The Commonwealth Government has recently made a number of significant changes to Australia’s employment laws. These changes took effect on 1 July.
While much attention has been given to the recent increase to the compulsory superannuation guarantee, little has been given to a number of equally important changes to your clients’ legal obligations under the Fair Work Act 2009. Penalties of up to $51,000 per breach apply, so it’s vital employers take the time to understand these changes and ensure compliance.
1. Flexible Working
Since 1 January 2010, employees covered by the Fair Work Act 2009 and who have worked for an emplyer for at least 12 months and who are responsible for the care of a child under school (or a disabled child aged under 18) have had the legal right to formally request ‘flexible working’. In effect, this means they have had the right to ask, in writing, for their emplyer to consider changes to the way work is performed. For example, an eligible employee could request they occasionally work from home, change their working hours or the days on which they work.
Once a formal, written request is received, the employer has 21 days in which to consider it and to respond in writing confirming either their acceptance or refusal. If the request is being refused, the employer has an obligation to explain the ‘reasonable business ground(s)’ supporting their refusal.
The changes now made to the Fair Work Act 2009 have dramatically increased the pool of employees who are eligible to make formal requests for flexible working. According to the relevant Minister, The Hon Bill Shorten, ‘millions’ of Australian employees now have the right to request flexible working for the very first time. The expanded group of eligible employees now includes those who meet any of the following criteria
- parents or carers of children of school age or younger
- carers of others
- employees with disabilities
- persons aged over 55
- people experiencing family violence
If you receive a written request from an eligible employee you must still respond in writing within 21 days and either accept or reject the application. The updated legislation now includes a (non-exhaustive) list of the various grounds you could rely upon if rejecting the request.
These include:
- the requested changes would be too expensive
- you can’t change the working arrangements of other employees to meet the employee’s request
- it’s impractical to change current working arrangements or to hire new staff to meet the employee’s request
- the changes would likely lead to significant losses in productivity or efficiency, and
- the changes would likely have a significant negative impact on customer service.
You should note that these are certainly not the only reasons they can point to when rejecting an employee’s request. Further, they should also keep in mind that only employees who meet the above criteria and who have been employed for at least 12 months have the right to make formal requests.
2. Parental Leave
Significant changes have also been made to unpaid parental leave entitlements and, once again, heavy penalties may be imposed against employers if they don’t meet their new obligations.
As of 1 July, members of eligible ’employee couples’ can now take up to 8 weeks of concurrent unpaid leave – a significant increase from the previous 3 week limit. In addition, this concurrent leave no longer needs be taken in one single period or commence immediately following the date of birth or placement.
Employees with less than 12 months’ service are now also eligible to request a transfer to a safe job during their pregnancy and, if no safe job exists at the time, your client will become obligated to provide the employee with access to unpaid parental leave. In practice, this may present a number of difficulties for your clients, especially those running small businesses.
3. Other Changes
Amendments have also been made to employers’ obligations to consult with employees regarding changes to rosters, union right of entry and time limits for ‘unlawful termination’ applications. Expert advice should be sought if you find youself dealing with any of these situations.
Finally, new laws relating to workplace bullying will also take effect on 1 January 2014. These will also have a significant impact.