As part of its 4-yearly review of
modern awards, the Fair Work
Commission recently made a significant decision pertaining to
requests for flexible work arrangements. Flexible
arrangements involving changes to work locations, work hours and
work patterns are common, and are encouraged by the National
Employment Standards (NES) contained in the
Fair Work Act 2009, which provides for a right to request a
flexible working arrangement.
Since 1 December 2018, this right has been supported by a new modern award clause providing more structure around the process for requesting flexible arrangements. The new clause imposes an obligation on employers to discuss the request with the employee and genuinely try to reach an agreement, before making a decision about whether to grant or refuse the request. The clause, which has been inserted into all modern awards, can be found here.
What Employers need to
know
It is important for employers to understand the terms of the clause
and its
implications in the workplace.
Who can make a
request?
Employees (excluding casuals,
unless they are
long term casuals with a reasonable expectation of continuing
employment of a regular and systematic basis) who have worked for
their employer for a minimum of 12 months can make a request for
flexible work arrangements.
The employee must also:
- be a parent or carer responsible for a school aged child or younger; or
- be a carer for an individual who is disabled, has a medical condition or illness, or is frail and aged; or
- be over 55 years old; or
- have a disability; or
- be experiencing family violence; or
- provide care for an immediate family member who is experiencing family violence.
What an employer
needs to do when a request is made
The Act allows an employer to refuse the request only on
reasonable business grounds. However, the Act does not
require the employer to consult with the employee before making its
decision, only that it must give the employee a written response to
the request within 21 days, stating whether the request is refused
or granted, and if refused, on what basis.
The new
modern award clause imposes a new consultation requirement
requiring the employer to discuss the request with the employee and
genuinely try to come to an agreement which will reasonably
accommodate the employee's circumstances prior to making a
decision.
Refusing a request
Employers can only refuse a request on reasonable business grounds, which include circumstances where:
- the requested arrangement is too costly for the employer;
- it is not possible to change another employee's working arrangement to accommodate the request;
- it is impractical to hire new employees or change another employee's working arrangement to accommodate the request; or
- it would significantly decrease productivity or negatively affect customer service.
This new clause gives additional process rights to employees
wanting a flexible work arrangement. Employers must be alert
to their obligations when refusing a request, and be ready to
articulate the "reasonable business grounds" surrounding
the refusal.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.