By Charles Power
As part of its four year review of modern awards, the Fair Work Commission (FWC) has recently published a model term to guide employers in dealing with requests for flexible working arrangements.
This follows its March 2018 decision to insert in modern awards a model term that would supplement the right to request flexible working arrangements in the National Employment Standards of the Fair Work Act 2009 (Cth).
Under the provisional model term you will need to take the following steps when an employee requests for a flexible working arrangement:
Step 1: Discuss the request with the employee.
Step 2: Genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances.
In doing so, you need to consider:
- Why does the employee want the change?
In order to access the statutory right to request, the employee has to be in one or more of the following circumstances. The employee must be:
- a parent of a child who is of school age or younger;
- responsible for the care of a child who is of school age or younger;
- a carer;
- 55 years old or older;
- experiencing family violence; or
- providing care or support to a family or household member experiencing family violence.
NB – Nearly three-quarters of requests for flexible working arrangements are made because of parenting responsibilities.
- What are the needs of the employee arising from the relevant circumstance?
- What are the consequences for the employee if a change (either the change requested or some other change) in working arrangements isn’t made?
- Do any reasonable business grounds exist for refusing the request?
You will need to think whether or not there are any changes in working arrangements you can offer the employee that will better accommodate their circumstances.
Step 3: Make a decision.
Step 4: Respond to the request.
You must give the employee a written response to their request within 21 days.
The response must:
- state whether you are granting or refusing the request;
- if refusing the request, detail the reasons for the refusal, including the business ground or grounds for the refusal and how the ground or grounds apply;
- state whether or not there are any changes in working arrangements that you can offer the employee so as to better accommodate the employee’s circumstances, and if so, set out those changes; and
- if you have reached an agreement on a change in working arrangements that differs from that initially requested by the employee, provide the employee with a written response to their request setting out the agreed change(s) in working arrangements.
You and any employee can refer any dispute about the employee’s request and your response to it to the FWC under the award dispute resolution procedure.
However, the FWC will not have power to settle the dispute unless both parties agree to this course.
The FWC will finalise this model term after considering any feedback on the clause.