Further to our previous article on the Paid Parental Leave Scheme under the Paid Parental Leave Act 2010 members should be aware of other employee entitlements under the Fair Work Act 2009 when it comes to parental responsibility. The National Employment Standards (NES) in the Fair Work Act provides for Parental Leave and Requests for flexible work arrangements.
Parental Leave (Including Adoption/Maternity etc)
The Entitlement
A parent of a new child is entitled to unpaid parental leave for up to 12 months. As with paid parental leave under the scheme, this is only available to the primary care provider of the child, which in most cases is the Mother, however the right is available to Fathers and/or combination of both parents over a separate period of time (e.g. 6 months each). In addition to the ‘guaranteed’ 12 months, a parent may ‘request’ a further 12 months. This request may be refused by the employer on reasonable business grounds. After the 12 months (or 24 months by agreement) the employee is entitled to return to work in the same position, or if the position no longer exists, a similar position considering status, pay and location.
Eligibility and Notice
Parental Leave is available to all employees including ‘eligible casual employees’ that have completed 12 months continuous service. An eligible casual employee is one that has worked on a regular systematic basis and has an expectation of continuing to work on that basis. Employees must provide 10 weeks written notice before the start of the leave.
Requests for flexible work arrangements
All employees, including ‘eligible casual employees’ that have completed 12 months continuous service have the right to request a change in working arrangements to assist the employee to care for a child under school age or a child under 18 with a disability. The employee must provide the request in writing outlining the changes sort. The employer must consider the request and respond within 21 days. Being a ‘request’, it may be refused on reasonable business grounds.
Though reasonable business grounds are not defined in the Act, it is taken that reasonable business grounds might include:
- Effect on the workplace including efficiency, financial, productivity and customer service
- Inability to organise work amongst other staff
- Practicality or inability to recruit replacement
The above information is general in nature. Please be aware that there are many other rules and procedures about these NES contained in the legislation that cannot all be outlined in this newsletter. Members should also be aware that there is a myriad of other laws which protect against discrimination on the basis of family or carer’s responsibility. These laws are generally wider than that provided by the NES.
Members should seek the assistance of the ARTIO branch in your State to consider the boarder legal issues.