the employee gives the employer written notice
24
under subsection (4);
25
unless the leave has not started and the employer cancels it under
26
subsection (2).
27
(6) The specified day must be after the start of the period of leave, and:
28
(a) if subsection (4) applies--within 4 weeks after the employer
29
receives the notice under that subsection; or
30
(b) otherwise--at least 6 weeks after the notice is given to the
31
employee under subsection (5).
32
(7) The employee's entitlement to unpaid parental leave in relation to
33
the child ends immediately before the specified day.
34
Fair Work Act 2009 Schedule 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 13
Interaction with section 77
1
(8) This section does not limit section 77 (which deals with the
2
employee ending the period of unpaid parental leave with the
3
agreement of the employer).
4
9 After subsection 78(1)
5
Insert:
6
(1A) However, this section does not apply if section 77A applies to the
7
unpaid parental leave (because the unpaid parental leave is
8
birth-related leave and either the pregnancy ends other than by the
9
child being born alive or the child dies after being born).
10
10 At the end of Subdivision B of Division 5 of Part 2-2
11
Add:
12
79A Keeping in touch days
13
(1) This Subdivision does not prevent an employee from performing
14
work for his or her employer on a keeping in touch day while he or
15
she is taking unpaid parental leave. If the employee does so, the
16
performance of that work does not break the continuity of the
17
period of unpaid parental leave.
18
(2) A day on which the employee performs work for the employer
19
during the period of leave is a keeping in touch day if:
20
(a) the purpose of performing the work is to enable the employee
21
to keep in touch with his or her employment in order to
22
facilitate a return to that employment after the end of the
23
period of leave; and
24
(b) both the employee and the employer consent to the employee
25
performing work for the employer on that day; and
26
(c) the day is not within:
27
(i) if the employee suggested or requested that he or she
28
perform work for the employer on that day--14 days
29
after the date of birth, or day of placement, of the child
30
to which the period of leave relates; or
31
(ii) otherwise--42 days after the date of birth, or day of
32
placement, of the child; and
33
Schedule 2 Fair Work Act 2009
14 Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011
No. , 2011
(d) the employee has not already performed work for the
1
employer or another entity on 10 days during the period of
2
leave that were keeping in touch days.
3
The duration of the work the employee performs on that day is not
4
relevant for the purposes of this subsection.
5
Note:
The employer will be obliged, under the relevant contract of
6
employment or industrial instrument, to pay the employee for
7
performing work on a keeping in touch day.
8
(3) The employee's decision whether to give the consent mentioned in
9
paragraph (2)(b) is taken, for the purposes of section 344 (which
10
deals with undue influence or pressure), to be a decision to make,
11
or not make, an arrangement under the National Employment
12
Standards.
13
(4) For the purposes of paragraph (2)(d), treat as 2 separate periods of
14
unpaid parental leave:
15
(a) a period of unpaid parental leave taken during the employee's
16
available parental leave period; and
17
(b) a period of unpaid parental leave taken as an extension of the
18
leave referred to in paragraph (a) for a further period
19
immediately following the end of the available parental leave
20
period.
21
Note:
Performance of work on keeping in touch days is also dealt with, for
22
the purposes of parental leave pay, in sections 49 and 50 of the Paid
23
Parental Leave Act 2010.
24
79B Unpaid parental leave not extended by paid leave or keeping in
25
touch days
26
If, during a period of unpaid parental leave, an employee:
27
(a) takes paid leave; or
28
(b) performs work for his or her employer on a keeping in touch
29
day;
30
taking that leave or performing that work does not have the effect
31
of extending the period of unpaid parental leave.
32
11 After section 84
33
Insert:
34
Fair Work Act 2009 Schedule 2
Paid Parental Leave and Other Legislation Amendment (Consolidation) Bill 2011 No. ,
2011 15
84A Replacement employees
1
Before an employer engages an employee to perform the work of
2
another employee who is going to take, or is taking, unpaid
3
parental leave, the employer must notify the replacement
4
employee:
5
(a) that the engagement to perform that work is temporary; and
6
(b) of the rights:
7
(i) the employer; and
8
(ii) the employee taking unpaid personal leave;
9
have under subsections 77A(2) and (3) (which provide a right
10
to cancel the leave if the pregnancy ends other than by the
11
birth of a living child or if the child dies after birth); and
12
(c) of the rights the employee taking unpaid parental leave has
13
under:
14
(i) subsections 77A(4) to (6) (which provide a right to end
15
the leave early if the pregnancy ends other than by the
16
birth of a living child or if the child dies after birth); and
17
(ii) section 84 (which deals with the return to work
18
guarantee); and
19
(d) of the effect of section 78 (which provides the employer with
20
a right to require the employee taking unpaid parental leave
21
to return to work if the employee ceases to have any
22
responsibility for the care of the child).
23
12 Section 344 (note)
24
Repeal the note, substitute:
25
Note 1:
This section is a civil remedy provision (see Part 4-1).
26
Note 2:
This section can apply to decisions whether to consent to performing
27
work on keeping in touch days (see subsection 79A(3)).
28
13 Subsection 536(1) (note)
29
Repeal the note, substitute:
30
Note 1:
This subsection is a civil remedy provision (see Part 4-1).
31
Note 2:
Section 80 of the Paid Parental Leave Act 2010 requires an employer
32
to give information to an employee to whom the employer pays an
33
instalment under that Act.
34

 

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