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Parental Leave and Employment Protection Act 1987
Part 8 Miscellaneous Provisions
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Part 8 Miscellaneous Provisions
Section 72 - Contracting out: holiday pay while on parental leave
Section 72A - Eligibility criteria based on average hours of work and allowing for periods of authorised leave
Section 73 - Regulations
Section 74 - Repeal
Section 75 - Consequential amendments
Section 76 - Transitional provisions
Section 77 - Savings provisions
Schedule - Change of employer
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Section 72 Contracting out: holiday pay while on parental leave |
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(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) in respect of public holidays, of the same amount as, or of a greater amount than, the amount referred to in section 42(3).
(2) This section applies despite the Holidays Act 2003 .
| Section 72A Eligibility criteria based on average hours of work and allowing for periods of authorised leave |
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(1) An employee is treated as being in the employment of the same employer for at least an average of 10 hours a week during a 12-month period if the employee is in the employment of that employer
(a) No less than an average of 10 hours a week during that period; and
(b) either no less than 1 hour in every week during that period or no less than 40 hours in every month during that period.
(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 Injury Prevention, Rehabilitation, and Compensation Act 2001 for that hour; or
(d) on protected voluntary service or training (within the meaning of the Volunteers Employment Protection Act 1973) for that hour; or
(e) on maternity leave before the expected date of delivery of the child for that hour (except in a case to which section 6 refers); or
(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 means the employee's ordinary working week.]
| Section 73 Regulations |
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(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 employees and employers must give in, or the documents that employees or employers must attach to, an application for, or other notice relating to, a parental leave payment:
[(ac)prescribing the way in which adjustments must be made under section 71N and making the adjustments required under that section:
[(ad)increasing the amount under section 71O:
[(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) Regulations made under subsection (1)(ad) or (ae),
(a) if made on or before 30 June in any year, expire on the close of December of that year except in so far as they are expressly confirmed by Act of Parliament passed during that year; and
(b) if made on or after 1 July in any year, expire on the close of 31 December in the following year except in so far as they are expressly confirmed by Act of Parliament passed before the end of that following year.
(5) The expiry of regulations under subsection (4) does not affect the validity of any act done pursuant to, or in accordance with, the regulations before the date on which the regulations expire.
(6) A failure to comply with subsection (3) does not affect the validity of any regulation made under this Act.]
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Section 74 Repeal |
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The Maternity Leave and Employment Protection Act 1980 is hereby repealed.
| Section 75 Consequential amendments | |
(1), (2)Repealed.
(3) the Holidays Act 2003 is hereby amended by inserting, after the words "Except as otherwise expressly provided by this Act", the words "or by section 42 or section 72(4) of the Parental Leave and Employment Protection Act 1987"'.
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Section 76 Transitional provisions |
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(1) Notwithstanding any provision to the contrary in this Act, nothing in section 7 or section 17 or section 23 of this Act shall entitle an employee to take any parental leave under this Act in respect of a child the expected date of delivery of whom is before the 1st day of January 1988.
(2) Notwithstanding any provision to the contrary in this Act, nothing in section 8 or section 18 or section 24 of this Act shall entitle an employee to take any parental leave under this Act in respect of a child of whom the employee assumed care before the 1st day of January 1988 with a view to adoption by that employee or by that employee and that employee's spouse jointly.
| Section 77 Savings provisions |
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(1) Notwithstanding the repeal of the Maternity Leave and Employment Protection Act 1980 by section 74 of this Act a female employee shall be entitled after the commencement of this Act to take maternity leave in accordance with that Act in respect of a child
(a) The expected date of delivery of whom is on or after the 1st day of October 1987 but before the 1st day of January 1988; or
(b) Of whom the employee assumes care on or after the 1st day of October 1987 but before the 1st day of 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 by section 74 of this Act shall not affect, reduce, or extinguish
(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 the 1st day of October 1987; or
(ii) Is absent on the 1st day of 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 the 1st day of October 1987, maternity leave under that Act in accordance with subsection (1) of this section:
(b) Any obligations imposed, or any rights conferred, by that Act on an employer of a female employee referred to in paragraph (a) of this subsection.
(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 in relation to
(i) The rights, entitlements, or obligations of any female employee to whom subsection (2)(a) of this section relates; or
(ii) The obligations or rights of any employer to whom subsection (2)(b) of this section relates,
may be continued and determined in accordance with the provisions of the Maternity Leave and Employment Protection Act 1980.
SCHEDULE
CHANGE OF EMPLOYER
1. If a trade or business or an undertaking (whether or not it is an undertaking established by or under an Act) is transferred from one person to another (whether before or after the date of the commencement of this Act),
(a) The period of employment of an employee in the trade or business or undertaking at the time of the transfer shall count as a period of employment with the transferee; and
(b) The transfer shall not break the continuity of the period of employment of any employee in the trade or business or undertaking; and
(c) Any employer who employed any employee in the trade or business or undertaking at any time before the transfer and the transferee shall be deemed, in relation to the employee, to be the same employer.
2. If by or under any Act, whether passed before or after the date of the commencement of this Act, a [employment agreement] between any body corporate and an employee is modified and some other body corporate is substituted as the employer,
(a) The employee's period of employment at the time when the substitution takes effect shall count as a period of employment with the second-mentioned body corporate; and
(b) The substitution shall not break the continuity of the period of employment of the employee; and
(c) The first-mentioned body corporate and the second-mentioned body corporate shall be deemed, in relation to the employee, to be the same employer.
3. If on the death of an employer an employee is taken into the employment of the personal representatives or trustees of the deceased (whether before or after the commencement of this Act),
(a) The employee's period of employment at the time of the death shall count as a period of employment with the employer's personal representatives or trustees; and
(b) The death shall not break the continuity of the period of employment of the employee; and
(c) The employer and the employer's personal representatives or trustees shall be deemed, in relation to the employee, to be the same employer.
4. If there is a change (whether before or after the commencement of this Act) in the partners, personal representatives, or trustees who employ any employee,
(a) The employee's period of employment at the time of the change shall count as a period of employment with the partners, personal representatives, or trustees after the change; and
(b) The change shall not break the continuity of the period of employment of the employee; and
(c) The partners, personal representatives, or trustees who employed the employee before the change and the partners, personal representatives, or trustees who employ the employee after the change shall be deemed, in relation to the employee, to be the same employers.
5. If (whether before or after the commencement of this Act) an employee of an employer is taken into the employment of another employer who, at the time when the employee enters that other employer's employment is an associated employer of the first-mentioned employer,
(a) The employee's period of employment at that time shall count as a period of employment with the associated employer; and
(b) The taking of the employee into the employment of the associated employer shall not break the continuity of the period of employment; and
(c) The first-mentioned employer and the associated employer shall be deemed, in relation to the employee, to be the same employer.
6. For the purposes of clause 5 of this Schedule, any 2 employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and the expression "associated employer" shall be construed accordingly.
End of Part 8
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