Who can use this form?

This form can be used by all employers throughout Australia, except the following excluded employers: 

•     non-constitutional corporation employers in Western Australia
•     State public sector employers; and
•     Local Government employers — except in Tasmania and Victoria.

 

If any of the excluded employers wish to use this form they should seek legal advice, as the form complies with federal legislation which may be more or less generous than that which applies to those employers.

Commentary

The following is a brief commentary on some aspects of the Request to Vary Parental Leave form. The Fair Work Act 2009 (Cth) (‘the Act’) enables certain employees to request a variation to their period of parental leave.

Those variations can include:

•     shortening a period of parental leave
•     extending a period of parental leave up to 52 weeks
•     extending a period of parental leave to a maximum of 104 weeks.

The form you will create enables employees to specify how and why they wish to modify their parental leave.

This is a complex and newly developing area of the law which, if not handled correctly, could lead to a number of legal claims, including, underpayment, breach of award/agreement, discrimination, general protections claim, breach of contract, and unfair dismissal.

The commentary that follows is not intended to be comprehensive and does not address all legal issues that should be considered and addressed in dealing with requests to vary a period of parental leave.

Employers in Victoria are also subject to additional obligations (see below).

What is parental leave?

Parental leave includes long parental leave, short parental leave or adoption leave which an eligible employee is entitled to take following the birth or adoption of a child. An eligible employee is entitled to up to 52 weeks off work for long parental leave to enable the employee to provide care and support to a child. Provided the employee is eligible for parental leave and complies with relevant notice and documentation requirements, an employer is required to provide that employee with parental leave.

The 52 week period of parental leave includes any period(s) of authorised leave (such as annual leave and long service leave) and any period(s) taken by the employee’s spouse or de-facto partner because of the pregnancy, birth of the child, or placement of the child apart from 8 weeks concurrent leave.

Applying for parental leave

Employees who are eligible to take unpaid parental leave must first apply to take parental leave. A Request for Parental Leave Form (which is available on the Workplace website) can be provided to relevant employees to assist them to meet relevant notice and documentation requirements.

Who is eligible to request a variation to their parental leave arrangements?

To be eligible to use the form:

•     the employee must be on parental leave, or be eligible to take a period of parental leave; and
•     the employee must be a parent of a child, or have responsibility for the care of a child in respect of whom the employee has or will be taking parental leave; and
•     the request must be for the purpose of assisting the employee to care for the child in respect of whom the employee has or will be taking parental leave.

 

An employer can however, at its own option, choose to extend this right to employees who are not eligible under relevant legislation.

Shortening parental leave

If an employer agrees, an employee may shorten their period of parental leave.

Extending long parental leave within the 52 week limit

An employee who initially applied for a period of long parental leave that is less than 52 weeks, may extend their period of parental leave only once, without requiring the consent of their employer. A request for such an extension must be made at least 4 weeks before the start of the parental leave or if the parental leave has started — before the parental leave ends.

If an employee requests a further extension of their parental leave, the extension is not automatic and will require the employer’s consent. Any employee who requests an extension of parental leave should be asked to submit the request in writing by using this form.

Are there any other ways to extend or vary parental leave?

Other than shortening or lengthening a period of parental leave within the 52 week limit, an employee who is on parental leave or is eligible to take parental leave, has a right to request their employer to consider their application to:

•     extend their period of long parental leave up to a maximum of 104 weeks (less any leave already taken by them and their spouse/de facto partner);
•     return to work on a part-time basis following the expiration of their long parental leave; and/or
•     have flexible working arrangements.

Any request by an employee to vary their parental leave in the manner detailed above must be submitted in writing. If the employee wishes to submit a request which falls within the last 2 bullet points detailed above, the employee should be asked to submit a Request for Part-time Work/Flexible Working Arrangements Form (which is available on the Workplace website).

It is important to remember that an eligible employee who complies with relevant notice and documentation requirements is automatically entitled to 52 weeks off work for parental leave, less any leave taken by the employee’s spouse or partner. However, if the employee requests leave beyond the 52 week entitlement, the employer has a right to refuse that request on ‘reasonable business grounds’.

The employer’s response

Other than for requests to extend parental leave beyond the 52 week limit, an employer should respond to an employee’s request to vary their parental leave as soon as practicable.

If the employee’s request is to extend their parental leave beyond the 52 week limit, the employer is required to respond to the request in writing within 21 days stating whether the employer grants or refuses the request.

An employer should give genuine consideration to the employee's request before providing a response.

If the request is refused, the employer must include details of the ‘reasonable business grounds’ on which the reason(s) for a refusal was based, in the letter to the employee. A request may only be refused on 'reasonable business grounds'. The Act does not identify what may or may not be ‘reasonable business grounds’. However, as a guide, reasonable business grounds might include:

•     the effect on the workplace and the employer’s business of approving the request, including the impact on profitability, efficiency, productivity, and customer service;
•     the inability to organise work among existing staff; or
•     the inability to recruit a replacement employee or the practicality or otherwise of the arrangements which may need to be put in place to accommodate the employee’s request.

While the reasonableness of the business grounds itself is not reviewable, such a refusal might be used in a claim of unlawful discrimination. A well-considered, yet reasonably declined request would assist in defending against a claim of unlawful discrimination.

Victorian employers

Employers in Victoria should seek additional advice, as further obligations apply in relation to accommodating parental/carer’s responsibilities. In particular, the Equal Opportunity Act 2010 (VIC) contains much wider obligations on employers to accommodate such arrangements.

Under the Victorian legislation, employers in Victoria must not, in relation to the work arrangements of a contractor, an employee, or a person being offered employment, unreasonably refuse to accommodate the responsibilities that that person has as a parent or carer. The responsibilities as a carer are not merely limited to children who are under school age or children under 18 years old with a disability — they apply generally to any person who is wholly or substantially dependent on the contractor, employee, or prospective employee for ongoing care and attention.