From December 1, a new model award term will be inserted into all modern awards, requiring employers to make a genuine attempt to reach agreement on requests for flexible work arrangements from employees.
The Full Bench of the Fair Work Commission this month finalised the wording of the model term, following its September 2018 decision to insert the clause as part of its four-yearly review of modern awards.
Submissions were received during the review from the ACTU, seeking variation of all modern awards to include an entitlement to work part-time or reduced hours for employees with parenting or carer’s responsibilities. The Commission ultimately determined that the right to request flexible working arrangements enshrined in section 65 of the Fair Work Act should be offered to all award employees categorised in s.65(1A), that is; where:
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer (within the meaning of the Carer Recognition Act 2010);
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing violence from a member of the employee’s family;
- the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
The significance of the new model award term is that it imposes an obligation on employers to discuss the request and ‘genuinely try to reach agreement’ on a change in working arrangements that will reasonably accommodate the employee’s circumstances having regard to:
- the needs of the employee arising from their circumstances;
- the consequences for the employee if changes in working arrangements are not made; and
- any reasonable business grounds for refusing the request.
Employers must provide a written response to an employee’s request for flexible working arrangements within 21 days. The response must include details of the reasons for the refusal, including any business grounds relied upon.
A new requirement is that the employer’s response must also state whether or not there are any changes in working arrangements that the employer can offer the employee to better accommodate their circumstances, and set out those changes if they can be offered.
In a positive move for employers, the Commission determined that disputes about whether the employer has met its obligation to discuss working arrangements with the employee and responded in the appropriate way are to be dealt with by following the award dispute resolution procedure, rather than arbitration.