Ensuring flexibility and equality: Fair Work Act updates

The following should not be considered legal advice and is for general use only.

On 22 June 2023, the Australian Government passed the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 (the Act). The Act, amongst other things, introduces several changes to provide stronger access to unpaid parental leave (UPL) under the Fair Work Act 2009 (the FW Act). Said changes took effect on 1 July 2023.   

UPL is an entitlement under the National Employment Standards that applies to all national workplace system employees in Australia.  

The underlying objectives of these changes are to promote job security and gender equality by providing families with greater flexibility around care arrangements.  

Proposed changes to unpaid parental leave 

The Act introduces the following amendments:  

1. increasing the number of flexible UPL days from 30 days to 100 days, to reflect changes under the Government’s Parental Leave Pay scheme; 
2. allowing flexible UPL to be taken before, as well as after, a continuous period of UPL; 
3. allowing pregnant employees to access flexible UPL in the 6 weeks prior to the expected birth date; 
4. allowing both parents to request an additional 12 months of UPL regardless of the amount of UPL taken by the other parent; 
5. allowing both parents of an ‘employee couple’ (i.e. where both parents are employees covered by the FW Act) to take concurrent UPL without being limited to an 8 week period; and 
6. more generally, the Act will replace gendered language with gender-neutral terms (e.g. “employee” instead of “he” or she; “parental leave” instead of “maternity leave”) . 

Comparison of current UPL provisions and the proposed changes 

What do employees and employers need to know? 

The expansion of UPL entitlements under the Act will undoubtably affect both employees and employers. 

Employers 

As an employer, it is important to keep an eye out for when these changes will come into effect. Knowing what entitlements apply to employees is the first step of preventing problems from arising. 

A failure to stay on top of the expanded entitlements under the Act could result in increased exposure to various liabilities including workplace discrimination complaints, breaches of Work Health & Safety laws, and general protections or unfair dismissal claims.  

In addition to the proposed amendments under the Act, employers also need to be aware of new changes under the Secure Jobs Better Pay Act 2022. From 6 June 2023, employers have an obligation to discuss requests for extended UPL with employees, and must provide written reasons for their responses within 21 days of the employee’s request.  

From both a legal and commercial perspective, it is important to balance business operation considerations against the needs of an organisation’s employees. 

Employees 

The degree to which the proposed changes will affect employees depends on whether an employee is eligible for UPL. We recommend employees seek legal advice from Danny King Legal if they are unsure of their eligibility status. 

Eligible employees should make themselves aware of the notice and evidence requirements for taking UPL, which are outlined on the Fair Work website. While there has been an expansion of entitlements, an employee must still provide at least 10 weeks written notice of their intention to take UPL, and confirm their start and end dates at least 4 weeks before taking UPL. 

What next? 

Whether you are an employer or employee, if you have questions or concerns relating to the unpaid parental scheme, DKL is here to help. 

With thanks to our contributor – Lillian Irima, Paralegal.  

The above should not be considered legal advice and is for general use only.