Introductory Info
Date of introduction: 2024-08-22
House introduced in: House of Representatives
Portfolio: Social Services
Commencement: The day after the Bill Act receives Royal Assent
Purpose of the Bill
The purpose of the Paid Parental Leave Amendment (Adding Superannuation for a More Secure Retirement) Bill 2024 (the Bill) is to amend the Paid Parental Leave Act 2010 (PPL Act) and other legislation to add a superannuation payment on government-funded Paid Parent Leave Scheme payments (PPL Scheme) for births and adoptions on or after 1 July 2025.
Structure of the Bill
The Bill has two Schedules:
- Schedule 1 contains the main amendments, primarily to the PPL Act and
- Schedule 2 contains consequential and related amendments to taxation and employment legislation.
Background: the current PPL scheme
The PPL Act establishes a government-funded paid parental leave (PPL) scheme. Prior to its enactment, concerns were expressed regarding whether the PPL Act was intended to provide:
- a social security entitlement to support parents at the birth of a child or
- a workplace entitlement to employees to encourage workforce attachment and participation.
Despite those concerns, given that the constitutional basis for the scheme is primarily the ‘social security’ power under section 51(xxiiiA) of the Constitution, along with other powers (p. 27) the PPL Scheme essentially operates as a social security payment, despite payments generally being ‘funnelled’ through employers to employees, rather than a workplace entitlement.
Overview of current operation of the PPL Scheme
The PPL scheme currently offers eligible parents flexible PPL within the first 2 years after their child’s birth or adoption. The maximum PPL entitlement will steadily increase over the coming year. The maximum PPL entitlement will be:
- 22 weeks (110 flexible PPL days) for a child born or adopted after 1 July 2024
- 24 weeks (120 flexible PPL days) for a child born or adopted after 1 July 2025 and
- 26 weeks (130 flexible PPL days) for a child born or adopted after 1 July 2026.
Parents can share the PPL entitlement (subject to various rules) and take it flexibly in blocks as short as one day, with the option to return to work between leave days. PPL is paid at the national minimum wage and is taxable. Typically, Services Australia provides funding to the employer for parental leave, who then pays the employee through the regular pay cycle after withholding tax.
For parents with a partner, 10 PPL days are reserved for the non-claiming partner on a "use it or lose it" basis. As a result of recent reforms, starting 1 July 2025, this reserved period will extend by one week each year until reaching 4 weeks (20 days) by 1 July 2026. Up to 10 days can be taken concurrently by parents/their partners, increasing to 20 days from 1 July 2025.
Interaction with workplace leave entitlements
As noted above, the PPL Scheme operates as a social security payment ‘funnelled’ through employers to employees, rather than a workplace entitlement in the traditional sense. In terms of the interaction between payments made under the PPL Scheme and other workplace leave entitlements:
Importantly, the PPL Scheme cannot be “absorbed into” employer-funded PPL schemes (p. 12) such as traditional ‘maternity’ or ‘parental’ leave schemes. Employer schemes can, however, operate concurrently with the PPL Scheme. For example, an employer can pay the difference between the employee’s PPL Scheme payments and their usual salary for a specified period of leave (p 12).
More information about the PPL Scheme, including eligibility rules and rates of payment, is available from Services Australia.
Arguments for paying superannuation on PPL Scheme payments
Since the commencement of the PPL Scheme in 2011, various stakeholders have called for superannuation contributions to be paid with respect to PPL Scheme payments, including:
A key argument underpinning those calls has been that this would contribute to reducing retirement income inequality between men and women.
In February 2023 the Treasurer, Jim Chalmers, said the Government would fund the superannuation guarantee on government paid parental leave when Budget circumstances allowed.
The Women’s Economic Equality Taskforce, formed in September 2022 recommended Government legislate for ‘the payment of superannuation on all forms of paid parental leave’ (recommendation 2.6, p. 44).
According to a July 2023 report in the Australian ‘Jim Chalmers knocked back the taskforce’s recommendation because of budgetary pressures, but the surplus has since been dramatically upgraded and is expected to hit about $20bn for the year to June 2023’. The report noted the Government was being lobbied on the issue by Labor women’s group Emily’s List.
Position of major interest groups
In addition to CEW, KPMG and Per Capita and the ASU, other stakeholders that have commented publicly on the Bill appear broadly supportive of the Government paying the superannuation guarantee on PPL Scheme payments, including the Business Council of Australia (BCA), and the Australian Council of Trade Unions.
Financial implications
According to the Explanatory Memorandum (p. 3), the measures in the Bill will have a $1.1 billion impact over the forward estimates (2024–25 to 2027–28).
Key issues and provisions
The Bill amends the PPL Act to add a superannuation payment on PPL Scheme payments for births and adoptions on or after 1 July 2025. The Bill also makes a minor technical amendment to the Fair Work Act 2009 relating to unpaid parental leave.
All references to proposed sections are to the PPL Act, unless stated otherwise.
Who is eligible for the superannuation contributions?
A person will be eligible for a PPL superannuation contribution (PPLSC) for an income year where they have been paid one or more PPL Scheme payments in that income year (proposed section 115B).
How is the amount of superannuation calculated?
The Australian Tax Office (ATO) will calculate and disburse the PPLSC based on information it will receive from Services Australia about PPL payments (proposed sections 115C and 115D).
The amount of the PPLSC is the sum of all PPL payments during the income year multiplied by the superannuation guarantee charge percentage for the income year, which will be 12% from 1 July 2025 (proposed section 115C).
As the PPLSC will only be paid by the ATO once per income year, it includes an additional interest component to compensate for forgone returns resulting from the annual payment cycle (proposed subsection 115C(5)).
How are the superannuation payments made?
Under the Bill, the ATO will determine whether the PPLSC will be paid into a superannuation fund for crediting to an account of the employee within that fund, or other similar entities such as a Retirement Savings Accounts regulated by the Retirement Savings Accounts Act 1997 (proposed sections 115F and 115H).
Once payment is made, the ATO must provide the employee with a written notice containing the following information about the PPLSC:
- when and to whom the contribution was paid (e.g. to which superannuation fund the PPLSC was paid on behalf of the person)
- the amount of the PPLSC and
- how the person may apply for review of the decision about the amount of the contribution (proposed section 115J).
Key issue: what will the Bill achieve?
As noted earlier, a key argument for paying superannuation on PPL Scheme payments is that this would contribute to reducing retirement income inequality between men and women. This rationale is explicitly referred to in the Explanatory Memorandum (p. 1):
… the superannuation gap reflects the lower lifetime earnings of women, including time taken out of the workforce to care for children. Paying superannuation on Commonwealth-funded Paid Parental Leave (PPL) … [will reduce] the impact that career breaks to care for young children have on superannuation balances. This will help to improve equity in the superannuation system.
In that regard, Treasury’s Retirement Incomes Review noted that the impact on retirement incomes was likely to be small:
If superannuation was paid on Government Parental Leave Pay, the median female earner would receive an additional 0.17 per cent in annual retirement income … For middle-income earners in particular, the Age Pension assets test reduces the small gains in annual superannuation income. Most Government Parental Leave Pay recipients are in the middle of the income distribution (p. 270, emphasis added).
However, it should be noted that the Government’s rationale for paying superannuation on PPL Scheme payments is not confined to reducing retirement income inequality to between men and women, but also includes normalising:
… parental leave as a workplace entitlement like annual and sick leave, supporting families to take time off work while continuing to contribute to their superannuation. (p. 24, emphasis added)
The steady growth of availability of employer-funded paid parental leave from only 48% of employers in 2015–16 (p. 12) to 62% in 2021–22 (p. 2) appears to suggest that employer-funded paid parental is becoming a normal, readily available feature of typical employment arrangements.
As such, it is not clear to what extent the Bill operates to either further normalise employer‑funded parental leave as a workplace entitlement or increase the pace of such arrangements becoming readily available.
Other provisions
The Bill contains various integrity measures and other rules dealing with:
- correction of underpayments (proposed sections 115K to 115N)
- correction of overpayments, including recovery of overpaid amounts (proposed section 115P)
- record keeping obligations of superannuation providers and enforcement mechanisms (proposed sections 115S to 115Z)
- review of decisions by the ATO regarding various issues such as eligibility for a PPLSC and the amount of PPLSC (proposed sections 115ZF to 115ZH).
Readers are referred to the Explanatory Memorandum for further details on the operation of those provisions.