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Changes to flexible work legislation from 1 December 2018

There has been a concerted effort to increase employee entitlements to work flexibly.

The Fair Work Commission has confirmed that the new model Award term requires employers to make a genuine attempt to reach agreement on requests for flexible work arrangements and provide detailed reasons for refusals commenced on 1 December 2018.  The Award clauses are intended to work in conjunction with section 65 of the Fair Work Act 2009, and applies in relation to flexibility requests made by employees in the following circumstances:

  • The employee is a parent or has responsibility for the care of a child who is of school age or younger;
  • The employee is a carer (within the meaning of the Carer Recognition Act 2010);
  • The employee has a disability;
  • The employee is 55 or older;
  • The employee is experiencing violence from a member of the employee’s family; or
  • The employee 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.

From 1 December 2018 employers will be required to be able to demonstrate that they have given genuine consideration to any request for flexible work arrangements. There is a specific obligation to have discussed the request with the employee and genuinely tried to reach an agreement. If the requested arrangements are not able to be provided because of reasonable business grounds,  the employer must provide the employee with a written response setting out the reason for the refusal, the business ground(s) for the refusal and how those business grounds prevent the employer from granting the flexible work arrangements requested.

In addition to setting out the reasons for declining a request, the employer must also provide in the written response, details of any alternative flexible arrangements which they can provide to better accommodate the employee’s circumstances.

An employee who is not satisfied with the process followed in considering their request may challenge the process through the Award dispute resolution procedure.

Importantly, the clause does not go as far as enabling employees to use the dispute process, and ultimately the Fair Work Commission, to challenge whether an employer has reasonable grounds for refusing requests.

Employers need to prepare for requests and understand what reasonable business grounds may be, so that they can provide appropriate written responses. If you would like assistance in considering or responding to requests for flexible work arrangements, please contact your usual Hanrick Curran advisor on 3218 3900 or our HR Division on 3218 3919.

Please note that this publication is intended to provide a general summary and should not be relied upon as a substitute for personal advice.