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Proposed changes to the Fair Work Act in relation to parental leave and flexible working arrangements


The Minister for Employment and Workplace Relations, Bill Shorten, has announced a second tranche of changes to the Fair Work Act 2009 (Cth) (Act) following last year’s independent panel review of the Act and initial changes announced to the Act in October 2012.

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These proposed changes focus on flexibility for families and seek to provide additional support to parents in managing their work arrangements, through greater flexibility in parental leave, broader rights to request flexible working arrangements, and increased rostering protections.

Improved parental leave arrangements and protections for pregnant employees

Under the announced changes to the Act, the Federal Government will:

  • increase the entitlement for parents taking unpaid leave together from 3 to 8 weeks;
  • allow parents to choose when they take their unpaid parental leave together;
  • protect women at work by ensuring that they can transfer to a safe job if one is available, regardless of their length of service;
  • ensure that women who need to take unpaid special maternity leave, prior to giving birth, are not penalised by a reduction in their unpaid parental leave entitlements; and
  • provide employees with the right to request flexible work arrangements from their employer when they return to work after a period of parental leave.

Expanded right to request flexible work arrangements

Currently under the National Employment Standards in the Act, an employee (as specified) who is a parent, or has responsibility for the care of a child, may request a change in their working arrangements. Importantly, however, this request may only be made by an employee to assist them to care for their child if the child is under school age or is under 18 and has a disability.

The proposed changes to the Act include extending the scope of the right to request flexible working arrangements to more categories of employees, namely:

  • employees who are carers more generally;
  • employees with a disability;
  • mature age employees; and
  • employees experiencing domestic violence.

As noted in our previous article on flexible working arrangements, while employers may only refuse a flexible working arrangement request on 'reasonable business grounds', importantly there is no general mechanism for employees to challenge their employer's refusal.  There is no current proposal to change this position under the Act.

Consultation of rostering arrangements

Lastly, it has been proposed that the model consultation clauses for modern awards and enterprise agreements be amended to require that an employer, before making any decision to change rosters or working hours, genuinely consult with affected employees about the impact of the proposed changes on their family life.

What does this mean for employers?

Employers will need to be vigilant in monitoring the status of the above changes. The Federal Government has stated that it will consult with stakeholders about the details concerning the above changes, and as a result, the full extent of the proposed changes is currently unclear.  It also remains to be seen whether the above changes will be implemented before the Federal election to be held later this year. 

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