Fair Work Commission proposes changes to unpaid parental leave and flexible working arrangements in modern awards

Over the last few months, we have provided updates on the changes to the Fair Work Act 2009 (Cth) (FW Act) introduced by the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Amendment Act) which include changes to accessing flexible working arrangements and unpaid parental leave pursuant to the National Employment Standards (NES).

On 26 May 2023, the Fair Work Commission (FWC) published a statement in relation to the motion it initiated to amend the modern award terms on flexible workplace arrangements and unpaid parental leave to reflect these changes.

Relevant FW Act provisions

The Amendment Act expands the category of those persons who can request flexible working arrangements to include pregnant employees and victims, immediate family or household members of those experiencing family or domestic violence. There will also be additional obligations on employers when responding to a request for flexible working arrangements.

Other changes will enable the FWC to deal with disputes where an employer refuses a request for flexible working arrangements or to extend unpaid parental leave. The FWC will only be able to arbitrate a dispute where the parties to the dispute have agreed to it.

Proposed changes to modern awards

At this stage, the FWC has only put forward preliminary views and is seeking the view of interested parties.

The proposed changes essentially refer the reader of the modern award back to the NES in determining an employee’s entitlement to flexible working arrangements or unpaid parental leave. Specifically, the proposed changes include:

• replacing the current model term for flexible work with a reference to the applicable NES provision (impacting 122 modern awards);
• amending the current model term for unpaid parental leave to expressly state that disputes relating to unpaid parental leave may be dealt with either under the Award’s dispute resolution clause or in accordance with the new powers of the FWC to deal with disputes (impacting 111 of the industry and occupational awards);
• introducing the model parental leave clause (with the above amendments) in 4 industry and occupational awards which currently contain no model parental leave clause;
• in the case of the 6 modern awards which contain additional employee entitlements to parental leave beyond those set out in the NES (namely the Higher Education Industry-Academic Staff-Award 2020, Higher Education Industry-General Staff-Award 2020, Airport Employees Award 2020, Educational Services (Post-Secondary Education) Award 2020, Fire Fighting Industry Award 2020 and State Government Agencies Award 2020), updating the award to bring attention to the fact that the NES also provides for parental leave; and
• amending dispute resolution clauses in modern awards to bring attention to the statutory dispute resolution term for conflicts relating to a request for flexible working arrangements or extension of unpaid parental leave.

Interested parties are invited to respond to these changes by 4:00pm (AEST) on Friday 16 June 2023.

As additional changes to the FW Act continue to be rolled out over the course of this year, we will keep you informed of these changes and how they may impact you.

For more specific information or advice on any of the material contained in this article please contact Lincoln Smith on +61 8 8210 1203 or lsmith@normans.com.au, Anastasia Gravas on +61 8 8217 1331 or agravas@normans.com.au Annabelle Narayan on +61 8 8210 1292 or anarayan@normans.com.au.