Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act – Part 2

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:

1. Changes to unpaid parental leave; and
2. 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:

1. Employers must provide a written response to the employee within 21 days.
2. The response must:
   • state that the employer grants the request; or
   • if, following discussion, both agree to a different period – set out the agreed extension; or
   • if refusing:
         (i) provide the reason for refusal;
         (ii) state the business grounds for refusal and how they apply;
         (iii) propose an alternative extension period (if any);
         (iv) outline the effect of sections 76B and 76C of the FW Act.
3. Refusal must follow genuine discussion, attempt to reach agreement, and must be based on reasonable business grounds.

Reasonable business grounds may include:

• The extension being too costly;
• Lack of capacity to adjust other staff schedules;
• Impracticality of hiring/training replacements;
• Significant loss in efficiency or productivity;
• Negative impact on customer service.

Employer size and business nature are relevant when assessing “reasonable business grounds.”

Flexible Working Arrangements

Effective from 6 June 2023, more employees will be able to access flexible working arrangements.

The Act expands eligibility to include:

1. Employees who are pregnant; and
2. Employees experiencing family and domestic violence or providing care to someone who is.

Employers will have new obligations before refusing such requests. The FWC will be able to resolve disputes via conciliation, mediation or arbitration.

The new FW Act section 65A will require:

1. Written response within 21 days.
2. The response must:
   (a) Grant the request; or
   (b) Propose a mutually agreed change; or
   (c) If refusing:
        (i) Give the reason;
        (ii) Explain business grounds and relevance;
        (iii) Suggest an alternative or state none exists;
        (iv) Refer to FW Act sections 65B and 65C.
3. Refusals must follow genuine attempts to reach agreement and rely on reasonable business grounds.
   

What should employers do now?

To ensure compliance, employers should:

1. Review parental leave policies and extension procedures;
2. Familiarise themselves with new obligations around flexible work requests and unpaid leave extensions.

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