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Written by The performHR Team
on November 29, 2018

Workplace flexibiltyAs part of the 4 – yearly review of modern awards, The Fair Work Commission has finalised the model term for requests for flexible working arrangements.  These changes will take effect on 1 December 2018, and will apply when an employee has made a request for a change in working arrangements under the National Employment Standards (NES). You can read the full decision here.

What are flexible work arrangements?

Flexible working arrangements include changes to employees:

  • hours of work (eg. changes to start and finish times)
  • patterns of work (eg. split shifts or job sharing)
  • locations of work (eg. working from home)

 

Who can request flexible work arrangements?

Under Section 65 of the Fair Work Act, employees 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.

 

Why has this changed?
The new clause to all modern awards was created by the Fair Work Commision due to “the significant unmet employee need for flexible working arrangements.”

The review of the provision of flexible work arrangements comes after the Fair Work Commission rejected an application by the Australian Council of Trade Unions to force employers to provide flexible workplaces, after business groups argued that such a move “would have a crippling effect on industry and give employees the right to dictate their hours of work” earlier this year.

 

What are the changes of the new model and what do they mean for employers?

  1. Before responding to the request, the employer must 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:
    1. the needs of the employee arising from their circumstances;
    2. the consequences for the employee if changes in working arrangements are not made; and
    3. any reasonable business grounds for refusing the request;
  1. If the employer and employee cannot agree (at (1) above) on a change in working arrangements, the written response must:
    1. state whether there are any changes in working arrangements that the employer can offer the employee to better accommodate the employee’s circumstances; and
    2. if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements;
  1. If the employer and the employee reached an agreement (at (1) above) on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements; and
  1. Disputes about whether the employer has discussed the request with the employee and responded to the request (as required) are to be dealt with under the consultation and dispute resolution clauses of the modern award.

Requests can only be refused on reasonable business grounds.

 

What are ‘reasonable business grounds’?

Under the new clause, employers must provide a detailed response if a request for flexible working conditions is denied, after a genuine attempt to accommodate the request has been made. Including business grounds for denying the request.

Fair Work defines states that reasonable grounds can include:

  • the requested arrangements are too costly
  • other employees' working arrangements can't be changed 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.

The new award model term requires that the reasons for refusal provided by an employer include:

  • the business ground or other grounds relied upon by the employer for the refusal;
  • how the ground or grounds apply;
  • if the employer and employee could not agree on a change in working arrangements, whether there are any changes in working arrangements that the employer can offer the employee to better accommodate the employee’s circumstances; and
  • if the employer can offer the employee such changes in working arrangements, details of those changes in working arrangements.

Recommendations:

If you are an employer and are unsure about which award covers your workforce or need advice around providing your employees flexible working options, the performHR team are here to help.

We recommend that business leaders ensure that that their team leaders and managers are briefed and confident in the new requirements around both providing and denying flexible work arrangements.

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