By Charles Power
About one-in-five Australian workers requests flexible working arrangements each year and most requests are approved in full.
Workplace culture and norms can play an important role in the treatment of requests for flexible working arrangements. Individual supervisor attitudes can be powerful barriers and enablers of flexibility.
If the work and family responsibilities of an employee can be accommodated through flexible working arrangements, employers will benefit from reduced labour turnover and absenteeism.
In its Family Friendly Working Arrangements (2018) decision, the Fair Work Commission Full Bench rejected a claim for an award provisions that would give an employee with parenting or caring responsibilities the right to access a flexible working arrangement after giving their employer reasonable notice.
Currently, the National Employment Standards (NES) in the Fair Work Act 2009 (Cth) only give certain employees the right to request such an arrangement, which can be refused on reasonable business grounds by the employer.
However, the Fair Work Commission (FWC) reached a provisional view that modern awards should be varied to incorporate a model term to facilitate flexible working arrangements.
The proposed model term would set out a process that an employer must follow if it is proposing to refuse a request – the employer must confer with the employee and genuinely try to agree on changes in working arrangements before refusing a request.
Eligibility to request a change in working arrangements relating to parental or caring responsibilities would extend to ongoing and casual employees with at least six months’ service but less than 12 months’ service.
If the employer refuses the request, the employer’s written response to the request will be required to include a more comprehensive explanation of the reasons for the refusal. The written response will also be required to include the details of any change in working arrangements that was agreed on when the employer and employee conferred, or, if no change was agreed, the details of any changes in working arrangements that the employer can offer to the employee.
The FWC would have capacity to deal with disputes, albeit no power to determine them through arbitration.