UNPAID PARENTAL LEAVE CHANGES
The Fair Work Act contains provisions within the NES for employees (including regular casual employees) who have worked with their employer for at least 12 months to take unpaid parental leave when they or their partner are to give birth or adopt a child.
The current legislation also allows for an extension of an additional 12 months, with the requirement that the employee submits their request at least 4 weeks before the end of the current period of unpaid leave. Unfortunately, the current Act provides minimal guidance on how an employer should respond to a request for an extension and limits the Fair Work Commission’s ability to deal with disputes.
From 6th June 2023, when an employee makes a request to extend their unpaid parental leave, the employer can either agree to the request or discuss and agree with the employee to a different extension period. This agreement must be put in writing and provided to the employee within 21 days of the request.
An employer will only have the right to refuse a request if they have genuinely tried to reach an agreement with the employee and the refusal has reasonable business grounds. The refusal must be provided in writing within 21 days and must include details of the grounds for refusal, an alternative period the employer would be willing to agree to, or that there is no extension they would be willing to agree to.
The threshold of “reasonable business grounds” for refusing a request has not changed, However, the amendments provide additional guidance by listing examples of reasonable business grounds on which an employer can refuse a request.
Without limiting these grounds, they include the following:
- that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;
- that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;
- that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;
- that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;
- that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.
The specific circumstances of the employer, including but not limited to the size and nature of the employer’s enterprise, are also relevant to whether an employer has reasonable business grounds to refuse a request.
The amendments also provide increased access to dispute resolution for employees through the Commission if they cannot resolve disputes about flexible working arrangements at the workplace level. Unless there are exceptional circumstances, the Commission will first attempt to resolve any dispute using non-binding methods, such as conciliation or mediation. If these methods don’t yield results, it can then move on to mandatory arbitration.
If you have any questions about any of these changes or would further information about how these changes affect your business please contact us on (08) 9383 3293 or schedule a call back.
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