In this circular we explain three recent changes to the law, which are designed to strengthen employees’ rights.
- Managing the Roster during Temporary Closures
Most Practices will have already utilised the shutdown provisions in the Award, requiring employees to take leave during temporary closures like Christmas; during Covid or when clinicians are away. The Award has been updated and effective 1 May 2023, Practices are now required to provide at least 28 days’ written notice when requiring employees to take annual leave during shutdown, unless the employer and the majority of relevant employees agree to a shorter notice period. If you fail to meet the timeframe or the written notice is inadequate, employees will be entitled to payment for the hours they normally work, even if you are closed. From a practical point of view, good planning and communication will be required to benefit from the Award. You can access a written notice template https://www.clinlegal.com.au/portal/ on the member portal to help you.
The new rules have no impact on the existing stand down provisions in the Fair Work Act which still allow Practices to stand down staff without pay, providing the consultation is satisfactory, in the event of a situation outside its control that stops work (such as government directions to close).
- Flexible Work Requests
From 6 June 2023, more employees including those pregnant and victims of domestic violence, will be entitled to request flexible working arrangements.
If a request is made, employers must:
- discuss the request with the employee.
- provide a written response to a request within 21 days.
- If refused, explain which business grounds make it unreasonable.
If the parties cannot agree on a solution, Fair Work will have the power to deal with a dispute. Fair Work must first attempt to resolve the dispute using non-binding methods (such as conciliation or mediation), before it can arbitrate a dispute, unless there are exceptional circumstances. The bottom line is that where agreement cannot be reached, Fair Work can get involved and decide the matter. As with other Fair Work matters, Practices should carefully follow the correct process for considering these requests to maximise chances of resolution without involving Fair Work.
- Unpaid Parental Leave
Similarly, from 6 June 2023 Fair Work will have the power to hear disputes about employers refusing to grant additional unpaid parental leave.
The NES provides that an employee can request up to a total of 24 months unpaid parental leave. If such a request is made, the employer must:
- discuss the request with the employee.
- provide a written response to a request within 21 days.
- If refused, explain which business grounds make it unreasonable.
Employees can apply to Fair Work to determine the dispute, if unsatisfied with the employer’s response. Fair Work will use non-binding methods such as conciliation or mediation before arbitration. Once more, employers should ensure all procedural steps are followed to minimise the chances of ending up in the Commission.
This Circular is produced for guidance purposes only and is not a substitute for legal advice. Legal advice should be sought for individual circumstances. For tailored advice for your Practice, please contact us at [email protected].
Isabella Sia
Lawyer