November 2018

Let's get flexible, flexible

The Fair Work Commission is getting serious about normalising family-friendly working arrangements.  From 1 December 2018, all modern awards will require employers to genuinely try to reach agreement with their award-covered employees on a flexible working arrangement, if requested by the employee.

Backstory

The ability to request a flexible working arrangement already exists in the Fair Work Act 2009.  A request can be made by any permanent employee (or long-term casual employees with a reasonable expectation of ongoing work) that has parental or carer’s responsibilities, or a disability, or is over 55 years of age, or experiencing domestic violence, or is supporting someone who is experiencing domestic violence.  An employer must respond to any request in writing, by stating whether they grant or refuse, the request.

What’s changed?

Until now, employers have been able to refuse a flexible work request on ‘reasonable business grounds’.  What has changed is that businesses must now genuinely try to reach agreement in relation to a request for flexible work by an award covered employee.  This requires the employer to meet with the employee within 21 days and discuss the request with the employee.

If an agreement still can’t be reached, the employer must now give detailed, written reasons for the refusal, including:

  • the business ground(s) for the refusal,

  • how the ground(s) apply, and

  • any changes in working arrangements that the employer can offer so as to better accommodate the employee’s circumstances.

An unsatisfied employee is entitled to raise a dispute under the award about a failure by the employer to discuss, or respond in the above form.  This ultimately allows the Commission to try to resolve a dispute through mediation or conciliation, or arbitration if the parties consent.  There still isn’t any framework under the Fair Work Act to challenge the legitimacy of an employer’s reasons for refusing a request.  Although, those reasons could conceivably become fodder in a discrimination claim.

What else is new?

This adds to other recent changes to modern awards.  Of note is that all modern awards now allow an employee that is experiencing domestic or family violence to take five days’ unpaid leave.  Other recent changes include the requirement for employers to pay any termination payments within seven days of employment ending, and the ability for casual employees to apply to be converted to permanent employment if they have worked consistent hours over a 12 month period.  

Given that most private sector employees in Australia are covered by a modern award, these changes have a wide impact.

Questions?  Give us a buzz.

Authors: Amber Sharp and Ryan Murphy