Commonwealth Consolidated Acts

FAIR WORK ACT 2009 - SECT 76A

Responding to the request

  (1)   If, under subsection   76(1), an employee requests an employer to agree to an extension of unpaid parental leave for the employee for a further period of up to 12 months immediately following the end of the available parental leave period, the employer must give the employee a written response to the request within 21 days.

  (2)   The response must:

  (a)   state that the employer grants the request; or

  (b)   if, following discussion between the employer and the employee, the employer and the employee agree to an extension of unpaid parental leave for the employee for a period that differs from the period requested--set out the agreed extended period; or

  (c)   subject to subsection   (3)--state that the employer refuses the request and include the matters required by subsection   (6).

  (3)   The employer may refuse the request only if:

  (a)   the employer has:

  (i)   discussed the request with the employee; and

  (ii)   genuinely tried to reach an agreement with the employee about an extension of the period of unpaid parental leave for the employee; and

  (b)   the employer and the employee have not reached such an agreement; and

  (c)   the employer has had regard to the consequences of the refusal for the employee; and

  (d)   the refusal is on reasonable business grounds.

Note:   An employer's grounds for refusing a request may be taken to be reasonable business grounds, or not to be reasonable business grounds, in certain circumstances (see subsection   76C(6)).

  (4)   To avoid doubt, subparagraph   (3)(a)(ii) does not require the employer to agree to an extension of the period of unpaid parental leave for the employee if the employer would have reasonable business grounds for refusing a request for the extension.

Reasonable business grounds for refusing requests

  (5)   Without limiting what are reasonable business grounds for the purposes of paragraph   (3)(d) and subsection   (4), reasonable business grounds for refusing a request include the following:

  (a)   that the extension of the period of unpaid parental leave requested by the employee would be too costly for the employer;

  (b)   that there is no capacity to change the working arrangements of other employees to accommodate the extension of the period of unpaid parental leave requested by the employee;

  (c)   that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the extension of the period of unpaid parental leave requested by the employee;

  (d)   that the extension of the period of unpaid parental leave requested by the employee would be likely to result in a significant loss in efficiency or productivity;

  (e)   that the extension of the period of unpaid parental leave requested by the employee would be likely to have a significant negative impact on customer service.

Note:   The specific circumstances of the employer, including the nature and size of the enterprise carried on by the employer, are relevant to whether the employer has reasonable business grounds for refusing a request for the purposes of paragraph   (3)(d) and subsection   (4). For example, if the employer has only a small number of employees, there may be no capacity to change the working arrangements of other employees to accommodate the request (see paragraph   (5)(b)).

Employer must explain grounds for refusal

  (6)   If the employer refuses the request, the written response under subsection   (1) must:

  (a)   include details of the reasons for the refusal; and

  (b)   without limiting paragraph   (a) of this subsection:

  (i)   set out the employer's particular business grounds for refusing the request; and

  (ii)   explain how those grounds apply to the request; and

  (c)   either:

  (i)   set out the extension of the period of unpaid parental leave for the employee (other than the period requested by the employee) that the employer would be willing to agree to; or

  (ii)   state that there is no extension of the period that the employer would be willing to agree to; and

  (d)   set out the effect of sections   76B and 76C.

Genuinely trying to reach an agreement

  (7)   This section does not affect, and is not affected by, the meaning of the expression "genuinely trying to reach an agreement", or any variant of the expression, as used elsewhere in this Act.