No NZ paid leave for Aussie worker

A woman working in Australia who argued she should have been eligible for New Zealand paid parental leave has had her complaint thrown out by the Employment Relations Authority.

Palak Shah, a New Zealand citizen, worked in New Zealand for five years until 2013, paying tax and making KiwiSaver contributions. In 2013, she shifted to Australia to work for a bank there. The bank also owns a New Zealand bank but Shah did not do any work for the New Zealand business.

She came back to New Zealand to have her baby in March last year, so she would have her mother’s support, and applied for parental leave. She noted there was no specified requirement on paperwork or websites for people to have worked in New Zealand before the birth of a child.

To qualify, people must have worked for the same employer for an average of 10 hours a week for at least 26 weeks during the past year. Shah was still paying tax in New Zealand while working in Australia because she had money in a term deposit and KiwiSaver account. She and her employer completed a statutory declaration saying she met the requirement.

Inland Revenue rejected it, saying she had to have been working in New Zealand. The Ministry of Business, Innovation and Employment (MBIE) backed that.

Shah argued she had worked enough and there was no mention in the documentation that the work had to be in New Zealand.

‘‘I accept in the modern era government websites are a very significant source of information. However, I cannot determine Shah’s entitlement on that basis and must rather focus on the Parental Leave and Employment Protection Act (PLEPA), which is the legal source of her entitlement, if she has one,’’ authority member Nicola Craig said.

MBIE argued that benefits were dependent on residence.

‘‘Shah’s baby was born in New Zealand. Is this enough,’’ Craig asked. ‘‘She could be seen as an eligible employee as she was the primary caregiver of a child. It seems that she took parental leave from her employment, although this would have been under the Australian legislation and/or her Australian employment contract.

‘‘What she did not do, is do most of those things in New Zealand.

‘‘In order to be eligible for PLP, Shah must have taken parental leave. That parental leave must be under the New Zealand Act. It does not make sense that, in the absence of some trans-Tasman agreement, parental leave could be authorised and taken under the statute in one country and the payment to be required under the scheme in a statute in the other country. The two may well have quite different regimes.’’

She said Shah was not entitled to parental leave payments. A decision on costs was reserved.