Schools should review and update their policies to comply with recent changes to the Fair Work Act concerning family-friendly measures.  The new measures significantly expand the circumstances in which employees have a right to request a change in their working arrangements. 

Right to request flexible working arrangements

The previous right of an employee who was a parent to request flexible working arrangements was restricted to the period up until their child reached school age or 18 years of age if the child had a disability.  These rights have been extended and a request for flexible working arrangements may now be made by employees who:

  • are parents or carers of school age children or younger
  • are carers of an individual who has a disability, a medical condition (including a terminal or chronic illness), a mental illness or is frail and aged
  • have a disability
  • are experiencing violence from a member of their family
  • provide care or support to a member of their immediate family who requires such care or support because he or she is experiencing violence from his or her family.  

The changes also provide that a parent or carer of a child returning to work after taking leave in relation to the birth or adoption of the child may request to work part-time to assist them to care for the child.  The scope of this right is unclear and untested and could potentially apply to anyone who has taken leave in relation to the birth of a child (for example, grandparents or other family members).  It is not clear whether the right is confined to the parents of the child although the explanatory memorandum to the Act suggests that it could be. 

The right to request a change to an employee’s working arrangements is a workplace right under the Act and any adverse action taken against an employee who makes a request would be unlawful. 

For the first time the Act now includes a non-exhaustive list of what are “reasonable business grounds” for refusing a request from an employee for flexible working arrangements.  The list includes:

  • that the new working arrangements requested by the employee would be too costly for the employer
  • that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
  • that it would be impractical to change the working arrangement of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee
  • that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity
  • that the new working arrangements requested would be likely to have a significant negative impact on customer service. 

The requirement remains that an employer must give an employee a written response within 21 days as to whether the request is granted or refused (and the reasons for the refusal). 

These amendments commenced on 1 July 2013. 

Parental leave

An employee is now entitled to take unpaid concurrent leave for a period no longer than 8 weeks in total (previously 3 weeks) while his or her partner is on parental leave.  The concurrent leave may be taken in separate periods during the period of maternity leave but not in periods shorter than 2 weeks (unless the employer agrees). 

Unless the employer agrees, the concurrent leave must not start before the birth or adoption of the child. 

These amendments commenced on 1 July 2013. 

Transfer to a safe job

The previous right was that a pregnant employee could only transfer to a safe job if she was entitled to unpaid parental leave (being the requirement of having had at least 12 months service with her employer). 

The right to be transferred to a safe job has now been extended to all pregnant employees, regardless of their length of service and whether or not they qualify for unpaid parental leave.  The employer must transfer the employee to an appropriate safe job if one is available.  If there is no safe job available, and the employee has qualified for unpaid parental leave, then the employee is entitled to paid "no safe job" leave for the duration of the period that she is at risk.  An employee who has not qualified for unpaid parental leave may take unpaid "no safe job" leave for the duration of the period that she is at risk. 

These amendments commenced on 1 July 2013. 

Special maternity leave

Special maternity leave is unpaid leave that a pregnant employee may take if she is not fit for work because of a pregnancy-related illness or her pregnancy ends within 28 weeks of the expected birth date other than by the birth of a living child. 

Previously, an employee’s entitlement to take 12 months unpaid parental leave was reduced by any special maternity leave taken by the employee.  This is no longer the case so that an employee’s entitlement to 12 months parental leave is not reduced by any period of special maternity leave.  Further, the Act now clarifies that an employee may take any accrued paid personal / carer’s leave instead of taking unpaid special maternity leave. 

These amendments commenced on 1 July 2013.  

Reference:  Fair Work Amendment Act 2013, No. 73, 2013.