From 1 July 2013, new family friendly arrangements have been introduced to the Fair Work Act 2009 (Cth) (“Act”) including:

  • the right for pregnant women to transfer to a “safe job”;
  • the right for pregnant women to transfer to a “safe job”;
  • ensuring that the right to unpaid parental leave is not affected by any special maternity leave taken; and
  • expanding the classes of employees entitled to request flexible working arrangements.

Right to transfer to a “safe job”

Currently, the Act provides that a pregnant employee who has achieved at least 12 months service with her employer and is entitled to unpaid maternity leave may transfer to an appropriate safe job for a risk period1 provided she is fit for work but unable to continue in her present position due to illness or pregnancy associated risks.

The legislative amendments extend the right for pregnant women to transfer to a safe job regardless of their time of service with all other terms and conditions of employment, including the rate of pay and hours of work, remaining unchanged.

If no safe job is available, and the employee is entitled to unpaid parental leave, the employee is entitled to paid “no safe job leave” for the risk period. Such leave is paid at the employee’s base rate of pay for the employee’s ordinary hours of work. Where an employee is not entitled to unpaid parental leave, the employee is entitled to unpaid no safe job leave for the risk period.

For employers, it is important to be aware of the rights of pregnant women and to consider the
“safe jobs” that exist in the workplace.

Unpaid parental leave v special maternity leave

The risk period in which the employee must be employed in a safe job ends when the pregnancy ends.

Currently, any special maternity leave2 taken by an employee who is not fit for work while she is pregnant reduces the employee’s entitlement to 12 months unpaid parental leave by the amount taken as special maternity leave.

The position has changed. Now, any period of unpaid special maternity leave taken by an eligible employee will not reduce that employee’s entitlement to unpaid parental leave. Employers should factor this into any arrangements made to cover an employee’s parental leave, be it special maternity leave or unpaid maternity leave.

Flexible working arrangements

The circumstances in which flexible working arrangements may be requested have been expanded. If an employee has one or more of the circumstances outlined below, the employee is entitled to request a change in their working arrangements.

A request for flexible working arrangements can be made if the employee is:

  • a parent, or has responsibility for the care of a school age (or younger) child may request part time work or changes to their pattern of work such as longer breaks or adjustments to start/finish times;
  • a parent, or has responsibility for the care of a school age (or younger) child may request part time work or changes to their pattern of work such as longer breaks or adjustments to start/finish times;
  • a carer3  – not including employees providing care, support or assistance under a contract of service, voluntarily for charity, a welfare group or the community, or as part of an education or training program;
  • disabled;
  • 55 years of age or older;
  • experiencing violence from a member of the employee’s family – “family” includes persons whether related by blood, marriage, adoption, step or fostering and those who usually reside in the same household; or
  • providing care or support to a member of his or her immediate family or a member of his or her household who requires care or support because the member is experiencing family violence.

An employer may only refuse the request on “reasonable business grounds”. Although the Act provides a list of reasonable business grounds, such grounds must be determined having regard to the particular circumstances of the workplace and the circumstances of the request.

CHANGES TO ROSTERS AND HOURS OF WORK – GENUINE CONSULTATION REQUIRED

From 1 January 2014, the Act will be amended to encourage discussion between employers and employees (employed under a modern award or enterprise agreement) about the likely change to an employee’s regular roster or ordinary hours of work. This is particularly relevant where an employee has existing family or caring arrangements. The amendments will require the employer to genuinely consult with employees about any changes to their roster or hours of work, and to consider the impact on an employee of making the proposed changes. 

Although “regular roster” is not defined, it appears to be the intention that the requirement to consult will not be triggered where an employee has an irregular, sporadic or unpredictable working hours. However, the requirement will be triggered where an employee has regular and systematic working hours, regardless of their classification of employment and whether the employee understands, or relies on, their employment to be regular and systematic.

The consultation process engaged in must be genuine. The employer must:

  • inform the employee of the proposed changes and relevant information regarding the change;
  • inform the employee of the proposed changes and relevant information regarding the change;
  • invite the employee to give their view on the impact of the proposed change; and
  • consider those views.

Employers should consider the classification of their employees and, if considering roster changes, factor in time for consultation with the relevant employees prior to making any change.

For further information regarding these changes, please contact us on (07) 3370 0200.