Did you know that all employees, including casual employees, are entitled to take unpaid parental leave if they’ve worked for their employer for at least 12 months? Parental leave policies are designed to support, protect, and assist working parents during childbirth, adoption, and early childhood.

And with the recent passing of the Secure Jobs, Better Pay Bill bringing about the biggest shake-up to our industrial relations landscape in over a decade, businesses need to be across these changes.

What is the unpaid parental leave entitlement?

Unpaid parental leave is an entitlement under the Fair Work Act 2009 (Cth) (FW Act) and National Employment Standards (NES).

All employees in Australia are eligible for unpaid parental leave if they have completed at least 12 months of continuous service with their employer. This includes casual employees if they have been working for their employer on a regular and systematic basis for at least 12 months and have a reasonable expectation of continuing work for their employer on a regular and systematic basis.

The parental leave provisions available to eligible employees include the following:

• birth-related leave and adoption-related leave (including for premature birth, stillbirth, or infant death);
• unpaid special maternity leave;
• a right to transfer to a safe job in appropriate cases, or to take ‘no safe job leave’;
• consultation requirements;
• a return-to-work guarantee; and
• unpaid pre-adoption leave.

The Fair Work Ombudsman has developed a fact sheet that delves into the particular requirements of parental leave entitlement which can be found here.

Currently, an eligible employee is entitled to 12 months of unpaid parental leave. An employee has a right to make a request to their employer for an extension of unpaid parental leave up to a further period of 12 months. The current rules around an employee’s request for an extension of unpaid parental leave include the following:

1. The employee must request in writing and must give the written request to their employer at least four weeks before the end of their current unpaid parental leave period;
2. The employer must provide an employee with a written response to the request no later than 21 days after the request is made;
3. The employer may refuse the request on reasonable business grounds;
4. If the employer refuses the request, the written response must include details of the reasons for the refusal; and
5. The employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request.

New rules: what’s changing?

However, from 6 June 2023, employers will have new requirements to follow when responding to an employee’s request for an extension of unpaid parental leave. These new requirements pertain to the employer’s positive obligation to consult and discuss with the employee before deciding to refuse the employee’s request.

An employer is still required to provide an employee with a written response within 21 days of the request being made, but can only refuse the request if:

1. the employer has discussed and genuinely tried to reach an agreement with the employee;
2. the employer has considered the consequences of the refusal; and
3. the refusal is based on reasonable business grounds.

The threshold of reasonable business grounds for refusing a request hasn’t changed and can include the following:

• that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;
• that there’s no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;
• that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;
• that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity; or
• that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.

Additionally, from 6 June 2023, the Fair Work Commission will be able to deal with a dispute about a request for an extension, including by conciliation, mediation, or mandatory arbitration, in circumstances where employers and employees cannot agree on a solution at the workplace level.

What about paid parental leave?

It’s at an employer’s discretion as to whether it decides to implement a paid parental leave policy in its workplace.

However, under the Paid Parental Leave Scheme, the Australian Government provides eligible parents with paid parental leave, the effects of which are also changing from 1 July 2023.

For further information concerning the Government’s paid parental leave scheme, please visit the Services Australia website.

How enableHR can help?

You don’t have to spend weeks studying the legislation. Call enableHR today and ask us if your HR platform is set up for you to comply with new requirements.

We believe HR should be simple. Simple enough for you to run your business confidently. Inside enableHR is everything you need to manage the entire employee lifecycle, from recruitment and onboarding to managing your people and termination. If you’d like to see enableHR in action, contact us to learn more about how we can help your business.