AWARD-COVERED employees will soon have more rights when requesting flexible working arrangements.

As part of its four-yearly review of modern awards, a Full Bench of the Fair Work Commission last week confirmed its provisional view that all modern awards should be varied to incorporate a ‘model term’.

Earlier this year, the FWC invited comments in relation to the draft model term concerning family friendly work arrangements.

The changes come into effect from 1 December 2018 and will expand the rights of more than 2.3 million employees covered by the awards system.

Implications for employers

Employers should ensure the employee’s request for flexible working arrangements complies with section 65 of the Fair Work Act.

For an employee to be eligible to seek flexible working arrangements, they must not be a casual employee and have at least 12 months of service; or be a long term casual employee that has a reasonable expectation of continuing employment on a regular and systematic basis.

The employee must make the request in writing and justify the change on the basis of one of the following circumstances:

  • be a parent or carer of a school aged child or younger;
  • be a carer within the meaning of the Carer Recognition Act 2010 (Cth);
  • have a disability;
  • be 55 or older;
  • be experiencing violence from a member of the employee’s family; or
  • provide care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experience violence from the member’s family?

Before responding to the request, the new model term requires the employer, before responding to the request, to discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances.

The discussion must have regard to:

  • the needs of the employee arising from their circumstances;
  • the consequences for the employee if changes in working arrangements are not made; and
  • any reasonable business grounds for refusing the request.

The employer must give the employee a written response to an employee’s request within 21 days, stating whether the employer grants or refuses the request.

If the employer refuses the request, the written response must include details of the reasons for the refusal.

Reasons for refusal must be included in the employer’s written response, including:

  • the business ground or other grounds relied upon by the employer for the refusal;
  • how the ground or grounds apply;
  • if the employer and employee could not agree on a change in working arrangements, whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and
  • if the employer can offer the employee such changes in working arrangements, details of those changes in working arrangements.

If the employer and the employee reached an agreement on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

Requests for flexible working arrangements form part of the National Employment Standards (NES), however the new model term expands on the obligations of employers.

For more information on this matterand any other workplace obligations, please contact your local AMMA workplace relations expert.