Fair Work Commission intends to vary 121 Modern Awards

FLEXIBLE WORKING REQUESTS, ARRANGEMENTS, AND WHAT YOU CAN/MUST DO SHOULD (WHEN) THESE AMENDMENTS TAKE PLACE

These amendments seek to expand the obligations an employer has in considering and responding to flexible working requests.

They also draw in pregnant employees and employees experiencing family and domestic violence to be addressed under the same term in the Modern Awards.

The Flexibility term in current Awards will be replaced and in turn, these amended conditions will be implemented.

DOWNLOAD THE FULL STATEMENT BY THE COMMISSION HERE

Point #1

You will have to change the way you correspond with people requesting flexible working arrangements

Point #2

You’ll have a lot of difficulty, in most cases, finding reasonable business grounds to refuse ‘some’ people’s requests.

Point #3

Given this affects 121 Modern Awards, chances are, you’ll be impacted by this amendment with many people you employ.

Here is the model term the Commission intends to insert into your Modern Award/s.

Annexure A – Model flexible work term

XA. Requests for flexible working arrangements

XA.1 Employee may request change in working arrangements

Clause XA applies where an employee has made a request for a change in working arrangements under s.65 of the Act.

Note 1: Section 65 of the Act provides for certain employees to request a change in their working arrangements because of their circumstances, as set out in s.65(1A).

Note 2: An employer may only refuse a s.65 request for a change in working arrangements on ‘reasonable business grounds’ (see s.65(5) and (5A)).

Note 3: Clause XA is an addition to s.65.

XA.2 Responding to the request

Before responding to a request made under s.65, the employer must 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 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.

Note 1: The employer must give the employee a written response to an employee’s s.65 request within 21 days, stating whether the employer grants or refuses the request (s.65(4)).

Note 2: If the employer refuses the request, the written response must include details of the reasons for the refusal (s.65(6)).

XA.3 What the written response must include if the employer refuses the request

Clause XA.3 applies if the employer refuses the request and has not reached an agreement with the employee under clause XA.2.

(a) The written response under s.65(4) must include details of the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply.

(b) If the employer and employee could not agree on a change in working arrangements under clause XA.2, the written response under s.65(4) must:

(i) 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

(ii) if the employer can offer the employee such changes in working arrangements, set out those changes in working arrangements.

XA.4 What the written response must include if a different change in working arrangements is agreed

If the employer and the employee reached an agreement under clause XA.2 on a change in working arrangements that differs from that initially requested by the employee, the employer must provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.

XA.5 Dispute resolution

Disputes about whether the employer has discussed the request with the employee and responded to the request in the way required by clause XA, can be dealt with under clause Y—Dispute Resolution.

This is intended to be rolled out across 121 industry and occupational modern awards – essentially, this means all Awards.

Do you need assistance understanding what this, or any other recent changes mean to your workplace?