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Parental Leave and Employment Protection Act 1987
Part 7A Payment For Parental Leave
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Part 7A Payment For Parental Leave
Preliminary provisions
Section 71A - Purpose
Section 71B - Overview
Section 71C - Interpretation of this Part
Entitlement to parental leave payment
Section 71D - Entitlement to parental leave payment
Transfer of entitlement to spouse
Section 71E - Entitlement may be transferred to spouse
Restrictions on parental leave payments
Section 71F - Subsequent parental leave payments
Section 71G - Parental tax credit
Section 71H - Joint adoptions
Section 71I - Applications for payment
Duration of parental leave payment
Section 71J - Duration of parental leave payment
Section 71K - Start of parental leave payment
Section 71L - End of parental leave payment
Amount of parental leave payment
Section 71M - Amount of parental leave payment
Section 71N - Annual adjustment of maximum rates of parental leave payment
Section 71O - Discretionary increases in payment amount by Order in Council
Section 71P - Amount of payment not affected by other non-statutory entitlements
Administration
Section 71Q - Payments must come out of public money
Section 71R - Method of payment
Section 71S - Backdating of payments
Section 71T - Obligation of employer to notify employee of payment entitlements
Section 71U - Obligation to notify early return to work etc
Section 71V - Non-return to work does not affect payment
Section 71W - Obligation to supply information
Section 71X - Recovery of debts by department
Section 71Y - Recovery of payments
Section 71Z - Offence to mislead department
Section 71ZA - Chief executive may delegate
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Section 71A Purpose |
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The purpose of this Part is to entitle certain employees to up to 14 weeks of parental leave payments out of public money when they take parental leave from their employment in respect of a child.
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Section 71B Overview |
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(1) Sections 71A to 71C are preliminary provisions relating to the parental leave payment scheme.
(2) Section 71D confers entitlements to parental leave payments, primarily on female employees.
(3) Section 71E enables those employees to transfer their entitlements to their spouses in certain circumstances.
(4) Sections 71F to 71I contain restrictions on entitlements to parental leave payments.
(5) Sections 71J to 71P relate to the duration and amount of parental leave payments.
(6) Sections 71Q to 71ZA relate to the administration of the parental leave payment scheme.
(7) This section is intended only as a guide to the general scheme and effect of this Part.
| Section 71C Interpretation of this Part | |
In this Part, unless the context otherwise requires,
eligible employee has the meaning given in section 71D(2) non-statutory parental leave means any rights and benefits in thenature of parental leave for which provision is made otherwise than by this Act
parental leave includes non-statutory parental leave.| Section 71D Entitlement to parental leave payment |
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(1) An employee is entitled to a parental leave payment under this Part if the employee
(a) has given written notice to his or her employer of his or her wish to take parental leave (either in accordance with this Act or with the alternative provision under which the leave is taken); and
(b) takes parental leave from his or her employment in respect of a child; and
(c) is an eligible employee.
(2) An eligible employee is
(a) a female employee who meets the criteria for maternity leave for the child under section 7; or
(b) an employee who meets the criteria for parental leave for the adopted child under section 8 or section 18 or section 24; or
(c) an employee to whom all or part of an entitlement to a parental leave payment is transferred under section 71E; or
(d) an employee who succeeds to all or part of an entitlement to a parental leave payment under section 39A.
(3) Rights and benefits to non-statutory parental leave (and section 4) are ignored when considering whether a person is an eligible employee under this section.
(4) This section is subject to sections 71F to 71I (restrictions on parental leave payments).
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Section 71E Entitlement may be transferred to spouse |
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(1) An eligible employee (within the meaning of section 71D(2)(a) or (b)) may transfer all or part of his or her entitlement to a parental leave payment in respect of a child to his or her spouse if the spouse—
(a) has given written notice to his or her employer of his or her wish to take parental leave (either in accordance with this Act or with the alternative provision under which the leave is taken); and
(b) takes parental leave from his or her employment in respect of the child; and
(c)meets the criteria for parental leave under any of sections 7(b), 8(1)(b), 17(c), 18(1)(b), 23(b), or 24(1)(b).
(2) Rights and benefits to non-statutory parental leave (and section 4) are ignored when considering whether the spouse meets the criteria for parental leave for the purpose of this section.
(3) To the extent that an employee transfers all or part of his or her entitlement to a parental leave payment to his or her spouse under this section,—
(a) references in this Part to the employee's entitlement to a parental leave payment are references to the spouse's entitlement to a parental leave payment; and
(b) references in this Part to the period of parental leave are references to the period of parental leave taken by the spouse; and
(c) the amount of the parental leave payment is calculated according to the earnings of the spouse; and
(d) the entitlement that is transferred is deducted from the transferring employee's entitlement to a parental leave payment.
(4) This section is subject to sections 71F to 71I (restrictions on parental leave payments).
| Section 71F Subsequent parental leave payments | |
An employee is not entitled to a parental leave payment if
(a) section 6 applies (restriction on taking of parental leave within 12 months of end of previous period of parental leave for another child); or
(b) any of sections 8(2), 18(2), or 24(2) applies (restriction on adoptive parent taking parental leave if they have previously taken parental leave for the same child as a birth parent).
| Section 71G Parental tax credit |
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(1) The purpose of this section is to ensure that employees do not receive both a parental leave payment under this Part and a parental tax credit (within the meaning of the Income Tax Act 1994) in respect of the same child.
(2) An employee loses his or her entitlement to a parental leave payment under this Part if either or both of the employee or his or her spouse has received any payment of parental tax credit in respect of the child.
| Section 71H Joint adoptions | |
(1) If 2 spouses assume the care of a child with a view to adoption by them both jointly,
(a) the spouses must jointly nominate which 1 of them is to be primarily entitled to the parental leave payment; and
(b) only the nominated spouse is the eligible employee for the purpose of section 71D(2)(b).
(2) However, subsection (1) does not limit section 71E (transfers of entitlement).
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Section 71I Applications for payment |
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(1) An employee is not entitled to a parental leave payment unless the employee makes an application for payment in accordance with this section.
(2) The application must
(a) be made before the date on which the employee returns to work or the parental leave otherwise ends; and
(b) be made in the manner prescribed in regulations; and
(c) specify the matters, and be accompanied by the documents, prescribed in regulations; and
(d) state whether or not the employee wishes to transfer all or part of the entitlement under section 71E.
(3) An employer must comply with any provision in the regulations that requires the employer to specify matters in, or attach documents to, or sign, an application under this section.
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Section 71J Duration of parental leave payment |
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A parental leave payment is payable
(a) for 1 continuous period not exceeding 14 weeks; or
(b) if part of the entitlement is transferred under section 71E, for 1 continuous period per employee, so long as the 2 continuous periods do not together exceed 14 weeks.
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Section 71K Start of parental leave payment |
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A parental leave payment is payable to an employee for a period that begins on the date of commencement of his or her parental leave.
| Section 71L End of parental leave payment |
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(1) A parental leave payment is payable to an employee for a period that ends on the earlier of
(a) 14 weeks after the date of commencement of his or her parental leave; or
(b) the date on which he or she returns to work or resigns from his or her employment.
(2) Subsection (1) applies despite the fact that the employee's parental leave may end before that date if
(a) the employee's employment is terminated due to redundancy or dismissal for cause:
(b) the employee has a miscarriage or ceases to have the care of the child:
(c) the employee or the child dies.
(3) However, the period for which a parental leave payment is payable to an employee terminates earlier than the date referred to in subsection (1)
(a) if the employee takes parental leave only from fixed term employment (within the meaning of section 66 of the Employment Relations Act 2000), in which case the payment stops on the date on which fixed term employment ends; or
(b) if the employee's spouse succeeds to the parental leave payment entitlement under section 39A, in which case the payment to the employee stops on the date of succession.
(4) This section is subject to section 71E(3) (effect of transfers of entitlement).
| Section 71M Amount of parental leave payment | |
(1) The rate of parental leave payment payable to any employee is the lesser of
(a) $458.00 per week (or any adjusted amount set under section 71N or any other amount set under section 71O); or
(b) the greater of
(i) 100% of the employee's ordinary pay before the commencement of the parental leave; or
(ii) 100% of the employee's average weekly earnings.
(2) In this Part, unless the context otherwise requires,
average weekly earnings and ordinary pay mean the total of those
- amounts in respect of all the employments from which the employee takes parental leave as an eligible employee
average weekly earnings means one fifty-second of the employee's- gross earnings during the year ending with the expected date of delivery (or, in the case of adoption, the date on which the employee assumes the care of the child with a view to adoption), except that, if section 72A applies, the divisor of 52 must be reduced by the number of complete weeks during which the employee was absent from work on leave without pay in a circumstance described in subsection (2) of that section
ordinary pay has the meaning given to it in the- Holidays Act 2003 .
| Section 71N Annual adjustment of maximum rates of parental leave payment |
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(1) The rate of parental leave payment that applies under section 71M(1)(a) must be adjusted, by Order in Council, as at 1 July each year by any percentage movement upwards in average ordinary time weekly earnings.
(2) In this section, average ordinary time weekly earnings means average ordinary time weekly earnings (employees) as determined by the Quarterly Employment Survey published by Statistics New Zealand.
(3) The Order in Council must not reduce the amount.
(4) The Order in Council comes into force, or is considered to come into force, on 1 July of the calendar year in which it is made, and applies to parental leave payment payable on and after that date.
Editors Note:
Weekly rate increased to $458.00 on 01/07/2011.
Weekly rate increased to $441.62 on 01/07/2010.
Weekly rate increased to $429.74 on 01/07/2009.
Weekly rate increased to $407.36 on 01/07/2008.
Weekly rate increased to $391.28 on 01/07/2007.
Weekly rate increased to $372.12 on 01/07/2006.
Weekly rate increased from $334.75 to $346.63 on 01/07/2004.
Weekly rate increased from $325 to $334.75 on 01/07/2003.
| Section 71O Discretionary increases in payment amount by Order in Council |
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(1) The Governor-General may, at any time, by Order in Council made on the recommendation of the Minister, increase the rate of parental leave payment that applies under section 71M(1)(a).
(2) The Minister, in making the recommendation, may base his or her decision on any factors that he or she thinks fit.
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Section 71P Amount of payment not affected by other non-statutory entitlements |
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(1) An entitlement to a parental leave payment under this Part is not affected or reduced by any other entitlement that the employee may have under the terms of any employment agreement.
(2) An employer must not, without the agreement of the employee, reduce any other entitlement that the employee may have under the terms of any employment agreement because of the employee's entitlement to a payment under this Part.
(3) An employer who fails to comply with this section is liable to a penalty imposed by the Employment Relations Authority under the Employment Relations Act 2000 in respect of each employee to whom the purported reduction applies.
(4) Sections 133 to 136 of the Employment Relations Act 2000 apply with necessary modifications.
| Section 71Q Payments must come out of public money | |
There must, from time to time, be paid out of the Crown Bank Account, from money appropriated by Parliament for the purpose, all money required to be expended in providing parental leave payments under, and making other payments in connection with, this Part.
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Section 71R Method of payment |
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(1) A parental leave payment is payable in arrears on the days or dates in the month that the chief executive from time to time determines.
(2) Every instalment of the payment must be paid into the New Zealand bank account specified by the applicant for the purpose unless the chief executive in any particular case otherwise determines.
(3) For the purpose of the PAYE rules under the Income Tax Act 1994, a pay period, in respect of an instalment of the payment, is the period for which the payment is made.
| Section 71S Backdating of payments |
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The first payment of a parental leave payment includes an amount in respect of the period from the start of the parental leave if the application is received on or after the date of commencement of the parental leave.
| Section 71T Obligation of employer to notify employee of payment entitlements |
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Every employer who receives a notice of an employee's wish to take parental leave must, within 21 days after the receipt of the notice, inform the employee of the substance of this Part by giving the employee a notice in a form prescribed by the department.
| Section 71U Obligation to notify early return to work etc | |
(1) An employee must give notice if, during the period for which the employee is receiving a parental leave payment under this Part,
(a) the employee returns to work; or
(b) the employee's fixed term employment ends; or
(c) the employee resigns from his or her employment.
(2) The notification must be made in the manner prescribed in regulations and specify the matters, and be accompanied by the documents, prescribed in regulations.
| Section 71V Non-return to work does not affect payment |
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(1) An employee is not required to refund any parental leave payment under this Part because the employee
(a) does not return to work at the end of his or her parental leave; or
(b) does not accept employment offered by the employer during the period of preference in obtaining employment.
(2) Sections 46 and 47 do not apply for the purpose of this Part.
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Section 71W Obligation to supply information |
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(1) The department may, by written notice, request an employee who has applied for a parental leave payment, and any employer of that employee, to supply to the department any information in the employee's or the employer's (as the case may be) possession relating to the employee's entitlement or continued entitlement to payment under this Part.
(2) The employee or the employer must comply with a request under this section within a reasonable period to be set by the department.
| Section 71X Recovery of debts by department |
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(1) A sum (an overpayment) paid under this Part is a debt due to the department if the sum was
(a) paid to a person in excess of the amount to which the person is entitled under this Part; or
(b) paid to a person who has no entitlement to it under this Part.
(2) The department may
(a) recover the debt by way of proceedings; or
(b) deduct all or part of the debt from any amount payable to that person under this Part.
(3) This section is subject to section 71Y (recovery of payments).
| Section 71Y Recovery of payments |
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The department may not recover any payment or part of a payment under this Part that was paid as a result of an error not intentionally contributed to by the recipient if the recipient
(a) received the payment in good faith; and
(b) has so altered his or her position in reliance on the validity of the payment that it would be inequitable to require repayment.
| Section 71Z
Offence to mislead department |
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(1) A person commits an offence who, for the purpose described in subsection (2),
(a)makes any statement knowing it to be false in any material particular; or
(b) does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the department or any other person concerned in the administration of this Act.
(2) The purpose is for that person or another person to receive or to continue to receive any payment or entitlement under this Part.
(3) A person who commits an offence against this section is liable on summary conviction to a fine not exceeding $5,000.
| Section 71ZA Chief executive may delegate |
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(1) The chief executive may delegate the administration of all or any part of this Part to 1 or more persons.
(2) The delegation must be in writing.
(3) Section 41 of the State Sector Act 1988 applies if the delegation is to a chief executive or to a member of the senior executive service or to an employee (as those terms are defined in that Act).
(4) If the delegation is to another person,
(a) the delegation may not include the power to delegate under this section; and
(b) subject to any general or special directions given or conditions imposed by the chief executive, the person to whom the delegation is made may administer this Part in the same manner and with the same effect as if this Act (and not the delegation) so provided; and
(c) every person purporting to act under the delegation is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.]
End of Part 7A
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