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Parental Leave FAQ's from the Employment Relations Service

image  What is parental leave?

image  Who is eligible for parental leave?

image  How much time off do they get?

image  What is the payment entitlement?

image  Must I agree to the leave?

image  What do I do when I receive an application for leave or payment?

image  What about an eligible employee adopting a child?

image  What happens to leave or payment entitlements in existing employment agreements?

image  What happens when an employee returns to work?

image  Appendix G: Calculating and advising wages to Inland Revenue for the purpose of paid parental leave

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What Is Parental Leave?

  • Parental leave is time off work available by law to new parents.
  • The leave is to provide employees with the opportunity to care for their newborn baby or an adopted child under five years.
  • There is a tax funded payment available to parents.
  • It is important to be aware that it is a breach of the Parental Leave and Employment Protection Act, and the Human Rights Act, to discriminate against a woman on the grounds of pregnancy.
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Who is eligible for parental leave?

You are required to provide unpaid time off work for an employee who, at the expected date of birth or adoption, will have worked for you for

  • At least 12 months, and who has not taken parental leave in the 12 months before the expected date of birth or adoption, and
  • An average of 10 hours per week, on the basis of at least one hour every week or 40 hours every month. If the employee works an irregular employment pattern the normal pattern of hours over the period is used to establish the average hours.

Where there is a desire to share the leave between partners, both of them must meet the two eligibility tests above.

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How much time off do they get?

Four types of unpaid leave are available to employees. These are

Special Leave

  • Up to 10 days special leave, which can be used before maternity leave begins to enable a pregnant woman to attend medical appointments, antenatal classes, etc.
  • This unpaid leave is separate from, and additional to, the domestic or special leave provided for in the Holidays Act.

Maternity Leave

  • Up to 14 weeks maternity leave for the mother or primary carer, six weeks of which can be used before the expected date of delivery.
  • Where a medical advisor states that it is necessary for the health of the mother or child to commence leave earlier this time can be extended.
  • You can also ask an employee to commence their leave at an earlier time if there is a genuine inability to perform normal duties for health and safety reasons.
  • Alternatively, you can transfer the employee to another comparable position that would be safe for the employee.
  • You and your employee can also agree to an earlier start date that is convenient to both of you.

Paternity or Partner Leave

  • Up to two weeks paternity or partner leave.
  • This can be taken at any time from three weeks before the expected date of birth until three weeks after the date upon which the child is discharged from hospital.
  • In the case of a premature birth, leave can be taken in the period from the date of delivery to three weeks after the child is discharged from hospital.

Extended Leave

  • Up to 52 weeks extended leave, from which any period of maternity leave will be deducted.
  • For example, if six weeks is described as maternity leave the partners retain 46 weeks extended leave that may be shared between them.
  • This leave can be shared in any manner the partners choose, but must be taken in continuous periods.
  • Partners can take leave simultaneously if they wish.
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What is the payment entitlement?

  • The law provides for a Government payment of up to $516.85 gross for up to 14 weeks.
  • The payment is to help replace wages and employees will only receive this entitlement when they take leave.
  • Inland Revenue credits the payment to the employee's bank account on a fortnightly basis.
  • It is subject to the employee's normal tax rate, including student loan repayments.
  • When an employee wishes to apply for the payment you are required to complete an application form and send it to Inland Revenue.
  • This form requires you to confirm that the employee is entitled to payment (has met the eligibility criteria above) and their earnings.
  • In calculating the employee's entitlement where their average weekly payment over the 12 months is less than $516.85 you should calculate the larger amount of their average weekly earnings and their ordinary weekly pay.
  • As you may be making that calculation some months before the date of birth you will be required to estimate their income based on the work pattern they have been undertaking.
  • If, for example, an employee has worked eight hours one week and 16 hours the following in a pattern for the past 10 months, the average weekly hours and earnings should be calculated as if that pattern of work continues to the date of birth.
  • A formula for calculating this entitlement appears as Appendix G.
  • If you require assistance in making this calculation visit the Employment Relations Service website, where an interactive guide is available, or the Employment Relations Infoline 0800 800 863 is available to give advice.
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Must I agree to the leave?

  • Yes, the Act provides a right to leave to all eligible employees.
  • However, it does allow you to argue that you are unable to keep an employee's job open for them where it is a 'key position' and where they are seeking more than four weeks leave.
  • The test of a key position is not whether it would be convenient to replace the employee with another permanent or contract employee for the period of leave, but whether it is necessary to do so.
  • Necessity will depend on the circumstances of a particular position, including the size of your business and the requirements of the job.
  • If you are considering advising an employee that you are unable to keep the job open for this reason, it would be wise to obtain advice from your employer organisation or the Employment Relations Infoline on 0800 800 863.
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What do I do when I receive an application for leave or payment?

  • The Act states that at least three months before the expected date of birth your employee should provide you with a written request for leave and a certificate confirming the date.
  • You are required to respond to the request within three weeks.
  • Sample letters requesting leave, responding to the request for leave and, if necessary, advising the employee on their rights to paid parental leave are available from the Employment Relations Infoline on 0800 800 863, or on www.ers.dol.govt.nz
  • Many workplaces handle requests for leave on a more informal basis and this is fine, as long as you and your employee agree.
  • You will be required to complete a portion of the employee's application form for payment.
  • There are two application forms, one for the mother or primary carer and a second for employees who have had the right to payment transferred to them from their partner.
  • Both contain a section which requires you to confirm the details of the employee's period of service, hours of work, earnings, leave intentions and the fact that you have been satisfied that the expected date of delivery is correct.
  • Please complete these details as soon as possible.
  • When you have completed the declaration on the form you should return it to the employee; it is the employee's responsibility to forward the application form to Inland Revenue.
  • There is no requirement for you to inform Inland Revenue of the commencement of leave, birth of the child, or return to work of the employee.
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What about an eligible employee adopting a child?

  • In some circumstances it will be impossible for the employee to provide clear notice of their intention to take leave.
  • In these circumstances employees should use their best endeavours to keep you informed.
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What happens to leave or payment entitlements in existing employment agreements?

  • If your employment agreement with the employee provides additional entitlements to payment or leave these continue to apply.
  • A more generous eligibility entitlement under the employment agreement (e. g. making leave available after six months or without a minimum requirement for hours worked) does not affect the eligibility requirements for the tax- based payment.
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What happens when an employee returns to work?

  • The employee is required to give three weeks notice of their intention to return to work.
  • If they return to work while receiving a parental leave payment the payment stops and it is their responsibility to advise Inland Revenue.

Appendix G: Calculating and advising wages to Inland Revenue for the purpos

The payment for parental leave replaces wages up to $516.85 gross per week.

1. For employees who clearly would have received a wage of more than

$516.85 per week or $26,876 per year had they been at work for a full year at the date of delivery or adoption no calculation is required. Record their current gross weekly wage. The employee should receive the maximum payment of $516.85 per week.

2. For employees whose income is less than

$516.85 gross per week, and would have had a consistent weekly wage had they been at work for a full year at the date of delivery or adoption no calculation is required. Simply record the current gross weekly wage. The employee should receive their current weekly wage while on leave.

3. For employees who are employed on a regular roster or cycle which

would have continued had they been at work for a full year at the date of delivery or adoption you need to calculate the average. Add together the gross wages for each week of the cycle and divide by the number of weeks; the resulting figure should be recorded.

4. Where it is unclear that an employee's income would have

exceeded $516.85 per week or $26,876 per year (e. g. pay varies from week to week without a regular pattern: bonuses, commission or overtime have increased the income) a calculation is required to establish the average weekly earnings.

  • First record the pattern and level of income earned from one year proceeding the expected date of birth to the last pay period prior to completing the calculation.
  • Then extend the pay pattern as if it had continued until the employee is due to give birth or adopt, including any payments they could have expected to receive, such as commission, bonuses, paid parental leave or annual leave, but excluding any period of unpaid leave they are expected to take prior to the birth or adoption. This figure is the employee's gross annual earnings for the 12- month period.
  • Then divide the amount by the number of weeks covered by the calculation (e. g. if the employee plans to commence leave three weeks before the expected date of birth divide by 49) to identify the employee's average weekly earnings. This is the figure that should be provided to Inland Revenue.

But the number of weeks you divide by also needs to be reduced where any of the following circumstances apply to the employee:

  • they have taken leave of any kind without pay with your agreement
  • they have been absent and receiving ACC compensation
  • they have had leave for service with the Territorial Army
  • they have been absent for a reason that a Labour Inspector does not consider disrupts the normal pattern of work (for example a regular closedown of the place of work during which time the employee is unpaid).

(For example, if the employee is commencing leave three weeks before delivery or adoption and has spent four weeks on unpaid leave the gross salary should be divided by 45, i. e. 52-3- 4.)

If when completing the calculation you experience difficulties, or where there are differences between yourself and an employee about the calculation, a Labour Inspector can determine the amount on your behalf.

If you disagree with the Inspector's calculation you may refer the difference to the Employment Relations Authority.

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