Parental Leave and Employment Protection Act 1987

Part 1 Primary carer leave

Part 1 heading: amended, on 1 April 2016, by section 15 of the Parental Leave and Employment Protection Amendment Act 2016 (2016 No 8).

7 Meaning of primary carer

(1)

In this Act, unless the context otherwise requires, primary carer means—

(a)

a female (the biological mother) who is pregnant or has given birth to a child:

(b)

the spouse or partner of the biological mother, only if—

(i)

the spouse or partner has succeeded under section 72B to all or part of the biological mother’s entitlement to a parental leave payment; or

(ii)

the biological mother has transferred all or part of her entitlement to a parental leave payment to that spouse or partner under section 71E (in which case the spouse or partner is the primary carer for the period of time in relation to which the entitlement is transferred); or

(iii)

neither subparagraph (i) nor (ii) applies and all of the following are true:

(A)

the child is under 1 year of age; and

(B)

the spouse or partner, because of the death of the biological mother or for any other reason, has taken permanent primary responsibility for the care, development, and upbringing of the child to the exclusion of the biological mother; and

(C)

at the time the spouse or partner took that permanent primary responsibility, the biological mother either had not applied for, or did not qualify to apply for, a parental leave payment:

(c)

a person, other than the biological mother or her spouse or partner, who takes permanent primary responsibility for the care, development, and upbringing of a child who is under the age of 6 years (and if there is more than 1 such person, the person nominated in accordance with subsection (2)).

Examples

If a child under the age of 6 years goes to live with their aunt, who intends to raise the child in place of the child’s biological parents, the aunt is the child’s primary carer.

If a couple formally adopt a child under the age of 6 years, or undertake to care for the child permanently, the member of the couple that is nominated under subsection (2) is the child’s primary carer.

If a child under the age of 6 is temporarily placed with a foster parent, that person is not a primary carer because the placement is not permanent.

If a child’s grandmother minds the child every day while his or her parents are at work, the grandmother is not a primary carer, because the child’s parents still have primary responsibility for the child’s upbringing.

(2)

If 2 or more persons meet the criterion in subsection (1)(c),—

(a)

those persons must jointly nominate which one of them is to be the primary carer; and

(b)

only the nominated person is entitled to primary carer leave and parental leave payments under this Act.

(3)

Subsection (2)(b) does not limit sections 71E and 71EA (both of which relate to the transfer of entitlements to parental leave payments to a spouse or partner) or section 72B (which relates to succession to entitlements by a spouse or partner).

Section 7: replaced, on 1 April 2016, by section 16 of the Parental Leave and Employment Protection Amendment Act 2016 (2016 No 8).

Section 7(1)(b)(iii): inserted, on 13 January 2020, by section 14 of the Regulatory Systems (Workforce) Amendment Act 2019 (2019 No 63).