The National Employment Standards (NES) allows eligible employees to take an 'available period' of up to 12 months of unpaid parental leave. Eligible employees are also entitled to make a request to extend this period beyond 12 months by up to an additional 12 months. The NES provides that the request must be in writing, and must be given to the employer at least 4 weeks before the end of the first 'available period'.
One of the recent amendments to the Fair Work Act 2009 (Cth) (FW Act) has introduced a new procedural requirement that employers must follow when responding to this type of request. The amendment came into effect on 27 November 2015.
Prior to the recent amendment, an employer was allowed to refuse a request for extension provided that:
- the refusal was on 'reasonable business grounds'; and
- within 21 days of the request being made, the employer gave the employee a written response stating that the request had been refused and setting out details of the reasons for the refusal.
The recent amendment has now added another condition to the employer's right to refuse. The new provision provides that:
"The employer must not refuse the request unless the employer has given the employee a reasonable opportunity to discuss the request."
An employer who fails comply with this requirement will commit a breach of the NES, even where there are reasonable business grounds for refusing the request to extend. The maximum penalty for breaching the NES is $54,000 and $10,800 for individuals.
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