Employee entitlements to parental leave and the right to request flexible working arrangements are likely to be extended under amendments sought by the Fair Work Amendment Bill 2013 (Cth) (Bill). These amendments, while extensive, also bring into focus the existing provisions in the Fair Work Act 2009 (Cth) (FW Act) that afford employees rights to parental leave and related entitlements and the right to request flexible work.

In this article, we set out what employers’ existing obligations are; how these obligations will be expanded under the Bill; and what it means for employers.

What are employers' existing obligations?

Currently, under the FW Act, obligations on employers include the following:

  • provide up to 12 months of unpaid parental leave for permanent employees who have completed at least 12 months of service with their employer;
  • provide an employee returning from parental leave with their pre-parental leave position or, if that position no longer exists, an available position for which the employee is qualified and suited, nearest in status and pay to the pre-parental leave position. Employers should be mindful however that a pre-parental leave position will not be considered to “no longer exist” purely because a replacement employee has been engaged;
  • transfer a pregnant employee, who is entitled to unpaid parental leave, to a safe job if her current job is considered unsafe due to pregnancy-related risks, or hazards arising from the position. Where there is no appropriate safe job available, the employee is entitled to take paid ‘no safe job leave’ for the period at which she is at risk;
  • provide a pregnant employee, who is entitled to unpaid parental leave, with unpaid special maternity leave for a period of time in which she is unfit for work due to prescribed pregnancy-related reasons. Currently, any such period of unpaid special maternity leave counts as, and therefore comes out of, an employee’s entitlement to 12 months of unpaid parental leave;
  • provide an employee with up to three weeks of unpaid parental leave concurrently with their spouse or partner who is also on parental leave. This period of concurrent leave is to be taken within three weeks, or six weeks if agreed to by the employer, of the birth or adoption of a child; and
  • enable employees who are parents, or have the responsibility for the care, of a child under school age, or under 18 years of age who has a disability, to make a request for flexible working arrangements in order to assist with their caring responsibilities. An employer must respond to a request, in writing, within 21 days of receiving the request and it can only be refused on reasonable business grounds.

How will existing obligations be expanded under the Bill?

If the Bill is enacted into law:

  • requests by pregnant employees to be transferred to a safe job may be made by any pregnant employee regardless of the length of her service;
  • any period of unpaid special maternity leave will no longer reduce the employee’s entitlement to 12 months of unpaid parental leave;
  • parents who are members of an employee couple will be able to take up to eight weeks of unpaid parental leave concurrently with each another, and may take the leave at separate intervals at any time within 12 months of the birth or adoption of a child;
  • a much broader range of employees will be entitled to make a request for flexible working arrangements, including parents of school-aged children, carers, employees with disabilities or age-related issues and employees subjected to, or supporting a person subjected to, family-related violence; and
  • there will be an express right of employees who are parents or who have responsibility for the care of a child, and who are returning to work after taking leave in connection with the birth or adoption of the child, to request work on a part-time basis to assist in their care of the child. 

As is currently the case, employers will only be able to refuse requests for flexible working arrangements on reasonable business grounds. The Bill provides a non-exhaustive list of what may be considered ‘reasonable business grounds’, including factors such as the cost to the employer, capacity to reorganise arrangements with other employees, impracticality, loss of productivity and negative impact on customer service.

What does this mean for you?

Employers will need to familiarise themselves with these changes and be prepared to update their procedures and policies accordingly.

In particular, as the Bill broadens the scope of employees who can access parental leave and related entitlements and who can request flexible working arrangements, employers may see an increase in:

  • requests from pregnant employees to be transferred to safe jobs;
  • the number of employees taking unpaid special maternity leave;
  • the periods of concurrent leave taken by employees; and
  • requests for flexible working arrangements.

The Bill will not affect employers’ existing obligations under the FW Act to:

  • provide up to 12 months’ unpaid parental leave for permanent employees who have completed at least 12 months of service with their employer; and
  • provide an employee with their pre-parental leave position upon their return from parental leave. 

In managing these ongoing obligations, it is important that where an employee is engaged to fill a position made available by an employee on parental leave, the employer ensures that the replacement employee is clearly employed for that period only, so as to minimise the risk of any claims against the employer.

Also, employers should consider how they approach requests for flexible work and ensure that they have procedures in place for responding to them consistent with their current and future obligations under the FW Act.