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In a move that enhances an employee’s right to request flexible working arrangements, the Fair Work Commission (FWC) has confirmed that from 1 December 2018, a model “family friendly working arrangements” term will be inserted into all modern awards.

The Full Bench of the FWC’s decision (Four-yearly review of modern awards – Family Friendly Work Arrangements [2018] FWCFB 6863) places additional obligations on employers in relation to consulting and responding to requests for flexible working arrangements for employees covered by an award.

The model term aims to supplement the existing right to request flexible working arrangements in the National Employment Standards under s 65 of the Fair Work Act 2009 (Cth) (the FW Act).

Flexible working arrangements in the FW Act

Section 65 of the FW Act gives certain employees, including parents, carers, employees with a disability, older employees and those experiencing domestic violence, the right to request flexible working arrangements.

To access this entitlement, employees must meet certain eligibility requirements, such as completing at least 12 months of continuous service with their employer, or qualifying as a long-term casual employee.

Employers must respond to a request within 21 days and are able to refuse a request on “reasonable business grounds”. There is currently no enforcement mechanism for employees to challenge the refusal of a request on these grounds.

The model term

The model term to be included in modern awards is aimed at facilitating discussion between employers and employees about flexible work arrangements.

The model term supplements the requirements of s 65 of the FW Act in the following ways:

  • An employer must consult with the employee and genuinely try to reach an agreement about the requested change to working arrangements, taking into account the employee’s circumstances.
  • If an employer refuses the request, the written response must now include:
    • details of the business grounds for refusal and how they apply, and
    • details of alternate working arrangements that the employer could provide to accommodate the employee’s circumstances.
  • By following the dispute resolution process outlined in the award, employees are able to raise issues about whether employers have discussed the request with the employee and responded to their request in the required manner.

Notably, the model term does not give the FWC jurisdiction to determine a dispute about whether employers have reasonable business grounds to refuse a request, unless the power to do so is conferred on the FWC under the terms of an enterprise agreement or employment contract.

What does this mean for employers?

From 1 December 2018, workplaces that are governed by a modern award must implement the new arrangements when an employee to whom the award applies makes a request for flexible working arrangements.

In responding to an employee’s request, employers must ensure they comply with the formal requirements outlined in the FW Act, the model term and any applicable enterprise agreement, contract of employment or policy.

Employers will need to approach requests for flexible working arrangements with an open mind and discuss the request with the employee in the first instance, with a view to trying to accommodate the request or to determine a way to vary the request to reach a mutually beneficial outcome.

Employers should implement processes to ensure requests are responded to within 21 days and, if refused, provide details of the business grounds for the refusal as well as how they apply, in their response.

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