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Unpacking the impact of recent amendments on worker entitlements

Making it easier for parents to take time off after a new baby, the Fair Work Act 2009 (Cth) (FW Act) recently added a series of amendments around employee entitlements to unpaid parental leave.

The expansion of flexible unpaid parental leave from 30 days to 100 days allows employees greater access to flexible parental leave forming part of the 12-month entitlement to unpaid parental leave which must otherwise be taken in a continuous block. 

Before these changes, if your employee became a parent, they could take up to 12 months off work as unpaid parental leave. Now, they can still take up to 12 months, but with more flexibility. Leave can start anytime in the 24 months after their baby is born or during the six weeks before the due date for pregnant employees.

Notably, the legislated amendments replace ‘maternity leave’ with the more inclusive ‘parental leave’, reflecting the increasing balance of parental responsibilities in Australia. This inclusive legal language echoes the evolving understanding of equal opportunities for individuals of all genders. 

Ensuring legal protections and entitlements are equally accessible to all individuals, irrespective of their gender, is an important step towards fostering inclusivity, breaking gender stereotypes, and promoting a fair and balanced approach to family and work life.

Other key changes in the legislation include the removal of the concurrent couple requirement, allowing employee couples to access unpaid parental leave independently of their partner’s leave allocation. The notice requirements have also been streamlined, with employees now expected to provide a single notice 10 weeks before the due date of their child.

The 12-month service requirement can now be satisfied anytime within the 24 months following the birth of the child, offering greater flexibility to new parents.

So, what actions should businesses take in light of these amendments? First, it’s important for businesses to review and update their existing policies and procedures to ensure they align with the newly introduced legislative requirements.

To ensure compliance and a smooth transition to the updated legal framework, businesses should also consider how these changes may interact with the government’s paid parental leave scheme and any additional discretionary paid parental leave offered by the business.

These amendments to unpaid parental leave are part of the National Employment Standards (NES) and are aimed at harmonising unpaid parental leave with the changes made to the Paid Parental Leave Act 2010 (Cth). Changes reflect a progressive shift toward a more inclusive and flexible approach to parental leave entitlements, which ultimately benefit both employees and employers.

By Jennifer van Bronswijk, Special Counsel, and Julia Wyatt, Lawyer, Workplace Relations & Safety at Holding Redlich

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