How to Request an Extension of Unpaid Parental Leave From Your Employer

Who can ask for an extension beyond the first 12 months?

Under the National Employment Standards in the Fair Work Act 2009, an employee taking their available unpaid parental leave period can ask their employer to agree to up to a further 12 months of unpaid parental leave immediately after that period.

This is a request for leave beyond the employee's available parental leave period. If you are instead arranging or changing leave within your initial entitlement, see the separate guide to taking unpaid parental leave from work.

The Fair Work Act also sets an overall limit: an employee is not entitled to extend unpaid parental leave beyond 24 months after the child's birth or placement.

When must you ask your employer?

Your extension request must be in writing and must reach your employer at least 4 weeks before the end of your available parental leave period.

The request should clearly identify the further period of unpaid parental leave you want. The Fair Work Ombudsman provides a free template letter specifically for requesting an extension beyond the initial 12 months.

Do not wait until after your initial leave has ended and you have returned to work. The Fair Work Ombudsman's extension template explains that the request is for employees whose initial 12-month period has not yet ended and that an employee who has already returned to work may not be eligible for this extension process.

What should you put in the written request?

Keep the request simple and specific. Identify yourself, state that you are requesting an extension of unpaid parental leave, identify when your current leave ends and state the additional period you are requesting. Keep a copy and evidence of when it was delivered.

The Fair Work Ombudsman's template can be used as a starting point, but using the template itself is not a condition of making a valid request.

How long does your employer have to respond?

Your employer must give you a written response within 21 days after receiving the request.

The response can:

• grant the extension you requested;
• record a different extension period that you and the employer agreed to after discussing the request; or
• refuse the request, but only if the statutory requirements for refusal are satisfied.

If you agree on a different extension period, the employer's written response should set out that agreed period.

Can your employer refuse the extension?

Yes, but an employer cannot simply reject the request without following the Fair Work Act requirements. Before refusing, the employer must have discussed the request with you, genuinely tried to reach an agreement about an extension, considered the consequences of refusal for you, and rely on reasonable business grounds.

Examples of reasonable business grounds identified in the Fair Work Act and Fair Work Ombudsman guidance include circumstances where the requested extension would be too costly, other employees' working arrangements cannot reasonably be changed, recruiting or changing arrangements would be impractical, or the extension would be likely to cause a significant loss of efficiency or productivity or a significant negative impact on customer service. Whether grounds are reasonable depends on the employer's particular circumstances, including the nature and size of the business.

What must a refusal letter explain?

If your employer refuses the request, the written response must explain the reasons for refusal, identify the particular business grounds relied on and explain how those grounds apply to your request.

The response must also state either an alternative extension period the employer would be willing to agree to or that there is no extension period it is willing to agree to. It must include information about the statutory dispute-resolution process.

A refusal therefore should contain more than a simple statement that the extension is inconvenient or cannot be approved.

What if your employer does not reply within 21 days?

If 21 days pass without a written response, or your employer refuses the request, first try to resolve the issue through discussions at the workplace. Keep copies of the original request, correspondence and notes about attempts to resolve the disagreement.

If the dispute cannot be resolved at workplace level, the Fair Work Commission may be able to help. For requests covered by these dispute provisions, an employee can use Form F10B - Application to resolve a dispute about an extension of a period of unpaid parental leave.

The Commission says Form F10B applicants should provide a copy of their written extension request and, if one was received, the employer's written response. The form also asks about the employment, parental leave dates, extension requested, attempts to resolve the dispute and the outcome sought.

What happens if the dispute reaches the Fair Work Commission?

The Fair Work Commission generally tries to resolve these disputes through conciliation first. A Commission Member helps the employee and employer discuss the dispute and try to reach agreement.

If conciliation does not resolve the matter, the Commission can deal with the dispute by arbitration in circumstances allowed by the Fair Work Act. A conference or hearing may be scheduled and a Commission Member can determine the outcome.

This dispute route is different from an application about dismissal for a prohibited reason or an unfair dismissal application.

What if you want different working arrangements when you return?

An extension of unpaid parental leave and a request to change your working arrangements are separate workplace rights. If you intend to return but need different hours, days or another eligible working arrangement, see the guide to requesting flexible working arrangements from your employer.