As the Australian Labor Party's 'Secure Jobs, Better Pay' Act comes into effect, the rules relating to requests for flexible work arrangements (FWAs) will be amended to impose new, stricter, requirements on employers and allow for greater scope in employees affected by family and domestic violence to make such requests.

The greater scope will allow for employees who have a member of their immediate family or household experiencing 'family and domestic' violence, to also raise requests for FWAs. A recent decision in the Fair Work Commission has highlighted the need for employers to pay closer attention in their reasons for rejecting requests for FWAs.

Ms Natasha Fyfe v Ambulance

In this case, Ambulance Victoria was found to have lacked reasonable grounds for rejecting a paramedic's flexibility request to work.

The paramedic, who had care of three young children, sought flexibility to work bespoke night shifts (starting at 9:00 pm instead of 6:00 pm, and finishing at 6:00am instead of 8:00am) so that she could care for her children while her partner was at work.

Ambulance Victoria responded to her request by stating that her service area branch "is currently not able to provide shift start and finish times outside the employee's team roster configuration" and that "we are currently not in a position to offer this level of roster variation". Commissioner Leigh Johns questioned this and said "what was left unanswered" was "why not?".

Notably, it was revealed that Ambulance Victoria did not try to meet or hold discussions with the employer in the 16 days prior to confirming its decision. As a result, it was found the employee was not afforded the opportunity to address the grounds on which Ambulance Victoria based its refusal.

Ambulance Victoria sought to clarify its grounds for refusal by stating that it had offered her other forms of flexibility, however Commissioner Johns found that none of this was explained to the paramedic when the decision to reject her request was communicated.

Furthermore, Ambulance Victoria stated that such a bespoke shift would not qualify for funding and that it could not accommodate unfunded shifts as "it does not align with AV's service delivery model and its operational need to provide safe and compliant health services to the community". Commissioner Johns refuted this argument by saying that, when "properly understood, [the paramedic's] request for a FWA will actually assist to meet the community expectations", citing the need for "flexible spare" officers.

Commissioner Johns also found that, regarding the effect of bespoke rostering in the Hume region, the possibility that others might request FWAs if this FWA was granted to the paramedic, was not a reasonable ground for refusal.

What are the new changes?

In effect from 6 June 2023, the new changes will allow employees who have a member of their immediate family or household experiencing 'family and domestic' violence to request for FWAs, as opposed to the current legislation which states 'violence from the member's family'.

The Amendment Act will also introduce a more detailed procedure for responding to requests for FWAs. Employers will be required to discuss an employee's request and genuinely try to reach agreement before notifying the employee of a decision within 21 days.

If an employer refuses a request, it must:

  • provide detailed reasons for the refusal, including the reasonable business grounds on which it relies;
  • set out what other changes (if any) the employer is willing to make to accommodate the employee's circumstances or, in the alternative, state that there are no such changes that the employer is willing to make to accommodate the employee's circumstances; and
  • provide information on the new dispute resolution procedures.

The new dispute resolution procedures require that if an employer refuses an employee's request for FWAs or does not respond within 21 days, both parties must try and resolve the dispute at the workplace. Failing that, either party can refer the matter to the Fair Work Commission, where the dispute may be resolved through mandatory and binding arbitration, and various orders to grant the request or make accommodations can be made.

Employers should note that breaches of the requirements above or a breach of an FWC arbitration order may result in civil penalties.

Therefore, this comes as a friendly reminder for all employers to:

  • update workplace policies and review employment contracts to make sure the terms contained are consistent with the new laws; and
  • give genuine consideration and effectively communicate their decisions to employee's requests for FWAs.

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.