Responding to requests for flexible working arrangements under the new modern award provisions
On December 1 2018, the Fair Work Commission finalised the model term for requesting flexible working arrangements which have been inserted into all modern awards as part of the 4-yearly review.
The term applies when an employee has made a request for a change in working arrangements under the National Employment Standards (NES). Previously, there was no obligation under the NES to deal with the requesting employee about the request. However, the new model term requires the employer, before responding to the request to:
- discuss the request with the employee; 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.
Requests can only be refused on reasonable business grounds. If employers refuse a request, they need to provide the employee with a written response.
Who can request flexible working arrangements?
Employees (other than a casual employee) who have worked with the same employer for at least 12 months can request flexible working arrangements if they:
- are the parent, or have responsibility for the care, of a child who is school-aged or younger
- are a carer (under the Carer Recognition Act 2010)
- have a disability
- are 55 or older
- are experiencing family or domestic violence, or
- provide care or support to a member of their household or immediate family who requires care and support because of family or domestic violence.
How do employers handle a request?
Employers covered by an award must first discuss the request with their employee to try to reach an agreement about changes to the employee’s working conditions, taking into consideration:
- the needs of the employee
- consequences for the employee if changes in working arrangements aren’t made
- any reasonable business grounds for refusing the employee’s request.
All employers who receive a request must provide a written response within 21 days which outlines whether the request is approved or refused.
Employers can only refuse a request on reasonable business grounds. If a request is refused the written response must include the reasons for the refusal.
What are reasonable business grounds?
Reasonable business grounds can include:
- the requested work arrangements are too costly to the business
- it is not possible to change other employees’ working arrangements to accommodate the request
- it’s impractical to change other employees’ working arrangements or hire new employees to accommodate the request
- the request would result in a significant loss of productivity or have a significant negative impact on customer service.
If there is a dispute about whether the employer has ‘discussed the request with the employee and responded to the request’, the dispute is to be dealt with under the Consultation and Dispute Resolution clause in the relevant modern award.
What does this mean for you?
Employers must ensure that they are across the changes in order to remain Modern Award complaint. For this reason, and as a matter of good practice, employers should immediately update their internal HR procedures to incorporate the process outlined above and ensure those responsible for dealing with flexible working requests understand their obligations when responding to them.
Employers should also consider whether they will extend the expanded rights to non-award covered employees to ensure parity and consistency across the workforce.
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