A key aspect of implementing the PPL scheme entailed finalising the policy detail and developing the legislation, which took place in the latter half of 2009 and the first part of 2010. This task was managed by FaHCSIA through the Policy and Legislation Working Group and consisted of two phases. In the first phase, during 2009, the main focus was the development of detailed policy, building on the Productivity Commission’s recommendations, including the development of drafting instructions. In the second phase, during 2010, the focus was on drafting the PPL legislation and obtaining relevant Ministers’ approval of the final policy and legislation.
The development of detailed policy and the creation of drafting instructions were the responsibility of FaHCSIA staff. While the policy design was largely based on the recommendations of the Productivity Commission, FaHCSIA was tasked with developing more detailed policy elements. Drafting instructions were then prepared and submitted to the Office of Parliamentary Counsel, who drafted the legislation in close consultation with FaHCSIA and DEEWR. Issues arising during the drafting instruction stage were numerous, but five issues were central to this stage: eligibility questions; the employer role; the administration of PPL; compliance; and reviews and appeals.
Extensive consultations between government departments were necessary in developing the PPL legislation.
Broadly, the PPL Act covers eligibility, claims, payments, the employer role, compliance, debt recovery, reviews and appeals, and a range of miscellaneous matters.
3.4.1 The passage of legislation
The Bill, together with the Explanatory Memorandum, was tabled in the House of Representatives on 12 May 2010. The Bill was passed by Parliament on 17 June 2011. Four government amendments were made in response to the consideration of the Bill by the Senate Community Affairs Legislation Committee. These amendments:
• Inserted a new ‘Object of this Act’ clause to clarify the object of the new Paid
38 • Clarified that an obligation of an employer to provide PLP to a person under the new Paid Parental Leave Act 2010 is in addition to any other obligations that employer has in relation to the person, however they arise;
• Allowed a birth mother to be eligible for PLP where the Secretary is satisfied that she would have met the work test but for the premature birth of her child, or pregnancy-related complications or illness; and
• Provided for a review of the general operation of the new Paid Parental Leave
Act 2010, starting by 31 January 2013 (Australian Government 2010).
3.4.2 PPL Guide
Another task undertaken in 2010 was the development of the Paid Parental Leave Guide, the detailed guide to the administration of the legislation. The Guide was released in September 2010 in time for the first PPL claims.
The Guide is used by Centrelink staff who administer the PPL scheme. It is also a public document available on the FaHCSIA website.
3.4.3 PPL Rules
The PPL Act includes an extensive set of legislative arrangements that generally covers eligibility and claim arrangements for claimants who are parents, and other matters detailed under section 3.4 above. To avoid further complication of the legislation, the PPL Act includes a provision for Rules to be made by legislative instrument to cover matters specifically required or permitted by the Act, and other matters that may from time to time by necessary to give effect to the Act.
The PPL Rules include legislation to cover the exceptional circumstances in which a claim may be made in exceptional circumstances, and eligibility criteria for claimants in exceptional circumstances. They extend the operation of the PPL Act to persons who are not employees and employers (e.g. law enforcement personnel and Defence Force members), provide more detailed definitions of some concepts such as paid work and paid leave, and cover other administrative matters including information provision.
The PPL Rules were drafted by the Office of Legislative Drafting and Publications (OLDP). The Paid Parental Leave Rules 2010 were registered on 24 December 2010 and came into effect on 25 December 2010. The Rules were amended in June 2011 by the Paid Parental Leave Amendment Rules 2011 (No. 1), in October 2012 by the Paid Parental Leave Amendment Rules 2012 (No. 1) and in December 2012 by the Paid Parental Leave Amendment Rules 2012 (No. 2).
3.4.4 Issues arising following implementation
Following passage of the legislation in 2010, a number of issues arose. Some issues were related to initial implementation of the scheme. For example, some individuals who had applied for and would have been eligible for PLP if their baby had been born after 1 January 2011 as expected were no longer eligible to receive PLP because their child was born early, prior to the 1 January 2011 implementation date.
Another issue arose around the work test and the definition of continuous employment. Under the work test, a permissible break in continuous employment is considered to be no more than 56 consecutive days (eight weeks). In some industries, such as education, this definition is problematic because employees are given at least an eight week break that is often extended by a few days. This issue is limited to certain industries and can vary across States and Territories.
39 Alongside these minor issues, more substantive issues emerged prior to implementation or have arisen following implementation. For example, there is an ongoing dialogue about the KIT days. As noted previously, KIT provisions in the PPL scheme allow employees the option of using up to 10 paid days to ‘keep-in-touch’ with the workplace without losing their entitlement to PLP. However, the inclusion of KIT days in the legislation raised important questions for employers, such as what constituted a KIT day, the interaction with collective agreements or company policy but also questions such as what to pay someone on a KIT day and whether employees accrue leave on those days. In addition, as noted above, KIT days presented a unique problem regarding interaction with the National Employment Standards. The Government has since amended the Fair Work Act to ensure that using KIT days does not breach employees’ entitlements to unpaid parental leave under the NES. These amendments were passed in June 2012 as part of the Paid
Parental Leave and Other Legislation Amendment (Dad and Partner Pay and Other Measures) Bill 2012.