Employers should be aware that all modern awards will be amended from 1 December 2018 to include a new flexible working clause.
The new clause supplements the rules in section 65 of the Fair Work Act 2009 (Cth) (FW Act) that already allow employees with at least 12 months service to make a request for changes in their working arrangements due to parental or caring responsibilities (or other responsibilities listed in the section).
Section 65 of the FW Act also provides that employers can only refuse a request for a change on “reasonable business grounds”.
New flexible working clause
The new requirements include that:
- Before responding to a request the employer must discuss the request with the employee.
- The employer must “genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances 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.
Responding to a flexibility request
The FW Act currently requires the employer to give the employee a written response within 21 days, stating whether the employer grants or refuses the request and setting out the reason for any refusal. Modern awards will now also require the employer to:
- Include the business ground or grounds for the refusal and how the ground or grounds apply
- 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 offer the employee such changes in working arrangements, set out those changes in working arrangements.
Disputes about whether the employer has discussed the request with the employee and responded to the request in the way required by the new clause are dealt with under the applicable award’s Dispute Resolution clause.
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