From 1 December 2018, changes to modern awards requires employers to genuinely try to reach an agreement with employees in relation to flexible working arrangements.
In accordance with section 65 of the Fair Work Act 2009 (“FWA”), certain employees are eligible to request changes in their working arrangements in specific circumstances, such as if the employee is a carer; parent of a child who is school age or younger; has a disability; 55 years or older; or is experiencing family violence.
Section 65 requires employers to provide a written response to requests for flexible working arrangements within 21 days of the request being made stating whether the employer grants or refuses the request. Employers may only refuse a request on “reasonable business grounds”.
The changes implemented to modern awards that came into force on 1 December 2018 require the employer to take the following additional steps when a request for flexible working arrangements is made by an employee:
- Before responding to a request for family friendly working arrangements, an employer must discuss the request with the employee and genuinely try to reach an agreement on a change in working arrangements that takes the employee’s circumstances into account. The employer is required to discuss the needs of the employee, the consequences for the employee if the changes are not met and any reasonable business grounds for refusing the request.
- If an employer refuses the employee’s request, the employer is require to provide a written response explaining the business grounds for the refusal and how they apply, as well as details of alternative working arrangements the employer can provide to accommodate the employee’s circumstances.
If the employee is not satisfied that the employer has followed the above process, they are entitled to raise a dispute under the award which allows the Fair Work Commission to try to resolve the dispute through mediation or conciliation. Under the current provisions, there is no framework to dispute the legitimacy of an employer’s reason for refusing a request.