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A Bill for an Act to amend the Fair Work Act 2009 to guarantee 26 weeks government-funded paid parental leave, and for related purposes
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Registered 05 Oct 2010
Introduced Senate 30 Sep 2010

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Fair Work Amendment (Paid Parental Leave) Bill 2010

 

No.      , 2010

 

(Senator Hanson-Young)

 

 

 

A Bill for an Act to amend the Fair Work Act 2009 to guarantee 26 weeks government-funded paid parental leave, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Object................................................................................................. 1

4............ Schedule(s).......................................................................................... 2

Schedule 1—Amendments providing for paid parental leave                        3

Fair Work Act 2009                                                                                                     3

Schedule 2—Consequential amendments                                                                 7

Fair Work Act 2009                                                                                                     7


A Bill for an Act to amend the Fair Work Act 2009 to guarantee 26 weeks government-funded paid parental leave, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Fair Work Amendment (Paid Parental Leave) Act 2010.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  Object

                   The object of this Act is to give effect, or further effect, to:

                     (a)  Article 11.2(b), Convention on the Elimination of All Forms of Discrimination against Women, 1979; and

                     (b)  the Maternity Protection Convention, which the General Conference of the International Labour Organisation adopted on 30 May 2000 and which is also known as Recommendation No. 183; and

                     (c)  the World Health Organization global strategy to ensure sufficient maternity leave is provided to mothers, promoting and supporting exclusive breastfeeding for 6 months;

to guarantee 26 weeks government-funded paid parental leave to all parents in the workforce whether employed on a full‑time, part‑time, casual, contractual or self-employed basis.

4  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.


 

Schedule 1—Amendments providing for paid parental leave

Fair Work Act 2009

1  Section 70

Repeal the section, substitute:

70  Entitlement to parental leave

             (1)  An employee is entitled to 12 months of parental leave if:

                     (a)  the leave is associated with:

                              (i)  the birth of a child of the employee or the employee’s spouse or de facto partner; or

                             (ii)  the placement of a child with the employee for adoption; and

                     (b)  the employee has or will have a responsibility for the care of the child.

Note 1:       Entitlement is also affected by section 67 (which deals with length of the employee’s service) and, for adoption, section 68 (which deals with the age etc. of the adopted child).

Note 2:       The 12 months is reduced by the amount of any unpaid special maternity leave the employee has taken (see subsection 80(7)).

             (2)  An employee is entitled to take up to 26 weeks of parental leave as paid parental leave and the remainder as unpaid parental leave.

Note:          Subdivision BA of this Division deals with paid parental leave.

2  After section 79

Insert:

Subdivision BA—Paid parental leave

79A  Entitlement to paid parental leave

             (1)  An employee who is entitled to parental leave may take up to 26 weeks of that leave as paid parental leave;.

Note:          Section 70 deals with an employee’s entitlement to parental leave.

             (2)  If the employee’s spouse or de facto partner also has an entitlement to parental leave under this Division, the total period of paid parental leave to which the couple is entitled is 26 weeks, which may be shared between them in accordance with section 79C.

             (3)  The employee must take the paid parental leave in a single continuous period during the period of the employee’s parental leave.

             (4)  Nothing in this section prevents an employer paying an additional amount under a fair work instrument to an employee taking paid parental leave.

79B  Interaction with other entitlements

                   If an employee applies to take, and takes, a period of paid parental leave in relation to the birth or adoption of a child, then neither the employee nor the employee’s spouse or de facto partner is entitled to be paid:

                     (a)  a payment under Part 3 of the A New Tax System (Family Assistance) (Administration) Act 1999 (baby bonus payment); or

                     (b)  any paid maternity leave, paternity leave or other parental leave payment or entitlement under any other Commonwealth or State or Territory law;

in relation to the birth or adoption of the child.

79C  Period of paid parental leave

             (1)  The period of paid parental leave to which an employee is entitled is:

                     (a)  in relation to birth‑related leave—6 weeks’ leave to the birth‑mother and 20 weeks’ leave, which may be shared between the employee and the employee’s spouse or de facto partner;

                     (b)  in relation to adoption leave—26 weeks’ leave, which may be shared between the employee and the employee’s spouse or de facto partner.

             (2)  Paid parental leave cannot be shared between an employee and the employee’s spouse or de facto partner unless each of them has an entitlement to parental leave under Subdivision B.

79D  Amount of paid parental leave entitlement

             (1)  Subject to this section, the paid parental leave entitlement will be paid at an amount equivalent to the national minimum wage.

Note:          The relevant minimum wage amount at October 2008 was $543.78.

             (2)  For employees who are not full‑time employees, the paid parental leave entitlement will be paid as a proportion of the amount specified in subsection (1) which is pro‑rata in accordance with the amount of time worked by the employee.

Example:    If an employee works part‑time at a rate of 60% of the time of a full‑time employee, that part‑time employee is eligible for 60% of the paid parental leave entitlement.

             (3)  An employee can make a request to the employer to have the paid parental leave entitlement paid at half the rate to which he or she would otherwise be entitled, for twice as long, and the employer may refuse the request only on reasonable business grounds.

79E  Administration of leave entitlement

             (1)  Paid parental leave is payable to eligible employees by means of a payment which must be made by the Commonwealth to the employer, who must then make the payment to the employee:

                     (a)  in accordance with the employer’s usual method of paying the employee’s leave entitlements; or

                     (b)  if there is agreement between the employer and employee—by another method.

             (2)  Parental leave payments are to be treated as wage and salary income for the purposes of taxation, superannuation and other relevant laws and agreements.

79F  Application to independent contractors and the self‑employed

             (1)  The Minister and the Treasurer must, as soon as practicable, determine by legislative instrument a scheme to provide an equivalent benefit to individuals who are independent contractors or self‑employed.

             (2)  The scheme must provide:

                     (a)  an entitlement to an equivalent financial benefit;

                     (b)  the option of sharing the benefit between the individual and the individual’s eligible spouse or de facto partner;

                     (c)  a choice between taking that benefit or a baby bonus payment.

79G  Appropriation

                   Payments by the Commonwealth to fund paid parental leave or equivalent benefits payable under this Subdivision are to be made from money appropriated by the Parliament for that purpose.

3  Transitional

Until the first national minimum wage order made by Fair Work Australia under Part 2‑6 of the Fair Work Act 2009 comes into operation, subsection 79D(1) has effect as if it were modified by omitting “national minimum wage” and substituting “federal minimum wage set from time to time by the Australian Fair Pay Commission”.

Schedule 2—Consequential amendments

Fair Work Act 2009

1  Amendment of reference

The specified provisions listed in this Schedule are amended by omitting “unpaid parental leave” and substituting “parental leave”.

2  Subparagraph 67(2)(b)(iii)

3  Paragraphs 67(3)(b), 67(3)(c) (twice occurring), 67(4)(a) and 67(5)(a)

4  Subsection 71(1)

5  Paragraph 71(1)(b)

6  Subsections 72(1) and 72(5) (twice occurring)

7  Paragraph 72(6)(b)

8  Subsection 72(6) (note) (twice occurring)

9  Subsection 73(1)

10  Paragraphs 73(3)(b) and 73(4)(a) and (b)

11  Subsection 73(4) (note) (twice occurring)

12  Subsections 74(1), (5) and (7)

13  Paragraphs 75(1)(a) and (2)(b) and (c)

14  Subsections 75(3), (5) and (6)

Note:       The heading to section 75 is altered by omitting “unpaid”.

15  Subsections 76(1) (twice occurring) and 76(6)

16  Paragraphs 76(6)(a), (b) and (c)

Note:       The heading to section 76 is altered by omitting “unpaid”.

17  Section 77 (twice occurring)

Note:       The heading to section 77 is altered by omitting “unpaid”.

18  Subsections 78(1) and (4)

19  Subsection 79(1) (second occurring)

Note:       The heading to section 79 is altered by omitting “paid” and substituting “other”.

20  Paragraphs 81(1)(a) and (b)

21  Subsection 82(2)

Note:       The heading to subsection 82(2) is altered by omitting “unpaid”.

22  Paragraphs 83(1)(a) and (2)(a) and (b)