Commonwealth Consolidated Acts Commonwealth Consolidated ActsWhen Secretary must make employer determination
(1) The Secretary must make a determination under this section (the employer determination ) that a person's employer is to pay the person instalments if the Secretary is satisfied, when making the determination, that:
(a) either:
(i) a payability determination under section 13 or 14 that parental leave pay is payable to the person for a child is in force; or
(ii) an initial eligibility determination under section 26A for the person in relation to a child is in force; and
(b) instalments are likely, if the determination is made under this section, to be payable by the employer to the person for at least 40 consecutive flexible PPL days that are week days; and
(c) the person has, or will have, been employed by the employer for at least 12 months immediately before:
(i) if the person's claim was made before the birth of the person's child--the expected date of birth of the child; or
(ii) if the person's claim was made after the birth of the person's child--the later of the expected date of birth of the child and the day the child was born; and
(d) the person has a continuous flexible period for the child and is likely to be an Australian - based employee of the employer during that period; and
(da) there are no other flexible PPL days prior to the person's continuous flexible period in respect of which:
(i) parental leave pay is payable to the person for the child; or
(ii) the person is initially eligible for parental leave pay for the child; and
(e) the employer has an ABN; and
(f) if paragraphs (c) to (e) are satisfied in relation to more than one employer of the person (other than because of subsection (2))--the person nominated the employer in the claim as the employer who would be required to pay instalments to the person.
Effect of election by employer to pay instalments
(2) Paragraphs (1)(b) and (c) do not apply in relation to a person if:
(a) the person's employer has made an election under section 109 that applies to the person; and
(b) the person has consented in the claim to the employer paying instalments to the person.
When must employer determination be made
(3) The Secretary must not make an employer determination for a person and the person's employer unless:
(a) the Secretary is satisfied as referred to in subsection (1); and
(b) the employer determination is made on or before the day on which the payability determination referred to in paragraph (1)(a) is made.
Note: See section 106 for when the Secretary may, despite this subsection, make an employer determination for a person and the person's employer after the day referred to in paragraph (b).
When employer determination must not be made
(3A) The Secretary must not make an employer determination for a person and the person's employer if the person is receiving an income support payment.
When Secretary may decide not to make employer determination
(4) Despite subsection (1), the Secretary may decide not to make an employer determination for a person and the person's employer in relation to a child of the person if the Secretary is satisfied of all or any of the following:
(a) the person's continuous flexible period for the child has ended;
(b) the person is a special PPL claimant;
(c) the child in relation to whom parental leave pay is payable to the person is stillborn or has died;
(d) both of the following apply:
(i) the person is a PPL claimant or special PPL claimant for parental leave pay for a child;
(ii) another PPL claimant or special PPL claimant for parental leave pay for the same child owes a debt to the Commonwealth in relation to amounts paid to, or in relation to, that other PPL claimant or special PPL claimant by way of instalments for that child;
(e) the employer is not a fit and proper person.
Matters relevant to whether employer is a fit and proper person
(5) The Secretary may take into account the following matters in determining whether an employer is a fit and proper person:
(a) whether the employer is insolvent;
(b) whether the employer has, or is alleged to have, contravened a civil penalty provision of this Act;
(c) whether a matter relating to a contravention of section 70 or Part 3 - 2 (which deal with unauthorised deductions and payment of instalments by an employer) by the employer has been referred to the Fair Work Ombudsman under section 143;
(d) subject to Part VIIC of the Crimes Act 1914 , whether the employer has, or is alleged to have, contravened a provision of an industrial law (within the meaning of the Fair Work Act);
(e) subject to Part VIIC of the Crimes Act 1914 , whether the employer has been convicted of an offence against this Act, or a law of the Commonwealth, a State or a Territory that involves:
(i) fraud or dishonesty; or
(ii) the misapplication of money; or
(iii) the management of the affairs of a body (whether or not incorporated);
(ea) whether the employer has, or is alleged to have, contravened a provision of the Employment Act 1988 (Norfolk Island);
(f) any other matter the Secretary considers relevant.
Note: Part VIIC of the Crimes Act 1914 includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them.
Secretary may assume state of affairs will not change
(6) In deciding whether to make a determination under this section, the Secretary may act on the assumption that the state of affairs known to the Secretary when making the determination will remain unchanged.