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This article is focused on New Zealand law and explains issues from a Common law perspective.
Parental leave in New Zealand
Parents who have been working for their employer for at least a year are entitled to take up to 12 months parental leave. Parents who have worked for their employer for only six months have some entitlements to parental leave, but generally less than for parents who have worked at least a year.
Parental leave is unpaid by the employer. But parents who qualify for parental leave are entitled to have 14 weeks of this leave on pay. From 1 July 2006, self-employed people are also entitled to 14 weeks paid parental leave, paid for by the Government.
Employees qualify for parental leave not only if they are birth parents, but also if they're adopting a child under six years old.
To get more information about parental leave, visit the New Zealand Employment website.
History of the parental leave laws
The right to 12 months unpaid parental leave was established by the PARENTAL LEAVE AND EMPLOYMENT PROTECTION ACT 1987. The Act was amended from 1 July 2002 to provide for a new state-funded scheme of 12 weeks paid leave. It was amended again on 1 December 2004 to increase this paid entitlement to 13 weeks, and to provide for some entitlements for those who have worked the previous six months. On 1 December 2005, paid leave was increased further to 14 weeks.
Check your employment agreement
As well as being aware of their minimum rights to parental leave under the Act, employees should also check their particular employment agreement, as it may explicitly provide for parental leave.
Qualifying for parental leave
To qualify for the full parental leave entitlements available under the Act, an employee must have worked
- for the same employer for the 12 months immediately before the delivery or adoption, and
- for at least an average of 10 hours a week, including
- at least one hour in every week or at least 40 hours in every month
Parents who meet those minimum-hours requirements for the previous six months but not the previous 12 months have, since 1 December 2004, had some parental leave entitlements, but less than for employees who meet the requirements for the previous 12 months. For details, see the specific headings below.
Teachers and doctors
From 1 December 2004, teachers employed by more than one state or integrated school in a 12-month period (whether or not at the same time) have been entitled to treat these different positions as a single employment for the purposes of qualifying for parental leave.
The same applies to junior doctors required to work for more than one district health board in order to complete their training, if the different positions are consecutive.
Self-employed people and paid parental leave
From 1 July 2006, self-employed people are also entitled to paid parental leave. To qualify, you must have been self-employed for at least an average of 10 hours a week for either the six months or the 12 months before your due date or, if you are adopting, before the date on which you assume care of the child with an intention to adopt.
Paid parental leave can be shared between two spouses or partners, provided each separately qualifies for paid parental leave, whether as an employee or as a self-employed person.
For details about paid parental leave, see below, "Paid parental leave for employees and self-employed people".
Unpaid parental leave for employees
Categories of unpaid parental leave
There are three types of unpaid parental leave. Employees who qualify on the basis of 12 months employment are entitled to
- maternity leave of 14 weeks
- partner's / paternity leave of two weeks
- extended leave of up to 52 weeks, which may be shared by the parents
Employees qualifying on the basis of six months employment are entitled to
- maternity leave of 14 weeks (increased from 13 weeks on 1 December 2005)
- partner's / paternity leave of one week
- no extended leave
There is also an additional provision for 10 days of special leave for pregnant women.
Birth and adoptive mothers who qualify for parental leave (whether on the basis of six or 12 months employment) are entitled to 14 weeks maternity leave, which they must take in one continuous period. (Before 1 December 2005, the maternity leave entitlement for those qualifying on the basis of six months employment was only 13 weeks.)
The leave begins on the "date of confinement", unless it begins earlier in one of the following ways:
- The employee may choose to begin maternity leave up to six weeks earlier than the expected date of delivery.
- The employee and the employer may agree that the leave will start on any date before the date of confinement.
- The employee may provide a certificate from her doctor or midwife stating that the leave should start on a date before the date of confinement.
- The employer can direct the employee to start the leave at an earlier date if because of her pregnancy the employee cannot perform her work safely or cannot perform it adequately.
Where the leave starts on a date set by a medical certificate or as directed by the employer (as explained above), the employee is entitled to at least eight weeks maternity leave after the date of delivery, even if this means the total period of maternity leave is more than the 14-week maximum. Any maternity leave over that maximum is not taken into account in determining how much "extended" parental leave (see below) is available.
Partner's / paternity leave
The spouse or partner of a pregnant woman (or adoptive mother) can take unpaid "partner's / paternity leave" in one continuous period of
- up to two weeks, if he or she qualifies on the basis of 12 months employment, or
- up to one week, if he or she qualifies on the basis of six months employment
The leave begins on the date of confinement of the mother, unless it begins earlier in one of the following ways:
- The employee taking partner's / paternity leave can choose to begin the leave at any time between the 21st day before the expected date of delivery and the 21st day after the actual date of delivery.
- The employee and the employer can agree that the leave will start on any date.
Partner's / paternity leave covers husbands, and civil union and de facto partners of both sexes. Before 1 July 2002, it covered only men, and was referred to as "paternity leave".
Employees qualifying for parental leave on the basis of 12 months employment may extend the period of leave to a combined total of 52 weeks in one continuous period.
This period of entitlement is reduced by the total maternity leave taken (but in certain cases maternity leave of more than the 14-week maximum is not taken into account for this purpose: see "Maternity leave" above).
The extended leave can be taken by one of the two spouses or partners, or it can be shared between them. It is not an entitlement that each has separately. But any employee taking extended leave must himself or herself qualify for parental leave â€“ it's not enough that that employee's spouse or partner qualifies.
Parents who qualify for parental leave on the basis of only six months employment are not entitled to extended leave.
Special leave for pregnant women
A pregnant employee is entitled to take up to 10 days of special leave before she begins maternity leave, for reasons connected to the pregnancy. This is unpaid. Any special leave taken does not reduce the period of entitlement for maternity or extended leave: it is in addition to the 52-week maximum for combined maternity and extended leave.
When can parental leave be taken?
Parental leave can be taken within 12 months of either a birth or adoption.
Paid parental leave for employees and self-employed people
Paid parental leave for employees
If you qualify for parental leave as an employee (whether on the basis of a 12-month or six-month period of previous employment), you're entitled to have 14 weeks of your parental leave on pay, up to a set maximum amount, if
- the expected or actual date of delivery of your child is on or after 1 December 2005, or
- on or after 1 December 2005 you assume care of a child under six whom you have adopted or intend to adopt
(Before 1 December 2005, there was a 13-week entitlement to paid parental leave. Before 1 December 2004 and after 1 July 2002, it was 12 weeks.)
You can transfer some or all of your entitlement to your spouse or partner if they are also eligible for paid parental leave as an employee or self-employed person (see below). Payments can therefore be taken by one parent or shared between two spouses or partners, if both qualify. But if the mother doesn't work and the spouse or partner does, the spouse or partner won't qualify for paid leave.
The weeks for which the payments are made must be continuous. If the maximum period is shared between the two spouses or partners, the two periods must each be continuous (but it seems that the second period does not have to follow immediately after the first).
It makes no difference that you don't return to work after your leave, because your rights are based on your previous employment.
To get parental leave payments, employees must apply to the Inland Revenue Department: see below, "How do I get my parental leave payments?".
To find out the current maximum weekly payment for paid parent leave, visit www.ers.dol.govt.nz. This maximum amount is adjusted on 1 July each year on the basis of any movement in average ordinary time weekly earnings.
Paid parental leave for self-employed people
You're eligible for 14 weeks paid parental leave if you've been self-employed for at least an average of 10 hours a week for either the six months or the 12 months before the due date of the birth or, if you are adopting, before the date on which you assume care of the child with an intention to adopt.
You must be taking leave from your business in order to qualify for parental leave payments. However, you can still continue some level of oversight over your business and do occasional administrative tasks.
You can transfer some or all of your entitlement to your spouse or partner if they are also eligible for paid parental leave either as an employee (see above) or as a self-employed person. Payments can therefore be taken by one parent or shared between two spouses or partners, if both qualify. But if the mother doesn't work, whether as an employee or a self-employed person, and the spouse or partner does, the spouse or partner won't qualify for paid leave.
To come within the definition of a "self-employed" person, you must do one or more of the following things:
- provide goods or services for hire or reward as an independent contractor
- carry on a business, including a profession, trade, manufacture or undertaking carried on for profit, and including in partnership with someone else
- work for a trust in a business (as defined above) carried on by the trust
The changes to the law allowing paid parental level for self-employed people take effect from 1 July 2006. You can get paid parental leave only if
- the expected or actual date of delivery of your child is on or after 1 July 2006, or
- if you're adopting, the date on which you or your spouse or partner assumes care of the child is on or after 1 July 2006
How do I get my parental leave payments?
You'll need to apply to the Inland Revenue Department. You can get a copy of an application form from
- your midwife or doctor
- your union
- the Employment Relations Service Infoline, 0800 800 863, or
- the ERS website at www.ers.dol.govt.nz
The application form must be completed by the mother or, if you're adopting, by the primary caregiver. (Two spouses or partners who are adopting jointly need to nominate who is the primary caregiver for parental leave purposes.)
If you're an employee, you'll need to first give notice to your employer that you want to take parental leave (see below). If your employer approves this, both you and your employer will need to complete an application form.
You'll need to send the completed form to IRD. They will then tell you how much your payments will be and when they'll start. It normally takes IRD up to 10 working days to reply to your application. The payments will be paid into a NZ bank account that you specify.
If you're an employee you must apply
- before your parental leave ends, or
- before you return to work or resign, or
- within 12 months of starting your parental leave,
whichever is earliest.
If you're self-employed, you must apply before you return to work or stop being self-employed.
Paid leave and the Parental Tax Credit
You cannot receive both paid parental leave and the Parental Tax Credit. (The Parental Tax Credit is a form of family assistance paid by IRD to parents, calculated on the basis of the number of children and the family's income.)
The process for taking parental leave
What do employees have to do if they want to take parental leave?
An employee must notify the employer in writing that he or she intends to exercise the right to parental leave. This written notice must be given at least three months before the expected date of delivery.
The notice must be accompanied by a medical certificate verifying the pregnancy and stating the expected date of delivery. If the employee is the spouse or partner of a pregnant woman, the employee must provide, in addition to the medical certificate, a written assurance from the mother that the employee is her spouse or partner, and that the employee intends to assume care of the child.
If the employee wishes to take extended leave, the notice must state this and provide other information as required.
A female employee who wishes to begin maternity leave earlier than originally stated in the required notice must give her employer at least 21 days' notice in writing.
However, if an employee fails to comply with these formal requirements, the employer cannot unreasonably refuse to allow them the relevant parental leave benefits. If there is a dispute about this, the employer or the employee can apply to the Employment Relations Authority.
The employer's response to the employee's notice
After receiving the employee's notice the employer has 21 days in which to reply. Their reply must state
- whether the employee is entitled to take parental leave
- if the employee is not entitled to the leave, the reasons why not
- whether the employee's position will be left open for the duration of the leave
- that an employee has the right to dispute an employer's statement that a position cannot be left open
What do self-employed people have to do if they want to take paid parental leave?
Before you apply for parental leave payments, you will need to decide the dates when you will be taking leave from your business. Consider this carefully, because it's not easy to change your dates once you've applied.
You will then need to complete an application form and send it to Inland Revenue (see above, "How do I get my parental leave payments?").
Going back to work
Will my job be kept open?
If the continuous period of parental leave is not more than four weeks, there is a presumption that the employee's position can be kept open (assuming the notice requirements have been met), unless the employer can show that the position has become redundant.
If the period of leave is more than four weeks, there is a presumption that the employee's position can be kept open, unless the employer can show:
- that a temporary replacement is not reasonably practicable because the employee's job is a key position, or
- the position has become redundant
Determining whether the position is a "key" one will involve considering the size of the business, the training and skills held by the employee and the training and skills required by the job. The Labour Department advises that, in practice, employers will only rarely be able to show that a position is a "key" one.
If the job is a key position and cannot be left open, the employer must give the employee preference over other applicants for any vacant position for 26 weeks after the parental leave ends.
What about people who are both employees and self-employed?
Their rights to parental leave, both paid and unpaid, are determined by considering their employment and self-employment separately.
What if I have twins or triplets?
If you have a multiple birth, this doesn't change how much leave you're entitled to, nor how much your paid leave payments will be. (But if you have triplets it may be better to apply for the Parental Tax Credit than parental leave payments: contact IRD about this.)
Complaints concerning parental leave
You may have grounds to complain about a decision or action of your employer to do with your rights to parental leave - for example, if without good reason your employer fails to keep your job open or requires you to start your leave early. If the matter can't be resolved through discussing it with your employer, you can take your complaint to the Employment Relations Authority.
The New Zealand Employment website has additional articles on Parental leave eligibility.
Other New Zealand Employment Law resources
- The New Zealand Government website Employment is an additional useful guide.
- The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
- The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
- The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
- The NZ Employment Relations Authority has a database of previous cases for review.
- The NZ Government website Employment has a free tool for creating employment agreements - help yourself.
- You should always check your employment agreement carefully to see whether it provides for parental leave. It may include provisions that are more favourable than your rights under the Act or that are in other ways different. If you do not understand the terms of the contract, you should consult a lawyer.
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