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On 27 November 2015, a minor amendment to the Fair Work Act (the Act) slipped through Parliament, increasing existing rights to unpaid parental leave for employees. Below, we recap Unpaid Parental Leave, before setting out these changes.

Unpaid Parental Leave

Firstly, what is parental leave? An employee takes parental leave when he or she gives birth, or an employee’s defacto partner or spouse gives birth. It’s also available where an employee adopts a child under the age of 16.

Unpaid parental leave is available to all employees in Australia if they have worked for an employer for 12 months or more. Unlike many rights conferred by the Fair Work Act, access to unpaid parental leave is not restricted to casual employees. Casual employees must have been working on a ‘regular or systematic’ basis for the employer for 12 months or more and would have continued working in this way if they had not given birth.

Let’s Talk About the Changes

Changes have been made requesting additional periods of unpaid parental leave. If an employee requests an additional period of unpaid parental leave, an employer must provide the person a reasonable opportunity to discuss the request.

Reasonable Opportunity to Discuss

The Act doesn’t define “reasonable opportunity to discuss”, so it is unclear what this will cover. However, a reasonable opportunity to discuss can be taken to be a face to face meeting, or perhaps a teleconference or video conference. Meetings and teleconferences provide employees with opportunities to discuss their circumstances with their employers, and to discuss genuine reasons why an employer is refusing a request for additional leave. This increases transparency in employment and keeps employees happy.

A text message or email wouldn’t constitute a reasonable opportunity to discuss a request for unpaid parental leave, so bear this in mind if you’re thinking of brushing off a request lightly.

Key Takeaways

The changes are relatively minor, but penalties for breach are certainly not. Fines for refusing to discuss an employee’s request for unpaid leave for a corporation is $54,000 and for an individual, $10,800.

If you’re an employee, and you ask for additional leave, make sure you get the opportunity to discuss unpaid leave, as these changes certainly place you on firmer footing. If you are an employer, take the time to sit down with your employee and talk about a particular request.

Questions? Get in touch with LegalVision’s employment lawyers on 1300 544 755.


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