‘Keeping in touch’ days help secure benefits despite working after adoption
The Employment Relations Authority (ERA) recently dealt with a case where a worker sought review of a Ministry of Business, Innovation and Employment (MBIE) decision that denied her parental leave payment application under the Parental Leave and Employment Protection Act 1987.
The worker argued that the date she truly assumed care of the child with intent to adopt should be considered the day she received formal written confirmation from the birth mother, not when she first brought the child home.
She maintained that her circumstances, including her inability to immediately stop work, should be viewed in light of the Act's purpose to support caregivers.
At issue was the interpretation of when parental leave entitlements begin for non-biological parents and whether continuing to work briefly after assuming care disqualifies a person from receiving payments.
The worker had been employed as a caregiver since October 2021. In late 2023, the worker's stepdaughter, who lived in Australia and was pregnant, contacted her about the possibility of the worker and her husband taking care of the child after birth. The stepdaughter planned to travel to New Zealand to give birth.
A week before the child was born, the worker and her husband agreed to take care of the child and started considering adoption. On 7 January 2024, the worker received a call that the child had been born that day in New Zealand. She and her husband took the child home the next day.
The stepdaughter returned to Australia shortly after giving birth. Due to difficulties finding someone to take over her caregiving duties, the worker continued working, relying on a visiting relative to look after the child while she continued her employment.
During this period, the worker and her husband decided to adopt the child. However, the worker felt she needed written confirmation from her stepdaughter before she had any legal rights over the child. On 17 January 2024, the worker arranged for her stepdaughter to send a letter confirming they were the "new adoptive parents."
Although the letter was dated 17 January, the worker didn't receive it until 22 February 2024. The letter was signed and stamped by an Australian Justice of the Peace on 20 February 2024. The worker continued working until 24 February 2024, just two days after receiving this confirmation.
On 22 February 2024, the same day she received the confirmation letter, the worker applied to the Inland Revenue Department (IRD) for parental leave payments. She explained when she assumed care of the child and why she hadn't been able to take immediate time off work.
According to the ERA, the Parental Leave and Employment Protection Act sets out specific eligibility requirements for parental leave payments. A person must be an "eligible employee" or "self-employed," be the primary carer of the child, and meet applicable parental leave payment thresholds.
For a non-biological mother, entitlement to parental leave payments starts on the date she becomes the primary carer of the child. The Act requires that the person must also stop working at the same time to receive payments. The ERA decision referenced an Employment Court ruling that clarified this requirement.
The Court had previously stated: "The Court agrees with [MBIE's] interpretation of s 71K, being that it prescribes the criteria for an entitlement, requiring certain persons to do certain things at certain times to receive that entitlement. Section 71K does not impose when a person is to take parental leave. However, to be entitled to receive the Government parental leave payments, their leave must align with the timing set out in s 71K."
The ERA noted that its review powers are wider than MBIE's, which are limited to decisions concerning irregularities. This broader discretion needed to be applied considering the policy and purpose of the Act: to establish minimum entitlements and protect employee rights while on parental leave.
MBIE suggested during the review that the two days the worker worked after assuming care could be treated as "keeping in touch" (KIT) hours. The Act allows an employee on parental leave to perform up to 64 hours of paid work as KIT days, though not within the first 28 days after a child's birth.
The ERA noted: "In this case, [the worker] assumed care of the child 46 days after the child's birth on Thursday 22 February 2024. [The worker] also confirmed she usually worked six hours on Fridays and eight hours on Saturdays. So for Friday 23 February 2024 and Saturday 24 February 2024, she would have worked around 14 hours which is well below the statutory 64 KIT hours."
The ERA determined: "Considering [the worker's] overall circumstances, the KIT provisions should be applied specifically in [the worker's] situation and thus treating her two days of work after assuming care of the child as KIT days. This in turn confirming her entitlement to paid parental leave payments."
The Authority considered "the relatively short timeframe [the worker] and her husband had to consider whether to care for the child and ultimately decide whether to adopt the child."
The ERA explained: "This interpretation and the use of the Authority's discretion is consistent with the specific provisions of the Act and its purpose of better supporting those who have assumed responsibility for the care of a child in the earliest stages of the child's life."
The ERA reversed MBIE's decision, directing it to "take the necessary steps to ensure [the worker] receives the paid parental leave payment due to her as soon as practicable."
