Authority examines if there's legal basis to expand eligibility requirements
A worker recently applied to the Employment Relations Authority to reverse the decision to decline her application for parental leave payments, in light of her “exceptional circumstances,” being the impact of Covid-19 on her industry and alleged “pregnancy complications.”
The worker, Hazelle Tailby, applied for parental leave on 11 July 2022 under the Parental Leave and Employment Protection Act 1987.
The Inland Revenue Department (IRD) declined Tailby’s application on 12 July 2022, on the basis that she had not worked sufficient hours to quality for paid parental leave.
Tailby has applied to the Authority for a review of that decision. The Ministry of Business, Innovation and Employment (MBIE) has confirmed the IRD’s advice that Tailby had not worked sufficient hours to be eligible for paid parental leave.
Denied parental leave payments
Tailby works as an independent contractor within the film and television industry, providing costume and wardrobe services. At the time of her application for parental leave payments, she was based in Auckland and had been providing wardrobe services to a production being filmed in New Zealand.
She provided wardrobe service to this production between 7 June 2021 and 3 October 2021. Her evidence is that the production was significantly impacted by Covid-19, and in particular, the Auckland Level 3 lockdowns.
She said that the duration of her contracting work was “significantly shortened,” and ultimately the filming work was moved offshore. She says she was unable to find other film work.
Tailby also said that Covid restrictions impacted the industry as a whole and had the effect of significantly reducing the number of productions being filmed in New Zealand. Tailby
said that around this time, the Lord of the Rings production was also moved offshore, resulting in a significant number of people involved in film production looking for work, despite there being a reduced number of projects being produced domestically.
In addition, Tailby said that she experienced what she describes as “pregnancy complications”, which included nausea, hip pain, discomfort, broken sleep, and at times the inability to keep food down. Tailby said these factors prevented her to work.
Threshold under the Parental Leave Act
The Authority said that under the Parental Leave Act, “a self-employed person must meet the parental leave payment threshold test which requires that they be employed for at least an average of 26 out of the 52 weeks (for at least an average of 10 hours a week) immediately preceding the expected date of delivery of the child, or the first date on which they become the primary carer of the child.”
Tailby is the primary carer as defined under the Parental Leave Act, but the Authority had to investigate if she was able to meet the Act’s threshold.
She said that she couldn't fulfill the necessary 26 weeks within the crucial 52-week timeframe leading up to her due date. According to her, during the 52 weeks before her expected delivery date of June 13, 2022, she managed to work approximately 14 weeks as a contractor, maintaining an average of 50 hours per week, totaling 700 hours.
In her plea to the Authority, she suggested spreading these 700 hours over 26 weeks to achieve an average of around 26 hours per week, surpassing the stipulated requirement.
However, the records from the Inland Revenue Department (IRD) indicate that Ms. Tailby worked for 17 weeks during the relevant 52-week period, not aligning with her claim of 14 weeks.
Regardless, whether it is 14 or 17 weeks, she falls short of the mandated 26 weeks necessary for the parental leave payment threshold test.
Consequently, she failed to meet the criteria for the parental leave payment threshold test, rendering her ineligible for a parental leave payment.
Lack of medical evidence
The Authority then had to turn to her claim that she suffered “pregnancy complications.” It said that Tailby “did not provide any medical evidence to support her claim that she was not able to work as [she] usually would leading up to the birth of [her] son.”
As such, the Authority said that it was not able to take this into consideration when determining whether exceptional circumstances apply.
“Whilst I can understand the position Tailby finds herself in, and accept her evidence that she has ‘..worked super hard all [her] adult life and supported and furthered [herself] to the best of [her] ability,’ and that she has ‘…paid a lot of tax over the years and believe myself to be an honest and rule following New Zealander’, in light of the fact that Parliament deliberately chose not to alter the statutory eligibility criteria, there is no legal basis which would permit the Authority to set aside the statutory eligibility criteria,” the Authority said.
Thus, it said that after considering the overall circumstances of the worker, the Authority said that she is not entitled to parental leave payments. Her appeal was then denied.
