A new model term dealing with how an employee’s request for flexible working arrangements must be dealt with will be inserted into all modern awards from 1 December 2018.
The model term applies to a request by an employee for a change in working arrangements under section 65 of the Fair Work Act 2009 (“the Act”). The Act provides that an employer can only refuse a request on ‘reasonable business grounds’.
The model term includes provision about how the request must be dealt with and includes:
- A requirement to discuss the request with the employee and to genuinely try to reach agreement before the employer responds to the request having regard to:
(a) the needs of the employee arising from their circumstances;
(b) the consequences for the employee if changes in working arrangements are not made; and
(c) any reasonable business grounds for refusing the request.
- A requirement that, if no agreement is reached and the request is refused, the employer is to provide detailed reasons for the refusal, including the business grounds relied upon, and state whether there is any other change in working arrangements that it can offer to meet the employee’s circumstances
- A requirement that the employer will provide a written response where an agreement is reached with the employee on a change in working arrangements that is different to that initially requested by the employee.
Any dispute about compliance with this clause will be dealt with according to the applicable dispute resolution clause.
Lessons for employers
- Ensure you comply with the new requirements for responding to an employee’s request for flexible working arrangements after 1 December 2018
- There is currently no power for the Fair Work Commission to arbitrate disputes about compliance with the term or the reasonableness of any refusal of a request (unless an agreement or contract specifies otherwise). Disputes will be dealt with according to the applicable dispute resolution clause.
From 1 December 2018 all modern awards will have a new term inserted that sets out the process employers must follow when an employee makes a request for flexible working arrangements.