Effect of the Amendments
From June 2023, the National Employment Standards (NES) has been amended to provide eligible employees with an entitlement to unpaid parental leave. Previously, an employee returning to work after unpaid parental leave had to request part-time employment or flexible work arrangements if they did not want to work full-time.
Under the new amendments, employees can take up to 100 days of unpaid parental leave flexibly at any time within 24 months of a child’s birth or date of placement if the child is adopted. Pregnant employees can start taking unpaid leave up to 6 weeks before the expected date of birth, or earlier if agreed with the employer.
The unpaid parental leave can be taken as flexible blocks of one or more days, or it can be taken continuously. Discrete blocks of leave can be taken before and after a period of continuous unpaid parental leave.
For an employee to be eligible to take unpaid parental leave, whether continuous or flexible, they must:
- Nominate the number of days of flexible unpaid parental leave they intend to take;
- Specify the intended start and end dates for any continuous unpaid parental leave;
- Inform their employer of the above intentions by giving them written notice at least 10 weeks prior to commencing their first period of leave; and
- At least 4 weeks prior before the intended start date they must also confirm their nominated workplace arrangements.
Request for Extension of Leave
An employee is entitled to request an extension of the period of leave beyond the employee’s available parental leave period, such that an employee may take up to 24 months in total.
An employer must respond in writing to an employee request to extend their unpaid parental leave. The response must state whether the employer intends to grant or refuse the request and must be issued within 21 days of the initial request.
Employers may only refuse a request if:
- They have discussed with the employee and genuinely tried to reach an agreement about an extension;
- They have considered the consequences associated with refusing the extension; and
- There are reasonable business grounds to do so.
Reasonable business grounds include the following:
- That an extension of unpaid parental leave would be too costly for the employer;
- There is no capacity to change the working arrangements of other employees to accommodate the extension of leave;
- The extension would be likely to result in a significant loss in efficiency or productivity; and
- Would likely have a significant negative impact on customer service.
If an employer refuses a request, they must provide written reasons and inform the employee of any other period of extension they would be willing to agree to.
In circumstances where employers and employees cannot agree on a solution at the workplace level, the Fair Work Commission may deal with the dispute. The Fair Work Commission can instigate conciliation, mediation, or mandatory arbitration between the parties.
The amendments to unpaid parental leave entitlements are in effect. Employers must be familiar with and adhere to the new standards. If you would like assistance with navigating any parental leave issues in the workplace, feel free to reach out to Daniel firstname.lastname@example.org and the Workplace Team at M+E today.