By Stephen Keens
Key Business Advisors HR Team Manager
Measures promoting family-friendly workplace practices under the Fair Work Amendment Act 2013 have taken effect on 1 July 2013. Are you up to date with the amendments to the law relating to special maternity leave, parental leave, the right to request flexible working arrangements, transfer to a safe job, and consultation over changes to rosters or working hours?
Special Maternity Leave
Prior to the amendment, a period of unpaid special maternity leave is offset against the relevant employee’s 12-month parental leave period. From 1 July 2013, amends to relevant provisions in Part 2-2, Division 5 of the Fair Work Act, have taken effect to ensure that any period of unpaid special maternity leave taken by an employee before giving birth (e.g. due to a pregnancy-related illness) does not reduce that employee’s entitlement to unpaid parental leave.
The Amendment Act expands the current entitlement of parents to take concurrent unpaid parental leave, from a maximum of 3 weeks to 8 weeks; and provides parents with greater flexibility as to when such leave can be taken, i.e. parents can take separate periods of at least two weeks’ duration (or a shorter period agreed with the employer) at any time within 12 months of the birth or adoption of a child.
Right to Request Flexible Working Arrangements
Several changes in the Amendment Act to section 65 of the Fair Work Act enables parents of pre-school children or children under the age of 18 with a disability to request their employer for flexible working arrangements.
The Amendment Act expands the categories of employees who may make such a request to include employees who:
- Are parents of, or have caring responsibilities for, school-age or younger children;
- Are carers within the meaning of the Carer Recognition Act 2010 (Cth), e.g. carers of people with a disability or illness, or the elderly (other than those carrying out such caring responsibilities as an employee, contractor or volunteer);
- Have a disability;
- Aged 55 or older; or
- Are experiencing family violence, or providing care or support to another member of the employee’s family/household who is experiencing family violence.
The Amendment Act also:
- Provides that the flexible working arrangements sought by an eligible employee under section 65 must be related to the specific circumstances of that employee;
- Clarify that one of the forms of flexibility may be requested, by a parent returning to work after the birth or adoption of a child, is working on a part-time basis to assist the employee to care for the child; and
- Define the “reasonable business grounds” upon which an employer may refuse an employee’s request for flexible working arrangements, through a non-exhaustive list, which includes:
- The excessive cost to the employer of agreeing to the request;
- The limited ability to reorganise the working arrangements of other employees;
- The impracticality of the new arrangements (e.g. need to recruit replacement staff); and
- The adverse impact on efficiency, productivity or customer service.
Transfer to a Safe Job
The Amendment Act amends section 81 of the Fair Work Act, and inserts new sections 81A and 82A, to extend a pregnant employee’s entitlement to transfer to a safe job. The Amendment Act removes the limitation that only employees who have completed 12 months of continuous service with their employer (and are therefore entitled to unpaid parental leave) have the right to transfer to a safe job during pregnancy. It also provides for situations where there is no appropriate safe job for an employee to be transferred to – for example, the employee will be entitled to paid or unpaid no safe job leave, depending on whether the employee is entitled to unpaid parental leave.
Consultation over Changes to Rosters or Working Hours
Changes to Fair Work Act provisions requiring consultation clauses in modern awards and enterprise agreements will take effect on 1 January 2014. Provisions in the Amendment Act will require employers to consult with employees about changes to regular rosters or ordinary working hours.
Currently, consultation clauses in awards and agreements must provide for consultation by an employer with its employees about major workplace changes, including proposals for restructuring or redundancies.
The Amendment Act would insert section 145A (relating to awards) in the Fair Work Act and amend section 205 (relating to agreements) – consultation clauses in both awards and agreements must require an employer to:
- Consult with employees about changes to rosters or working hours;
- Provide employees with information about such changes;
- Invite employees’ views, including views about the impact of the proposed changes on their family or caring responsibilities; and
- Consider employees’ views on the impact of such changes.
The amendments aim to promote discussion and genuine consultation between employers and employees about such issues, instead of employers making sudden changes that adversely impact employees’ family life. The new consultation requirements are addressed at situations where changes are proposed to regular and systematic agreements for working hours, rather than where employees have irregular or unpredictable hours.
For more information, call our HR Advisors on 1300 4 ADVICE or email firstname.lastname@example.org.
John Tuck and Anthony Forsyth (28 March 2013). “Fair Work Amendment Bill 2013 introduced into Parliament”. Retrieved 19-09-2013.
Fair Work Amendment Act 2013. Retrieved 19-09-2013.
Fair Work Act 2009. Retrieved 19-09-2013.