We recently updated you on the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Act) and key amendments to workplace relations laws commencing 7 December 2022 through to 6 March 2023.
In this article we will focus on amendments due to commence from 6 June 2023 including:
- Changes to unpaid parental leave; and
- Greater access to flexible working arrangements.
Unpaid Parental Leave
Under the National Employment Standards, eligible employees can take 12 months of unpaid parental leave and can request an additional 12 months (a maximum of 24 months total), unless their partner has already taken 12 months of leave. Note, an employee and their partner can take a combined total of 24 months of unpaid parental leave.
Previously, the Fair Work Act 2009 (Cth) (FW Act) offered limited guidance for employers on responding to extension requests and restricted the Fair Work Commission (FWC)’s ability to address disputes.
Effective from 6 June 2023, the FW Act will outline the new requirements for responding to requests for unpaid parental leave extensions (section 76A) and will include the following:
- Employers must provide a written response to the employee within 21 days.
2. The response must:
(a) state that the employer grants the request;
(b) if, following discussion between the employer and the employee, the employer and the employee agree to a different extension period – set out the agreed extended period; or
(c) subject to 3, state that the employer refuses the request and include the following:
(i) the reason for the refusal;
(ii) the particular business grounds for refusing and how those grounds apply to the request;
(iii) an alternative extension period or that there is no extension period that the employer would agree to; and
(iv) the effect of section 76B (Disputes about extension of period of unpaid leave) and section 76C (Arbitration) of the FW Act.
3. An employer can only refuse the request if they have discussed it with the employee, genuinely attempted to reach an agreement, not reached an agreement and considered the consequences of the refusal for the employee. The refusal must also be on reasonable business grounds.
Reasonable business grounds may include:
- The requested extension being too costly for the employer;
- No capacity to modify other employees’ working arrangements to accommodate the request;
- It would be impractical to change other employees’ working arrangements or to recruit new employees to accommodate the request;
- The requested extension is likely to result in significant loss in efficiency or productivity;
- The requested extension is likely to have a significant negative impact on customer service.
The employer’s specific circumstances, such as the nature and size of the enterprise, are relevant when determining reasonable business grounds.
Flexible Working Arrangements
Effective from 6 June 2023, more employees will be able to access flexible working arrangements.
The Act will amend the FW Act to expand the circumstances in which an employee may request flexible working arrangements to include:
- employees who are pregnant; and
- employees experiencing family and domestic violence, or providing care or support to a member of their immediate family or household who requires care or support because the member is experiencing family and domestic violence.
Employers will also have new obligations when responding to a request and before they can refuse a request from an employee for flexible working arrangements. The amendments will also allow the FWC to deal with disputes about a request (including by conciliation, mediation or arbitration) that cannot be resolved at a workplace level.
Effective from 6 June 2023, the FW Act will outline the new requirements for responding to requests for flexible working arrangements (section 65A) and will include the following:
- Employers must provide a written response to the employee within 21 days.
2. The response must:
(a) state that the employer grants the request;
(b) if, following discussion between the employer and the employee, the employer and the employee agree to a different change to the employee’s working arrangements – set out the agreed change; or
(c) subject to 3, state that the employer refuses the request and include the following:
(i) the reason for the refusal;
(ii) the particular business grounds for refusing and how those grounds apply to the request;
(iii) an alternative change or that there is no change that the employer would agree to; and
(iv) the effect of section 65B (Disputes about the operation of this Division) and section 65C (Arbitration) of the FW Act.
3. An employer can only refuse the request if they have discussed it with the employee, genuinely attempted to reach an agreement, not reached an agreement and considered the consequences of the refusal for the employee. The refusal must also be on reasonable business grounds.
What should employers do now?
To ensure compliance, employers should:
- review their parental leave policies and processes for dealing with extension requests to ensure they meet their obligations under the new provisions; and
- ensure that they are familiar and comply with the new obligations for responding to requests for extensions to unpaid parental leave and flexible working arrangements.
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Contact Us
Industry Legal Group can provide clients with information and advice on workplace relations and employment law matters. Please contact Industry Legal Group on 1300 736 435 or mail@industrylegalgroup.com.au if you have any question relating to this article or to discuss any issues that arise in your business.
This article is intended for information purposes only and should not be regarded as legal advice. Please contact Industry Legal Group for advice.
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January 2023
