From 6 June 2023, changes under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 give more employees the legal right to request flexible work arrangements.
The federal government says the changes are aimed at assisting “eligible employees to negotiate workplace flexibilities that suit both them and their employer.”
This means that employers will have new obligations in responding in a fair and transparent way to flexible working arrangement requests, and the Fair Work Commission will have new powers to resolve disputes over these requests.
Let’s have a look at the fine print.
Changes to employee entitlements
Under the National Employment Standards, full-time and part-time employees who have worked for the same employer for at least 12 months can request flexible working arrangements.
The employees must be either:
- The parent (or responsible caregiver) of a child who is school-aged or younger.
- A carer (as defined in the Carer Recognition Act 2010).
- A person with a disability.
- Aged 55 or older.
- Pregnant
- Experiencing family and domestic violence.
- Provide care or support to a member of their immediate family or household who is experiencing family and domestic violence.
Casual employees can request a flexible work arrangement if they meet one of the above criteria and they have:
- Been employed by the same employer on a regular or systematic basis for a period, or sequence of periods, of at least 12 months.
- A reasonable expectation of continuing employment with the employer.
Employee requests flexible working arrangements have to be made in writing, setting out details of the proposed changes and giving reasons for them.
Employees who don't meet the criteria can still ask their employer to approve flexible work arrangements, but employers are not legally obliged to grant the request unless it's on work health and safety grounds.
More obligations for employers
For employers, the Secure Jobs, Better Pay changes bring new obligations to discuss any flexible working request with the employee before they’re able to refuse.
In responding, employers must make a genuine effort to find alternative arrangements to accommodate the person’s circumstances, and to consider the consequences of refusal for the employee.
Employers will also have to give the person a detailed written response within 21 days, stating whether they grant or refuse the request.
If the employer refuses, their response must include:
- An explanation of the reasonable business grounds for refusing the request (e.g. the arrangement would be too costly, impractical, or likely to result in a significant drop in efficiency, productivity, or customer service) and how these grounds apply to the request.
- Other changes the employer is willing to make that would accommodate the employee’s circumstances (or that there aren’t any changes).
- Information about how to refer a dispute to the Fair Work Commission (FWC).
If, after discussing the request and agreeing to make changes to the person’s working arrangements that are different to what the employee requested, the employer needs to confirm these agreed changes in writing within 21 days of the request.
Fair Work Commission’s role
In a case where the employer and employee can’t agree on a solution, The Fair Work Commission has new powers to hear and make orders about disputes over flexible working arrangement requests e.g. the employer has refused an employee’s request, or hasn’t responded within 21 days.
The new dispute resolution process includes conciliation, mediation or, if necessary, mandatory arbitration. The Commission also has the power to start court proceedings for alleged breaches of these provisions.
Our advice
Flexible and hybrid work arrangements are a common part of the modern employment environment, and the changes brought by the Secure Jobs, Better Pay Act only make them more commonplace.
As an employer, you need to understand the expanded employee entitlements under the Fair Work Act, as well as your own obligations to consider and respond to flexible work requests.
We recommend you fully review your flexible work policies to ensure that they’re consistent with the changes and establish robust procedures for handling employee requests.
If you need expert advice on these changes or how to best implement flexible work models in your business, please contact MyHR.
