All modern awards, from 1 December 2018, introduced a model term in consideration for family friendly work arrangements. The term supplements section 65 of the Fair Work Act 2009 (Cth) and the National Employment Standards in respect to requests for flexible working arrangements.
Prior to the introduction of the model term, employee’s had a right (subject to eligibility criteria), to request a flexible working arrangement. Up until 1 December 2018, employers covered by a modern award could refuse eligible employee’s requests for a flexible working arrangement on the basis of “reasonable business grounds”. The model term in the award now provides that a number of employee’s may request a flexible working arrangement, including:
- Any permanent employee (or long-term casual employees with a reasonable expectation of ongoing work) that has parental or carer's responsibilities;
- any employee with a disability;
- Any employee who is aged over 55 years;
- Any employee who is experiencing domestic violence, or is supporting someone who is experiencing domestic violence.
The model term now provides that employers covered by a modern award must attempt to
reach an agreement with the employee where there is a request for flexible working arrangement. This requires the employer to meet with the employee within 21 days of the request being made and discuss the request with the employee before responding to their request.
The employer must provide a written response to the request within 21 days, stating whether the employer grants or refuses the request. An employer may refuse an employee’s request, but only on reasonable business grounds.
Reasonable business grounds for refusal of a request may include, but are not limited to the following situations:
- that 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 a significant loss in efficiency or productivity;
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
If a request for flexible working arrangement is denied, the employer must respond to request within 21 days and set out the following to the employee:
- details of the business grounds for refusal and how they apply;
- details of alternate working arrangements that the employer could provide to accommodate the employee's circumstances; and
- employees will be able to dispute whether employers have correctly consulted or responded to their request.
Whilst there are no grounds for an employee to dispute the reasonable business grounds upon which an employer relies, an employee is permitted to advance a dispute under the award on the basis of the failure by the employer to discuss, or respond to their request for a flexible working arrangement pursuant to s 65 of the Fair Work Act. A dispute of this kind will be resolved through the Fair Work Commission and other relevant courts and tribunals in order to determine the dispute.
Employers must be aware of this change to the request for flexible working arrangements cover as most private sector employees in Australia are covered by a modern award.
If you are seeking to review workplace policies or enforcement of policies, as well as the process involved in approving or denying a flexible working arrangement, please contact us to speak with one of our employment lawyers.
For further information, please call us on (03) 9642 0435 or email Paul Horvath or Julia Eastoe on firstname.lastname@example.org