By Shannon O’Connor, Associate

This year the Fair Work Commission (FWC) has been hard at work with its 4 yearly review of modern awards. On 20 November 2018, the full bench of the Fair Work Commission completed its review of the family friendly working arrangements.

The FWC finalised a ‘model term’ for requests from employees for flexible working arrangements, which will be inserted into all modern awards. The term will come into effect on 1 December 2018.

The new model term applies when an employee makes a request for a change in working arrangements under section 65 of the Fair Work Act 2011 (Cth) (the Act). This section allows certain employees the right to request a change to their working arrangements if certain circumstances apply to them. These circumstances include employees who are parents or carers, employees with disabilities, employees over the age of 55 and employees experiencing domestic violence. Full-time and casual employees can make a request if they have completed at least 12 months of continuous service. Casual employees who have not worked 12 months, but are likely to continue to work as casual on a regular basis, are also able to make a request.

Currently, under section 65 of the Act, an employer may only refuse a request from an employee for flexible working arrangements on reasonable business grounds and the refusal must be set out in writing with reasons.

The new model term builds on section 65 by adding further obligations on employers. As of 1 December 2018, when an employer receives a request under section 65, they must discuss the request with the employee and make a genuine attempt to reach an agreement before making a decision. In reaching an agreement, an employer must have regard to:

1. the needs of the employee arising from their circumstances;
2. the consequences for the employee if changes in working arrangements are not made; and
3. any reasonable business grounds for refusing the request.

Employers should be aware that the addition of this step does not extend the deadline to provide a response under section 65. This means employers still have 21 days from receipt of a request to arrange a discussion with the employee, consider their decision and provide the employee with a written response. If this step is not followed correctly, the new model term gives employees the right to raise a dispute.

Under section 65(6) of the Act, an employer who decides to refuse a request must include details of the reason for the refusal in their written response to the employee. The new model term builds on this by adding that the reasons for the refusal must include the business grounds for the refusal and how those grounds apply. It then goes further to add that when an employer refuses a request for flexible working arrangements (because it could not reach an agreement with the employee), the written response must state whether or not there are any changes in working arrangements that the employer can offer the employee so as to better accommodate the employee’s circumstances, and if the employer can make changes for the employee, set out what those changes are.

No changes have been made to the way a dispute is raised about an employer’s reasons for refusing a request. Employees will be bound by the dispute resolution powers in their employment contracts and/or applicable award.