ByLawyers News and Updates

Unpaid parental leave – FED

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Unpaid parental leave entitlements have been enhanced by the Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020.

These amendments provide greater support to parents who experience stillbirth, infant death, premature birth and the hospitalisation of their baby immediately following birth.

The amendments ensure the following:

  • Employees who are parents of stillborn babies or parents of babies or infants that die have the same entitlement to leave as parents of babies that survive;
  • Following a stillbirth or the death of an infant or child, the employee parent’s unpaid leave can only be cancelled by the employee;
  • Employees who are parents of premature babies and newborns that require hospitalisation after birth can put their unpaid parental leave on hold during the hospitalisation; and
  • Employees cannot also take compassionate leave unless it is following the stillbirth or the death of the child.

Employees may choose to access flexible unpaid leave options in the first 24 months after the child’s actual or expected date of birth or placement, for example, to enable a gradual return to work or shared caring responsibilities between parents.

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

Employment law updates – FED

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The By Lawyers Employment Law publication has been reviewed by our author, experienced solicitor Brad Petley, an accredited specialist in workplace relations, so you can be confident our content is up to date.

Important employment law updates and enhancements have been made to the commentary, including:

Offsetting rules for casual loading payments

The WorkPac Pty Ltd v Skene [2018] FCAFC 131 decision concerning casual loading led to the Commonwealth government amending the Fair Work Regulations. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) provides that, in certain circumstances, employers may offset an employee’s casual loading payments against the employee’s entitlements under the National Employment Standards (NES).

Casual conversion

Casual conversion generally refers to the right of an employee who has been employed on a regular and systematic basis for a period of 6 months or 12 months, depending on the modern award that applies, to convert their employment from a casual basis to permanent full time or part time. This right is not currently in all modern awards and therefore does not apply to all casual workers. That position may change after the federal election, so By Lawyers will continue to monitor the position and update the commentary again if required.

Flexible working arrangements

All modern awards include a model term that facilitates flexible working arrangements. The model term imposes additional obligations on employers, in addition to those in the NES, in relation to managing and responding to flexible working requests.

Annual leave

Under the NES, annual leave is calculated at the employee’s base rate of pay for their ordinary hours of work. Unless an applicable award, enterprise agreement or contract of employment provides otherwise, annual leave does not include any overtime rates, penalties or other allowances that an employee would have been paid if they had worked during that period.

Unpaid family and domestic violence leave

All full-time, part-time and casual employees are entitled to five days unpaid family and domestic violence leave. This applies for each 12-month period of service. The leave does not accumulate.  The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply. The commentary discusses these requirements.

Workplace bullying

Reasonable management action carried out in a reasonable manner is not considered workplace bullying. The commentary provides a relevant link to s 789FD(2) of the Fair Work Act.

Modern slavery laws

Modern slavery describes human trafficking, slavery and slavery-like practices, like forced labour and forced marriage.

The Modern Slavery Act 2018 (Cth) requires Australian entities and foreign entities carrying on business within Australia with consolidated revenue of $100M, to submit Modern Slavery Statements every 12 months. This needs to include an entity’s structure, operations and supply chains as well as the potential modern slavery risks, plus actions taken to address those risks including due diligence and remediation processes.

By Lawyers keeps you up to date

Because we are committed to keeping our content up to date, employment law updates are provided at least annually and whenever there are significant developments in the area. Our authors and editorial team constantly monitor all of our publications.

By Lawyers keeps you up to date!

Employment Law – Domestic violence leave

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From 1 August 2018 all employees under modern awards – full-time, part-time and casual – have an entitlement to 5 days unpaid leave to deal with family or domestic violence issues.

The Fair Work Commission decided in their four-yearly review to add a new model term into all modern awards. The Full Bench concluded that:

…retaining employment is an important pathway out of violent relationships. Conversely, a lack of financial security has an adverse impact on the ability to recover from family and domestic violence. Absent an entitlement to unpaid family and domestic violence leave, employees will be reliant on the goodwill of their employer to obtain the leave necessary to deal with the various issues arising from family and domestic violence while remaining in employment.

The model clause will allow unpaid leave for family or domestic violence reasons which are defined as… violent, threatening or other abusive behaviour by a family member that seeks to coerce or control the employee and that causes them harm or to be fearful.

The unpaid leave may be taken for such reasons as to make safety arrangements for the employee or a family member, to attend court, or to access police services.

Employees are not required to access paid holiday or sick leave first before taking the unpaid domestic violence leave.

The leave is available in full at the start of each 12-month period of the employee’s employment, does not accrue and is available to full-time, part-time and casual employees.

Our Employment Law guide has been updated.

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