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Top two recent Q&As from the Workplace Helpdesk

The end of the year is creeping up on us. But before we hit the silly season, it’s good to reflect on the year we’ve had (so far). Change has been coming thick and fast to employment law in 2024. So, the team at the Workplace Helpdesk, a free service for Employment Law Handbook subscribers, has been working harder than ever before to help you understand these changes.

Here are two questions, and the answers from the team, that have addressed important legal changes:

Q: I understand that from 6 December 2023, fixed-term contracts can only be for a maximum term of 2 years (exceptions are excluded). What happens if I engage someone on a 3-year fixed-term contract commencing before 6 December?

A: Under the new amendment to the Fair Work Act 2009 (Cth), any fixed-term contracts with a duration exceeding 2 years that were entered into prior to the amendment’s commencement date on 6 December 2023 (or an earlier date to be fixed by proclamation) will remain valid. This means that if you engage someone on a 3-year fixed-term contract before 6 December, that contract will be considered valid as it was entered into before the new regulations took effect. However, any fixed-term contracts exceeding 2 years entered into after 6 December 2023 will be considered invalid. Therefore, if you engage someone on a fixed-term contract after 6 December 2023, the maximum term allowed will be 2 years.

Q: I have heard that legal changes occurred this year in relation to the National Employment Standard entitlement to parental leave. Is this true? If so, what were the changes?

A: According to the Fair Work Act 2009 (Cth) (FW Act), an employee has the right to request an extension of unpaid parental leave for a maximum of 12 months after their available parental leave period ends. Effective from 6 June 2023, the FW Act introduced new amendments to this process.

These amendments included the following:

  • the establishment of a new process for responding to such requests, which will require employers to provide a written response within 21 days and specify the grounds for refusing the request;
  • the creation of a new mechanism for resolving disputes related to requests for an extension of unpaid parental leave through the Fair Work Commission (FWC). If an employer fails to grant the request or does not respond within 21 days with a written explanation for the refusal, employees can access this new jurisdiction. The parties involved must attempt to resolve the dispute at the workplace level, and if this is unsuccessful, they can apply to the FWC for assistance in resolving the matter; and
  • the FWC was given the authority to handle disputes using methods other than arbitration, such as conciliation and mediation, as the first course of action, unless there are exceptional circumstances. After mediation or conciliation, the FWC may then arbitrate the dispute and issue orders related to a refusal if there is no reasonable prospect of the parties resolving the matter themselves. The FWC must consider fairness between the employer and the employee before issuing any order.

Requests for an extension of unpaid parental leave can only be refused on reasonable business grounds, following discussions with the employee and a genuine attempt to reach an agreement. If the employer refuses the request, it must provide a written response detailing the reasons for the refusal and setting out the employer’s particular business grounds for refusing the request.

‘Reasonable business grounds’ for refusing requests is defined in the FW Act to include when:

  • the request would be too costly for the employer;
  • there is no capacity to change the working arrangements of other employees to accommodate the extension of the leave;
  • the changes would be impractical by requiring changes to the working arrangements of other employees, or to recruit new employees, to accommodate the leave;
  • the extension would likely result in a significant loss in efficiency or productivity; and
  • the extension would likely have a significant negative impact on customer service.

You can find more Q&As here.

If you’re an Employment Law Handbook subscriber, you can ask your own general employment law questions to the Workplace Helpdesk by emailing [email protected].  

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