Flexible Working Arrangements – Changes Commencing 1 December 2018

If you employ staff under Modern Awards you should read this article as there are important changes coming into effect on 1 December 2018 as a result of the Fair Work Commission’s decision on the review of family-friendly work arrangements in Modern Awards. The decision finalises the model term to be included all in Modern Awards around flexible working arrangements. In essence, the changes set out the procedures that should be followed by employers when a request for flexible work arrangements is made by an employee.

Employers required to discuss requests

Firstly, the changes require an employer to “discuss the request with the employee and genuinely try to reach agreement on a change in working arrangements that will reasonably accommodate the employee’s circumstances” before making a decision. In these discussions, the following should be considered:

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

Employers required to document agreed changes

If different changes are agreed than those requested, the employer must provide a written response setting out the agreed changes.

Employers required to document refusal and offer alternatives where possible

If the employer refuses the request and has not reached an agreement with the employee the following must then happen:

1. the written response must include reasons for the refusal including the business ground or grounds and how the grounds apply;
2. the written response must set out whether or not there are any changes the employer can offer the employee; and
3. the written response must set out those changes in working arrangements that the employer can offer if any.

No changes to the definition of flexible working arrangements or entitlement to request flexible working arrangements

As noted above the changes essentially set out the procedures to follow when a request is made. Under the Act, the following employees who have worked with the same employer for at least 12 months can request flexible working arrangements if:

1. the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
2. the employee is a carer (within the meaning of the Carer Recognition Act 2010);
3. the employee has a disability;
4. the employee is 55 or older;
5. the employee is experiencing violence from a member of the employee’s family;
6. 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.

This is not new. There is no also no change to what is a flexible working arrangement. Flexible work arrangement requests can include:

1. change in hours
2. change in patterns of work
3. changes in location of work

Updating policies and procedures

As a result of this change, organisations should update their policies and procedures around requests for flexible working arrangements to comply with these new obligations.

If you require further assistance please contact us.