From 1 December 2018, all modern awards will include a model term for requests for flexible working arrangements.
The decision
On 20 November 2018 a Full Bench of the Fair Work Commission published a decision finalising a model term for requests for flexible working arrangements.
The model term was published in a previous Full Bench decision published on 25 September 2018, in which Justice Ross, Vice President Hatcher and Commissioner Spencer expressed the provisional view that all modern awards should be varied to include the model term. The Full Bench accepted submissions from interested parties as to whether this provisional view was appropriate.
After receiving and considering submissions the Full Bench confirmed its provisional view and decided to vary all modern awards to include the model term.
The model term
The model term applies when an employee has made a request for a change in working arrangements under section 65 of the Fair Work Act 2009 (Cth) (FW Act). The model term will apply to all categories of employee listed in section 65(1A), which includes:
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employees who are parents and carers of children;
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employees who are carers;
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employees with disabilities;
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employees aged 55 or older;
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employees experiencing family or domestic violence; and
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employees caring for family members experiencing family or domestic violence.
Under the model term, employers will only be permitted to refuse a request on 'reasonable business grounds'. The definition of 'reasonable business grounds' is set out in section 65(5) and 65(5A) of the FW Act, and includes (but is not limited to) new working arrangements:
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being too costly for the employer or impractical for other employees;
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resulting in significant loss in efficiency or productivity; and
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having a significant impact on customer service.
Genuinely attempts to agree
Employers will be required to discuss a request for a change in working arrangements with the employee and genuinely try to reach an agreement on a change in working arrangements to reasonably accommodate the employee's circumstances, having regard to:
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the employee's needs;
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the consequences on the employee if changes are not made; and
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any reasonable business grounds for refusing the request.
Employers must give the employee a written response to the employee's section 65 request within 21 days, stating whether it will approve or refuse the request. If the request is refused, the employer must include details of the reasons for refusal in the written response, including the business ground or grounds for refusal and how those grounds apply. If the employer refuses the request because the employer and employee could not reach an agreement on the change in working arrangements, the written response must state:
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whether there are any other changes in working arrangements that can be offered to the employee to better accommodate the employee's circumstances; and
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set out those changes in working arrangements.
If an agreement is reached between the employer and employee for a change in working arrangements that is different to the initial request, the employer must provide detail of these agreed changes in its written response to the employee.
A dispute raised by an employer or employee under this model term will be dealt with under the dispute resolution procedure in the applicable award.
