New Zealand Acts

PARENTAL LEAVE AND EMPLOYMENT PROTECTION AMENDMENT ACT 2016 - SECT 34

34 New Part 3A inserted

After section 30 , insert:

3A - Primary carers not eligible for primary carer leave may request negotiated carer leave

30A Object of this Part

The object of this Part is to—

a) provide for certain employees who are not entitled to primary carer leave to request a period of leave from their employment to enable them to receive parental leave payments; and

b) require an employer to deal with a request as soon as possible, but not later than 1 month after receiving it; and

c) provide that an employer may refuse a request only if it cannot be accommodated on certain grounds.

30B Employee may make request

1 This section applies to an employee who—

a) is not entitled to primary carer leave; but

b) is entitled to parental leave payments under section 71D(1) if the employee takes leave from the employee’s employment for the period during which the employee intends to receive parental leave payments.

2 An employee to whom this section applies may make a request to his or her employer for negotiated carer leave.

3 The request must be made,—

a) in the case of an employee who wishes to take negotiated carer leave in respect of a child to be born to the employee or to the employee’s spouse or partner, at least 3 months before the expected date of delivery; or

b) in any other case, at least 14 days prior to the date on which the employee intends to become the primary carer in respect of the child.

30C Requirements relating to request

A request for negotiated carer leave must be in writing and must—

a) state—

i) the employee's name; and

ii) the date on which the request is made; and

iii) that the request is made under this Part; and

b) specify the proposed date on which the employee wishes to begin negotiated carer leave and the proposed duration of the leave; and

c) include a statement that the employee—

i) will be the primary carer in respect of the child during the specified period; and

ii) will, if the request for a period of negotiated carer leave is approved, be entitled to receive parental leave payments under the Act for that period; and

d) explain, in the employee's view, what changes, if any, the employer may need to make to the employer's arrangements if the employee's request is approved.

30D Employer must notify decision as soon as possible

An employer must deal with a request for negotiated carer leave as soon as possible, but not later than 1 month after receiving it, and—

a) notify the employee in writing as to whether the employee’s request is approved or refused; and

b) if the request is refused,—

i) notify the employee of the ground or grounds specified in section 30E(2) for refusal; and

ii) provide an explanation of the reasons why the ground applies or the grounds apply.

30E Grounds for refusal of request by employer

1 An employer may refuse a request for negotiated carer leave only if the employer determines that the request cannot be accommodated on 1 or more of the grounds specified in subsection (2) .

2 The grounds are—

a) inability to reorganise work among existing staff:

b) inability to recruit additional staff:

c) detrimental impact on quality:

d) detrimental impact on performance:

e) planned structural changes:

f) burden of additional costs:

g) detrimental effect on ability to meet customer demand.

Note: 2000 No 24 s 69AAF(2)

30F Limitation on challenging employer

1 An employee may not challenge his or her employer's refusal of a request for negotiated carer leave.

2 An employee may challenge his or her employer’s failure to respond to a request for negotiated carer leave, or failure to respond adequately to a request, if the employee believes his or her employer has not complied with section 30D .

30G Role of Labour Inspector

1 For the purposes of this Part, a Labour Inspector may provide to employees and employers such assistance as he or she considers appropriate in the circumstances.

2 This section applies subject to section 30H(2) .

30H Labour Inspectors and mediation

1 This section applies if an employee believes that his or her employer has not complied with section 30D .

2 The employee may refer the non-compliance with section 30D —

a) directly to mediation; or

b) to a Labour Inspector, who must, to the extent practicable in the circumstances, assist the employee and employer to resolve the matter.

3 If, after completion of the process under subsection (2)(b) , the employee is dissatisfied with the result, the employee may refer the matter to mediation.

4 For the purposes of subsection (3) , non-compliance with section 30D is an employment relationship problem.

30I Application to Employment Relations Authority

1 This section applies if—

a) an employee believes that his or her employer has not complied with section 30D ; and

b) mediation has not resolved the matter.

2 The employee may apply to the Employment Relations Authority for a determination as to whether the employer has complied with section 30D .

3 An application must be made within 12 months after the relevant date.

4 In subsection (3) ,
"relevant date" means,—

a) if the employer notifies a refusal within 1 month after receiving a request, the date of the notification:

b) in any other case, the date that is 1 month after the employer received the employee's request.

30J Penalty

1 An employer who does not comply with section 30D is liable to a penalty not exceeding $2,000, imposed by the Employment Relations Authority.

2 The penalty is payable to the employee concerned.