Aviles Venegas and Secretary, Department of Social Services (Social services second review)

[2024] AATA 319

Aviles Venegas and Secretary, Department of Social Services (Social services second review) [2024] AATA 319 (29 February 2024)

Division:GENERAL DIVISION

File Number(s):      2022/2325

Re:Damaris Angelica Aviles Venegas

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member L M Gallagher

Date:29 February 2024

Place:Perth

The Reviewable Decision of the AAT1 dated 4 March 2022 is affirmed.

...............................Sgd.........................................

Member L M Gallagher

CATCHWORDS

SOCIAL SECURITY – Parental Leave Pay – whether work test satisfied – primary claimant - permissible break –wrist injury – COVID 19 – premature birth or pregnancy related complications or illness - decision under review affirmed

LEGISLATION

Paid Parental Leave Rules 2010 (Cth)

The Paid Parental Leave Act 2020 (Cth) ss 8, 9, 10, 11(4), 18(1), 18(2), 31, 31(2)(a), 31(2)(b), 31(2)(c), 31(2)(d), 32, 33, 33(1), 33(1)(b), 33(1)(c), 34, 36A, 53, 53(2), 54(1), 55, 56-60, 56(1)(a) 56(1)(b), 56(1)(c), 57(1), 58(1), 60(1).

CASES

Kaler and Secretary, Department of Social Services (Social services second review) [2021] AATA 1920.

Minister for Home Affairs v G and Another [2019] FCAFC 79.

SECONDARY MATERIALS

Australian Government ‘Guides to Social Policy Law: Paid Parental Leave Guide’ (version 1.79, 6 February 2023)

REASONS FOR DECISION

Member L M Gallagher

29 February 2024

THE APPLICATION

1. The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 4 March 2022, that rejected the Applicant’s claim for parental leave pay on the basis that she did not meet the work test (the Reviewable Decision).[1]

   [1] R1, T2.

   ISSUE

2. The issue for determination by this Tribunal, being the General Division of the Administrative Appeals Tribunal (the Tribunal) is whether the Applicant was eligible for parental leave pay from 7 June 2021, and in particular, whether the Applicant satisfied the work test.

   BACKGROUND

3. The Applicant was employed in New Zealand by Elizabeth Knox Home and Hospital as a carer during the period 4 May 2020 to 13 August 2020.[2]

   [2] R1, T33, pp 136-147.

4. On 14 August 2020, the Applicant suffered a wrist injury and underwent surgery in New Zealand on 7 September 2020.[3]

   [3] R1, T22, p 77.

5. The Applicant subsequently worked in Australia as follows:

   (a)25 January 2021 to 2 May 2021: AM Start Agency -  Casual personal care assistant;[4]

   (b)1 February 2021 to 15 March 2021: Flexi Staff Pty Ltd – Carer;[5] and

   (c)10 February 2021 to 21 May 2021: Auscare Staffing Agency – Carer.[6]

   [4] R1, T33, pp 118-123.

   [5] R1, T33, pp 113-117.

   [6] R1, T33, pp 124-135.

6. On 11 May 2021, the Applicant lodged an online claim for parental leave pay.[7]  On the form, the Applicant indicated: [8]

   (a)The expected date of birth of her child was 2 June 2021.

   (b)The nominated start date for the paid parental leave period was the expected date of birth.

   (c)She was currently employed by multiple employers on a casual basis.

   (d)She commenced employment with Auscare Staffing Agency Pty Ltd on 29 January 2021 and would still be employed by this employer during her paid parental leave period.

   [7] R1, T11.

   [8] R1, T11, pp 55-58.

7. On 7 June 2021, the Applicant’s daughter was born.[9]  The Applicant verified her daughter’s birth the same day by lodging a Newborn Child Declaration Form.[10]

   [9] R1, T14, p 63.

   [10] R1, T14, p 63.

8. On 26 June 2021, Services Australia (the Agency) wrote to the Applicant requesting documented proof that she had:[11]

   …worked continuously for at least 10 months (295 days) of the 13 months prior to the birth of your child and worked at least 330 hours in that 10 month (295 days) period.

   [11] R1, T16, p 66.

9. On 10 July 2021, the Agency rejected the Applicant’s claim on the basis of insufficient supporting evidence regarding her hours of work (the Original Decision).[12]

   [12] R1, T 17, p 69.

10. On 6 August 2021, the Applicant provided to the Agency, among other things, copies of her payslips for the period May 2020 to August 2020.[13]

    [13] R1, T 19, p 73 and T33, pp 136-147.

11. On 16 September 2021, the Agency reassessed the Applicant’s claim based on the further evidence she provided and again rejected her claim on the basis she did not meet the work test.[14]

    [14] R1, T 22, p75.

12. The Applicant then provided to the Agency:[15]

    (a)A medical certificate from Dr Aldo Riquelme, General Practitioner, dated 24 September 2021, confirming that on 14 August 2020[16] the Applicant suffered an acute fracture of the right wrist and the Applicant was unfit for work from this date until the end of December 2020.

    (b)A medical certificate from Dr Darren Keating, General Practitioner, dated 30 September 2021, referring to his consultation with the Applicant on 2 December 2020 and the following diagnosis on the same date:

    carpal tunnel syndrome secondary to her pregnancy, but there was a possibility of infection post surgery [sic].

    [15] R1, T22 and T23.

    [16] The medical certificate erroneously states the dated as “14/8/2021.”

13. On 29 November 2021, an Authorised Review Officer (the ARO) of the Agency affirmed the Original Decision on the basis that the Applicant did not meet the work test (the ARO Decision).[17]

    [17] R1, T29.

14. On 28 December 2021, the Applicant applied to the AAT1 for review of the ARO Decision.[18]

    [18] R1, T4.

15. On 4 March 2022, the AAT1 made the Reviewable Decision.[19]

    [19] R1, T2. See [1] above.

16. On 22 March 2022, the Applicant applied to the Tribunal for review of the Reviewable Decision.[20]

    [20] R1, T1.

    LEGISLATIVE FRAMEWORK

17. The relevant legislation is contained within the:

    (a)Paid Parental Leave Act 2020 (Cth)[21] (the Act); and

    (b)Paid Parental Leave Rules 2010 (Cth) (the Rules).

    [21] No. 104, 2010, Compilation No. 38 (in force at the relevant time).

18. The relevant policy is contained in the Paid Parental Leave Guide[22] (the Guide).  As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[23]

    [22] Australian Government ‘Guides to Social Policy Law: Paid Parental Leave Guide’ (version 1.79 , 6 February 2023) 2.2.1 (in force at the relevant time).

    [23] G at [57]-[62].

    When parental leave pay is payable to a person

19. Parental leave pay is only payable if the Secretary makes a determination. (s 8 of the Act).  The Secretary cannot make such a determination unless the person is eligible and has made an effective claim (ss 9 and 10 of the Act)).

20. There are three types of claims for parental leave pay (s 53 of the Act).  Relevantly, one type of claim for parental leave pay is a primary claim, which can be made by a number of specified persons including the child’s birth mother (s 53(2) and 54(1) of the Act).

21. A claim for parental leave pay is not effective unless the provisions applicable to the claim in ss 56 to 60 of the Act are satisfied (s 55 of the Act).  Those provisions are that the claim for parental leave pay must:

    (a)Be in the form approved, and the manner required, by the Secretary for that type of claim (s 56(1)(a) of the Act).

    (b)Contain any information (including information about the claimant’s employer or the claimant’s employment with that employer) required by the Secretary (s 56(1)(b) of the Act).

    (c)Be accompanied by any documents required by the Secretary (s 56(1)(c) of the Act).

    (d)State a specific date (the nominated start date) on which the primary claimant wants parental leave pay in relation to that period to start being paid (s57(1) of the Act).

    (e)Specify the child’s expected date of birth (if the claim is made before the child’s birth) (s 58(1) of the Act).

    (f)Be made in the period that starts on the day that is 97 days before the expected date of birth of the child; and ends on the day before the child’s first birthday (s 60(1) of the Act).

22. The Secretary must not make a payability determination that parental leave pay is payable to a person for a child unless the primary claimant has verified the child’s birth (s 18(1) of the Act).

23. A person verifies a child’s birth if the person gives the Secretary a completed birth verification form for the child (s 18 (2) of the Act).

24. If a primary claimant has made both an effective claim for parental leave pay and verified the child’s birth within 28 days after the day the child was born; the maximum PPL period start day is the later of the day the child was born or the nominated start date (s 11(4) of the Act).

    Eligibility for parental leave pay

25. The eligibility criteria for parental leave pay are set out in s 31 of the Act.[24]  Relevantly, a person is eligible for parental leave pay if, among other things,[25] the person satisfies the work test (s 31(2)(a) of the Act).

    [24] All relevant eligibility criteria must be met from the child’s date of birth until the end of the PPL period, including the primary care requirements and the requirements to not have returned to work on all relevant days until after the end of the PPL period (the Guide at 2.2.1.20).

    [25] Those other things being that the person satisfies the income test (s 31(2)(b) of the Act), the person satisfies the Australian residency test (s 31(2)(c) of the Act), the person is the primary carer of the child (s 31(2)(d) of the Act) and the person has not returned to work (s 31(2)(d) of the Act).

    The work test

26. The following method statement sets out the steps to working out whether a person satisfied the work test (s 32 of the Act):

    To work out whether a person satisfies the work test on a day, use the following method statement:

    Method statement

    Step 1. Work out the person’s work test period.

    Note:Work test period is defined in sections 33 and 33A for primary claimants and secondary claimants and in section 115CD for DAPP claimants.

    Step 2. Work out the days in the work test period on which the person has and has not performed qualifying work.

    Note:       Qualifying work is defined in section 34.

    Step 3. Work out whether any days on which the person has not performed qualifying work during the work test period fall within a permissible break.

    Note:       Permissible break is defined in section 36.

    Step 4. Work out whether there is a period (a qualifying period) of 295 consecutive days in the work test period that are days:

    (a)       on which the person has performed qualifying work; or

    (b)       that fall within a permissible break.

    Step 5. If the person has performed at least 330 hours of qualifying work in a qualifying period, the person satisfies the work test.

27. The work test period for a primary claimant is defined as (s 33 of the Act):

    (1)The work test period for the primary claimant is the 392 days immediately before:

    (a)       if:

    (i)        subsection (2A) applies in relation to the primary claimant;               and

    (ii)       the primary claimant would not satisfy the work test if the   claimant’s work test period were the work test period under    paragraph (b) or (c) of this subsection;

    the claimant’s work cessation day; or

    (b)       if:

    (i)        the child of the primary claimant is born after the expected   date of        birth of the child; and

    (ii)       the primary claimant would not satisfy the work test if the   claimant’s work test period were the work test period under    paragraph (c) of this subsection;

    the expected date of birth of the child; or

    (c)       otherwise—the day the child is born.

    (2)       However, for the purposes of making an initial eligibility determination   on a primary claim, the work test period for the primary claimant is   the 392 days immediately before:

    (a)       if:

    (i)        subsection (2A) applies in relation to the primary claimant;   and

    (ii)       the primary claimant would not satisfy the work test if the   claimant’s work test period were the work test period under    paragraph (b) of this subsection;

    the claimant’s work cessation day; or

    (b)       otherwise—the expected date of birth of the child.

    (2A)     This subsection applies in relation to a primary claimant if:

    (a)       the primary claimant is pregnant with the child or is the birth mother    of the child; and

    (b)       the primary claimant is performing or performed paid work of a    particular kind before the birth of the child; and

    (c)       the primary claimant will cease or ceased performing that kind of   work on a particular day (the claimant’s work cessation day)   because of hazards connected with that kind of work that pose or   posed a risk to the pregnancy; and

    (d)       any conditions prescribed by the PPL rules are satisfied.

    …

28. When a person performs qualifying work is defined as follows (s 34 of the Act):

    (1)A person performs qualifying work on a day if at least one of the following applies on the day:

    (a)       the person performs at least one hour of paid work;

    (b)       the person takes a period of paid leave of at least one hour;

    (c)       the day is in the person’s PPL period for a previous child;

    (ca)     the day is a flexible PPL day for a previous child of the person and   parental leave pay was payable to the person on that day;

    (d)       the day is in the person’s DAPP period for a previous child;

    (e)       the day is in a jobkeeper payment period for the person.

    (2)       For the purposes of paragraph (1)(b), the PPL rules may prescribe what is,          or is not, taken to be paid leave.

    …..

29. A permissible break is defined in s 36 of the Act:

    (1)       A permissible break is any of the periods in subsections (2) and (3).

    Permissible break between 2 qualifying work days

    (2)       If, between a day on which the person performed qualifying work (a    qualifying work day) in the work test period and the next qualifying work   day, there was at least 1 day but not more than 84 consecutive days on   which the person did not perform qualifying work—the day or period of   consecutive days between those 2 qualifying work days is a permissible   break.

    Permissible break at the start of the work test period

    (3)       If:

    (a)       a person performed qualifying work on a day (the earlier qualifying    work day) before the first day in the work test period; and

    (b)       the person next performed qualifying work on a day (the later    qualifying work day) after the first day in the work test period; and

    (c)       the later qualifying work day was no more than 84 consecutive days    after the earlier qualifying work day;

    then the day or period of consecutive days on which the person did not perform qualifying work between the first day in the work test period and the later qualifying work day (including the first day of the work test period) is a permissible break.

30. As to premature birth or pregnancy-related complications or illness (s36A of the Act):[26]

    A person also satisfies the work test on a day if:

    (a)       the person is the birth mother of the child; and

    (b)       the Secretary is satisfied that either or both of the following circumstances           existed:

    (i)        the child was born prematurely;

    (ii)       while the person was pregnant with the child, the person had    complications or illness related to the pregnancy which prevented the   person from performing paid work; and

    (c)       the Secretary is satisfied that the person would have satisfied the work test   on the day in accordance with section 32 if that circumstance, or those    circumstances, had not existed.

    [26] See also the Guide at 2.2.2.30 which confirms that if the child was born prematurely of the mother suffered complications or illness related to the pregnancy which prevented her from working, the birth mother may still meet the work test requirements if Centrelink is satisfied that she would have met the work test but for the premature birth or pregnancy-related complications or illness which prevented her from performing paid work.

    EVIDENCE

31. The matter was heard in Perth on 8 March 2023 and 17 August 2023.  The Applicant was self-represented and appeared by telephone.  The Applicant was assisted by Spanish interpreters, Mr Alvaro Rincon Hernandez[27] and Ms Tania Carolina Pineda-Stuart,[28] who appeared by MS Teams.  The Respondent was represented by Mr James Bernasconi from HWL Ebsworth, who appeared by MS Teams.  No witnesses were called.

    [27] Day 1 of hearing.

    [28] Day 2 of hearing.

32. The Tribunal admitted the following documents into evidence:

    (a)Letter by Dr Gonzalo Garzon Rangel, General Practitioner, dated 1 September 2022 (Exhibit A1);

    (b)Medical records including consultation notes by Dr Caroline Maxwell, General Practitioner, various dates (Exhibit A2);

    (c)Letter by Dr Shalika Arniotis-Streat, General Practitioner, dated 6 March 2023 (Exhibit A3);

    (d)Respondent’s section 37 T documents, being documents T1 to T35 and comprising 174 pages, dated 20 June 2022 (Exhibit R1);

    (e)Respondent’s Statement of Facts, Issues and Contentions (SFIC), with list of authorities, dated 31 August 2022 (Exhibit R2);

    (f)Guide to Social Policy Law, Paid Parental Leave Guide (Version 1.79 – Released 6 February 2023) - 1.1.C.165 COVID-19 affected claimant, filed on 21 July 2022 (Exhibit R3); and

    (g)Guide to Social Policy Law, Paid Parental Leave Guide (Version 1.79 – Released 6 February 2023) – 2.2.2.27 Work test period for COVID-19 affected claimants for PLP, filed on 21 July 2022 (Exhibit R4).

33. The following additional materials were filed following the hearing, in accordance with the Tribunal’s direction dated 17 August 2023:

    (a)Respondent’s written closing submissions dated 11 September 2023;

    (b)Applicant’s written closing submissions dated 12 October 2023; and

    (c)Respondent’s written closing submissions in reply dated 24 October 2023.

34. The Tribunal has considered all of the material before it, as well as the Applicant’s oral evidence at hearing.  The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.

    Applicant’s evidence

35. During the hearing, the Applicant gave evidence that while she accepts that she has not worked the required number of qualifying days to satisfy the work test, that is, she was unable to work for 295 consecutive days,[29] she has worked the required number of hours.[30]  The Applicant said that her failure to work the required number of days can be explained by her personal circumstances, in particular her pregnancy complications.[31] 

    [29] See Step 4 of the work test at [26] above and p 19 transcript.

    [30] Transcript, p 14, 15, 16,  44 and 45.

    [31] Transcript, p 14, 15 and 17.

36. The Applicant also said other issues had prevented her from working at that time, namely that she had fractured her arm in New Zealand, she was stranded in New Zealand while attempting to return to Australia and that she had run out of money as she had not expected to be unable to work for long.[32]

    [32] Transcript, p 14, 15, 17 and 18.

37. The Applicant said that her pregnancy was high-risk, that she could not work whilst pregnant and that her doctors had told her to rest.[33]  The Applicant said that her two general practitioners certified as such.[34]

    [33] Transcript, p 17.

    [34] Transcript, p 18.

38. The Applicant said that on learning her pregnancy was high-risk, she took her time to return to work, first confirming she was well and her baby was healthy and that she felt safe to do so.[35]  The Applicant said that during this time she also took into consideration the fact that her work in aged care is very physical and demanding.[36] 

    [35] Transcript, p 18.

    [36] Transcript, p 18.

39. The Applicant said that looking back, she had rushed her return to work in order to complete the minimum hours required to access paid parental leave and as a result, started having contractions and was hospitalised during week 22 of her pregnancy.[37]

    [37] Transcript, p 18.

40. When it was put to the Applicant that:

    (a)She had previously stated that the main reason she had failed the work test was because her return flight to Australia was cancelled due to COVID-19;[38]

    (b)That this flight was scheduled to leave New Zealand on 19 August 2020;[39] and

    (c)Had she returned to Australia on 19 August 2020 as planned, she would have returned to work around that date, noting that she had fallen pregnant around 21 August 2020 and that she “wasn’t planning to become pregnant on this day”. [40]

    [38] R1, T1, p 4.

    [39] R1, T2, p 12.

    [40] Transcript, pp 21 and 22.

1. As to the Applicant’s claimed pregnancy complications bearing no mention in her written statements,[41] the Applicant said she had avoided doing so given the personal and stressful nature of this matter.[42]  When asked, the Applicant said that while she agrees that there were factors other than her pregnancy-related complications that affected her ability to satisfy the work test, her pregnancy issues was the most important factor.[43]

   [41] See R1, T2, T19 and T29.

   [42] Transcript, p 30 and p 50; see also Applicant’s written closing submissions at [4].

   [43] Transcript, p 33.

2. When asked, the Applicant confirmed that she had not consulted Dr Arniotis-Streat[44] or Dr Rangel during her pregnancy.[45]  The Applicant said that rather, she had asked Dr Arniotis-Streat to review her medical records and consider whether the Applicant had issues during her pregnancy[46] or had a high-risk pregnancy.[47] 

   [44] At hearing, the Applicant agreed that she had started consulting Dr Rangel in September 2022 (transcript, p 35).

   [45] Transcript, p 33 and p 34.

   [46] Transcript, p 33.

   [47] Transcript, p 49.

3. The Applicant said that while she was not working when she fell pregnant or when she was waiting for a flight back to Australia, she did not obtain a medical certificate in relation to her work capacity at this time, nor is there any mention of her work capacity at this time elsewhere in her evidence.[48]  Further, when asked, the Applicant conceded there were no documents authored into October 2020 that indicate she was advised to rest on medical grounds.[49]

   [48] Transcript, pp 33 to 34.

   [49] Transcript, p 46.

4. The Applicant disagreed with the Respondent’s proposition that none of the medical documentation provided indicates that the Applicant had any pregnancy-related complications after October 2020.[50]

   [50] Transcript, p 43.

   CONSIDERATION

5. It is not in dispute and the Tribunal is satisfied that the Applicant made an effective claim for parental leave pay and verified the child’s birth within 28 days after the child was born.[51]

   [51] R1, T11 pp 55 to 58; T14, p 63 and T34, pp 151-152; see [19]-[23] above.

6. Therefore, as noted above, the issue for consideration is whether the Applicant meets the eligibility criteria for parental leave pay set out in s 31(2) of the Act.

7. Firstly, the Tribunal must determine whether the Applicant satisfied the work test in s 31(2)(a) of the Act.[52]

   [52] If the Tribunal finds that the Applicant does not satisfy the work test, it will not be required to go on to consider the other eligibility requirements in s 31(2) of the Act.

   Step 1 of the work test – What is the work test period or periods?

8. Working through the steps in the method statement,[53] the Applicant’s child was born on 7 June 2021,[54] which was after her stated expected date of birth of 2 June 2021.[55]  As such the work test period is the 392 days immediately before either:[56]

   (a)The child’s date of birth, that is, 12 May 2020 to 6 June 2021 (the first work test period);[57] or

   (b)The child’s expected date of birth (if the work test is not satisfied using the child’s date of birth), that is, 7 May 2020 to 1 June 2021 (the second work test period).[58]

   [53] See [26] above. The Tribunal is satisfied this is the correct approach to take. See Kaler and Secretary, Department of Social Services (Social services second review) [2021] AATA 1920.

   [54] See [7] above.

   [55] See [6(a)] above.

   [56] Section 33(1) of the Act.

   [57] Section 33(1)(c) of the Act.

   [58] Section 33(1)(b) of the Act.

   Step 2 of the work test – On what days has the Applicant performed qualifying work?

9. During the first work test period, the Applicant performed the following qualifying work[59]:

   (a)12 May 2020 to 13 August 2020;[60] and

   (b)25 January 2021 to 21 May 2021.[61]

   [59] As defined in section 34 of the Act.

   [60] The Applicant performed paid work in New Zealand from 4 May 2020 to 13 August 2020 prior to suffering an injury to her wrist on 14 August 2020 and undergoing surgery in New Zealand on 7 September 2020. See [3] and [4] above.

   [61] The Applicant performed paid work in Australia from 25 January 2021 to 21 May 2021. See [5] above

10. In the alternative, during the second work test period, the Applicant performed the following qualifying work:

    (a)7 May 2020 to 13 August 2020; [62] and

    (b)25 January 2021 to 21 May 2021.[63]

    [62] The Applicant performed paid work in New Zealand from 4 May 2020 to 13 August 2020 prior to suffering an injury to her wrist on 14 August 2020 and undergoing surgery in New Zealand on 7 September 2020. See [3] and [4] above.

    [63] The Applicant performed paid work in Australia from 25 January 2021 to 21 May 2021. See [5] above.

11. Therefore:

    (a)During the first work test period, the Applicant:

    (i)Performed 211 days of qualifying work; and

    (ii)Did not perform qualifying work for 180 days[64].

    (b)During the second work test period, the Applicant:

    (i)Performed 216 days of qualifying work; and

    (ii)Did not perform qualifying work for 175 days.[65]

    [64] Being the 164 days from 14 August 2020 to 24 January 2021 plus the additional 16 days from 22 May 2021 to  6 June 2021

    [65] Being the 164 days from 14 August 2020 to 24 January 2021 plus the additional 11 days from 22 May 2021 to 1 June 2021.

12. It is not in dispute and the Tribunal is satisfied that the Applicant did not perform qualifying work from 14 August 2020 and 24 January 2021. 

13. The Applicant contends that during this period where the Applicant did not work, she was prevented from doing so due to pregnancy-related complications or illness, and would have satisfied the work test if these circumstances had not existed.[66]

    [66] See section 36A of the Act.

14. The Tribunal cannot be satisfied that this was the case, on the following bases:

    (a)During the hearing, the Applicant conceded other factors had impacted her work capacity during the period she did not perform qualifying work, in particular her accident on 14 August 2020.[67]

    (b)The Applicant made no reference to pregnancy-related complications in any of her evidence given to past decision-makers including the AAT1.

    (c)Dr Arniotis-Streat’s letter is dated two years after the period in which the letter refers, Dr Arniotis-Streat did not consult with the Applicant at any point during this period and in any event, the letter does not make any reference to the Applicant’s pregnancy having any impact on her work capacity.[68]  The Tribunal makes highly similar observations in relation to Dr Rangel’s letter and affords these certificates little weight.

    (d)There is no contemporaneous evidence before the Tribunal that leads it to accept that the Applicant was prevented from working as a result of her pregnancy during the relevant period, or that her claimed pregnancy-related complications had any impact on her work capacity in any way.  This includes the Applicant having been advised to rest by Dr Rangel.[69]

    Step 3 of the work test – Whether any days on which the Applicant has not performed qualifying work fall within a permissible break

    [67] See [36] above and R1, T19, p 73 and T29, p 97.

    [68] A3.

    [69] See A1.  For completeness, the medical certificate issued by Dr Darren Keating, General Practitioner, dated 30 September 2021 regarding her diagnosis of carpal tunnel syndrome secondary to her pregnancy and the possibility of infection post-surgery on her wrist gives no indication of whether the Applicant was unfit for work at the relevant time due to either matter (R1, T23).

15. As noted above, the Applicant did not perform qualifying work from 14 August 2020 and 24 January 2021, resulting in a period of at least 164 days in each of the first work test period[70] and the second work test period[71] where the Applicant did not perform qualifying work.[72]

    [70] See fn 64.

    [71] See fn 65.

    [72] See [51] above.

16. As the Applicant’s break from work exceeds a period of 84 days in both the first work test period and the second work test period (and as there is no scope for or discretion under the Act to treat a break from employment of more than 84 days as a permissible break), the Applicant does not meet the requirements of a permissible break as set out in s 36A of the Act.

    Step 4 of the work test – whether the Applicant has performed 295 consecutive days of qualifying work in a work test period

17. On the basis of the matters addressed under step 3 of the work test, the Applicant has not performed qualifying work for a period of 295 consecutive days in the first work test period or the second work test period.

18. Therefore, the Tribunal is not required to consider step 5 of the work test.

19. Accordingly, the Tribunal finds that the Applicant fails to satisfy the work test in s 31(2)(a) of the Act and it is not required to consider the remaining eligibility criteria for parental leave pay set out in s 31 of the Act.[73]

    [73] For completeness, the Applicant’s claim was operative prior to s36AA of the Act, which provides a decision-maker with discretion to consider the existence of special circumstances in determining whether a person satisfies the work test.  Therefore, the Applicant cannot be considered a COVID-affected claimant and it is unnecessary to consider her claims in this context.

    CONCLUSION

20. The Tribunal has found that the Applicant fails to satisfy the work test and in turn, is ineligible for paid parental leave.

    DECISION

21. The Reviewable Decision is affirmed.

    ...............................Sgd.........................................

    Associate

    Dated: 29 February 2024

Dates of hearing:	8 March 2023 17 August 2023
Applicant:	Self-represented
Solicitor for the Respondent:	James Bernasconi, HWL Ebsworth Lawyers