As part of the four-yearly review into modern awards, the Fair Work Commission (FWC) has inserted a clause into all modern awards, requiring employers to take additional steps when considering a request by an employee for flexible working arrangements.
Presently, an employee can make a written request for flexible working arrangements under the Fair Work Act, provided the employee has completed 12 months’ continuous service and meets one of the qualification requirements (eg the employee has family or carer responsibilities). Their employer is required to respond within 21 days, stating whether it agreed with or refused the request. Requests can be refused on reasonable business grounds which must be explained in the written response.
Importantly, as long as the employer has complied with these requirements, there are limited avenues for the employee to challenge the refusal – unless the employee has the right to do so under an applicable enterprise agreement.
As of 1 December 2018, this will change for award covered employees.
The effect of the new provisions in awards is that employers will now need to:
- discuss the request with the employee before responding to the request and “genuinely try to reach agreement” on a change to accommodate the employee’s circumstances;
- if refusing the request, state:
- details of the reasons of the refusal including the business grounds for such refusal and how the ‘grounds’ apply;
- what changes the employer can offer to better accommodate the employee’s circumstances as an alternative; and
- if an alternative arrangement is offered, set out those changes in the letter.
If the employer does not discuss the request and/or respond in the appropriate manner, the employee can bring a dispute in the FWC under the dispute resolution clause in the applicable Award.
What does it mean for your business?
The FWC has implemented these changes to “increase awareness of the right to request flexible working arrangements”, even though it noted that “the vast majority” of flexible work requests are approved by employers with only approximately 10 percent of requests being rejected.
This new clause in all modern awards will mean that businesses need to more carefully consider requests for a change in working arrangements. If refusing a request, it will be necessary to consider what alternatives can be offered to an employee to try and accommodate the request. A failure to do so may mean result in a dispute before the FWC.
If you require assistance with responding to flexible work requests, please contact us.
