The Fair Work Commission Tackles “Flexism”

27 November 2018
Siobhan Mulcahy, Partner, Melbourne Steven Troeth, Partner, Melbourne

In recent years, there has been a push to ensure employees are not subject to sexism, ageism and racism in the workforce. The new term ‘flexism’[1], has now taken the spotlight.

The Full Bench of the Fair Work Commission (FWC) has recently handed down a decision considering ‘family friendly work arrangements’ as a part of the four yearly review of modern awards.

The FWC’s decision in Family Friendly Work Arrangements [2018] FWCFB 6863[2] inserts a model request for flexible working arrangements term (the Model Term) into all modern awards with effect from 1 December 2018.

In recognising the need for the Model Term, the FWC noted that about a quarter of workers were not happy with their working arrangements”, but did “not make a request for change… for various reasons including that their work environment is openly hostile to flexibility.”[3]

What are flexible working arrangements?

Changes in working arrangements include changes in hours of work, changes in patterns of work and changes in location of work. Typically, flexible working arrangements will see a parent move to part time employment after a period of parental leave, but flexibility is not just for parents (as we discuss below).

What does this mean for employers?

The new Model Term will:

  • expand an employee’s right to request flexible working arrangements from their employer;
  • place additional obligations on employers about consulting and responding to such requests for flexible working arrangements; and
  • require employers to make genuine attempts to reach an agreement with their employees, where there are requests for flexible work arrangements.

What are the requirements?

If a request for flexible working arrangements is made by an employee, employers must genuinely try to reach an agreement with the employee having regard to:

  • the needs of the employee arising from their circumstances;
  • the consequences for the employee if changes in working arrangements are not made; and
  • any reasonable business grounds for refusing the request.

Employers must respond to an employee within 21 days of receiving a request, regardless of whether they intend to accept or refuse the request.

Which employees can make a request for flexible working arrangements?

The entitlement to request flexible working arrangements can be made by permanent employees who have completed at least 12 months’ continuous service.

Long-term casual employees can also make a request for flexible working arrangements (that is, casuals who have worked on a regular and systematic basis for over 12 months and have a reasonable expectation of ongoing employment).

Additionally a request for flexible working arrangements must be made because the employee is:

  • the parent, or has responsibility for the care, of a child who is of school age or younger;
  • is a carer (within the meaning of the Carer Recognition Act 2010 (Cth));
  • has a disability;
  • is 55 years old or older;
  • is experiencing violence from a member of the employee’s family; or
  • provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

Notably, the Model Term will not apply to employees covered by an existing enterprise agreement, although it will need to be considered as part of future enterprise agreement negotiations as it will be relevant to satisfying the “better off overall test”.

How does the request for flexible working arrangements work alongside the related NES entitlement?

The Model Term will supplement the flexible working arrangements provisions which already exist in the National Employment Standards (NES) contained at section 65 of the Fair Work Act 2009 (Cth) (the Act).

While the Model Term closely resembles the requirements of section 65, it is overall, more beneficial for employees.

The Model Term provides that an employer must consult with the employee and genuinely try to reach agreement on a change in working arrangements before responding to a request made under section 65 of the Act.

In addition, under the Model Term if an employer refuses a request for flexible working arrangements, the Model Term requires the employer to provide:

  • details of the reason for refusal and the business grounds which apply (including how they apply to the circumstances);
  • if the employer and employee cannot agree on working arrangements, details of alternate working arrangements that the employer could instead provide to accommodate the employee’s circumstances; and
  • if there are any alternate working arrangements that can be offered, the details of what those changes are to the employee.

A toothless tiger for employees?

Employees will be able to dispute whether their employer has correctly consulted about, or responded to a request for, flexible working arrangements using the dispute resolution clause in the relevant modern award.

While the Model Term provides employees with the right to dispute whether their employer has complied with the Model Term, this right is confined to whether the employer has discussed, adequately considered and/or responded to the request, rather than the substantive decision of whether the employer had reasonable business grounds to refuse/grant a request.

Similarly, the right to request flexible working arrangements pursuant to section 65 of the Act does not provide employees with an enforceable right.[4] The FWC is unable to arbitrate such disputes unless the parties have agreed upon such a right in an enterprise agreement or individual employment contract.

When does the Model Term come into effect?

At present, the FWC is in the process of adding the Model Term to all modern awards. The Model Term will come into effect from 1 December 2018.

Practical steps employers should take

To ensure compliance with the Model Term going forward, employers should immediately:

  • review how they currently manage requests for flexible working arrangements in their workplaces, including whether policies and procedures require an update?;
  • consider how the Model Term may affect the structure of their workplace, including operational requirements going forward; and
  • ensure that they are familiar with the new obligations and are following a process that mirrors the Model Term when responding to requests for flexible working arrangements.

Additionally, employers will need to grapple with whether they will extend the rights in the Model Term to employees not covered by a modern award, to ensure parity and consistency across their entire workforce.

Given that the FWC’s clear intention is to ensure that flexibility in the workplace is available to all employees, employers will need to ensure they approach requests for flexible working arrangements with an open mind and with a view to try and accommodate the request, or discuss an alternate mutually beneficial outcome.

Earlier this year, the FWC also decide to insert a model clause into modern awards to provide the right for employees to take unpaid family and domestic violence leave (see our earlier article here). Employers need to follow similar steps to ensure compliance with this new entitlement and again consider whether it should be extended throughout their workforce.

If your business requires assistance in dealing with requests for flexible working arrangements or implementing a new policy in line with the Model Term, please contact our Employment Advisory Team.

[1] Flexisim is essentially, discrimination against employees who seek to work flexibly.
[2] 4 yearly review of modern awards – Family Friendly Work Arrangements [2018] FWCFB 6863.
[3] Family Friendly Working Arrangements [2018] FWCFB 5753 at [14].
[4] See sections 44(2) and 739(2) of the Act.

Authored by:
Natasha Horvat, Senior Associate
Stacey Devitsakis, Lawyer

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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