Published June 2023

Changes to Flexible Working Arrangements & Parental Leave (Paid & Unpaid)

1. Requests for Flexible Working Arrangements have changed from 6 June 2023

 Under the Fair Work Act 2009 and National Employment Standards, employees can make a request for a flexible working arrangement if they meet certain criteria. That is:

• They are a full time or part-time employee working for the same employer for at least 12 months, and they:

• • are the parent, or have responsibility for the care, of a child who is school aged or younger
  • are a carer (under the Carer Recognition Act 2010)
  • have a disability
  • are 55 or older
  • are pregnant
  • are experiencing family and domestic violence, or
  • provide care or support to an immediate family or household member who is experiencing family and domestic violence.

• Casual employees who meet the criteria above, have been working regularly and systematically for the last 12 months, and there is a reasonable expectation of work continuing on this basis, are also eligible to make a request.

The last 3 points (circumstances) have been added from 6 June 2023.

Flexible working arrangements vary depending on the needs of the employer and the individual employee but common examples include:

• Working from home on a regular, systematic basis;
• Start work later or finish early on some days;
• Working part-time;
• Working 38 hours across 4 days instead of 5;
• Split shifts of job sharing.

Employees must make their request in writing, explain what they are requesting and provide reasons for the request. Employers must respond to a request in writing within 21 days.

There are also now more stringent requirements on how an employer must respond to requests for flexible work, including the requirement to propose changes other than those initially sought by the employee. While requests may be refused on reasonable business grounds, employers now have new obligations before they can refuse a request from an employee, including:

• discuss the request with the employee;
• make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances;
• consider the consequences of refusal for the employee;
• provide a written response that includes:
  • an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request;
  • other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes;
  • information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.

The Fair Work Commission (FWC) will also be able to hear and make orders about disputes about flexible working arrangement requests if the parties can’t resolve the dispute at the workplace level. For example, if an employer:

• refuses an employee’s request, or
• doesn’t respond to a request within 21 days.

Requests for flexible work may also be the subject of arbitration by FWC.

For further information about flexible working arrangements, visit the Fair Work Ombudsman website.

2. Changes to Parental Leave from 1 July 2023

 UNPAID PARENTAL LEAVE

 Unpaid parental leave is provided for in the Fair Work Act 2009 and National Employment Standards – note that this is not the paid leave available through Services Australia (Centrelink) which is outlined further in this update.

In summary, all Australian workers are eligible for 12 months of unpaid parental leave, with a return to work guarantee, if they have served 12 months continuous service with their employer. Casuals may be eligible if they have been working on a regular and systematic basis for 12 months and there is a reasonable expectation of work continuing on this basis.

Unpaid parental leave can be taken when the employee has, or will have, responsibility for the care of a child. Parents who experience a stillbirth or the death of an infant during the first 24 months of life can also take unpaid parental leave.

Generally, employees on unpaid parental leave can request up to an additional 12 months off work.

The changes from 1 July 2023 will require employers to follow the same process as outlined about for Flexible Working Arrangements. That is, respond to any written request from and employee within 21 days. While requests may be refused on reasonable business grounds, employers now have new obligations before they can refuse a request from an employee, including:

• discuss the request with the employee;
• make a genuine effort to find alternative arrangements to accommodate the employee’s circumstances;
• consider the consequences of refusal for the employee;
• provide a written response that includes:
  • an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request;
• other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes;
• information about referring a dispute to the Fair Work Commission (the Commission).

If an employer and the employee have discussed the request and agreed to extend the period of unpaid parental leave that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.

More information about unpaid parental leave can be found on the Fair Work Ombudsman website here.

PAID PARENTAL LEAVE

 The Parental Leave Pay scheme paid by the Australian Government through Services Australia (Centrelink) is also changing from 1 July 2023.

Currently, 18 weeks is paid where the eligibility criteria is met, but this will be extended to 20 weeks for children born or adopted after 1 July 2023, at the rate of the national minimum wage.

The number of weeks payable will continue to Increase by two weeks every 1 July until we reach 26 weeks in 2026. Although the entitlement is increasing, the government has not committed to paying superannuation on these amounts.

The current government entitlement to 18 weeks’ paid parental leave pay will be combined with the current Dad and Partner Pay entitlement to 2 weeks’ pay. This means partnered couples will be able to claim up to 20 weeks’ paid parental leave between them.

Note that if the employee is eligible, they will receive the payments regardless of any other paid or unpaid leave or entitlements being paid to them by their employer.

Parents who are single at the time of their claim can access the full 20 weeks. These changes affect employees whose baby is born or placed in their care on or after 1 July 2023. Other changes include:

• allowing partnered employees to claim a maximum of 20 weeks’ pay between them, with each partner taking at least 2 weeks (except in some circumstances);
• introducing a $350,000 family income limit (indexed annually from 1 July 2024) for claiming paid parental leave pay;
• expanding the eligibility rules for fathers or partners to claim paid parental leave pay;
• making the whole payment flexible so that eligible employees can claim it in multiple blocks until the child turns 2;
• removing the requirement to return to work to be eligible for the entitlement.

Employers and employees looking for information about Parental Leave Pay and Dad & Partner Pay should visit the Services Australia website.