• Specific Year
    Any

PAID PARENTAL LEAVE ACT 2010 - SECT 308 Regulations

PAID PARENTAL LEAVE ACT 2010 - SECT 308

Regulations

    The Governor - General may make regulations prescribing matters:

  (a)   required or permitted by this Act to be prescribed; or

  (b)   necessary or convenient to be prescribed for carrying out or giving effect to this Act.

Overview

This Act provides for the payment of parental leave pay following the birth of a child or, for adoption, the placement of a child.

Parental leave pay is payable to a person for a child for a flexible PPL day for the child. The number of flexible PPL days for the child for which parental leave pay can be paid generally cannot exceed 100.

Parental leave pay is paid in instalments at the daily national minimum wage amount for a day that is a flexible PPL day for the child and for which parental leave pay is payable to the person.

Parental leave pay is paid by either the person's employer (if it is for at least 40 consecutive flexible PPL days for a child that are week days) or the Secretary.

Chapter   2--When parental leave pay is payable to a person

Chapter   2 sets out when parental leave pay is payable to a person. The key provisions for the Chapter are found in Part   2 - 1.

A person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person. Part   2 - 2 has the rules about when the Secretary can make that determination.

The Secretary cannot make that determination if the person is not eligible for parental leave pay. Part   2 - 3 has the rules about eligibility.

The Secretary also cannot make that determination if the person has not made a claim for parental leave pay. Part   2 - 4 has the rules about claims.

There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made.

Chapter   3--Payment of parental leave pay

Chapter   3 sets out how parental leave pay is paid to a person.

Part   3 - 1 is about instalments of parental leave pay. It deals with when instalments must be paid, whether the person's employer or the Secretary must pay them and the amount of the instalments.

Part   3 - 2 sets out when a person's employer must pay instalments to the person. An employer is required to pay an instalment to a person in relation to a child if:

  (a)   an employer determination has come into force for the employer and the person; and

  (b)   the instalment is payable in relation to a flexible PPL day for the child that falls within the person's continuous flexible period for the child (which consists of at least 40 consecutive flexible PPL days for the child that are week days); and

  (c)   the employer has been paid enough by the Secretary to fund the instalment.

Part   3 - 3 sets out when the Secretary must pay instalments directly to the person. For instance, the Secretary is required to do that if an employer determination is never made for the person (e.g. the person is a contractor and so does not have an employer). There are some other circumstances in which the Secretary is also required to pay instalments directly to the person (such as when an employer determination is being reviewed or has been revoked).

Part   3 - 4 has general rules about the payment of instalments (such as what happens when an instalment cannot be paid on the day specified in this Act).

Part   3 - 5 is about employer determinations. If an employer determination is in force for an employer and a person, the employer must pay instalments to the person. The Secretary must be satisfied that certain conditions have been met before the Secretary can make an employer determination.

Chapter   4--Compliance and enforcement

Chapter   4 deals with compliance and enforcement.

Part   4 - 1 allows the Secretary to gather information for the purposes of checking compliance with this Act. It also deals with the confidentiality of personal and protected information.

Part   4 - 2 deals with other compliance matters. It allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act. It also deals with civil penalty provisions, compliance notices and infringement notices.

Part   4 - 3 provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.

Chapter   5--Administrative review of decisions

Chapter   5 is about administrative review of decisions made under this Act.

Part   5 - 1 allows the Secretary, on the Secretary's own initiative, to conduct an internal review of decisions made under this Act. It also allows a person whose interests are affected by certain types of decisions to seek internal review of those decisions, and an employer to seek internal review of certain types of decisions that affect employers.

Part   5 - 2 allows a person to apply to the Administrative Appeals Tribunal (AAT) for review of certain decisions made under this Act. This review is called AAT first review.

Part   5 - 3 allows a person to apply to the AAT for review of certain decisions made by the AAT on AAT first review. This review is called AAT second review.

Part   5 - 4 has miscellaneous provisions relating to reviews of decisions made under this Act.

Chapter   6--Miscellaneous

Chapter   6 has miscellaneous provisions.

Part   6 - 1 has rules that modify this Act so that it applies correctly in 3 limited kinds of cases--adoption, claims made in exceptional circumstances etc. and Commonwealth employment.

Part   6 - 2 is about payment nominees (who are people who can receive payments of instalments of parental leave pay on behalf of other people for the purposes of this Act) and correspondence nominees (who are people who can receive notices on behalf of other people for the purposes of this Act).

Part   6 - 3 deals with other miscellaneous matters, such as the PPL rules, delegations and regulations.

This Part   is about the terms that are defined in this Act.

Division   2 has the Dictionary (see section   6). The Dictionary is a list of every term that is defined in this Act. A term will either be defined in the Dictionary itself, or in another provision of this Act. If another provision defines the term, the Dictionary will have a signpost to that definition.

This Part has the key provisions for this Chapter (which deals with when parental leave pay is payable to a person).

A person can only be paid parental leave pay if the Secretary makes a determination that parental leave pay is payable to the person. Part   2 - 2 has the rules about when the Secretary can make that determination.

The Secretary cannot make that determination if the person has not made a claim for parental leave pay. Part   2 - 4 has the rules about claims. There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made.

If the Secretary makes a determination that parental leave pay is payable to a person for one or more flexible PPL days for a child of the person, parental leave pay is payable for the particular days specified in the determination. The number of flexible PPL days for the child for which parental leave pay can be paid generally cannot exceed 100.

The Secretary may only make a determination that parental leave pay is payable to certain PPL claimants and special PPL claimants for one or more flexible PPL days if permission has been given to claim those days.

The person's employer or the Secretary will pay instalments of parental leave pay that are payable to a person (see Chapter   3 for the rules about the payment of parental leave pay).

This Part   is about the Secretary making determinations about whether parental leave pay is payable to a person. These determinations are payability determinations. A person cannot be paid parental leave pay unless there is a payability determination that parental leave pay is payable to the person.

Division   2 has the rules that apply to the Secretary when making a payability determination in relation to whether parental leave pay is payable to a person for a flexible PPL day for a child. Different rules apply depending on whether the claim is a PPL claim or a special PPL claim. The Secretary may only make a determination that parental leave pay is payable to certain PPL claimants and special PPL claimants for one or more flexible PPL days if permission has been given to claim those days.

Division   3 has restrictions that apply in particular circumstances to prevent the Secretary from making a payability determination that parental leave pay is payable to a person (for example, where the child's birth has not been verified or where the limit on the number of flexible PPL days for which parental leave pay is payable to more than one person has been exceeded).

Division   4 has general rules that apply to payability determinations (for example, if the Secretary makes a determination, the Secretary must give a notice of it to the claimant).

Division   5 deals with initial eligibility determinations. These determinations can be made by the Secretary before the Secretary makes a payability determination. The Secretary can make an initial eligibility determination if the Secretary is satisfied that the person satisfies, or will satisfy, particular eligibility criteria. If the Secretary makes a determination, the Secretary must give a notice of it to the claimant.

This Part sets out when a person is eligible for parental leave pay. The Secretary cannot make a payability determination that parental leave pay is payable if the person is not eligible for it.

Division   2 sets out when a person is eligible for parental leave pay. Section   31AA sets out when a person is eligible for parental leave pay on a flexible PPL day for a child. Section   31AB sets out the maximum number of flexible PPL days for a child for which parental leave pay can be paid. This includes, subject to certain exceptions, the 10 flexible PPL days that are reserved for other claimants where a claimant has a partner at the time of their first effective claim.

Division   3 has the work test. To satisfy the work test, a person must have performed enough paid work or taken enough paid leave in a particular period. A flexible PPL day for a previous child for which parental leave pay was payable to the person may be taken into account in working out whether the person satisfies the work test for a subsequent child. Any jobkeeper payment period or COVID - 19 Australian Government payment period for the person may also be taken into account. Special rules apply in the case of premature birth or complications or illness related to the pregnancy (see section   36A) or in special circumstances (see section   36AA).

Division   4 has the income test. To satisfy the income test, the person's income for a particular income year must not be more than either the individual PPL income limit (which is $150,000 until 30   June 2021 and then indexed) or the family PPL income limit (which is $350,000 until 30   June 2024 and then indexed). If the person has a partner, their partner's income is also counted towards the family PPL income limit.

Division   5 has the Australian residency test. To satisfy this test, the person must be an Australian resident or be in a special class of visa holder.

Division   6 sets out when a person is caring for a child.

Method statement

Step 1.   Work out the person's work test period.

  Note:   Work test period is defined in sections   33 and 33A for PPL claimants and special PPL claimants.

Step 2.   Work out the days in the work test period on which the person has and has not performed qualifying work.

  Note:   Qualifying work is defined in section   34.

Step 3.   Work out whether any days on which the person has not performed qualifying work during the work test period fall within a permissible break.

  Note:   Permissible break is defined in section   36.

Step 4.   Work out whether there is a period (a qualifying period ) of 295 consecutive days in the work test period that are days:

  (a)   on which the person has performed qualifying work; or

  (b)   that fall within a permissible break.

Step 5.   If the person has performed at least 330 hours of qualifying work in a qualifying period, the person satisfies the work test .

Method statement

Step 1.   Work out the amount (the previous amount ) for the relevant income limit that applied on the day immediately before the indexation day.

Step 2.   Use section   43 to work out the indexation factor on the indexation day.

Step 3.   Multiply the previous amount by the indexation factor: the result is the provisional indexed amount .

Step 4.   Use section   44 to round off the provisional indexed amount: the result is the indexed amount .

This Part   is about claims for parental leave pay. A person cannot be paid parental leave pay unless the person has first made a claim for it.

Division   2 sets out the rules about claims. There are 2 types of claims: PPL claims and special PPL claims. These claims relate to each other, although PPL claims are the main type of claim. PPL claims will often be the only claims that are made. Section   54 sets out who can make each type of claim.

The Secretary cannot make a payability determination on a claim unless it is an effective claim. To be effective, the claim must be made by the right person and satisfy the requirements in the provisions listed in section   55. One of those requirements is that the claim must be in the form, and contain the information, required by the Secretary (see section   56). Another requirement is that the claim must be made in the period set out in section   60.

This Part   is about instalments of parental leave pay.

Parental leave pay is payable in instalments for regular periods called instalment periods. An instalment is payable to a person if one or more flexible PPL days for a child of the person fall within an instalment period for the person and parental leave pay is payable to the person for those days.

Instalments are payable by either a person's employer (see Part   3 - 2) or the Secretary (see Part   3 - 3).

This Part also contains rules for working out the amount of an instalment and deals with the deductions that may be made from an instalment.

This Part   is about the payment of instalments to a person by the person's employer.

Division   1A sets out when a person has a continuous flexible period.

Under Division   2, an employer is required to pay an instalment to a person if:

  (a)   an employer determination has come into force for the employer and the person (see Part   3 - 5); and

  (b)   the instalment is payable in relation to a flexible PPL day for the child that falls within the person's continuous flexible period for the child; and

  (c)   the employer has been paid enough by the Secretary to fund the instalment.

Division   3 is about the payment by the Secretary of amounts (called PPL funding amounts) to an employer to ensure the employer has been paid enough to fund an instalment.

Division   4 sets out certain obligations of employers relating to paying instalments (such as giving and keeping records and notifying the Secretary if certain events happen).

This Part   is about the payment of instalments to a person by the Secretary.

The Secretary is required to pay instalments directly to a person if:

  (a)   an employer determination is never made for the person; or

  (b)   the instalment is payable in relation to a day that is a flexible PPL day for a child of the person and that does not fall within the person's continuous flexible period for the child (if any).

The Secretary is also required to pay instalments directly to a person in certain circumstances where an employer determination is being reviewed or has been revoked, or where a matter has been referred to the Fair Work Ombudsman relating to a failure by an employer to pay an instalment to a person.

In certain circumstances where the Secretary becomes required to pay instalments to a person, the Secretary is also required to pay the person arrears for instalments that had previously become payable, but not been paid, to the person.

This Part   contains general rules that are relevant to the payment of instalments to a person, whether by the person's employer or the Secretary.

Some of those rules deem instalments to have become payable in certain circumstances (such as when a person's continuous flexible period is extended after review).

Other rules deal with the effect on a person's instalment periods of changing who is required to pay instalments to the person.

There are also rules that relate to what happens when an instalment cannot be paid on the day specified in this Act.

Finally, this Part deals with the interaction of this Chapter with certain Commonwealth, State and Territory laws.

Method statement

Step 1.   Work out the total amount of the instalments that have been paid to the credit of the account during the 4 week period immediately before the court order came into force.

Step 2.   Subtract from the step 1 amount the total amount withdrawn from the account during the same 4 week period: the result is the saved amount .

This Part   is about employer determinations.

Under Division   2, the Secretary must make an employer determination if the Secretary is satisfied that certain conditions have been met. Not all of those conditions need to be satisfied for a person if the employer has made an election under Division   4 that applies to the person and the person consents to the employer paying the instalments.

If the Secretary makes an employer determination for a person and the person's employer, the employer must either:

  (a)   give the Secretary certain information to enable the Secretary to pay the employer PPL funding amounts for the person; or

  (b)   apply for review of the employer determination under Part   5 - 1 or 5 - 2.

Division   3 is about when an employer determination is in force. It includes rules about revoking employer determinations.

Under Division   4, an employer may elect to pay instalments to one or more employees.

Division   5 provides for the Secretary to give an employer for whom an employer determination has been made notice of certain other decisions under this Act.

This Part allows the Secretary to gather information for the purposes of checking compliance with this Act.

Subdivision A of Division   2 allows the Secretary to require a person to give certain information or produce certain documents that are relevant to this Act.

Subdivision B of Division   2 deals with tax file numbers and the purposes for which tax file numbers may be used.

Subdivision C of Division   2 imposes an obligation on a person to whom instalments of parental leave pay are payable to notify the Secretary of a change of circumstances.

Division   3 deals with the confidentiality of personal and protected information.

Division   4 contains rules relating to offences against Parts   7.3 and 7.4 of the Criminal Code (which deal with fraudulent conduct and false and misleading statements) in relation to this Act.

This Part deals with compliance with this Act.

Division   2 allows the Secretary to refer matters to the Fair Work Ombudsman for investigation if the Secretary has reason to believe that an employer has not complied with certain obligations under this Act.

Division   3 deals with civil penalty provisions. These provisions impose obligations on certain persons. Civil penalty orders may be sought under Part   4 of the Regulatory Powers Act in relation to contraventions of the civil penalty provisions of this Act.

Division   4 deals with compliance notices. A compliance notice can be given to a person who has contravened a civil penalty provision, requiring the person to rectify the contravention.

Division   5 deals with infringement notices. An infringement notice may be issued under Part   5 of the Regulatory Powers Act for an alleged contravention of a civil penalty provision of this Act. A person who is given an infringement notice can choose to pay a penalty. If the penalty is not paid, a civil penalty order under Part   4 of the Regulatory Powers Act may be sought in relation to the person.

This Part provides for debts in relation to the paid parental leave scheme, and for the recovery of debts owing to the Commonwealth.

Division   2 provides for the main debts recoverable by the Commonwealth under this Act, as follows:

  (a)   overpayments or mistaken payments of parental leave pay;

  (b)   PPL funding amounts for a person that are not paid to the person as parental leave pay;

  (c)   parental leave pay or PPL funding amounts paid to the wrong person.

Division   3 allows an employee to recover, as a debt, parental leave pay due from his or her employer.

Division   4 deals with the procedure for raising a debt that is recoverable by the Commonwealth under this Act, and charging interest on the debt.

Division   5 deals with how the Commonwealth can recover debts.

Division   6 allows the Secretary to write off debts. Even if a debt is written off, it can be later recovered if circumstances change.

Division   7 allows the Secretary to waive debts in various circumstances.

Division   7A deals with when a departure prohibition order, prohibiting a person from departing from Australia for a foreign country, can be made if the person has a debt due to the Commonwealth under this Act.

Division   8 provides that debts under this Act apply in relation to matters inside and outside Australia, and to all persons irrespective of nationality or citizenship.

This Part   is about the internal review of decisions of officers under this Act.

Division   2 sets out 3 kinds of internal review of those decisions.

The first kind of review is where the Secretary, on his or her own initiative, reviews those decisions.

The second kind of review is where a person whose interests are affected by certain decisions (which are "claimant decisions") applies for internal review of the decision.

The third kind of review is where an employer applies for internal review of certain decisions that affect the employer (those decisions are "employer determination decisions" and "employer funding amount decisions"). Employer determination decisions can only be reviewed on application, and not on the Secretary's own initiative.

This Part   is about the review by the Administrative Appeals Tribunal of decisions that have been internally reviewed under Part   5 - 1, and of decisions made personally by particular PPL agency representatives (which are not subject to internal review). These reviews are called AAT first reviews.

AAT first review is available for certain claimant decisions (called AAT reviewable claimant decisions). People whose interests are affected by AAT reviewable claimant decisions may apply for AAT first review of those decisions.

AAT first review is also available for certain employer determination decisions and employer funding amount decisions (called AAT reviewable employer decisions). Employers may apply for AAT first review of AAT reviewable employer decisions.

The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT first reviews.

This Part   is about review by the Administrative Appeals Tribunal of a decision made by the Tribunal on AAT first review of a claimant decision. These reviews are called AAT second reviews.

AAT second review is only available in relation to claimant decisions--it is not available in relation to employer decisions.

The rules relating to review by the AAT are mainly in the AAT Act, but this Part modifies the operation of that Act in some ways for the purposes of AAT second reviews.

The AAT Act allows a person to appeal to a court on a question of law from a decision of the AAT on AAT second review.

This Part has rules that modify this Act so that it applies correctly in 3 limited kinds of cases--adoption, claims made in exceptional circumstances etc. and Commonwealth employment.

Division   2 modifies this Act so that it applies correctly for adopted children aged under 16. For example, where a provision of this Act refers to the day a child was born, Division   2 modifies that provision so that, when applying that provision to the adopted child, the provision has the effect of referring to the day the adopted child becomes entrusted to care (instead of the day the adopted child was born).

Division   3 modifies this Act so that it applies correctly for claims that are made in exceptional circumstances and other special cases. For example, where a provision of this Act refers to the day a child was born, Division   3 modifies that provision so that, when applying that provision in relation to a claim that is made in exceptional circumstances, the provision has the effect of referring to the day the claimant became the child's primary carer (instead of the day the child was born).

Division   4 modifies this Act so that it applies correctly to Commonwealth employment.

This Part   is about payment nominees (who are people who can receive payments of instalments of parental leave pay on behalf of other people for the purposes of this Act) and correspondence nominees (who are people who can receive notices on behalf of other people for the purposes of this Act).

Division   2 allows the Secretary to appoint a person to be a payment nominee, or a correspondence nominee, for another person for the purposes of this Act.

Divisions   3, 4 and 5 deal with the consequences of such an appointment.

This Part deals with miscellaneous matters.

Division   2 provides for the Paid Parental Leave Rules. The PPL rules are made by the Minister by legislative instrument. They are subordinate legislation and provide rules that operate in addition to those in this Act.

Division   3 confers jurisdiction on the Federal Court and the Federal Circuit and Family Court of Australia (Division   2).

Division   4 deals with other miscellaneous matters (such as delegations and regulations).