As of the 6th of June 2023, a number of amendments made to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) commence. It is important to note that whilst anyone can request flexibility, only certain employees have the right to request flexible working arrangements under the Fair Work Act 2009 (Cth).
The new amendments include:
- Expanding the circumstances in which an employee may request flexible work arrangements
- Allowing the commission to deal with disputes about flexible working requests
- Legislating the substance of the Fair Work Commission’s model flexible working and arrangements modern award term to provide a fairer and more transparent process for responding to flexible working arrangement requests
Which employees are eligible to make a request for a flexible working arrangement?
Full-time and part-time employees who have worked with the same employer for 12 months can request a flexible working arrangement.
- Who have worked with the same employer for a least 12 months on a regular and systemic basis and
- Who have a reasonable expectation of continuing to work with the employer on that basis can request a flexible working arrangement
If a permanent employee has converted from causal employment, the regular casual employment period is to be taken to be a period of continuous service.
Eligible employees can request flexible working arrangements if they:
- Are a parent or have responsibility for the care of a school aged or younger child
- Are a carer under the Carer Recognition Act 2010 (Cth)
- Have a disability
- Are over the age of 55
- Are experiencing violence from a family member or
- Provide care or support to a member of their household or immediate family, who requires care or support because that person is experiencing violence from a family member.
As of 6th June 2023, this has been expanded to also include an employee where:
- They are pregnant
- They, or a member of their immediate family or household, experiences family or domestic violence
The scope of “family and domestic violence” will also be extended beyond the current definition of “violent , threatening or other abusive behaviour by a close relative of an employee” to include behaviour by a “member of an employee’s household, or a current or former intimate partner of an employee”. These changes are designed to align with the entitlement to paid family and domestic violence leave.
What constitutes “flexibility”?
Different types of flexibility
- Flexible start and finish times and flexible rostering
- Compressed working week- the four day working week
- Job sharing and part-time work
- Purchasing additional paid leave
- Unpaid leave or career breaks
- Rostered days off, time in lieu and flexitime
- Scaling work hours up or down
It is important to note that flexibility may be required only in the short term or as a part of a long-term arrangement.
How to navigate the new procedures
Meet to discuss
- An employee must submit a request in writing and clearly explain what arrangements they are requesting, providing details of the changes sought and the reasons behind these changes
- An employer must discuss an employee’s request with them and genuinely try to agree an arrangement to accommodate the employee’s circumstances
- This must occur before an employer notifies the employee of their decision within 21 days
- If an employer and an employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to what the employee initially requested, the employer needs to confirm these agreed changes in writing within 21 days of the request
- If an employer refuses the employee’s request, it must be in writing and:
- Provide detailed reasons for the refusal (including the “reasonable business grounds”
- Inform the employee of any alternative working arrangements it is willing to make that would accommodate the employees circumstances and
- Provide information on the dispute resolution procedure
It is no longer enough for the employer to state that the reason behind the refusal was “reasonable business grounds” for not accommodating the employees request. There is an obligation for the employer to be proactive and put forth an alternative solution if the request made by the employee can not be accommodated.
What does your business need to consider?
An employer should approach their decision-making process with the mindset of “how can I make this work”. Important points for an employer to consider when making this decision are:
- What are the key duties that the employee performs?
- Do those duties need to be completed at any set time/or set location?
- What level of interaction does the employee have with other employees and how important are those interactions to work productivity?
- What will be the effect, if any, of the employee relying on technology solutions?
- What is the driver(s) for the employee making this request?
- What will be the consequences for the employee of refusing the request?
- What will be the consequences for the employer or refusing the request?
Grounds for Refusal
An employer can only refuse a request for a flexible working arrangement from an eligible employee on “reasonable business grounds”. The specific circumstances of the employer, including the size and nature of the company, will be relevant to determining whether the employer has reasonable business grounds.
Examples of reasonable business grounds are as follows:
- The new working arrangement will be too costly
- There is no capacity to change the working arrangements of other employees to accommodate this request
- It would be impractical to change the working arrangements of other employees to accommodate the request
- The changes will likely result in significant negative impact on customer service
A critical part of the process will be to ensure that you meet with the employee and genuinely try to reach an agreement or to inform them of the reasoning made and consideration which was taken when making this determination.
If a request is refused or an employer fails to respond within 21 days then an internal grievance procedure or an award/EBA dispute resolution procedure needs to be attempted before the matter is escalated to the Fair Work Commission.
The Commission will have the power to deal with a dispute where an employer does not respond within 21 days or refuses an employee’s request (contesting whether there are reasonable business grounds). The Commission will first deal with the dispute by conciliation, mediation or expert determination and the Commission may make various orders, including that the employer:
- Grant the employee’s request or
- Make changes to accommodate the request
What does your business need to do now?
It is important that all employers consider their current culture and technology. In order for the process to be managed well managers and leaders in the business need to model appropriate behaviours and adopt a positive mindset about flexibility. It is important that both the managers and leaders within the business are informed of the changes to flexible work arrangement requests, as are employees.
Furthermore, if your business has not adopted technology over the COVID 19 period, now would be time to consider moving to a paperless office, adopting video calls for meetings and securing laptops, tablets, and other portable devices to enable and support flexible working arrangements.
Your Envisage HR representative is available to cover off these changes with your team and review your flexible work policy. Contact your representative today to book in a time for this to occur.