New rules on flexible working arrangements coming

On 25 September 2018, a full bench of the Fair Work Commission issued a decision to insert a “Requests for flexible working arrangements” clause in all modern awards.

These requests have to date been regulated under National Employment Standards which essentially provide the ability for 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.

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 in 3 areas:

  1. The eligibility period will be reduced from 12 months to 6 months continuous service.
  2. Employers will have additional obligations in that there will be a specific duty to consult with the employee about the request and any potential refusal of it and, if they refuse it, they will have to provide more detailed on the grounds for that decision.
  3. If the employee believes that the employer has not complied with the requirements to consult or respond to a request in writing within 21 days, an application can be made to the Fair Work Commission under award dispute resolution provisions. However, the FWC may only deal with the question of whether the employer had reasonable business grounds to refuse a request if the employer and employee have agreed in writing to the Commission dealing with the matter.

To some degree, other than the reduction in the eligibility period, the decision really just provides an avenue within the Fair Work system for employees to seek assistance if they believe they have been unfairly dealt with by their employer as well as providing greater clarity about the detail of information on the employer’s decision-making that must be formally provided where a request is refused.

On the other hand, one complication that this decision creates is that there will be different eligibility periods and rules for award-covered versus award-free employees.

Finally, the decision to reduce the eligibility period may have significance beyond this decision. Is 6 months continuing employment going to be the new benchmark before employees qualify for other entitlements? Will that flow on to parental leave for example? In time, will we see the new casual conversion provisions reduce from 12 months to 6 months service (which is where many pre-existing award casual conversion clauses already sit)?

Watch this space.