FAIR WORK AMENDMENT ACT 2013 (NO. 73, 2013) - SCHEDULE 1 Family-friendly measures
FAIR WORK AMENDMENT ACT 2013 (NO. 73, 2013) - SCHEDULE 1
Family-friendly measuresPart 1 -- Special maternity leave
1 Section 70 (note 1)
Omit "Note 1", substitute "Note".
2 Section 70 (note 2)
Repeal the note.
3 Paragraph 75(2)(c)
Omit ";", substitute ".".
4 Paragraph 75(2)(d)
Repeal the paragraph.
5 Paragraph 76(6)(a)
Omit "and unpaid special maternity leave".
6 Paragraph 76(6)(b)
Omit "or unpaid special maternity leave".
7 Subsection 80(1) (note)
Omit "Note", substitute "Note 1".
8 At the end of subsection 80(1)
Add:
Note 2: If a female employee has an entitlement to paid personal/carer's leave (see section 96), she may take that leave instead of taking unpaid special maternity leave under this section.
9 Subsection 80(7)
Repeal the subsection (not including the note).
10 Section 97 (note)
Omit "Note", substitute "Note 1".
11 At the end of section 97
Add:
Note 2: If a female employee has an entitlement to paid personal/carer's leave, she may take that leave instead of taking unpaid special maternity leave under section 80.
12 Section 12
Insert:
"concurrent leave" : see subsection 72(5).
13 Paragraphs 72(5)(a), (b) and (c)
Repeal the paragraphs, substitute:
(a) the concurrent leave must not be longer than 8 weeks in total;
(b) the concurrent leave may be taken in separate periods, but, unless the employer agrees, each period must not be shorter than 2 weeks;
(c) unless the employer agrees, the concurrent leave must not start before:
(i) if the leave is birth-related leave--the date of birth of the child; or
(ii) if the leave is adoption-related leave--the day of placement of the child.
14 Subsection 74(2)
Repeal the subsection, substitute:
(2) The employee must give the notice to the employer:
(a) at least:
(i) 10 weeks before starting the leave, unless subparagraph (ii) applies; or
(ii) if the leave is to be taken in separate periods of concurrent leave (see paragraph 72(5)(b)) and the leave is not the first of those periods of concurrent leave--4 weeks before starting the period of concurrent leave; or
(b) if that is not practicable--as soon as practicable (which may be a time after the leave has started).
15 After subsection 74(4)
Insert:
(4A) Subsection (4) does not apply to a notice for a period of concurrent leave referred to in subparagraph (2)(a)(ii).
Part 3 -- Right to request flexible working arrangements
16 Section 12 (definition of school age )
Omit "start attending", substitute "attend".
17 Subsection 65(1)
Repeal the subsection, substitute:
Employee may request change in working arrangements
(1) If:
(a) any of the circumstances referred to in subsection (1A) apply to an employee; and
(b) the employee would like to change his or her working arrangements because of those circumstances;
then the employee may request the employer for a change in working arrangements relating to those circumstances.
Note: Examples of changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work.
(1A) The following are the circumstances:
(a) the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010 );
(c) the employee has a disability;
(d) the employee is 55 or older;
(e) the employee is experiencing violence from a member of the employee's family;
(f) the employee provides care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because the member is experiencing violence from the member's family.
(1B) To avoid doubt, and without limiting subsection (1), an employee who:
(a) is a parent, or has responsibility for the care, of a child; and
(b) is returning to work after taking leave in relation to the birth or adoption of the child;
may request to work part-time to assist the employee to care for the child.
18 After subsection 65(5)
Insert:
(5A) Without limiting what are reasonable business grounds for the purposes of subsection (5), reasonable business grounds include the following:
(a) that the new working arrangements 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 new working arrangements 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 new working arrangements requested by the employee;
(d) that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
(e) that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Part 4 -- Consultation about changes to rosters or working hours
19 After section 145
Insert:
145A Consultation about changes to rosters or hours of work
(1) Without limiting paragraph 139(1)(j), a modern award must include a term that:
(a) requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and
(b) allows for the representation of those employees for the purposes of that consultation.
(2) The term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c) to consider any views about the impact of the change that are given by the employees.
20 Paragraph 205(1)(a)
Repeal the paragraph, substitute:
(a) requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about:
(i) a major workplace change that is likely to have a significant effect on the employees; or
(ii) a change to their regular roster or ordinary hours of work; and
21 After subsection 205(1)
Insert:
(1A) For a change to the employees' regular roster or ordinary hours of work, the term must require the employer:
(a) to provide information to the employees about the change; and
(b) to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c) to consider any views given by the employees about the impact of the change.
Part 5 -- Transfer to a safe job
22 Section 12 (definition of appropriate safe job )
Omit "subsection 81(4)", substitute "subsection 81(3)".
23 Section 12 (definition of paid no safe job leave )
Omit "paragraph 81(3)(b)", substitute "section 81A".
24 Section 12
Insert:
"risk period" : see subsections 81(1) and (5).
"unpaid no safe job leave" means unpaid no safe job leave to which a national system employee is entitled under section 82A.
25 Subsections 67(1) and (2)
After "unpaid pre-adoption leave", insert "or unpaid no safe job leave".
26 Subsection 71(3) (note 2)
Repeal the note, substitute:
Note 2: If it is inadvisable for the employee to continue in her present position, she may be entitled:
(a) to be transferred to an appropriate safe job under section 81; or
(b) to paid no safe job leave under section 81A; or
(c) to unpaid no safe job leave under section 82A.
27 Subparagraph 73(2)(c)(ii)
Repeal the subparagraph, substitute:
(ii) the employee has not complied with the notice and evidence requirements of section 74 for taking unpaid parental leave.
28 Subsection 73(2) (note)
Repeal the note, substitute:
Note: If the medical certificate contains a statement as referred to in subparagraph (c)(i) and the employee has complied with the notice and evidence requirements of section 74, then the employee is entitled to be transferred to a safe job (see section 81) or to paid no safe job leave (see section 81A).
29 Section 81
Repeal the section, substitute:
(1) This section applies to a pregnant employee if she gives her employer evidence that would satisfy a reasonable person that she is fit for work, but that it is inadvisable for her to continue in her present position during a stated period (the risk period ) because of:
(a) illness, or risks, arising out of her pregnancy; or
(b) hazards connected with that position.
Note: Personal information given to an employer under this subsection may be regulated under the Privacy Act 1988 .
(2) If there is an appropriate safe job available, then the employer must transfer the employee to that job for the risk period, with no other change to the employee's terms and conditions of employment.
Note: If there is no appropriate safe job available, then the employee may be entitled to paid no safe job leave under section 81A or unpaid no safe job leave under 82A.
(3) An appropriate safe job is a safe job that has:
(a) the same ordinary hours of work as the employee's present position; or
(b) a different number of ordinary hours agreed to by the employee.
(4) If the employee is transferred to an appropriate safe job for the risk period, the employer must pay the employee for the safe job at the employee's full rate of pay (for the position she was in before the transfer) for the hours that she works in the risk period.
(5) If the employee's pregnancy ends before the end of the risk period, the risk period ends when the pregnancy ends.
(6) Without limiting subsection (1), an employer may require the evidence to be a medical certificate.
(1) If:
(a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and
(b) the employee is entitled to unpaid parental leave; and
(c) the employee has complied with the notice and evidence requirements of section 74 for taking unpaid parental leave;
then the employee is entitled to paid no safe job leave for the risk period.
(2) If the employee takes paid no safe job leave for the risk period, the employer must pay the employee at the employee's base rate of pay for the employee's ordinary hours of work in the risk period.
30 After section 82
Insert:
(1) If:
(a) section 81 applies to a pregnant employee but there is no appropriate safe job available; and
(b) the employee is not entitled to unpaid parental leave; and
(c) if required by the employer--the employee has given the employer evidence that would satisfy a reasonable person of the pregnancy;
then the employee is entitled to unpaid no safe job leave for the risk period.
(2) Without limiting subsection (1), an employer may require the evidence referred to in paragraph (1)(c) to be a medical certificate.