The in’s and out’s of parental leave

Unless you’ve been living under a rock, you would have noticed there have been some changes in the Beehive. Bill’s gone, Jacinda’s in, she’s making some changes, and she’s pregnant.  We thought we’d take this opportunity to recap on the state of New Zealand parental leave, given its complex nature and the confusion it can cause.

At the outset, it’s probably useful to provide some clarity over the definitions expressly used in the Parental Leave and Employment Protection Act 1987 (PLEP). There is even room for confusion at this point. It is useful to remember that the PLEP outlines an employee’s minimum legislative entitlements and that an employment agreement can provide an employee with more, if that is what is agreed between the parties to the agreement.

Let’s start with the main concept. The most commonly referenced definition is ‘parental leave’ which  the PLEP defines as including ‘primary carer’ leave, ‘partner’s leave’, ‘negotiated carer leave’, and ‘extended leave’.

‘Primary carer’ is defined in section 7 of the PLEP as a biological mother who is pregnant or has given birth to a child; the spouse/partner of the biological mother who has been transferred all or part of the biological mother’s parental leave entitlement (in whatever form); or a person other than the biological mother or her spouse/partner who takes permanent primary responsibility for the care, development, and upbringing of a child who is under the age of 6 years.

Primary carers (including those who are self employed) are currently entitled to 18 weeks paid parental leave. The maximum level of payment is currently $538.55 per week before tax. Employees are entitled to either their gross weekly rate of pay or $538.55, whichever is lower.

After 18 weeks, ‘extended leave’ kicks in. Unpaid extended leave of either 26 or 52 weeks is available, depending on how long the person seeking to take extended leave has been in continuous employment for prior to the birth/delivery of the child. If the employee has been employed by the same employer for 12 months (12 month test) they are entitled to 52 weeks extended leave. If the employee has been employed by the same employer for 6 months (6 month test), they are entitled to 26 weeks extended leave. (Please note that these tests are slightly different for self employed people, although the entitlement is the same).

Extended leave can be shared between a “mother” and their partner in a sort of trade-off/negotiation type arrangement. The full 52 week entitlement can be shared between the two, if both meet the 12 month test, or if the “mother” meets the 6 month test and the partner meets the 12 month test and they become the primary carer. Where a “mother” meets the 12 month test and a partner meets the 6 month test, only 26 weeks of the extended leave can be shared/transferred (but the “mother” remains entitled to the full 52 weeks). In either of those scenarios, the 18 weeks primary carer leave can also be transferred from the “mother” to the partner, if the partner becomes the primary carer.

Then we get to ‘partners leave’. Partners who meet the 12 month test get 2 weeks unpaid ‘partner’s leave’ on the birth/delivery of a child, and 1 week in the event that they meet the 6 month test. In addition, if an employee will be the primary carer of the child and would meet the work time and hours criteria to receive parental leave payments, but they can’t take primary carer leave (because they don’t meet the criteria for parental leave), they may be entitled to a period of unpaid ‘negotiated carer leave’ (Part 3A of the PLEP). Negotiated carer leave, which may be declined by an employer for certain, specific reasons (outlined in section 30E), must be requested at least three months before the baby’s due date, if the employee or their spouse or partner is pregnant, or 14 days before an employee becomes the primary carer of a child.

Don’t forget the ‘special leave’ entitlements. A pregnant employee is also entitled to 10 days’ ‘special leave’ (which is without pay) for reasons connected with her pregnancy. This leave is not considered when assessing the total entitlement to parental leave of both parents.

The confusion doesn’t stop there. Oddities exist for anyone navigating the PLEP. For example, taking parental leave earlier than the employee originally intended, is not as a straightforward process as one would hope. Under the PLEP, an employee cannot request to begin their primary carer leave more than 6 weeks before the expected due date (section 11), or in the case of adoption, on the date on which care of the child is first assumed, although it can commence earlier than 6 weeks before the due date if the employer and the employee agree (section 12).

There are specific notice requirements contained in the PLEP for taking parental leave, although these do not appear to apply in the event that the employee is placed on parental leave by a medical practitioner, which is usually early than initially intended. Section 13 requires that such a certificate specify the date on which, in the medical practitioner’s opinion, that the female employee should begin her primary carer leave.

Primary carer leave may also start earlier it an employer determines that a female employee is unable to perform her work safely (i.e. it is a health and safety matter) or adequately because of her pregnancy.

If a primary carer leave starts early (by medical or employer direction), the that employees is the female giving birth, they may still take at least 12 weeks’ primary carer leave after the expected date of delivery (even if this means that she will have taken more than 18 weeks primary carer leave, which is the maximum entitlement before extended leave kicks in). In this situation the additional weeks of primary carer leave is not included in the calculation of the amount of extended leave available (i.e. extended leave is unaffected and the employee still gets the maximum she is entitled to under the PLEP). However, if this situation does occur, and the pregnant employee takes primary carer leave early, this will reduce the amount of primary carer leave they are entitled to following the due date (as the amount of entitlement taken prior to the birth can be reduced by up to 6 weeks, if that is the amount taken, and this would mean that the employee is therefore only entitled to a maximum of 12 weeks post birth), and her extended leave will start earlier (and therefore finish earlier, which results in the employee being required to come back to work earlier than originally intended), even though she uses the full 34 weeks extended leave (assuming that this is what she is entitled to).

Even though the PLEP does state that parental leave will start earlier if a medical certificate is provided confirming the need for this, it is better when these matters are negotiated by agreement, if possible, and in accordance with the duty of good faith (which is an obligation on both parties). Noting, also, that this can be a stressful time for any new parent and a degree of leeway is always appreciated. The PLEP also sets out the process for settlement of parental leave complaints and the remedies available to employees.

There are also separate consideration for premature births and the rules around multiple children. And then there are keeping in touch days. And the matter of calculating holiday pay while an employee is on parental leave. Another time perhaps.

So, there you have it. Clear as mud.

Whether you’re an employee or an employer, if you need help navigating the parental leave process, or drafting the required documentation (which can also be a challenging and time consuming area), we are here to help.

We will leave you with a fun fact. NZ is not the first country to have a pregnant person in office.  Pakistan’s leader, Benazir Bhutto, gave birth to her first child weeks before she became took office in 1988. The NZ Herald has reported her to be the first modern head of government to give birth while in office. She even did it again and gave birth to her third child a few months before she assumed office for the second time in October 1993.

Workplace Law team

If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan