APAC Frontline: Employment Law Update - September 2023

This month we are focusing on reforms across the Australian employment landscape. We cover case law regarding long service leave (including extraterritorial service), extended flexibility to unpaid parental leave, as well as a significant development in the work health and safety space.

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Long service leave and extraterritorial service

Long service leave is an entitlement regulated by each of the states and territories in Australia. It is, effectively, an entitlement to leave as a ‘reward’ for an employee’s long service to a company. The legislation is, as a result of its State-based specificity, not uniform. Additionally, the legislation is, for the most part, quite dated. 

These challenges have historically resulted in conflicting interpretations and uncertainties when assessing eligibility in cases involving extraterritorial (i.e. beyond a State’s borders) service. 

Flexible unpaid parental leave

The Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023, employees are now entitled to take up to 100 days ( or 20 weeks full-time) of their 12-month unpaid parental leave entitlement as Flexible Leave, at any time within 24 months of a child’s birth or adoption. 

The only further regulation around the taking of Flexible Leave is that Flexible Leave must be taken AFTER the employee takes a period of unpaid parental leave. This is because an employee’s entitlement to unpaid parental leave (except for Flexible Leave), ends on the first day that the employee takes Flexible Leave. 

By Kristy Peacock-Smith and Thomas Du.

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Managing psychosocial risks in the workplace: the new paradigm

Traditionally, Australian work, health and safety legislation and associated regulatory oversight has been considered largely the preserve of high-hazard sectors such as construction, manufacturing and material handling, with work safety synonymous with physical safety. The increased attention from a work, health and safety regulatory perspective on psychosocial safety in the workplace in recent times has meant that this paradigm is being challenged. 

There is a growing appreciation by businesses generally that work, health, and safety regulatory compliance in respect of psychosocial safety should inform their broader resource management strategy. Not simply because of a recognition that such compliance drives better workplace culture and a productive workforce, but also, non-compliance could have serious consequences including substantial criminal penalties  for employers, officers and workers where applicable standards have not been met.

By Sudhir Sivarajah and Ethan Aitchison.

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