Australia: Change is coming – consultation and employee requests for flexible work arrangements

Significant changes to most employees’ ability to request flexible work arrangements have just taken effect. Employers affected by the changes need to be aware of their new obligations and ready to respond to such requests in a lawful manner, to avoid being exposed to employee claims that they have breached their obligation to consult about such a request. Read on for more details and our practical tips for compliance.

Who has the right to request?

Permanent employees with at least 12 months continuous service, and regular and systematic casuals with an expectation to ongoing work, have the right to make a request for flexible working arrangements pursuant to section 65 of the Fair Work Act 2009 (Cth) (FW Act).  This right is part of the National Employment Standards (NES).

Section 65 of the FW Act provides the right in the following circumstances:

  1.  the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
  2. the employee is a carer (within the meaning of the Carer Recognition Act 2010);
  3. the employee has a disability;
  4. the employee is 55 or older;
  5. the employee is experiencing violence from a member of the employee’s family; or
  6. the employee provides 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 experiencing violence from the member’s family.

While employees have the right to request flexible working arrangements, employers also have the right to refuse such requests on reasonable business grounds. Reasonable business grounds, without limitation, include:

  1.  that the new working arrangements requested by the employee would be too costly for the employer;
  2. that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
  3. that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
  4. that the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity;
  5. that the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.

Whether an employer accepts or refuses a request, a written response must be provided to the employee within 21 days. Currently, the NES provides no right for an employee to challenge a refusal or bring a claim in a relevant court or tribunal for breach of the NES.

What are the changes?

As part of its four-yearly review of modern awards, the Full Bench of the Fair Work Commission has handed down a series of decisions in consideration of family friendly work arrangements. As a result, from 1 December 2018, a model term, as set out at the end of this article, is included in all modern awards. The term will supplement section 65 of the FW Act and the NES in respect to requests for flexible work arrangements.

The essential changes of which employers need to be aware include:

  1.  before responding to a request in writing, an employer must discuss the request with the employee. Both parties must genuinely try to reach agreement on change in working arrangements having regard to:
    1. the needs of the employee arising from their circumstances;
    2. the consequences for the employee if the changes in working arrangements are not made; and
    3. any reasonable business grounds for refusing the request.

Following consultation with the employee, an employer must then respond in writing within the 21-day time limitation. If an employer refuses a request and cannot reach an agreement with the employee through consultation, then the employer must provide the following in its written response:

  1. detailed reasons for the refusal, including the business ground or grounds for refusal and how the ground or grounds apply;
  2. if the employer and employee could not agree on a change in working arrangements through consultation the written response must:
    1. state whether there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances; and
    2. if the employer can offer the employee such changes in working arrangements, set out those changes.

If the employer and employee have, through consultation, reached an agreement that differs from the original request, the employer must set out that agreement in writing and provide it to the employee.

How does this affect employers?

The main change is the requirement to consult and discuss the request with employees. A request can no longer be dealt with by simply responding in writing.

There are still no grounds for an employee to dispute the reasonable business grounds upon which an employer relies – that is, an employee cannot challenge a decision not to grant the request. However, importantly, the changes provide grounds for an employee to dispute whether the employer consulted with them and/or responded to their request in accordance with the model clause.

It appears such disputes will be dealt with under the relevant dispute resolution clause in the applicable modern award, this effectively now gives the Fair Work Commission and other relevant courts and tribunals the power to determine such dispute.

Practical tips for employers

In light of the ability for an employee to now dispute the consultation process, employers need to ensure they have a clear policy and procedure for consultation. The existence of such a policy and procedure will help mitigate not only claims alleging a failure to consult, but also allegations of discrimination and/or adverse treatment.

At a minimum, employers should have a procedure in place which provides for the following:

  • process for consultation;
  • process for consideration;
  • how a final decision will be made and who will make it;
  • communication of business needs and requirements; and
  • communicate of the reasons for the decision.

Given the impending changes and the imminent arrival of the new year, it is a good time for employers to ensure that policies and procedures are compliant with the FW Act and applicable modern awards. It is also vital to ensure management are equipped to meaningfully consult and consider flexible work requests received from employees.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions