Employees gain right to rebut parental leave and WFH decisions

Employees will be given more power to challenge any refusal for flexible working arrangements or a request for an extension of unpaid parental leave.

On 9 May, the Fair Work Act 2009 (FW Act) was amended to strengthen the right for employees to request flexible working arrangements and extend unpaid parental leave. 

The amendments, which fall under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, see employees given greater scope to challenge decisions made by their employer related to both flexible working arrangements and unpaid parental leave.

“The FW Act presently does not provide an avenue for employees to challenge the refusal of a request for flexible working arrangements or a request for an extension of unpaid parental leave that is said to be on reasonable business grounds, unless the parties have agreed to this in an employment contract, enterprise agreement or other written agreement or a public service determination authorises this,” Fair Work Commission president Justice Adam Hatcher SC said.

“…. [These] are amended so that the commission (or another person authorised to deal with a dispute) can deal with a dispute about whether an employer had reasonable business grounds to refuse a request for flexible working arrangements or an extension of unpaid parental pursuant to a dispute resolution term in a modern award, enterprise agreement, employment contract or other written agreement or a public service determination.

“However, the commission will only be able to arbitrate a dispute about the reasonableness of the refusal of a request if the parties to the dispute have agreed to this. In addition, the commission will also be able to deal with disputes about requests for flexible working arrangements and extensions of unpaid parental leave under new ss 65B, 65C, 76B and 76C. The commission will be able to deal with disputes under these new provisions as it considers appropriate, including by arbitration in certain circumstances.”

Flexible working arrangements

Effective 6 June, section 65 will be amended to expand the circumstances in which an employee may make a request for flexible working arrangements to include where:

• the employee is pregnant, or
• the employee is experiencing “family or domestic violence”, or the employee provides care or support to a member of their immediate family or household who is experiencing “family or domestic violence”.

The changes require an employer to give a written response to a request for flexible working arrangements within 21 days.

“Section 65A(3) sets out the steps employers must take before refusing a request, including discussing the request with the employee and genuinely trying to reach agreement about making changes to the employee’s working arrangements to accommodate the employee’s circumstances,” the FWC noted.

“An employer may only refuse a request on reasonable business grounds, and must have had regard to the consequences of the refusal for the employee. What constitutes ‘reasonable business grounds’ for refusing a request in new s 65A(5) is substantively the same as the present provision, but contains a new note which states that ‘[t]he specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds to refuse a request …’.”

Extension to unpaid parental leave

Similarly to the changes regarding flexible working arrangements, the new amendments concerning an extension to unpaid parental leave deal with an employer’s obligations when responding to a request to extend unpaid parental leave.

“[The amendment to] s 76B provides for the commission to deal with a dispute about an employer’s refusal of a request to extend unpaid parental leave or failure to respond to a request in writing within 21 days,” FWC said.

“The commission may arbitrate the dispute without the consent of the parties; however, the commission must first deal with the dispute by means other than arbitration unless there are exceptional circumstances.”

Further, the updated section 76C “provides for the orders the commission may make in arbitration (including an order that the employer grant[s] the request or agree to a different extension period of up to 12 months, where the commission is satisfied that there is no reasonable prospect of the dispute being resolved without the making of the order)”.

Accessing forms and further information

In the coming weeks, the commission website will be updated “to provide information on the new provisions and eligibility requirements for those wishing to make an application to the commission to deal with a dispute”.

Included in this will be two new forms:

1. Application for a dispute about flexible working arrangements

“This is to be used to request that the commission deal with a dispute about a refusal of a request for flexible working arrangements under s 65B(4). It provides information about eligibility requirements and will ask applicants to indicate the reasons for making the request,” FWC said.

2. Application for a dispute about extension of a period of unpaid parental leave

“This is [to] be used to request that the commission deal with a dispute about a refusal of a request to extend unpaid parental leave under s 76B(3),” it said.