New Entitlements for Employees returning from Parental Leave
Recent amendments made to the unpaid parental leave that took effect on 30 June 2023 have essentially improved rights for workers returning from unpaid parental leave.
Prior to 30 June 2023, an employee returning from parental leave had to request a flexible work arrangement or part-time employment to accommodate their parental responsibilities.
Now, the employee can access up to 100 days of flexible unpaid parental leave. These days can be in blocks of , blocks of one or more days and can be taken before and/or after a period of continuous unpaid parental leave.
So, this is not a part-time or flexible work arrangement. It is an employee accessing their unpaid parental leave entitlement. Using unpaid parental leave like this will be limited to a maximum of 100 days and must be used within the first wo years from the child’s date of birth or placement.
An example would be where your employee took nine months of parental leave from the date of birth. Your employee would return on a full-time basis from the date of birth; however, they would use two days of flexible unpaid parental leave each week over those nine months (i.e. a total of 78 flexible days).
There is a provison, the total number of days of flexible unpaid parental leave your employee intends to take needs to be nominated by them in writing 10 weeks’ prior to commencing their first period of leave.
Unpaid parental leave under the NES can be taken at any time during the 24-month period starting on the date of birth of the child. This is not affected by the amount of parental leave taken by the employee’s partner.
Your employee can take unpaid parental leave only if the period of leave is no longer than 12 months (subject to the right to extend the leave period by a further period of up to 12 months), less the employee’s flexible leave days taken.
Your employee can request an extension of the period of leave beyond the employee’s available parental leave period; but it cannot be extended beyond 24 months after the date of birth or day of placement of the child.
As their employer, you can only refuse a request to extend their unpaid parental leave entitlement on reasonable business grounds. If you refuse on reasonable business grounds and your employee doesn’t accept that decision, they can take the refusal and have it conciliated and arbitrated in the Fair Work Commission (FWC).
Where employees wish to make a longer-term change to their working arrangements after returning from unpaid parental leave will still have to request a flexible work arrangement. Again, as their employer, you can only refuse this request on reasonable business grounds and, again, your employee has the right to have that refusal conciliated and arbitrated in the FWC.
Akyra’s Key Takeaways
- Employers should be prepared to accommodate employees’ requests for flexible unpaid parental leave, allowing them to take up to 100 days of leave in flexible blocks before and/or after continuous unpaid parental leave. This might require adjustments to scheduling and work arrangements.
- Employers need to communicate the changes clearly to their employees and ensure that the process for requesting flexible unpaid parental leave and extensions is well-documented and understood by both parties. When employees request extensions of their unpaid parental leave beyond the initial 12 months, employers must consider these requests fairly and respond based on reasonable business grounds. If the employer refuses an extension request and the employee contests it, the matter can be escalated to the Fair Work Commission for conciliation and arbitration.
- Employers need to ensure that they treat all employees consistently and fairly when it comes to unpaid parental leave and related matters. Any decision to deny flexible leave or extensions should be based on legitimate business reasons.
- Employers must ensure they are in compliance with the new framework, including the documentation and communication requirements, as well as responding appropriately to extension requests and any disputes that may arise. It may be beneficial to provide training to managers and HR personnel to ensure they understand the new regulations, how to manage requests, and how to handle potential disputes.
In summary, the amendments require employers to adapt their policies, processes, and workplace culture to accommodate the new framework for unpaid parental leave. They must be knowledgeable about the changes, communicate them effectively, handle requests fairly, and foster a respectful environment that prevents harassment and discrimination.
By following these steps, employers can create a safer and more respectful work environment and reduce the likelihood of sexual harassment claims. Not sure where to start? Akyra can help.
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Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
