51Leave of absence without pay

#### 51 Leave of absence without pay Scope of section (1) This section applies to a person if: (a) the person is, or at any time has been, an eligible employee; and (b) the person, while an eligible employee, has been on leave of absence without pay for a period longer than 12 weeks; and (c) the period of leave of absence is not an excluded period of leave of absence; and (d) where the period of leave of absence starts after 30 June 2003—the person’s designated employer has stopped making payments to the Commonwealth in respect of benefits that become payable under this Act to or in respect of the person. > Note: Subsection (3) prohibits a person to whom this section applies from making contributions during the period of leave of absence without pay. Excluded periods (during which person is permitted to make contributions) (2) For the purposes of subsection (1), the following periods of leave of absence of a person are, subject to subsections (2AA) and (2B), excluded periods of leave of absence: (a) a period of leave of absence during which the person’s liability to make contributions is deferred under subsection 54(1); (b) a period of sick leave without pay; (d) a period of compensation leave granted under the Safety, Rehabilitation and Compensation Act 1988 or the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988; (da) a period of leave of absence because of a service injury or disease (within the meaning of the Military Rehabilitation and Compensation Act 2004) in respect of which the person is receiving compensation under section 86 (part‑time Reservists) or 127 (former member maintained in hospital) of that Act; (f) subject to subsection (2A), a period of leave of absence for the purpose of engaging in other employment (other than employment by an approved organisation) if: (i) in respect of a person employed in an APS Agency—the Agency Head of the Agency is satisfied that the engaging by the person in the other employment is in the interests of the Australian Public Service; or (ii) in respect of any other person—the person’s employer is satisfied that the engaging by the person in the other employment is in the employer’s interests; (g) subject to subsection (2A), a period of leave of absence for the purpose of engaging in employment by an approved organisation; (h) subject to subsection (2BC), a period of leave of absence in respect of which there is in force an agreement made (whether before or after the end of the period) between the Minister and CSC declaring the period to be an excluded period of leave of absence. (2AA) Subsection (2) does not apply in respect of a period, or a part of a period, of leave of absence occurring after the commencement of this subsection in respect of which the person is, because of section 45A, not entitled to pay contributions. Certain transfers of employment (during which person is permitted to make contributions) (2A) Subject to subsection (2BA), paragraph (2)(f) or (g) does not apply in respect of a period, or a part of a period, of leave of absence granted to a person unless the following requirements have been complied with: (a) if the person is ordinarily employed by one of the following Governments, authorities or bodies (the usual employer): (i) the Government of the Australian Capital Territory or of the Northern Territory; (ii) an authority or body established by or under a law of the Australian Capital Territory or of the Northern Territory; (iii) the Australian National University; (v) another authority or body declared by the Minister, by signed writing, to be an authority or body to which this subparagraph applies; the person’s employer in respect of the employment engaged in during the period, or the part of the period, of leave of absence (the temporary employer) makes payments to the usual employer of such amounts, or at such rates, as are determined in respect of the person during the period or the part of the period by: (vi) if the usual employer is an authority or body established by or under a law of the Australian Capital Territory or of the Northern Territory—the Government of the Territory concerned; or (vii) otherwise—the usual employer; (b) if the person is ordinarily employed by one of the following authorities or bodies (the usual employer) that is not an authority or body referred to in paragraph (a): (i) an approved authority; (ii) another authority or body referred to in subsection 159(1); (iii) a body referred to in item 2.1 of Schedule 1 to the Superannuation (Continuing Contributions for Benefits) Regulations; the person’s employer in respect of the employment engaged in during the period, or the part of the period, of leave of absence (the temporary employer): (iv) makes payments to the usual employer of such amounts, or at such rates, as the Minister determines in respect of the person during the period or the part of the period; and (v) makes those payments at the times at which payments are required to be made to the Commonwealth under section 159 by authorities or bodies to which that section applies; (c) if the person is ordinarily employed by someone other than a Government, authority or body referred to in paragraph (a) or (b)—the person’s employer in respect of the employment engaged in during the period, or the part of the period, of leave of absence (the temporary employer) makes payments to the Commonwealth of such amounts or at such rates, and at such times, as the Minister determines in respect of the person during the period or the part of the period. (2B) Subject to subsection (2BA), except in respect of a person who is not a productivity employee within the meaning of Part VIA or is, under an agreement made between the Minister and CSC, exempted from the operation of this subsection, subsection (2) does not apply in respect of a period, or a part of a period, of leave of absence granted to a person unless: (a) if the leave of absence was granted so that the person could engage in other employment—the other employer; or (b) otherwise—the employer by whom the person is ordinarily employed; makes payments to CSC in respect of the person, during the period, or the part of the period, of leave of absence, of productivity contributions of the amounts worked out under section 110C. (2BA) Subsections (2A) and (2B) have effect in relation to a particular period of leave granted to a person, or a particular part of such a period, subject to any modifications agreed between the Minister and CSC in relation to the person in respect of the period or the part of the period, as the case may be. (2BB) In paragraphs (2)(f) and (g): > approved organisation means: (a) an organisation registered or an association recognised under the Fair Work (Registered Organisations) Act 2009 whose membership includes people who are eligible employees or members of the Public Sector Superannuation Scheme; or (b) a body consisting of organisations referred to in paragraph (a). Minister and CSC agreements that period is an excluded period (2BC) An agreement made under paragraph (2)(h) in respect of a period of leave of absence may be subject to such conditions as are set out in the agreement, and, if any such conditions are contravened in relation to the period or a part of the period, that paragraph does not apply in respect of the period or the part of the period, as the case may be. (2BD) The Minister and CSC may at any time vary or terminate an agreement made under paragraph (2)(h). Prohibition on making contributions during period of unpaid leave (3) A person to whom this section applies is not required or permitted, and shall be deemed not to have been required or permitted, to make contributions on any contribution day occurring during the period of leave of absence without pay, and the regulations may make provision for modifying this Act, or a provision of this Act specified in the regulations, in the application of this Act or that provision to and in relation to a person to whom this section applies, or to and in relation to a prescribed class of such persons. (4) The modifications that may be made by regulations in pursuance of subsection (3) include, but are not limited to, modifications providing for benefits in addition to, or in substitution for, benefits provided for by this Act. Anticipating that a person will be on unpaid leave for more than 12 weeks (5) For the purposes of this section, an eligible employee who is on leave of absence without pay but has not been on leave of absence without pay for a period that exceeds 12 weeks, but is expected to be on leave of absence without pay for a period exceeding 12 weeks, shall, except as otherwise provided by the regulations, be deemed to have been on leave of absence without pay for a period exceeding 12 weeks. Section does not apply to maternity and parental leave etc. (6) A person who is on leave of absence without pay for reasons related to: (a) the birth of a child of the person or of the spouse, or de facto partner within the meaning of the Acts Interpretation Act 1901, of the person; or (b) the termination (otherwise than by child‑birth) of a pregnancy of the person; or (c) the adoption of a child by the person; is taken, for the purposes of this section, not to be absent during that period on leave of absence without pay. (7) The reference in paragraph (6)(a) to the birth of a child of the person includes a reference to the birth of a child who is a child of the person within the meaning of the Family Law Act 1975.