Changes To Parental Leave Under the Fair Work Act 2009

On 27 November 2015, changes were made to the Fair Work Act 2009 (‘the Act’). These changes included a minor change to the parental leave provisions. Specifically, changes relating to an employer’s right to refuse a request for an extension of leave.

Under the National Employment Standards (‘the NES’), an employee is entitled to 12 months of unpaid parental leave, provided they have completed 12 months of service with the employer. Further, , an employee can make a request to extend this leave for an additional 12 months and the employer may only refuse such a request on reasonable business grounds.

However, the recent changes to the Act mean that there is an additional obligation on employers and this is as follows:

The employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request.

Whilst “a reasonable opportunity to discuss” is not defined in the Act, the Explanatory Memorandum to the legislation indicates that a meeting needs to be held prior to the outcome of the request being decided to satisfy the above requirement. Accordingly, it appears that email or correspondence regarding the request would not suffice. It could be assumed that a teleconference would also suffice on the basis that it would amount to a ‘discussion’.

Importantly, this option does not impose any further obligation on the employer to accept the request. That is, an employer will still be able to refuse a request on reasonable business grounds.

The maximum penalty for each breach of the Act is $54,000 for corporations and $10,800 for an individual.

All other rights and obligations regarding unpaid parental leave under the Act remain the same.

For advice relating to your obligations under the Fair Work Act 2009, please contact Workplace Legal on (03) 9972 4950.

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