Flexible working arrangements have become more of a focus for both employees and employers. This is in response to both a shift to working from home during the pandemic and employees placing more value on a work/life balance as a key marker of job satisfaction.
From 6th June 2023, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 will strengthen the right to request flexible working arrangements to assist eligible employees to negotiate workplace flexibilities that suit both them and their employer.
The current NES in the Act already provides employees with an entitlement to request a flexible working arrangement. However, it contains minimal guidance for employers on their obligations when responding to a request and limits the Commission’s ability to deal with disputes when an employer refused a request.
Under the coming changes, more employees will be able to make reasonable requests for flexible working arrangements. Employees, or employees who have a member of their immediate family experiencing domestic violence, will be entitled to make a request. This will also apply to an employee who is pregnant.
Before an employer can refuse a request for flexible working arrangements, they must first discuss the request with the employee and make a genuine effort to find alternative arrangements that accommodate the employee’s circumstances. Should the employer refuse, they must provide the employee with a written response within 21 days of the request.
As part of the amendment, employers are obligated to include in their written response:
- an explanation of the reasonable business grounds for refusing the request and how these grounds apply to the request
- other changes the employer is willing to make that would accommodate the employee’s circumstances or that says there aren’t any changes
- information about referring a dispute to the Fair Work Commission (the Commission).
The threshold of “reasonable business grounds” and examples of reasonable business grounds on which an employer can refuse a request have not changed.
For example, if the new working arrangements requested by the employee would be too costly for the employer or there is no capacity to change the working arrangements of other employees to accommodate the new working arrangements requested by the employee, these would be considered reasonable business grounds.
An employer may also have grounds if they can prove that it would be impractical to change the working arrangements of other employees, or recruit new employees, to accommodate the new working arrangements requested by the employee, or that the changes would have a negative impact on the business’s productivity, efficiency, or customer service.
The specific circumstances of the employer, including but not limited to the size and nature of the employer’s enterprise, are also relevant to whether an employer has reasonable business grounds to refuse a request.
If an employer their employee have discussed the request and agreed to make changes to the employee’s working arrangements that are different to the employee’s initially requested changes, the employer needs to confirm these agreed changes in writing within 21 days of the request.
The amendments also provide increased access to dispute resolution for employees through the Commission if they cannot resolve disputes about flexible working arrangements at the workplace level. Unless there are exceptional circumstances, the Commission will first attempt to resolve any dispute using non-binding methods, such as conciliation or mediation. If these methods don’t yield results, it can then move on to mandatory arbitration.
If you have any questions about any of these changes or would like to speak to one of our HR Team to discuss how these changes affect your business, request a call back or call (08) 9383 3293.