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Can you extend unpaid parental leave?

What happens when a second extension is requested?
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Can you extend unpaid parental leave?

Can you extend unpaid parental leave?

21 May 2021

It is common for an employee to take unpaid parental leave and then ask to extend it. What happens when a second extension is requested up to a total of 24 months' unpaid parental leave?   


What does the legislation say?

The Fair Work Act (sections75-77) provides that only one extension of unpaid parental leave is permitted. This extension isn’t able to be refused by an employer. This type of extension should be what is referred to as the “right to extend once”. Further extensions may be made by agreement between an employer and an employee, up to a maximum period of unpaid parental leave totalling 24 months.
 
An employee may extend the period of unpaid parental leave by giving their employer written notice of the extension at least four weeks before the end of the original leave period. The notice must specify the end date for the leave. The employee must have an available period of unpaid parental leave of 12 months, less any concurrent leave, special maternity leave, paid no safe job leave, or extended unpaid leave.
 
The employer is not obliged to agree to a second or subsequent extension of the leave, although the employer’s decision should be based on reasonable business grounds. The Fair Work Act does not provide a general definition of ‘reasonable business grounds’, although there is a specific definition in the context of ‘requests for flexible working arrangements’ under the National Employment Standards.
 
In that context, reasonable business grounds include that:
 
  • the new work arrangements requested by the employee would be too costly for the employer
  • there is no capacity to change the work arrangements of other employees to accommodate the new work arrangements requested by the employee
  • it would be impractical to change the work arrangements of other employees, or recruit new employees, to accommodate the new work arrangements requested by the employee
  • the new work arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity, and
  • the new work arrangements requested by the employee would be likely to have a significant negative impact on customer service.


Reducing leave

If the employer agrees, an employee whose period of unpaid parental leave has started may reduce the period of unpaid leave he/she takes.
 
The bottom line: Under the National Employment Standards, an employee has the right to only one extension of unpaid parental leave, with any subsequent request for an extension subject to the agreement of the employer. 

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