Kaler and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1920
•25 June 2021
Kaler and Secretary, Department of Social Services (Social services second review) [2021] AATA 1920 (25 June 2021)
Division:GENERAL DIVISION
File Number: 2020/3595
Re:Kiranjot Kaler
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:25 June 2021
Place:Brisbane
The Tribunal affirms the decision under review
...........................[SGD]..............................
Member D K Grigg
CATCHWORDS
PARENTAL LEAVE – parenting leave payment – whether applicant satisfies “work test” under the Paid Parental Leave Act 2010 (Cth) – decision under review affirmed.
LEGISLATION
Paid Parental Leave Act 2010 (Cth)
Paid Parental Leave Rules 2010 (Cth)
SECONDARY MATERIALS
Paid Parental Leave Guide, Cth (Version 1.70 - Released 10 May 2021)
REASONS FOR DECISION
Member D K Grigg
25 June 2021
INTRODUCTION AND CLAIM HISTORY
Between 15 June 2016 and 15 January 2019, Mrs Kaler was employed by Sub Trade Pty Ltd which traded as Subway DFO Brisbane Airport (“Subway”).[1]
[1] Exhibit 1, T Documents, T 4, pages 24-25, Employment Separation Certificate dated 23 April 2019.
Between 21 May 2018 and 7 March 2019, Mrs Kaler was also an employee of The Freshii Group Pty Ltd which traded as IGA Pullenvale (“IGA”).[2]
[2] Exhibit 1, T Documents, T 4, pages 26-27, Employment Separation Certificate (undated).
On 23 April 2019:
(a)Subway advised the Department of Social Services (“Centrelink”) that Mrs Kaler’s employment ceased voluntarily on 15 January 2019; and
(b)IGA advised Centrelink that Mrs Kaler’s employment ceased voluntarily on 7 March 2019.
On 17 May 2019, Mrs Kaler applied to Centrelink for paid parental leave (“PPL”).[3] In her claim form Mrs Kaler advised that she was due to give birth on 1 July 2019 and advised that from 4 June 2018 until she gives birth, she will work at least eight hours per week.
[3] Exhibit 1, T Documents, T 5, pages 28-32, Claim for Paid Parental Leave dated 17 May 2019.
Centrelink requested that Mrs Kaler provide proof and evidence:[4]
(c)of having worked continuously for at least 10 months (295 days) of the 13 months prior to the birth of her child;
(d)that she worked at least 330 hours in that 10 month period;
(e)of the income estimate provided in her Parental Leave Pay claim; and
(f)proof of identity documents for her partner.
[4] Exhibit 1, T Documents, T 6, pages 33-34, letter from Centrelink to Mrs Kaler dated 1 June 2019.
On 9 June 2019, Mrs Kaler provided Centrelink with copies of payslips and pay information from her employers, Subway and IGA.[5] The payslips indicate that the last day Mrs Kaler worked was 20 January 2019.
[5] Exhibit 1, T Documents, T 7-T9, pages 36-72, Payslips (various dates).
On 24 June 2019, Centrelink advised Mrs Kaler that she was not eligible for paid parental leave because she did not meet the “work test” as required by the Paid Parental Leave Act 2010 (Cth) (“the Act”).[6]
[6] Exhibit 1, T Documents, T 10, pages 73-74, letter from Centrelink to Mrs Kaler dated 24 June 2019.
Mrs Kaler provided Centrelink with a copy of a medical certificate completed by Dr Gulriaz Ahmad which provided that Mrs Kaler had had backache aggravated by her pregnancy which made her unfit for work between 21 January 2019 and 21 March 2019.[7]
[7] Exhibit 1, T Documents, T 11, page 75, Medical Certificate dated 28 June 2019.
Mrs Kaler gave birth to her child on 6 July 2019.[8]
[8] Exhibit 1, T documents, T 16, page 88, Centrelink records.
Mrs Kaler sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[9] The appeal to the ARO was unsuccessful. The ARO found that, applying the relevant work test, which in Mrs Kaler’s case was a consideration of the number of days worked between 10 June 2018 and 6 July 2019 (the work test period), Mrs Kaler performed qualifying work for 271 days during the relevant period. As a result Mrs Kaler did not meet the work test requirement of having performed qualifying work for 295 consecutive days within 392 day work test period.[10] Mrs Kaler submitted to the ARO that a medical condition, namely her back pain, had prevented her from working. She also stated that she wanted to work but that due to a change in ownership of her employer she was told they did not have enough hours.
[9] Exhibit 1, T Documents, T 14, pages 79-80, Centrelink records.
[10] Exhibit 1, T Documents, T 15, pages 81-85, Decision of Authorised Review Officer and notes dated 19 March 2020.
Mrs Kaler lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[11] The SSCSD rejected Mrs Kaler’s claim and affirmed the ARO’s decision on 14 May 2020.[12]
[11] Exhibit 1, T Documents, T 14, letter from AAT to Centrelink dated 9 March 2020.
[12] Exhibit 1, T Documents, T 2, pages 6-8, SSCSD’s Decision and Reasons for Decision dated 14 May 2020.
Mrs Kaler has sought a review of the SSCSD’s decision by this Tribunal.[13]
[13] Exhibit 1, T Documents, T 1, pages 1-5, Application for Review dated 15 June 2020.
ISSUES FOR DETERMINATION
The issue for determination is whether Mrs Kaler was eligible for parental leave pay.
legislationThe Act establishes a paid parental leave scheme for parental leave pay (“PLP”) following the birth of a child.[14]
[14] The Act, section 3A(1A).
Pursuant to section 31 of the Act, a person is eligible for PLP for a child on a day if, relevantly:
(2) First, a person is eligible for parental leave pay for a child on such a day if, on
that day:(a)the person satisfies the work test (see Division 3); and
(b)the person satisfies the income test (see Division 4); and
(c)the person satisfies the Australian residency test (see Division 5); and
(d)the person is the primary carer of the child (see Division 6); and
(e)the person has not returned to work (see Division 7)...
(a) Third, a person is eligible for parental leave pay for a child on such a day if, on that day:
(a)if the person is the primary claimant:
(i)the person satisfies the work test (see Division 3); and
(ii)the person satisfies the income test (see Division 4); and
(iii)the person satisfies the Australian residency test (see Division 5); and
(iv)the person satisfies the conditions prescribed by the PPL rules; and
(b)if the person is a secondary claimant or tertiary claimant--the person satisfies the conditions prescribed by the PPL rules.
Section 32 of the Act sets out a method statement to use to determine whether a person satisfies the “work test” as follows:
To work out whether a person satisfies the work teston a day, use the following method statement:
Method statement
Step 1. Work out the person's work test period.
Note: Work test periodis 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 workis 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: Permissable 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
Note 1: A person may also satisfy the work test despite not satisfying the test in step 5, if:
(a) the child was born prematurely; or
(b) 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…
As outlined in section 33(1)(b) of the Act, a “work test period” is calculated as 392 day immediately before:
(b)If:
(i)the child of the primary claimant is born after the expected date of birth of the child…
(c)otherwise – the day the child is born.
A person performs “Qualifying work”on a day if, relevantly, at least one of the following applies on the day (section 34):
(a)the person performs at least one hour of paid work (i.e. work performed for remuneration or other financial benefit: section 35);
(b)the person takes a period of paid leave of at least one hour.
Section 36A of the Act provides that a person can also satisfy the work test in circumstances involving premature births or complications related to pregnancy where, relevantly:
(a) the person is the birth mother of the child; and
(b) the Secretary is satisfied that… the following circumstances existed:…
(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.
The Secretary referred the Tribunal to the Paid Parental Leave Guide (“the Guide”)[15] which is used by Centrelink to ensure consistent interpretation of the legislation. The Tribunal is not bound to apply the Guide, but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[16]
[15]Guide to Social Policy Law, Paid Parental Leave Guide, Version 1.70,[16] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 645.
The Guide provides:
Section 2.2.1.20: …All relevant eligibility criteria must be met from the child's date of birth … until the end of their PPL period, including the primary care requirement and the requirement to not have returned to work on all relevant days until after the end of the PPL period.
Section 2.2.2.30: If 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.
For section 36A(b)(ii) of the Act to apply, it must be the complication/illness that prevents a person from working, not merely the pregnancy itself.
Essentially, a person will satisfy the work test if the person has performed at least 330 hours of qualifying work for a period spanning 295 consecutive days within the 392-day work test period, with at least one day but no more than 56 consecutive days of breaks within the 295-day qualifying period.
It is the Respondent’s contention that Mrs Kaler does not satisfy step 4 in section 32 of the Act.
CONSIDERATION
It is not in dispute that in order to satisfy one element of the eligibility requirements for paid parental leave, Mrs Kaler must have performed qualifying work for 295 days in the relevant work test period. In this matter, two work test periods can be considered. The reason for this is that section 33(1)(b) of the Act provides for different periods dependent upon different circumstances.
The first test period is calculated in situations where a child is born after the expected date of birth. In this instance, as Mrs Kaler’s child was expected on 1 July 2019 and was born later, on 6 July 2019, the relevant period would be between 10 June 2018 to 6 July 2019 (commencing 392 days immediately before the child’s date of birth).
Alternatively, if the work test is not satisfied using the child’s date of birth to calculate the work test period, a second work test period can be calculated from the child’s expected date of birth, in this instance 1 July 2019. The second test period would be between 4 June 2018 to 1 July 2019 (commencing 392 days immediately before the child’s expected date of birth). The Respondent accepted that between 4 June 2018 through to 20 January 2019, all of those days amount to a day of either qualifying work or a permissible break.[17]
[17]Transcript of Proceedings, Re Kaler and Secretary, Department of Social Security (Administrative Appeals Tribunal, 2020/3595, Member Grigg, 2 March 2021), page 13.
Irrespective of which work test period is considered, the payslips indicate that Mrs Kaler performed 271 days of qualifying work. This takes into account the fact that Mrs Kaler was unable to work between 21 January 2019 and 7 March 2019 (as evidenced by a medical certificate; see section 36A of the Act).
There is no evidence to indicate that Mrs Kaler was unable to work after 7 March 2019 as a result of pregnancy related complications or illness. This is because even though the medical certificate provides that Mrs Kaler was unable to work up to 21 March 2019,[18] the employee separation certificates indicate that Mrs Kaler left her place of work voluntarily on 7 March 2019.[19] Ms Kaler herself has indicated that she had intended to work but was unable to find sufficient work. This supports a finding that there was no illness that was preventing Mrs Kaler from working after 7 March 2019 until the expected or actual date of birth of her child. Mrs Keller also gave evidence to the SSCSD that when her back pain had lessened she was attempting to obtain employment. Even if the Tribunal took the entire period referred to in the medical certificate (i.e. between 21 January to 21 March 2019), Mrs Kaler would still only have 290 qualifying days.
[18] Exhibit 1, T Documents, T 11, page 75, Medical Certificate dated 28 June 2019.
[19] Exhibit 1, T Documents, T 4, pages 26-27, Employment Separation Certificate (undated).
Although the parties differ on the number of qualifying work days (Mrs Kaler submitted she had worked at least 282 days in the qualifying period), Mrs Kaler acknowledged that this is less than what is required to satisfy the work test.[20]
[20] Exhibit 3, Applicant’s submission dated 26 November 2020.
Mrs Kaler submitted that she was still eligible for PPL because:[21]
·Her “health was not well”;
·She “couldn’t do the work” she “used to before”;
·Her “doctor especially told [her] to… do the very, very, light jobs, that’s just like a sitting job, or a paperwork, something like that”;
·The owner of the business where she had worked changed and he did not give her any shifts;
·She went to Centrelink, but they were unable to find her any work; and
·“no one was happy to give a lady, a pregnant lady, to give such a easy job, and when they know like, okay, they’re going to finish, I mean, or she’s going to left [sic], maybe, in a month or two, so that was the reason.”
[21]Transcript of Proceedings, Re Kaler and Secretary, Department of Social Security (Administrative Appeals Tribunal, 2020/3595, Member Grigg, 2 March 2021), pages 15-16
Despite saying she was unwell, there is no medical evidence Mrs Kaler was unwell after 21 March 2019. At the hearing Mrs Kaler said, “it’s not like I don’t want to work”.[22] Mrs Kaler is asking the Tribunal to equate her being pregnant with being unwell. There is no medical basis for this submission.
[22]Transcript of Proceedings, Re Kaler and Secretary, Department of Social Security (Administrative Appeals Tribunal, 2020/3595, Member Grigg, 2 March 2021), page 15.
Mrs Kaler provided text messages from her employer to prove that that did not provide her with any work despite her request. The text messages show that her employer said he did not have any shifts.[23] But there is no reference to not being able to provide Mrs Kaler with employment because she had limitations. Mrs Kaler accepted this at the hearing.[24]
[23] Exhibit 1, T Documents 2, page 10, Applicant’s submission dated 12 May 2020.
[24]Transcript of Proceedings, Re Kaler and Secretary, Department of Social Security (Administrative Appeals Tribunal, 2020/3595, Member Grigg, 2 March 2021), page 24.
The Tribunal acknowledges Mrs Kaler’s submission that no one would hire her because she was pregnant, but this does not assist her in this application and is not a factor to be taken into account. There is no corroborating evidence that Mrs Kaler was unable to work after 21 March 2019. Mrs Kaler’s general practitioner Dr Ahmed advised that Mrs Kaler should avoid doing strenuous jobs and was only fit to perform desk jobs or light duties.[25] There is no corroborating evidence that Mrs Kaler was unable to perform any work. The mere fact of pregnancy does not demonstrate that Mrs Kaler had a complication or illness after 21 March 2019 as is required for section 36A of the Act to have any operation.
[25] Exhibit 3, Applicant’s submission, Medical certificate dated 9 October 2020.
Mrs Kaler agreed at the hearing that the most generous reading of the work test period means she has only worked for 290 days.[26]
[26]Transcript of Proceedings, Re Kaler and Secretary, Department of Social Security (Administrative Appeals Tribunal, 2020/3595, Member Grigg, 2 March 2021), page 9.
As a result of the above, Mrs Kaler did not satisfy the work test and is ineligible for PPL.
DECISION
The decision under review is affirmed.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
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Associate
Dated: 25 June 2021
Date of hearing: 2 March 2021 Date reserved: 17 June 2021 Applicant: In person Advocate for the Respondent:
Ms G Gehrke Solicitors for the Respondent: Department of Human Services
Australian Government,
10 May 2020 <Key Legal Topics
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