Naylor and Secretary, Department of Social Services (Social security)

[2024] ARTA 324

Naylor and Secretary, Department of Social Services (Social security) [2024] ARTA 324 (18 November 2024)

Applicant:  Ms Naylor

Respondent:  Secretary, Department of Social Services

Chief Executive Centrelink  

Tribunal Number:   2024/BP002713 

Tribunal:  Member N Foster

Place:Brisbane

Date:18 November 2024

Decision:The Tribunal affirms the decision under review.

CATCHWORDS
SOCIAL SECURITY – parental leave – work test – special circumstances – unable to work due to serious medical condition – genuine connection with workforce for duration of work test period – some casual work before test period and none during – letters from medical practitioners and employer – disability support pension cancelled because of partner’s income – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information pursuant to subsection 126(1A) of the Paid Parental Leave Act 2010

Statement of Reasons

BACKGROUND

1. This review is about whether Ms Naylor is eligible for parental leave pay and, in particular, whether she satisfied the work test.

2. On 21 March 2024 Ms Naylor made a claim for parental leave pay in respect of her child who was due to be born in June 2024.  On 27 March 2024 Services Australia (Centrelink) rejected Ms Naylor’s claim on the basis that she did not meet the work test for parental leave pay.  

3. On 31 May 2024 Ms Naylor’s [child] was born.  In the meantime, Ms Naylor had requested a review of the rejection of her claim for parental leave pay on the grounds that she had been unable to work due to a serious medical condition. 

4. On 17 July 2024 an authorised review officer affirmed Centrelink’s decision.  In concluding that Ms Naylor did not satisfy the work test, the authorised review officer noted that Ms Naylor had not worked at all in her parental leave pay work test period, which ran from 5 May 2023 to 30 May 2024.  Although the legislation allowed a person to satisfy the work test in special circumstances where they were affected by a severe medical condition, the authorised review officer found that Ms Naylor had not maintained a genuine connection with the workforce for the duration of her work test period that might indicate that she would have satisfied the work test during that period.

5. Ms Naylor applied to the Administrative Appeals Tribunal[1] (the AAT) on 5 August 2024.  The Tribunal heard the application on 18 November 2024, with Ms Naylor appearing by telephone.

CONSIDERATION

[1] From 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.

Is Ms Naylor eligible for parental leave pay for [the child]?

1. Ms Naylor told the Tribunal that she had applied for parental leave pay because there was a “gap in the system” for someone in her situation and that there was no alternative payment she could receive.  She explained that she had been granted disability support pension in 2012 for chronic pain, which was subsequently diagnosed as endometriosis.  In 2021 and 2022 she was doing administrative work from home for [Organisation], an organisation that her partner works for.  The number of hours that she worked for [Organisation] depended on her health and, after she started fertility treatment, her endometriosis worsened and she became more and more unreliable as a worker.  Although she was sometimes able to work up to 10 to 12 hours in a week, she often worked a lot less than this and finally had to stop work altogether in May 2022.

2. When asked about Centrelink’s contention that she did not maintain a genuine connection to the workforce, Ms Naylor stated that she has had an ongoing connection with [Organisation] through her partner, who works there.  She also referred the Tribunal to copies of messages that she sent to [Organisation] in 2022 in which she advised that her health issues were preventing her from working.  Ms Naylor also highlighted that [Organisation] had written a letter for Centrelink stating that she still would be working for the organisation today but for her health issues. 

3. Ms Naylor told the Tribunal that, prior to being granted disability support pension, she had worked full-time hours at [Employer 1].  She has also obtained a diploma to work in [workplaces] and [work task].  She does not receive disability support pension any more due to her partner’s income.  She said that she would like to work casually again when her health allows and contended that she should be entitled to parental leave pay given the impact that her health has had on her ability to work.

4. In making its decision, the Tribunal must apply the law in the Paid Parental Leave Act 2010 (the Act).  Under section 31AA of the Act, a person must satisfy a work test in order to be eligible for parental leave pay.  This work test is set out in section 32 of the Act and requires a person to have either performed qualifying work, or to have been on a permissible break of not more than 84 days between days of qualifying work, for a period of 295 consecutive days in their work test period.  A person also needs to have performed at least 330 hours of qualifying work during this 295-day period.  Under subsection 33(1) of the Act, a person’s work test period is, in most instances, the 392 days immediately before their child is born.  In Ms Naylor’s case, this is the period from 5 May 2023 to 30 May 2024.

5. The issue in Ms Naylor’s case is whether there is a period of 295 consecutive days during her work test period where she satisfied the work test.  It is common ground that Ms Naylor did not perform any paid work at all in her work test period.  Instead, she contends that she meets the work test on the grounds that she was unable to perform paid work during that period due to a serious medical condition.  In this regard, section 36AA of the Act provides that a person may satisfy the work test in special circumstances as follows:

   Special circumstances

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

    (a)  the Secretary is satisfied that special circumstances of a kind prescribed by the PPL rules for the purposes of this paragraph exist in relation to the person on the day; and

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

   Under paragraph 24B(2)(b) of the Paid Parental Leave Rules 2021 (the Rules), special circumstances for the purposes of section 36AA of the Act include where “the person is affected by a severe medical condition that prevents the person from performing paid work”.

6. As set out in the hearing papers, Ms Naylor has provided Centrelink with evidence confirming that she has been affected by a severe medical condition.  In a letter dated 13 February 2024 Ms Naylor’s treating psychiatrist, [Dr A], outlined her history of health issues as follows:

   … Ms Naylor had a long history of surgical interventions for pelvic pain, to the effect that she had 14 operations prior to her diagnosis of endometriosis in 2020.

   Ms Naylor was treated in March 2020 with a change in her antidepressants, along with replacement of usual opioid medications with buprenorphine, for the long term management of opioid dependence and chronic pain. Ms Naylor had a very good response to these medications and continues on these to date.

   Despite improvements in mental health, Ms Naylor has been unable to work consistently in the 4 years I have known her due to severe and disabling pelvic pain which often manifests with daily fluctuations in pain that can not always be predicted, or that occur in context of ovulation and menstruation.

   In 2021 Ms Naylor and her partner commenced fertility treatment and the hormones exacerbated some of her symptoms. Between 2022 and 2023 Ms Naylor frequently presented to [Hospital] emergency department for management of acute flare ups of pain (records available on request).

   Following her diagnosis of endometriosis, Ms Naylor has had another three surgeries and was also treated assertively in 2023 for an autoimmune condition (DQalpha genetic mutation) in order to conceive. While this treatment was successful in achieving conception, there were a number of disabling side effects Including a worsening of her pain, nausea, headaches and inability to drive ...

7. In a letter dated 18 June 2024, [Dr B], a Senior Fertility Specialist with the [Specialist Medical Centre], provided similar information as follows:

   On the 4th of May, Ms Naylor underwent surgery for the treatment of her endometriosis and pelvic adhesions.

   Following this, Ms Naylor had IVF therapy to help her conceive. During this time Ms Naylor had exacerbations of pain which limited her ability to work. [Ms Naylor consulted with a psychiatrist ([Dr A]) to help her manage her symptoms.

   Because of these exacerbations of pain, Ms Naylor found it difficult to maintain work and required multiple visits to the causality department to treat her pain.

8. The Tribunal notes that, as a result of her health issues, Ms Naylor was previously in receipt of disability support pension from 2012 until October 2023, when this payment was cancelled due to her partner’s income.  According to the earnings summary in the hearing papers, Ms Naylor previously notified that she worked between one to 10 hours per fortnight with [Employer 2] in various fortnights between April 2021 and June 2022.  Ms Naylor confirmed at the hearing that this was the work that she undertook for [Organisation].  The hearing papers also contain two payslips from this employer, which indicate that she performed two normal hours of work in the pay period ending 5 September 2021 and 2.75 normal hours in the pay period ending 29 May 2022.

9. In support of her claim for parental leave pay, Ms Naylor provided Centrelink with letters from [Organisation] dated 1 March 2024 and 18 June 2024.  In the first letter, [Ms C], General Manager at [Organisation], advised that Ms Naylor had previously worked casual hours in an administrative support role and that:

   … Ms Naylor eventually had to cease working when her health condition, endometriosis, declined whilst she was trying to conceive. The fertility treatments she was undertaking caused Ms Naylor’s condition to flare, therefore initially reducing her hours and then finally preventing Ms Naylor’s ability to work altogether.

   I believe if Ms Naylor’s health condition was not a factor, she would still able to work until present day (2024) for [Organisation] and possibly even increase her hours over time with different work positions becoming available …

   In the second letter, [Ms C] advised that Ms Naylor had worked for [Organisation] in 2021 and 2022 and that she had last worked on 23 May 2022.  Similar to her previous letter, [Ms C] stated as follows:

   It is my understanding that Ms Naylor was incapacitated to complete her work duties due to her medical condition. If she was able to continue her tasks at work, she would highly likely still be employed at [Organisation].

10. Prior to the hearing, Ms Naylor also provided the Tribunal with messages exchanged between herself and [Ms D] of [Organisation] in June and July 2022.  In these messages Ms Naylor indicated that she had been unable to do expenses work for the organisation due to pain.

11. Based on the medical evidence provided by Ms Naylor, Centrelink accepted that she satisfied paragraph 36AA(a) of the Act in that special circumstances of the sort prescribed by the Rules existed, namely that she was affected by a severe medical condition that prevented her from performing paid work.  On the evidence before it, the Tribunal likewise finds that this was the case. 

12. The matter of contention is whether Ms Naylor also satisfied paragraph 36AA(b) of the Act in that she would have satisfied the work test had the special circumstances not existed.  In concluding that this was not the case, both the original Centrelink decision-maker and the authorised review officer noted that Ms Naylor has not worked for a considerable length of time and found that she therefore did not have a genuine connection to the workforce.  This is a reference to departmental policy guidelines in the Paid Parental Leave Guide (the Guide), which state, at 2.2.6:

    In order to prove that the special circumstance prevented them from performing paid work on a day and that they would have met the work test on the day if not for the special circumstance, a person must be able to demonstrate a genuine connection to the workforce. In most cases, this cannot be demonstrated if the person has not performed any qualifying work in their work test period. 

13. While departmental policy guidelines such as those in the Guide do not have the same force as legislation, it is well established that tribunals should take such guidelines into account unless there are cogent reasons not to do so – see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179. In the current instance, the Tribunal is mindful that paragraph 36AA(b) of the Act requires a decision-maker to be satisfied that the person would have satisfied the work test on a particular day. Insofar as the Guide states that a person must be able to demonstrate a genuine connection to the workforce, this is a requirement that is not specifically set out in paragraph 36AA(b). Even so, the Tribunal accepts that evidence that a person has had some connection to the workforce – or, conversely, that they have had no such connection – is relevant given that one of the stated objects of the paid parental leave scheme in section 3A of the Act is to allow a parent to take time out of the paid workforce to care for a child. Given this object, it is not intended for parental leave pay to be paid to a person with a severe medical condition who would not have been working in the lead-up to the birth of their child anyway.

14. An obvious example of such a scenario would be a person who has been receiving disability support pension and who has not worked since being on the payment.  While such a person could rightly argue that they were prevented from performing any paid work during their work test period due to a serious medical condition, they have not taken time out of the paid workforce to care for their child.  Given the absence of any recent or significant connection between the person and the workforce, it would not be appropriate to conclude that the person would have satisfied the work test under paragraph 36AA(b) of the Act.

15. The situation in Ms Naylor’s case is more complicated in that she was in receipt of disability support pension for nearly 12 years but did perform some casual work in 2021 and 2022.  While Ms Naylor told the Tribunal that she sometimes worked as much as 10 to 12 hours per week for [Organisation], the hours and pay amounts that she declared to Centrelink suggest that her regular work hours were consistently less than this.  Likewise, the available payslip evidence indicates that her hours of work were minimal.  Subsequently, Ms Naylor performed no paid work at all during her work test period.  Instead, she was in receipt of disability support pension until October 2023, at which point her payment was cancelled due to her partner’s income.  Since that time, Ms Naylor has been financially supported by her partner.  There is also no suggestion that Ms Naylor ceased work to give birth to, and care for, her child or that she has been on leave from a job that she is scheduled to return to.      

16. In determining whether Ms Naylor would have satisfied the work test for the number of days needed to be eligible for parental leave pay, the Tribunal is particularly mindful that the work test requires a person to perform at least 330 hours of paid work over a 295-day period.  While [Organisation] has indicated that Ms Naylor could still be working for that organisation if her health were better, the amount of work that she might have been able to perform during her work test period is a matter of conjecture.  Tellingly, Ms Naylor has never undertaken anywhere near the level of sustained paid employment required to qualify for parental leave pay since she was granted disability support pension in 2012.  Indeed, she has performed little paid work at all, with her factual situation being one that, on face value, is outside the intended scope of the Act.  In such circumstances, while appreciating why Ms Naylor decided to claim parental leave pay, the Tribunal is not persuaded that she would have satisfied the work test for parental leave pay for the requisite number of hours and days during her work test period but for her serious health condition.

17. Accordingly, the Tribunal concludes that Ms Naylor does not satisfy the work test for parental leave pay and that she is not eligible for the payment under section 31AA of the Act.  It follows that Centrelink’s decision to reject Ms Naylor’s claim for parental leave pay in respect of [the child] was correct.

DECISION

The Tribunal affirms the decision under review.

Date of hearing: Monday, 18 November 2024