New rules broaden eligibility to more employee groups
From 6 June 2023, significant changes to the flexible working arrangement provisions in the Fair Work Act 2009 (Cth) will be implemented. These changes, along with others encompassed in the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), were instigated in part by the Covid-19 pandemic and the inequalities that it brought to light.
These changes expand the eligibility of those able to request flexible work arrangements and require employers to follow a process upon receipt of such requests. Importantly, it also gives employees the chance to escalate their requests and seek orders from the Fair Work Commission (FWC).
Flexible working arrangements can cover an array of things, from flexible start and finish times, working from home, job sharing, and so on. Every circumstance is unique and should be treated as such. It is essential that employers are familiar with the new provisions and understand how they can apply to their employees.
Organisations should offer the same flexibility options to all employees, but can adjust based on job function, says an expert.
Previously, groups such as parents of school-aged children or younger, carers, people with disabilities, and employees aged 55 and over have been eligible to request flexible working arrangements from their employer. The new changes broaden this eligibility to include both pregnant employees and those experiencing domestic violence.
It also extends to include those caring for family or household members experiencing domestic violence.
How do employers need to respond to flexible working arrangement requests?
Under the amendments, employers will have 21 days to respond to an eligible employee’s written request for a flexible working arrangement. The response must follow a discussion with the employee and needs to be in writing. In the case of a refusal, it must:
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- Have regard to the consequences of refusal.
- Justify the refusal on ‘reasonable business grounds’ such as:
- Cost
- Capacity
- Practicality
- Inefficiency or impact on the workplace.
- Set out how those grounds apply to the employee.
- Suggest any functional alternatives (if any).
- Outline the employee’s rights to pursue dispute resolution with the FWC.
Employers must note that failure to respond to the employee in writing within 21 days will result in the employee filing a dispute to the FWC without any further notice to the employer.
Nearly nine in 10 employers believe that flexible work arrangements are important for employee recruitment and retention, according to a poll.
What if the employee and employer disagree?
If a refusal is provided to the employee and they are not satisfied with the outcome, they can pursue the dispute resolution terms under their modern award or enterprise agreement (if applicable).
The new amendments also allow the employer to refer the dispute to the FWC. Before doing so, the parties must have a further discussion to see if they can resolve the dispute.
The FWC must attempt to resolve the dispute by methods other than arbitration (such as mediation or conciliation) before proceeding to arbitration. Once arbitrated, the court has powers to make orders including ordering the employer to grant the request. An employer breaching such an order leaves them at risk of court proceedings and even the imposition of a civil penalty.
An expert offers seven reasons why businsses should promote flexible working.
Recommendations
With these changes coming into effect imminently (6 June 2023), there are various factors for employers to consider. To get ahead of the curve, DKL recommends that employers:
- Have open conversations with staff about potential flexible working arrangements, particularly those who are eligible to make such requests through the above provisions.
- Prepare to receive formal requests for flexible working arrangements, and train relevant staff on how to respond appropriately within the 21-day limit.
- Ensure that each request is assessed fairly on its own merits and that strong records are maintained of the decision-making process.
- Be prepared to justify the decisions made, if needed, before the FWC.
DKL also recommends that employers approach such requests openly and with a willingness to trial different arrangements to find the perfect balance of business and employee needs.
Finally, DKL considers it best practice for employers to be open to discussions around flexible work arrangements with all their employees, regardless of whether the employee has the protected right to do so under the above provisions.
Anthony Lovett is a graduate-at-law at Danny King Legal in Sydney.
