The Full Bench of the Fair Work Commission has expanded the right to request flexible work arrangements through a new model term to be inserted into all modern awards.
The model term supplements the employer obligations in respect of an employee’s right to request flexible work arrangements under s65 of the Fair Work Act 2009 (Cth) (FW Act).
What are the additional obligations on employers under the new model term?
The new model term allows certain employees with parental or caring responsibilities to request a change in their working arrangements, and imposes further consultation requirements on employers when assessing employee requests than is required under s65 of the FW Act.
Employee right to request to flexible work arrangements
The new model term gives the right to request a change in working arrangements to employees who are:
- the parent, or have responsibility for the care, of a child who is of school age or younger; or
- are returning to work after taking leave in relation to the birth or adoption of a child; or
- a carer (within the meaning of the Carer Recognition Act 2010 (Cth)).
The employee must have at least six months continuous service prior to making the request, as opposed to the 12 months required by the FW Act.
The model term gives examples of changes in working arrangements which include hours of work, changes in patterns of work and changes in location of work.
Responding to a request
Before refusing a request, an employer must discuss the request with the employee and genuinely try to reach an agreement about a change in working arrangements that will reasonably accommodate the employee’s circumstances.
If the employer refuses the request, the response must be in writing and must include:
- details of the reasons including the business grounds for the refusal and how those grounds apply; and
- set out any changes to the working arrangement that the employer could offer as an alternative to accommodate the employee’s responsibilities as a parent or carer.
Dealing with disputes
Employees can challenge whether the process was correctly followed by the employer under the consultation and dispute resolution clauses in their respective modern award. However, the changes do not allow employees to challenge whether the business grounds put forward by an employer were reasonable.
What to consider when an employee makes a request for a flexible working arrangement
The Full Bench has proposed that the model term be inserted in to all modern awards, unless it is demonstrated that its inclusion is not necessary to meet that particular modern award’s objective. It is important that the relevant modern award is consulted to check if the model term has been included.
The decision to insert a model term into modern awards does not expand employer obligations much beyond what was previously required under the FW Act. However, its inclusion in modern awards carries the risk of breaching a term of modern award if the procedure set out in the model term to refuse a request is not followed. Breach of a Modern Award gives rise to a risk of a contravention of s45 of the FW Act. This is a civil penalty provision with a maximum penalty of $63,000 for a corporation, and $12,600 for an individual.
If employers have existing policies that address flexible working arrangements, the policies may need to be reviewed to ensure compliance with the expanded obligations when responding to a request for flexible working arrangements.
Further information / assistance regarding the issues raised in this article is available from the author, Shay Minster, Associate or your usual contact at Moray & Agnew.