A full bench of the Fair Work Commission has ordered the variation of all modern awards to include a “Requests for flexible working arrangements” clause with effect from 1 December 2018.
These requests have to date been regulated under National Employment Standards which essentially provide the ability for eligible employees with 12 months’ continuous service to apply to vary their working arrangements to meet various carer responsibilities. This includes casual employees who have been engaged regularly and systematically for 12 months or more and have a reasonable expectation of continuing employment.
Eligible employees are defined in s 65(1A) of the Fair Work Act 2009 as:
- employees who are parents and carers of children;
- employees who are carers;
- employees with disabilities;
- employees aged 55 or older;
- employees experiencing family or domestic violence; and
- employees caring for family members experiencing family or domestic violence.
Employers may only refuse such requests on reasonable business grounds which include the likes of:
- the new working arrangements requested by the employee would be too costly for the employer
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee
- 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
- the new working arrangements requested by the employee would be likely to result in significant loss of efficiency or productivity
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
Full details of the existing NES provisions can be accessed in this fact sheet from the Fair Work Onbudsman: Requests-for-flexible-working-arrangements
The changes being implemented under the new decision by the FWC are essentially aimed at fleshing out the obligations of employers in dealing with requests for flexible working arrangement and providing an avenue for resolving disputes under the dispute resolution provisions in all modern awards.
Here is the model clause as it now appears in the Clerks – Private Sector Award 2010:
28A. Requests for flexible working arrangements
[28A inserted by PR701393 ppc 01Dec18]
28A.1 Employee may request change in working arrangements
Clause 28A applies where an employee has made a request for a change in working arrangements under s.65 of the Act.
Note 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in s.65(1A).
Note 2: An employer may only refuse a s.65 request for a change in working arrangements on ‘reasonable business grounds’ (see s.65(5) and (5A)).
Note 3: Clause 28A is an addition to s.65.
28A.2 Responding to the request
Before responding to a request made under s.65, the employer must 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 having regard to:
(a) the needs of the employee arising from their circumstances;
(b) the consequences for the employee if changes in working arrangements are not made; and
(c) any reasonable business grounds for refusing the request.
Note 1: The employer must give the employee a written response to an employee’s s.65 request within 21 days, stating whether the employer grants or refuses the request (s.65(4)).
Note 2: If the employer refuses the request, the written response must include details of the reasons for the refusal (s.65(6)).
28A.3 What the written response must include if the employer refuses the request
Clause 28A.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause 28A.2.
(a) The written response under s.65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.
(b) If the employer and employee could not agree on a change in working arrangements under clause 28A.2, the written response under s.65(4) must:
(i) state 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
(ii) if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.
28A.4 What the written response must include if a different change in working arrangements is agreed
If the employer and the employee reached an agreement under clause 28A.2 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.
28A.5 Dispute resolution
If you need assistance in dealing with a request for flexible working arrangements or in setting up processes for dealing with them, contact us at firstname.lastname@example.org or on 0438 533 311.