On 6 June 2023, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which amends the Fair Work Act 2009 (FW Act), came into effect. These amendments strengthen the right to request an extension of unpaid parental leave and flexible working arrangements.

These requests are currently covered by the National Employment Standards (NES) as contained in the FW Act. However, the FW Act did not have an avenue for employees to challenge the refusal of such requests e on reasonable business grounds unless the parties have agreed to this in an enterprise agreement, employment contract, other written agreement or a public service determination authorises this.

The amendments provide enforcement and dispute resolution rights for requests for flexible working arrangements and extensions of unpaid parental leave, aligning them with the existing provisions for other NES entitlements:

Requests for flexible working arrangements

Division 4 of the NES concerns an employee’s right to request changes to their working arrangements. The amendments to Division 4 will:

  • Expand the circumstances in which an employee may request a flexible working arrangement, where they (or whose member of their immediate family or household) experience family or domestic violence.
  • Support employee access to flexible working arrangements by strengthening employer obligations when considering an employee’s request.
  • Introduce dispute resolution provisions to enable the Commission to make orders where an employer refused a request or did not respond to the request within 21 days.

The FW Act is amended to expand the circumstances in which an employee can make a request, including where they are pregnant or where they (or whose member of their immediate family or household) experience family or domestic violence.

Division 4 of the NES will have three new provisions:

Responding to requests for flexible working arrangements:

  • An employer must give a written response to the employee within 21 days.
  • Employer must discuss the request with the employee and genuinely try to reach an agreement.
  • Employer may only reject a request on reasonable business grounds.

Disputes about the operation of this Division

  • The Commission may deal with a dispute in certain circumstances if an employer has refused a request or failed to respond in writing within 21 days.
  • Parties must first attempt to resolve a dispute at the workplace level. If it cannot be resolved, a party of the dispute may refer it to the Commission.
  • The Commission can deal with the dispute through conciliation, mediation, or arbitration.

Arbitration  

  • The Commission may arbitrate the dispute without the consent of the parties; however, it must deal with the dispute by other means first unless there are exceptional circumstances.

Requests to extend unpaid parental leave.

New provisions of the FW Act relating to unpaid parental leave parallel the amendments described above and provide:

  • an employer’s obligations when responding to a request to extend unpaid parental leave.
  • the Commission’s ability to deal with a dispute about an employer’s refusal of a request or failure to respond in writing within 21 days. The Commission may arbitrate the dispute without the consent of the parties; however, it must handle the dispute by means other than arbitration first.
  • the orders the Commission may make in arbitration, including an order that the employer grants the request or agree to a different extension period where the Commission thinks that there is no reasonable prospect of the dispute being resolved without making the order.

In addition to the above, from 1 July 2023, the current entitlement of 18 weeks paid parental leave pay will be combined with the current Dad and Partner Pay entitlement of 2 weeks’ pay. Accordingly, eligible couples will be able to claim up to 20 weeks of paid parental leave between them, and parents who are single at the time of their claim can access the full 20 weeks.

For more information on any of the above, please contact our team at 02 6285 1677 or at afpa@afpa.org.au