Proposed parental leave changes promise more flexibility

Proposed changes to parental leave legislation promise more flexibility for non-biological parents, and more support for those unexpectedly taking on the care of a child.

The Bill proposing the changes passed its first reading in Parliament in late July. Named the Regulations Systems Amendment Bill (No 3), it proposes changes to the Parental Leave and Employment Protection Act 1987 (Act).

The Minister for Workplace Relations and Safety has described the proposed changes as aiming to improve the current settings, give non-biological parents more flexibility in caring for their child, and help in circumstances where someone has taken on the care of a child unexpectedly.

Payments for non-biological parents

The Bill includes several minor changes, including changes to the duration of primary carer leave where a baby is born preterm, and clarification on eligibility threshold tests.

Most notably however, the Bill extends when parental leave payments are payable in instances where the primary carer is a person who is not the biological mother or her partner, but has the “permanent primary responsibility for the care, development and upbringing of a child who is under the age of 6 years”. Under the Bill, such people could continue working for a “reasonable period” after becoming the primary carer and still seek parental leave payments.

In the example given by the Minister, this means that if a man and his partner were informally caring for a child and a formal parenting order was then imposed, that man would be eligible to receive parental leave payments if he stopped working to be the primary carer.

Under the Act’s current operation, technically he would be barred from these payments on the basis that he should have stopped working or applied for parental leave earlier, when the child came into his and his partner’s care. This is because “primary carer” is broadly defined, including people who take “permanent primary responsibility for the care, development and upbringing of a child who is under the age of 6 years.” This would capture the informal and potentially uncertain or unexpected care arrangements that later become formalised.

We note that neither the Bill nor that Act define what a “reasonable period” is. Though the term appears throughout the Act, its use in this circumstance may raise questions of what a “reasonable period” is when parental leave questions arise in situations potentially unexpected to both an employee and an employer. It will be interesting to see whether any guidance arises on this point.

What the Bill does not do

Given the Bill’s focus on regulations, it does not address or incorporate other changes to the parental leave system on the Government’s radar.

Specifically, the National Party’s promise to implement flexible parental leave – which would allow parents to use their parental leave entitlements concurrently – is still on the policy agenda. We look forward to considering these as this policy develops.

Maria Green is a special counsel specialising in employment law at Lane Neave in Christchurch. Helena Scholes is a senior solicitor on the Employment Law team at Lane Neave in Wellington.