The Regulation of Paid Parental Leave in Australia: Delivering Gendered Patterns of Care
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/0067205X241305797 |
| Author | Amanda Darshini Selvarajah |
| Date | 01 December 2024 |
| Subject Matter | Articles |
Article
Federal Law Review
2024, Vol. 52(4) 412–434
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X241305797
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The Regulation of Paid Parental
Leave in Australia: Delivering
Gendered Patterns of Care
Amanda Darshini Selvarajah*
Abstract
Key changes to the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’), which offers minimum wage
payments to parents on parental leave, took effect in July 2023. These changes sought to improve
the gender equal utilisation of parental leave. This article assesses these changes to that end. The
article also explores the regulation of employer-funded parental leave policies, which has been
under-researched to date, drawing upon recent Workplace Gender Equality Agency data and
interviews with human resource professionals. The data reveals that employer-funded parental
leave policies often provide higher levels of income replacement than the PPL Act but mirror many of
the PPL Act’s features that discourage gender equal parenting. These findings highlight the need for
further reform in the regulation of paid parental leave to increase take up amongst men. Such
reform will require flexible parental leave policies with non-transferrable and generous entitle-
ments for all parents with high levels of income replacement.
Accepted 17 February 2023
I Introduction
When the Paid Parental Leave Act 2010 (Cth) (‘PPL Act’) was first introduced, it marked a long-
awaited step forward in recognising the need for funded parental leave.
1
Over the years, reform
proposals to the PPL Act have been put forward by Members of Parliament.
2
However, barring
minor amendments,
3
the PPL Act and its delineation between payments for ‘primary’and ‘secondary’
* Lecturer, Department of Business Law and Taxation, Monash University, Australia.
Email: amanda.selvarajah@monash.edu. This research was supported by an Australian Government Research Training
Program Scholarship.
1. Shae McCrystal and Belinda Smith, ‘Industrial Legislation in 2010’(2011) 53(3) Journal of Industrial Relations 288, 294.
2. See, eg, Wendy Tuohy,‘Paying Dads to Take Six Months’Leave “Could Help Close the Gender Pay Gap”’,The Sydney
Morning Herald (Web Page, 14 February 2021) <https://www.smh.com.au/national/paying-dads-to-take-six-months-
leave-could-help-close-the-gender-pay-gap-20210212-p5724g.html>; Jane Norman, ‘Tony Abbott Reframes Paid Pa-
rental Leave Scheme As “Holistic Families Package”Following “Community Concern”’,ABC News (Web Page, 8
December 2014) <https://www.abc.net.au/news/2014-12-08/paid-parental-leave-scheme-tony-abbott-acknowledges-
concern/5950302?nw=0&r=HtmlFragment>.
3. See, eg, Paid Parental Leave Amendment (Flexibility Measures)Act 2020 (Cth); Paid Parental Leave Amendment (Covid-
19 Work Test) Act 2021 (Cth).
carers remained substantively the same. Before July 2023, the PPL Act offered eligible ‘primary’carers
18 weeks of payments at the national minimum wage while eligible ‘secondary’carers were offered
two.
4
‘Birth mothers’were automatically assigned the role of primary carer unless exceptional cir-
cumstances applied,
5
such as where they were deemed to be ‘incapable of caring for the child’or it was
considered unreasonable for the birth mother to care for the child.
6
Secondary carer payments were
referred to as ‘dad and partner pay’, a payment that ‘birth mothers’were prohibited from accessing.
7
However, in October 2022, the Labor government proposed amending the PPL Act to con-
solidate these ‘primary’and ‘secondary’carer payments into a single 20-week payment for each
family.
8
The PPL Act was eventually amended to enact this change and several others, taking effect
for children arriving on or after 1 July 2023.
9
Under the amendments, any parent, regardless of their
role as birth parent, can claim the payments first.
10
Several new objectives were also added into the
PPL Act including increasing ‘the time that fathers and partners take off work around the time of
birth or adoption’, creating ‘further opportunities for fathers and partners to bond with thei r child’
and allowing ‘fathers and partners to take a greater share of caring responsibilities and to support
mothers and partners from the beginning’.
11
The amending act was even called the Paid Parental
Leave Amendment (Improvements for Families and Gender Equality) Act 2023 (Cth).
The PPL Act’s amendments were therefore focussed on improving the gender equal utilisation of
parental leave by increasing take up amongst fathers. To quote the Labor Government’s Budget
announcement:
[g]ender equality under the [PPL Act] will be improved by removing the current requirement that the
primary claimants of parental leave must be the birth parent. Families will be able to decide who will
claim PPL first. A move to gender neutrality in the scheme recognises the diversity of Australian families
and removes assumptions about who provides care.
12
Improving the gender equal utilisation of parental leave is a worthy endeavour. Since the PPL Act
was introduced, research has highlighted the gender biases embedded in the PPL Act’s original
definitions of ‘primary’and ‘secondary’carers and how this compromises gender equal parenting.
13
4. Paid Parental Leave Act 2010 (Cth) s 4, as at 25 March 2023 (‘PPL Act’).
5. Ibid s 54, as at 25 March 2023 (emphasis added).
6. Paid Parental Leave Rules 2021 (Cth) r 26, as at 26 October 2022.
7. PPL Act (n 4) s 115DD, as at 25 March 2023 (emphasis added).
8. Commonwealth of Australia, ‘Budget October 2022–23: Expanding Paid Parental Leave’,Budget Australia (Web
Page) <https://archive.budget.gov.au/2022-23-october/factsheets/download/factsheet_parental_leave.pdf>(‘Budget
October 2022–23’).
9. Paid Parental Leave Amendment (Improvements for Families and Gender Equality) Act 2023 sch 3.
10. PPL Act (n 4) s 54.
11. Ibid s 3(2)(c)(v)–(vii).
12. Budget October 2022-23 (n 8).
13. See, eg, Marian Baird, Myra Hamilton and Andreea Constantin, ‘Gender Equality and Paid Parental Leave in Australia:
A Decade of Giant Leaps or Baby Steps’(2021) 63(4) Journal of Industrial Relations 546; Deborah A Widiss, ‘The
Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and
Australia’(2021) 41 Comparative Labor Law and Policy Journal 723; Gillian Whitehouse and Hideki Nakazato,
‘Dimensions of Social Equality in Paid Parental Leave Policy Design: Comparing Australia and Japan’(2021) 9(2)
Social Inclusion 288, 295; Gillian Whitehouse and Michelle Brady, ‘Parental Leave, Social Inequalities and the Future of
Work: Possibilities and Constraints within the Australian Policy Framework’(2019) 29(3) Journal of Labour and
Industry 257.
Selvarajah 413
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