Changes to flexible work arrangements
As flexible work continues to evolve, it is important that employers are aware of and familiar with how and when employees can make requests for flexible work arrangements (FWA) under the Fair Work Act 2009 (Cth) (FW Act), particularly in light of the recent changes to these provisions and the ability of employees to now lodge a dispute with the Fair Work Commission about FWA requests, as a result of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).
The amendments to the FWA provisions in the FW Act expanded the circumstances in which an employee may make a request and imposed additional obligations on employers when managing FWA requests.
Some of the key amendments introduced in the FW Act are:
an increase in employer’s obligations when considering an employee’s FWA request, with the aim of supporting or improving an employee’s access to FWA;
an expansion in the circumstances in which an employee may request a FWA to include where they are pregnant or where they, or a member of their immediate family or household, experiences family or domestic violence; and
introduction of dispute resolution provisions that empower the Fair Work Commission (FWC) to make orders where an employer refuses an employee’s FWA request.
When an employer receives a FWA request from an employee there are prescriptive rules around how to consider the FWA request, which can only be denied on certain grounds, and strict timeframes for an employer to respond to the request.
Section 65A of the FW Act now sets out what must be done by an employer within 21 days from receiving a FWA request. The employer has 3 options, which are:
the employer may accept the request;
the employer and the employee may discuss the matter, with both parties then reaching an agreement that differs from the original request. If this occurs, the employer must set out the agreed change and implement it; or
the employer may refuse the request. A refusal is subject to further specific conditions which must be addressed in writing to the employee.
If the FWA request is refused and a dispute remains between the employer and employee, either the employee or employer can seek that the FWC resolve the dispute regarding the FWA request.
The introduction of a dispute resolution process to deal with disputes that arise from a refusal or non-response to a FWA request is a significant amendment and already the FWC has already dealt with a number of cases under the new dispute resolution process. One recent case involved an employee over the age of 55 who made a FWA request to change her days of work, which was not agreed to by her employer, and so the employee lodged a dispute with the FWC. The FWC allowed the dispute to proceed, finding employees over 55 have broad scope to request flexibility.
Employers should also bear in mind that FWA requests must also meet certain criteria under the FW Act to be valid and that where an employee’s request does not meet those requirements, then it may not be a valid request. As such, employers need to be able to identify where a valid FWA request has been made to understand when their obligations under the FW Act are triggered.
Employers may want to review their current flexible work policies and procedures and consider whether any updates or variations are required in light of the recent changes and the potential for disputes in the FWC.
Please reach out to the team at Henry William Lawyers if you would like further advice on this topic or need assistance in responding to the FWA request.
