The Secure Jobs, Better Pay Act has amended the Fair Work Act to strengthen the right to request flexible working arrangements, and provided an extension to unpaid parental leave. These changes come into force from 6 June 2023.
This article provides a summary of the changes and how they will impact employers going forward.
Flexible working arrangements
Currently, the National Employment Standards (NES) provide that employees (with greater than 12 months service) can apply for flexible working arrangements if they:
- are the parent, or have responsibility for the care, of a child who is school aged or younger
- are a carer (under the Carer Recognition Act 2010)
- have a disability
- are 55 years or older
- are experiencing violence from a member of the employee’s family, or
- provide care or support to a member of their household or immediate family who requires care or support because that person is experiencing violence from their family.
From 6 June 2023, the right to request flexible working arrangements will also apply to:
- employees, or a member of their immediate family or household, experiencing family and domestic violence
- employees who are pregnant.
The amendments also update that when an employee seeks a flexible working arrangement, their employer is required to engage in a discussion regarding the request. Prior to the incoming amendments, where the employer declines the request based on reasonable business grounds, they must have provided written reasons for their decision. Additionally, the employer will now be required to assess and communicate in writing whether there are alternative adjustments to the working arrangements that could accommodate the employee’s situation.
The threshold of “reasonable business grounds” and examples of reasonable business grounds mentioned under the Act have not changed. The specifics of the employer’s business, including but not limited to the size and nature of the employer’s enterprise, are relevant to whether an employer has reasonable business grounds to refuse a request.
Importantly, the amendments will also offer access to dispute resolution services provided by the Fair Work Commission, in situations where the employer and employee are unable to resolve conflicts regarding flexible working arrangements at the workplace level, including binding arbitration of disputes over flexible work requests.
Extending unpaid parental leave
Currently, under the NES, an employee taking 12 months unpaid parental leave can request an extension of a further 12 months leave (up to 24 months in total).
Previously, there was minimal guidance on how the employer was required to respond. The Act now details a response process that is very similar to the process outlined above for flexible working arrangements.
Once an employee requests an extension to parental leave, the employer is required to engage in a discussion regarding the request. In the case the employer declines the request, they must provide written reasons for their decision. Additionally, the employer will need to consider and inform the employee in writing if there is any other period of extension the employer would be willing to agree to.
The ‘reasonable business grounds’ for refusing a request are the same as the ones under flexible work arrangements. The amendments also contain a similar dispute resolution process through the FWC if the employer and employee are unable to resolve conflicts regarding extending unpaid parental leave, again including arbitration where agreement can’t be reached between the parties to the dispute.
Australian employment laws are highly complex, making it difficult to ensure your business is compliant – especially when you have a hundred other equally as important things to worry about! That’s where ER Strategies can help.
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