As of 1 December 2018, a model term will be included in all modern Awards. This model term adds to the requirements already set out in section 65 of the Fair Work Act 2009 (Cth).
The Fair Work Act already provided that:
- Specific employees may request a change in their working arrangements. This includes parents (including by adoption) or carers, persons with disabilities, persons 55 or older, and those experiencing domestic violence.
- If a request is received by an employer, they must discuss the request with the employee and genuinely try to reach agreement.
- The employer must provide a written response within 21 days of receiving the request, stating whether they grant or refuse the request (including reasons if refused).
Requests may only be refused on “reasonable business grounds”, which can include that:
- the new working arrangements requested by the employee would be too costly for the employer;
- there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee;
- it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee;
- the new working arrangements requested by the employee would be likely to result in a significant loss in efficiency or productivity; or
- the new working arrangements requested by the employee would be likely to have a significant negative impact on customer service.
The model term will now also require employers to discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances. This discussion must have regard to:
- the needs of the employee;
- the consequences for the employee if the changes are not made; and
- any reasonable business grounds for refusing the request.
If the employer refuses the request, the written response required under the Fair Work Act must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how they apply. The response must also state whether or not there are any changes in working arrangements that can be offered instead and set those out.
If the employer agrees to the request, the written response required under the Fair Work Act must set out the agreed changes.
Importantly, the response must still be provided within 21 days of the request.
Companies should ensure they have procedures in place to ensure timely compliance, including timeframes for responding to requests and template documents for notice to employees of refusal or proposed flexible working arrangements.
If you require advice on how the model term affects your business, or want tailored template documents to enable your business to handle a request for flexible work arrangements, please contact Gemma Wheeler-Carver, Solicitor, or Murray Thornhill, Director and Notary Public – both from the Litigation and Dispute Resolution team.
Author: Gemma Wheeler-Carvo, Solicitor, Litigation & Dispute Resolution