2002 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 (Senator Stott Despoja) A Bill for an Act to provide paid maternity leave, and for related purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Application ........................................................................................ 1 4 Schedule(s) ........................................................................................ 2 Schedule 1-- Amendment to the Workplace Relations Act 1996 3 Part 1--Paid maternity leave 3 Part 2--Other amendments 16 Schedule 2--Amendment of other Acts 17 A New Tax System (Family Assistance) (Administration) Act 1999 17 i Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 A Bill for an Act to provide paid maternity leave, 18 and for related purposes 19 The Parliament of Australia enacts: 20 1 Short title 21 This Act may be cited as the Workplace Relations Amendment 22 (Paid Maternity Leave) Act 2002. 23 2 Commencement 24 This Act comes into force on the day after the date on which this 25 Act receives the Royal Assent. 26 3 Application 27 This Act applies to an employee who takes parental leave from his 28 or her employment in respect of a child, if: 29 (a) the child is born on or after 1 September 2002; or 30 (b) in the case of an adoption, the date on which the employee, 31 with a view to adoption, first assumes the care of the child is 32 on or after 1 September 2002. 33 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 1 [Page Break] 1 Each Act that is specified in a Schedule to this Act is amended or 2 repealed as set out in the applicable items in the Schedule 3 concerned, and any other item in a Schedule to this Act has effect 4 according to its terms. 5 2 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 1 2 3 4 Schedule 1-- Amendment to the Workplace 5 Relations Act 1996 6 Part 1--Paid maternity leave 7 1 After section 170KC 8 Insert: 9 Division 6--Paid maternity leave 10 170KD Object of Division 11 (1) The object of this Division and Schedule 15 is to give effect, or 12 further effect, to: 13 (a) Article 11.2(b), Convention on the Elimination of All Forms 14 of Discrimination Against Women, 1979; and 15 (b) the Family Responsibilities Convention; and 16 (c) the Workers with Family Responsibilities Recommendation, 17 1981, which the General Conference of the International 18 Labour Organisation adopted on 23 June 1981 and is also 19 known as Recommendation No. 165; 20 by providing for a system of government-funded paid maternity 21 leave that will help employees who take maternity leave from their 22 employment in respect of a child. 23 (2) In particular, Schedule 15 gives effect, or further effect, to the 24 Article, Convention and Recommendation by entitling certain 25 employees up to 14 weeks of maternity payments out of public 26 money when they take maternity leave from their employment in 27 respect of a child. 28 (3) This provision is to be implemented in conjunction with Division 5 29 of this Part and its provision of unpaid parental (defined to include 30 maternity and paternity) leave, so that employees entitled to paid 31 maternity leave receive a maternity payment for 14 weeks of their 32 maternity leave at and around the birth of a child. 33 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 3 [Page Break] Part 1 Paid maternity leave (4) This maternity payment is payable to eligible employees by means 1 of a payment by the Commonwealth to the employers of eligible 2 employees. Employers then make the payment directly to their 3 employees through established payment systems. 4 (5) This maternity payment does not affect or reduce any other 5 entitlement that the employee may have under the terms of any 6 other employment agreement, award or law. 7 (6) However, this maternity payment is not paid to Commonwealth, 8 State or Territory government employees (who receive other 9 government funded payments). It is payable to other employees 10 who meet the eligibility requirements. 11 (7) The maternity payment is for mothers in recognition of the 12 physical demands of the later stages of pregnancy, birth, recovery 13 from birth, and establishment, where possible, of breast feeding. It 14 is not intended as a transferable payment between employee and 15 spouse except in exceptional circumstances. 16 (8) If a person is eligible to receive a maternity payment under this Act 17 and either or both the maternity allowance and the maternity 18 immunisation allowance under the A New Tax System (Family 19 Assistance) (Administration) Act 1999, the person must elect to 20 receive either the payment, or the allowance or allowances, as the 21 case may be. 22 Note: Under the A New Tax System (Family Assistance) (Administration) 23 Act 1999 the maternity allowance was $798.72 in May 2002 and the 24 maternity immunisation allowance was $208 in May 2002. 25 (9) A person is not entitled to a maternity payment if the person claims 26 and is paid either or both the maternity allowance and the 27 maternity immunisation allowance under the A New Tax System 28 (Family Assistance) (Administration) Act 1999. 29 (10) Schedule 15 establishes minimum entitlements and so is intended 30 to supplement, and not to override, entitlements under other 31 Commonwealth, State and Territory legislation, awards and 32 agreements. 33 (11) This maternity payment is to be treated as wage and salary income 34 for the purposes of taxation, superannuation and other relevant 35 laws and agreements. 36 4 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 (12) The regulations may provide for an analogous system of paid 1 adoption leave. 2 170KE Application of Schedule 15 3 The provisions of Schedule 15 have the force of law, in the same 4 way as if they were set out in this Division. 5 2 After Schedule 14 6 Insert: 7 Schedule 15--Paid maternity leave 8 Section 170KD 9 Part 1--Preliminary 10 1 Purpose 11 The purpose of this Part is to entitle certain employees, particularly 12 mothers, to up to 14 weeks of maternity payments out of public 13 money when they take parental leave from their employment in 14 respect of a child. 15 2 Overview 16 (1) Clauses 1 to 3 are preliminary provisions relating to the maternity 17 payment scheme. 18 (2) Clause 4 confers entitlements to maternity payments, primarily on 19 female employees. 20 (3) Clause 5 enables those employees to transfer their entitlements to 21 their spouses in certain circumstances. 22 (4) Clause 6 describes the process of applying for maternity payments. 23 (5) Clauses 7 to 12 relate to the duration, timing and amount of 24 maternity payments. 25 (6) Clauses 13 to 21 relate to the administration of the maternity 26 payment scheme. 27 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 5 [Page Break] Part 1 Paid maternity leave (7) This clause is intended only as a guide to the general scheme and 1 effect of this Schedule. 2 3 Interpretation of this Schedule 3 (1) In this Schedule: 4 continuous service means service (otherwise than as a seasonal 5 employee) under an unbroken contract of employment, and 6 includes a period of leave, or a period of absence, authorised: 7 (a) by the employer; or 8 (b) by an award or order of a court or tribunal that has power to 9 fix wages and other terms and conditions of employment, or 10 a workplace agreement certified by such a body; or 11 (c) by a contract of employment; or 12 (d) by this Schedule or another law of the Commonwealth or of a 13 State or a Territory. 14 long paternity leave means Schedule 14 long paternity leave or any 15 other leave (however described): 16 (a) to which an employee is entitled, or that has been applied for 17 by or granted to an employee, in respect of the birth of a 18 child of his spouse, otherwise than under Schedule 14 (for 19 example, under another law of the Commonwealth or of a 20 State or Territory, or under an award, order or agreement); 21 and 22 (b) that is of a kind analogous to Schedule 14 long paternity 23 leave, or would be of such a kind but for one or more of the 24 following: 25 (i) it is paid leave; 26 (ii) differences in the rules governing eligibility for it; 27 (iii) differences in the period or periods for which it can be 28 taken. 29 maternity leave means Schedule 14 maternity leave or any other 30 leave (however described): 31 (a) to which an employee is entitled, or that has been applied for 32 by or granted to an employee, in respect of her pregnancy or 33 the birth of her child, otherwise than under Schedule 14 (for 34 example, under another law of the Commonwealth or of a 35 6 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 State or Territory, or under an award, order or agreement); 1 and 2 (b) that is of a kind analogous to Schedule 14 maternity leave, or 3 would be of such a kind but for one or more of the following: 4 (i) it is paid leave; 5 (ii) it can begin before the estimated date of birth; 6 (iii) differences in the rules governing eligibility for it; 7 (iv) differences in the period or periods for which it can be 8 taken. 9 medical certificate means a certificate signed by a registered 10 medical practitioner. 11 parental leave means maternity leave or paternity leave. 12 paternity leave means short paternity leave or long paternity leave. 13 short paternity leave means Schedule 14 short paternity leave or 14 any other leave (however described): 15 (a) to which an employee is entitled, or that has been applied for 16 by or granted to an employee, in respect of the birth of a 17 child of his spouse, otherwise than under Schedule 14 (for 18 example, under another law of the Commonwealth or of a 19 State or Territory, or under an award, order or agreement); 20 and 21 (b) that is of a kind analogous to Schedule 14 short paternity 22 leave, or would be of such a kind but for one or more of the 23 following: 24 (i) it is paid leave; 25 (ii) differences in the rules governing eligibility for it; 26 (iii) differences in the period or periods for which it can be 27 taken. 28 Schedule 14 long paternity leave has the meaning given by 29 clause 13 of Schedule 14. 30 Schedule 14 maternity leave has the meaning given by subclause 31 3(1) of Schedule 14. 32 Schedule 14 short paternity leave has the meaning given by 33 clause 13 of Schedule 14. 34 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 7 [Page Break] Part 1 Paid maternity leave spouse, in relation to an employee, includes a person who lives 1 with the employee in a marriage-like relationship, although not 2 legally married to the employee. 3 Multiple employments 4 (2) An employee's entitlement to rights and benefits in respect of 5 parental leave must be determined by treating each of the 6 employee's employments separately, if the employee has more 7 than one employment. 8 Multiple births 9 (3) A person who gives birth to two or more children as a result of one 10 pregnancy and assumes or intends to assume the care of those 11 children must be treated as if the person had given birth to only one 12 child as a result of the pregnancy and had assumed or intended to 13 assume the care of only one of those children. 14 Part 2--Paid maternity leave 15 4 Entitlement to maternity payment 16 (1) An employee is entitled to a maternity payment under this 17 Schedule if the employee applies in the approved form and: 18 (a) is an eligible employee; or 19 (b) is an eligible spouse. 20 (2) An eligible employee is a female employee: 21 (a) who is granted maternity leave for the child under 22 section 170KB; and 23 (b) is not employed by a Commonwealth, State or Territory 24 government (including government departments, non-market 25 non-profit institutions that are controlled and mainly financed 26 by government, and corporations and quasi-corporations that 27 are controlled by government). 28 (3) An eligible spouse is an employee: 29 (a) to whom all or part of an entitlement to a maternity payment 30 is transferred under subclause 5(1); or 31 (b) who succeeds to a maternity payment under subclause 5(3). 32 8 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 5 Entitlement may be transferred to eligible spouse 1 (1) An eligible employee (within the meaning of subclause 4(2)) may 2 transfer all or part of her entitlement to a maternity payment in 3 respect of a child to her spouse if: 4 (a) the spouse has been granted parental leave; and 5 (b) the spouse takes parental leave from his or her employment 6 in respect of the child; and 7 (c) exceptional circumstances, as defined by the regulations, 8 make such a transfer necessary (such as the spouse becoming 9 sole guardian of the child to the exclusion of the employee). 10 Note: As maternity leave recognises the physical demands of the later stages 11 of pregnancy, birth, recovery from birth and establishment, where 12 possible, of breast feeding, the payment is intended for the mother, 13 and is not intended, under normal circumstances, to be transferable 14 from the biological mother to the spouse. 15 (2) To the extent that an eligible employee transfers all or part of her 16 entitlement to a maternity payment to her spouse under this clause: 17 (a) references in this Schedule to the employee's entitlement to a 18 maternity payment are references to the eligible spouse's 19 entitlement to a maternity payment; and 20 (b) references in this Schedule to the period of maternity leave 21 are references to the period of parental leave taken by the 22 eligible spouse; and 23 (c) the amount of the maternity payment is calculated according 24 to the work circumstances of the eligible spouse; and 25 (d) the entitlement that is transferred is deducted from the 26 transferring employee's entitlement to a maternity payment. 27 (3) An eligible spouse succeeds to the maternity leave entitlements of 28 an eligible employee under this clause on the later of: 29 (a) the date of the eligible employee's death or the date when the 30 spouse becomes sole guardian, as the case may be; or 31 (b) the date on which the eligible spouse's bereavement leave in 32 respect of the eligible spouse expires (if any). 33 6 Applications for maternity payment 34 (1) An eligible employee is not entitled to a maternity payment, and an 35 employer is not entitled to a maternity advance, unless the 36 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 9 [Page Break] Part 1 Paid maternity leave employee makes an application for payment in accordance with 1 this clause. 2 (2) The application must: 3 (a) be made before the date on which the employee returns to 4 work or the parental leave otherwise ends; and 5 (b) be made in the manner prescribed in regulations; and 6 (c) specify the matters, and be accompanied by the documents, 7 prescribed in regulations. 8 (3) An employer and an employee must comply with any provision in 9 the regulations that requires them to specify matters in, or attach 10 documents to, or sign, an application under this clause or the 11 regulations. 12 7 Duration of maternity payment 13 A maternity payment is payable by an employer to an entitled 14 employee: 15 (a) for one continuous period not exceeding 14 weeks; or 16 (b) if part of the entitlement is transferred under clause 5, for one 17 continuous period per employee, so long as the two 18 continuous periods do not together exceed 14 weeks. 19 8 Start of maternity payment 20 A maternity payment is payable by an employer to an entitled 21 employee who is: 22 (a) an eligible employee--for a period that begins on the date of 23 commencement of her maternity leave; or 24 (b) an eligible spouse--for a period that begins on the date the 25 entitlement is transferred under clause 5. 26 9 Backdating of maternity payments 27 The first payment of a maternity payment includes an amount in 28 respect of the period from the start of the period mentioned in 29 clause 8 if the application is approved on or after that date. 30 10 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 10 End of maternity payment 1 (1) Subject to clause 7 (duration of maternity payment), a maternity 2 payment is payable by an employer to an employee for a period 3 that ends on the earlier of: 4 (a) 14 weeks after the date of start of his or her maternity 5 payment; or 6 (b) the date on which that employee returns to work or resigns 7 from his or her employment. 8 (2) Subclause (1) applies despite the fact that the employee's parental 9 leave may end before that date if: 10 (a) the employee's employment is terminated due to redundancy 11 or dismissal for cause; or 12 (b) the employee has a miscarriage or ceases to have the care of 13 the child; or 14 (c) the employee or the child dies. 15 (3) However, the period for which a maternity payment is payable to 16 an employee terminates earlier than the date referred to in 17 subclause (1): 18 (a) if the employee takes parental leave only from fixed term 19 employment, in which case the payment stops on the date on 20 which fixed term employment ends; or 21 (b) if the employee's spouse succeeds to the maternity payment 22 under subclause 5(3), in which case the payment to the 23 employee stops on the date of succession. 24 11 Amount of maternity payment 25 (1) The rate of maternity payment payable to any employee is the 26 lesser of: 27 (a) the Federal minimum wage as ordered, from time to time, by 28 the Australian Industrial Relations Commission; or 29 (b) 100% of the employee's average weekly earnings (averaged 30 over the 12 months preceding the commencement of parental 31 leave). 32 Note 1: The Federal minimum wage from May 2002 was $431.40 per week. 33 Note 2: As set out in subsection 170KD(9), those who receive a maternity 34 payment are not entitled to receive the maternity allowance and/or the 35 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 11 [Page Break] Part 1 Paid maternity leave maternity immunisation allowance under the A New Tax System 1 (Family Assistance) (Administration) Act 1999. 2 (2) If an employee is entitled to receive a maternity payment from 3 more than one employer in respect of a child, the total of those 4 payments cannot exceed the amount mentioned in paragraph (1)(a). 5 (3) This maternity payment is to be treated as wage and salary income 6 received by the eligible employee, or eligible spouse as the case 7 may be, for the purposes of taxation, superannuation and other 8 relevant laws and agreements. 9 12 Amount of payment not affected by other non-statutory 10 entitlements 11 (1) An entitlement to a maternity payment under this Schedule is not 12 affected or reduced by any other entitlement that the employee may 13 have under the terms of any employment agreement. 14 Note: Under paragraph 4(2)(b) of this Schedule, a Commonwealth, State or 15 Territory government employee is not eligible to receive the maternity 16 payment. 17 (2) An employer must not, without the agreement of the employee, 18 reduce any other entitlement that the employee may have under the 19 terms of any employment agreement because of the employee's 20 entitlement to a payment under this Schedule. 21 (3) An employer who fails to comply with this clause is liable to a 22 penalty imposed by a court of competent jurisdiction under 23 Part VIII of this Act in respect of each employee to whom the 24 purported reduction applies. 25 13 Employer to be advanced payments out of public money 26 (1) Subject to this Act, if an individual is entitled to be paid a 27 maternity payment under this Schedule, the department must, at 28 such time and in such manner as the Secretary considers 29 appropriate, pay that employer an amount equal to the payment, 30 known as the maternity advance. 31 (2) Where possible, that maternity advance is to be made before or at 32 the same time as the employer makes a maternity payment to the 33 employee. 34 12 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 14 Method of paying the maternity advance 1 (1) A maternity advance is payable on a fortnightly, monthly or lump 2 sum basis, as determined by the regulations. 3 (2) Every instalment of the payment must be paid into the employer's 4 Australian bank account specified by the employer for that 5 purpose, unless the Secretary in any particular case otherwise 6 determines. 7 15 Obligation of employer to notify employee of payment 8 entitlements 9 Every employer who receives a notice of an employee's wish to 10 take parental leave must, within 21 days after the receipt of the 11 notice, inform the employee of the substance of this Schedule by 12 giving the employee a notice in a form prescribed by the 13 regulations. 14 16 Obligation to notify early return to work, etc. 15 (1) An employee must give notice if, during the period for which the 16 employee is receiving a maternity payment under this Schedule: 17 (a) the employee returns to work; or 18 (b) the employee's fixed term employment ends; or 19 (c) the employee resigns from his or her employment. 20 (2) The notification must be made in the manner prescribed in the 21 regulations and specify the matters, and be accompanied by the 22 documents, prescribed in the regulations. 23 17 Failure to return to work does not affect payment 24 An employee is not required to refund any maternity payment 25 under this Schedule because the employee does not return to work 26 at the end of his or her parental leave. 27 18 Obligation to supply information 28 (1) The department may, by written notice, request an employee who 29 has applied for a maternity payment, and any employer of that 30 employee, to supply to the department any information in the 31 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 13 [Page Break] Part 1 Paid maternity leave employee's or the employer's (as the case may be) possession 1 relating to: 2 (a) the employee's entitlement or continued entitlement to a 3 maternity payment under this Schedule; or 4 (b) the employer's entitlement or continued entitlement to a 5 maternity advance under this Schedule. 6 (2) The employee or the employer must comply with a request under 7 this clause within a period of time to be specified by the 8 regulations. 9 19 Recovery of debts by department 10 (1) A sum of a maternity advance (an overpayment) paid under this 11 Schedule is a debt due to the department if the sum was: 12 (a) paid in respect of an employee in excess of the amount to 13 which the employee is entitled under this Schedule; or 14 (b) paid in respect of an employee who has no entitlement to it 15 under this Schedule. 16 (2) The department may: 17 (a) recover the debt by way of legal proceedings; or 18 (b) deduct all or part of the debt from any amount payable in 19 respect of that person under this Schedule. 20 (3) The department may not recover any maternity advance or part of 21 an advance under this Schedule that was paid as a result of an error 22 not intentionally contributed to by the employer, if the employer: 23 (a) received the payment in good faith; and 24 (b) so altered their position in reliance on the validity of the 25 payment; 26 that it would be inequitable to require repayment. 27 20 Offence to mislead department 28 A person commits an offence who, for the purpose of receiving or 29 continuing to receive any payment or entitlement under this 30 Schedule for themselves or any other person: 31 (a) makes any statement knowing it to be false in any material 32 particular; or 33 14 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] Paid maternity leave Part 1 (b) does or says anything, or omits to do or say anything, with 1 the intention of misleading or attempting to mislead the 2 department or any other person concerned in the 3 administration of this Act. 4 Penalty: 50 penalty units. 5 21 Regulations 6 Regulations to implement this Schedule may: 7 (a) prescribe the manner in which an application for, or other 8 notices relating to, a maternity payment or a maternity 9 advance must be made; 10 (b) prescribe the information that employees and employers must 11 give in, or the documents that employees or employers must 12 attach to, an application for, or other notice relating to, a 13 maternity payment or a maternity advance; 14 (c) extend the class or classes of person entitled to a maternity 15 payment or a maternity advance. 16 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 15 [Page Break] Part 2 Other amendments 1 Part 2--Other amendments 2 3 3 Schedule 14, clause 2, definition of employee 4 Omit "casual or". 5 4 Schedule 14, clause 2, definition of continuous service 6 Omit "casual or". 7 5 Schedule 14, clause 2, definition of spouse 8 Omit "of the opposite sex to the employee". 9 16 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 [Page Break] 1 2 Schedule 2--Amendment of other Acts 3 4 A New Tax System (Family Assistance) (Administration) Act 5 1999 6 1 After subsection 39(5) 7 Insert: 8 "Normal circumstances" entitlement not effective where individual 9 entitled to and receives maternity payments under the Workplace 10 Relations Act 1996 11 (6) A claim for payment of maternity allowance or maternity 12 immunisation allowance is not effective if the claimant is entitled 13 to, or has transferred the entitlement to, a maternity payment in 14 respect of a child under the Workplace Relations Act 1996. 15 Workplace Relations Amendment (Paid Maternity Leave) Bill 2002 No. , 2002 17