What are the new rules around flexible work leave?

"The Amending Act gives an employee the right to challenge an employer's refusal – previously there was no recourse"

What are the new rules around flexible work leave?

Flexible working has become so encompassed within the Australian workforce that Federal Parliament has passed laws that will now consolidate that employees have more legal rights in this area.

From early June 2023, the Fair Work Act 2009 will mean that employers have increased obligations to sincerely try to accommodate flexible working arrangements.

This will mean that CEOs, human resource personnel, and C-suite executives will need to review workplace policies on the subject.

Changes coming

Under the Fair Work Legislation Amendment (Secure Jobs, Better) Pay Act 2022, “an employer may only refuse a request for flexible work if it has discussed the request with the employee, and genuinely tried to reach an agreement with the employee about making changes to the employee’s working arrangements to accommodate the reasons for the request,” Hannah Nesbitt, solicitor, Harmers Workplace Lawyers, said.

Other grounds an employer may refuse a request for flexible work include, “if the employer and the employee have not reached such an agreement; the employer has had regard to the consequences of the refusal for the employee, and/or the refusal is on reasonable business grounds”, she added.

An employer can’t deliberately delay the decision endlessly for an employee to know whether their request has been approved either.

No stalling allowed

Under section 65A (1) of the Amending Act, if an employee requests a flexible work arrangement relating to the circumstances that apply to the employee, the employer must give the employee a written response to the request within 21 days, Nesbitt said.

Furthermore, if an employee isn’t happy with an employer’s decision, they can appeal to the Fair Work Commission to make a ruling.

“The Amending Act gives an employee the right to challenge an employer’s refusal. Previously there was no recourse,” Harmers’ Executive Counsel, Paul Lorraine, said.

“From 6 June, an employee can approach the Fair Work Commission if the dispute cannot be resolved in the workplace; the employer did not respond to the request within 21 days; or the employer has refused the request within that time, and the employee says these are not legitimate and not reasonable business grounds. 

“If a dispute is referred to the Fair Work Commission, the Commission must first attempt to deal with the dispute by conciliation or mediation. If the dispute is still unresolved, the Commission can proceed to arbitration and make a binding decision.”

FWC decision looks at flexible work

In a recent case before the Fair Work Commission, the body ruled in a favour of a working mother who requested more flexibility to combine work and home life.

The case of Natasha Fyfe v Ambulance Victoria explored Ambulance Victoria’s grounds for refusing Ms Fyfe’s flexible working request, Antonia Tahhan, senior lawyer, Chamberlains, said.

“As a working mother, Ms Fyfe requested a change to her rostered hours to allow her to care for her three children whilst her partner was at work. The Commission found that Ambulance Victoria failed to discuss or consult with Ms Fyfe regarding its decision to refuse her request or make any attempt to achieve a workable solution and on that basis their refusal was unreasonable.”

Employers can face fines of up to $16,500 plus further court action if they refuse to implement orders of the Fair Work Commission.

Reasonable grounds for flexible work

In looking at the “reasonable business grounds” an employer should consider with regards to flexible working conditions, Nesbitt cites the Amending Act non-exhaustive list of examples: 

  • that the new working arrangements requested would be too costly for the employer. 
  • that there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested.
  • that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested. 
  • that the new working arrangements requested would be likely to result in a significant loss in efficiency or productivity; or 
  • that the new working arrangements requested would be likely to have a significant negative impact on customer service.

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