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';
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
The recent amendment has now added another condition to the
employer's right to refuse. The new provision provides
"The employer must not refuse the request unless the
employer has given the employee a reasonable opportunity to discuss
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kemp Strang has received acknowledgements for the quality of
our work in the most recent editions of Chambers & Partners,
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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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